Mr Don's, Inc. v. Battle Creek , 39 Mich. App. 325 ( 1972 )

39 Mich. App. 325 (1972) 197 N.W.2d 516

MR. DON'S, INC.
v.
BATTLE CREEK

Docket No. 11041.

Michigan Court of Appeals.

Decided March 22, 1972.

John M. Jereck, for plaintiff.

Ralph W. Harbert, Jr., for defendant City of Battle Creek.

Allen, Worth, Hatch & Calderone, for intervening defendant Goodwin.

Before: T.M. BURNS, P.J., and FITZGERALD and DANHOF, JJ.

FITZGERALD, J.

Plaintiff corporation owns a tract of land in the City of Battle Creek that is presently zoned for multiple dwellings. On three separate occasions, officers of the corporation have sought, without success, to have the parcel rezoned for use as a fast food service restaurant.^[1] On March 24, 1969, they submitted an application for a building permit with the city, filing plans for such a restaurant. The building permit was denied on the ground that such a use was not permitted in an area zoned multiple dwelling.

The plaintiff then started the present action in April 1969, seeking a writ of mandamus compelling the issuance of a building permit. By leave granted November 25, 1969, the trial court allowed the owner of a neighboring apartment complex to intervene. A hearing was held in the Circuit Court for the County of Calhoun, and on August 7, 1970, the trial judge filed a finding of facts and denied issuance of the plaintiff's writ. An additional finding to guide this Court was filed December 22, 1970.

The plaintiff appeals, arguing that the ordinance is unreasonable as applied to the property, and that it has no substantial relationship to the public health, safety, and general welfare.

When reviewing a zoning case, five general rules recur in previous decisions, presenting guidelines:

(1) Each case is decided upon its own facts;

(2) A zoning ordinance has a presumption of validity;

(3) The trial judge's opinion will be given great weight;

(4) The challenging party has the burden of proving that the ordinance is arbitrary and unreasonably related to public health, safety and general welfare; and

(5) Review is de novo, but the decision of the trial judge will stand unless clearly erroneous.

Hitchman v Township of Oakland, 329 Mich. 331 (1951); Anchor Steel & Conveyor Co v City of Dearborn, 342 Mich. 361 (1955); Brae Burn Inc v Bloomfield Hills, 350 Mich. 425 (1957); Spanich v City of Livonia, 355 Mich. 252 (1959); Roll v City of Troy, 370 Mich. 94 (1963); Bowman v City of Southfield, 377 Mich. 237 (1966); Pederson v Township of Harrison, 21 Mich. App. 535 (1970); Dusdal v City of Warren, 23 Mich. App. 583 (1970); Shell Oil Co v City of Livonia, 30 Mich. App. 454 (1971).

The evidence produced at the hearing showed that the proposed restaurant hours would extend into the late evening hours and that there would be a substantial increase in traffic. It was also shown that a good deal of artificial lighting would be required, and that there would be an increase in litter, noise, and odors from the operation of such a restaurant. These conditions would be a detriment to the existing apartment complex and the surrounding residential areas.

In light of the five recurring guidelines and the evidence produced at the hearing, we conclude that the circuit court judge was correct in denying the plaintiff's writ. Also, plaintiff's complaint that such zoning amounts to confiscation cannot be sustained as it is clear from the record that the only loss to the plaintiff will be a loss of profit that would be realized if the zoning was changed to commercial. The officers of plaintiff corporation testified that they knew of the zoning before the property was purchased, and there is no evidence to indicate a loss of value since the time of purchase. Under these facts, we cannot conclude that there has been a confiscation. Brae Burn Inc v Bloomfield Hills, 350 Mich. 425 (1957); Lamb v City of Monroe, 358 Mich. 136 (1959); Paka Corp v City of Jackson, 364 Mich. 122 (1961).

Affirmed. No costs, a public question.

All concurred.

NOTES

[1] In 1965 and 1966 they tried to have the property zoned from multiple dwelling to neighborhood shopping and in 1969 to office and shop.