Knibbe v. City of Warren , 363 Mich. 283 ( 1961 )

Per Curiam.

This case in legal principle cannot be distinguished from Dequindre Development Co. v. Charter Township of Warren, 359 Mich 634. Also, it is closely related to Dequindre in a factual way. Immediately south of the tract considered in Dequindre is plaintiff’s trailer coach park (see page 636 of Dequindre report). Adjacently south and west of such trailer coach park the remainder of plaintiff’s premises are located. It is with respect to use of such remainder that the present controversy has arisen.

Plaintiff, desiring to extend his trailer coach park to such remainder, applied to the defendant (formerly township and now city of Warren) for certain permits authorizing water, sewer, and electrical services therefor. The application was denied on assigned strength of the same ordinances as were considered in Dequindre. Plaintiff then applied in the Macomb circuit for a writ of mandamus to compel issuance of such permits. The writ, following due hearing, was issued. Defendant appeals.

For reasons given in the majority opinions of Dequindre, and for corresponding reasons recorded in the opinion of the trial judge, we find that the defendant has arbitrarily and capriciously refused to issue the permits sought by plaintiff and that issuance thereof will in no manner impede statutory and local regulation, for purposes of health, safety, morals, and public welfare, of plaintiff’s present and prospectively extended trailer coach park. The trial judge concluded, and we agree:

“It is apparent that the defendant city desires to and has made every effort at dissuading or flatly prohibiting mobile home courts or trailer parks. By its Ordinance No 60, adopted in 1952, in effect, trailer parks were prohibited. By its Ordinance No 76, adopted by the now city rather than township government, the defendant has in effect, again prohibited trailer parks by, on the one hand, making them lawful and on the other by failing to give substance to their intent by not zoning any property within the city limits to an R-4 district. Certainly, it must be further assumed that the defendant is fully cognizant of the general property conditions in the area involved and its unsuitability to the purposes of the district zoning now in effect.

“The only logical conclusion to be drawn from these sundry facts is that the refusal of the defendant to rezone any parcel to R-4, regardless of location and suitability, and in particular as to this plaintiff’s property, is arbitrary and capricious, and that Ordinance No 76 is, in its application to plaintiff’s property, unreasonable, and confiscatory.

“While it is well established that courts resist the temptation to legislate, and to substitute themselves and its judgment for the duly elected representatives of the general public, yet the right of each individual, if infringed upon, must with equal zealousness be protected. In the case under consideration, the existing ordinance as it affects plaintiff’s property is not a reasonable exercise of the police power, and is not predicated upon a substantial tendency to promote the public health, safety, morals, or welfare of the people.”

Affirmed. No costs.

Dethmers, C. J., and Carr, Kelly, Black, and Kavanagh, JJ., concurred.