Lacey v. City of Warren , 7 Mich. App. 105 ( 1967 )

7 Mich. App. 105 (1967) 151 N.W.2d 245

LACEY
v.
CITY OF WARREN.

Docket No. 1,878.

Michigan Court of Appeals.

Decided June 13, 1967. Leave to appeal denied August 29, 1967.

Sanborn & Liedel (Kenneth N. Sanborn, of counsel), for plaintiffs.

Emil E. Cardamone, City Attorney, and Robert F. Cella, Assistant City Attorney, for defendant.

Leave to appeal denied August 29, 1967. See 379 Mich. 776.

FITZGERALD, J.

Plaintiffs brought this action seeking to have Warren's 1960 Zoning Ordinance No 30, classifying their vacant lots^[*] R-1-C (one family residential district) decreed unconstitutional as applied. They also sought to enjoin the appellant from interfering with their use of the land for a mobile home district. The trial court granted such a decree and appeal was claimed.

Defendant contends that the trial court's findings of fact were not sufficient to support the judgment. GCR 1963, 517.1, states:

"In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment. It will be sufficient if the court makes brief, definite, and pertinent findings and conclusions upon the contested matters without over elaboration of detail or particularization of facts."

The city cites Kelley v. Everglades Drainage District (1943), 319 U.S. 415, 422 (63 S. Ct. 1141, 1145, 87 L ed 1485, 1489), for interpretation of the court rule, supra, which requires, "findings, stated either in the court's opinion or separately, which are sufficient to indicate the factual basis for the ultimate conclusion." The findings of fact of the trial court, which consumed 10 pages, are sufficiently comprehensive to satisfy this requirement and are supported by the record.

Appellant also contends the findings of the trial judge were not within the evidence proffered at trial. However, after a close perusal of the record presented, this Court is convinced there were facts presented that supported the conclusion of the trial court.

Appellant further contends the plaintiffs did not present evidence to overcome the presumption of validity of a city ordinance. The trial court recognized the presumption, but held that plaintiffs rebutted it. Again there is evidence presented in the record to support this conclusion.

Appellant's strongest objection relates to the scope of the injunction issued. The relevant portion of the injunction is as follows:

"It is further ordered that the plaintiffs or their grantees, successors and assigns, may, under the valid provisions of said zoning ordinance no 30, and its amendments, in effect at the time of entry of this judgment not in conflict with State statutes, make use of the land as hereinbefore described for mobile home and trailer park purposes as may meet the requirements of the valid provisions of said zoning ordinance no 30, and its amendments, not in conflict with State statutes, in effect as aforesaid.

"It is further ordered that the defendant city of Warren, its officials, employees, representatives, agents and attorneys be and they are hereby enjoined and restrained from enforcing said zoning ordinance no 30, and its amendments, or the provisions or penalties thereof against the plaintiffs or their grantees, successors and assigns and are enjoined and restrained from interfering with the plaintiffs or their grantees, successors and assigns making use of the land as hereinbefore described for mobile home and trailer park purposes as may meet the requirements of the valid provisions of said zoning ordinance no 30, and its amendments, not in conflict with State statutes, in effect as aforesaid, subject only to plaintiffs or their grantees, successors and assigns complying with valid ordinances, rules and regulations generally applicable to the plaintiffs' aforesaid land in effect at the time of entry of this hearing on judgment, and judgment."

Appellant argues the court does not have the authority to enjoin the zoning board's future acts and cites Randall v. Meridian Township Board (1955), 342 Mich. 605. This case, however, dealt with an original suit to enjoin adoption of an amendment to a zoning ordinance.

The other side of the coin, and one which we feel supports the trial court's action, is stated in Dequindre Development Co. v. Charter Township of Warren (1960), 359 Mich. 634, in which an injunction much like the instant one was upheld in a split decision of the Supreme Court. While the net effect of the case was only to affirm the decision of the lower court, the close factual relationship and the reasoning therein appeal to us.

Referring to Dequindre, the trial court said:

"In Dequindre, the Court was again concerned with the efforts of Warren area to prohibit trailer parks, which are specifically authorized and governed by the statutes of this State, by the simple method of declining to zone areas for that purpose, when obviously areas are suitable for no other purpose. Beginning at page 637, Justice BLACK quotes from the opinion of Judge Robinson at length, and there is no point in the repeating that extensive quote here. Suffice to say, that under the factual testimony in this case, and bearing in mind the duty of the plaintiff to proceed by a preponderance of the evidence, the situation as it existed in the Dequindre Case, is almost identical with the situation which this court has found exists in the case now up for consideration. Moreover, upon a visual examination of the premises under consideration in the present case, and those concerned in the Dequindre Case, which properties are only a few blocks apart, the court finds that the land now under consideration exists in a much more rundown area than the area which Justice BLACK condemned in Dequindre Development Company v. Warren (1960), 359 Mich. 634."

Application of the Dequindre case appears to have been particularly relevant here on the basis of the record before us and the resulting injunction is not so sweeping as to be an abuse of judicial power.

Judgment affirmed. Costs to appellees.

HOLBROOK, P.J., and J.H. GILLIS, J., concurred.

NOTES

[*] Lot # 60 and 61 except Eastern 125 feet of Supervisor's Plat # 7, City of Warren, Macomb County, Michigan.