Bowman v. City of Southfield

140 N.W.2d 504, 377 Mich. 237, 1966 Mich. LEXIS 102

Opinions

Smith, J.,

(for reversal). Plaintiff sought and obtained judgment against defendant city and its officials declaring a zoning ordinance void and unenforceable, insofar as applied to plaintiff’s property. Defendants appeal.

In 1959, the city adopted an ordinance which zoned plaintiff’s property residential. Although the property is located in a residential area, plaintiff has used the property for commercial purposes since 194:1.

Footnotes

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* Because of commercial use prior to enactment of the zoning ordinance, plaintiff acquired a nonconforming use which, of course, permits plaintiff to continue using the property as before, but places certain limits upon what may be done by way of altering or rebuilding structures on the nonconforming premises. When plaintiff was refused a building permit to make certain alterations, this suit was filed.

The property in question is located at the southeast corner of Inkster road and Nine Mile road in the city of Southfield. Plaintiff owns a parcel of land consisting of approximately 10.4 acres. In her bill of complaint filed July 30, 1962, plaintiff sought relief as to the entire parcel. However, at the beginning of trial, plaintiff’s counsel stated, in his opening statement, that plaintiff would not offer proofs as to the entire 10.4-acre parcel, but rather would limit proofs to a 2.4-acre portion denominated parcel A. At the conclusion of proofs, plaintiff made a motion to amend the complaint to include only parcel A. Over defendants’ objections, the motion was granted.

The property is located in what was conceded and found to be a residential area. Northeast of the intersection of Inkster road and Nine Mile road is a single-family residential area. Southeast of the intersection, that is, south of plaintiff’s property is another single-family residential area. Both northwest and southwest of the intersection lie residential subdivisions. The only other commercial use in the vicinity is a real estate office on the northeast corner which was built as a model home and therefore has the appearance of a residence.

The case was fully tried; testimony was presented as to values for both residential and commercial uses, character of the area and effect of commercial zoning upon surrounding property, suitability of the property for residential purposes and availability of financing therefor; also, testimony was adduced as to traffic in and about the intersection as bearing upon the reasonableness of residential zoning.

As to the value of parcel A, the 2.4-acre parcel to which plaintiff confined her proofs, the experts who testified on both sides ranged from $31,200 to $67,000 for commercial use, and from zero to $15,000 for residential use. The average valuation of parcel A for commercial use was $53,540 and for residential use $7,770. As to the character of the area and the effect of commercial zoning upon the surrounding-property, it was conceded that the area is residential in character and there was substantial testimony that commercial zoning would have an adverse effect upon surrounding residential properties. As to the suitability of the property for residential purposes, the overwhelming weight of the testimony on both sides was that parcel A was suitable and usable for residential purposes. There was no question but that financing was available for the development of the parcel for residential use. As to traffic at the intersection, the trial court found that Nine Mile road and Inkster road are both heavily traveled, although we are unable to find from the record any testimony upon which the court could base such a finding unless it was based upon the personal observation of the trial judge who visited the site.

Additionally, plaintiff introduced testimony designed to show that the best use for her property would be commercial, more particularly “a neighborhood commercial shopping outlet.” There was testimony of the number of families living in the immediate neighborhood and the approximate amounts spent by each for food. Further, it was said that there is an adequate population within the area to justify the establishment of a food supermarket, at the very least. It was shown that the nearest shopping area was a mile away, a five-minute drivé by car. Other shopping centers serving the neighborhood were said to be from 2 to 5 miles distant. Plaintiff also showed that most of the properties at main road intersections in the city of Southfield are zoned commercial, claiming that the denial of commercial zoning to her property is therefore arbitrary and capricious.

The trial court found that plaintiff’s property is located “within a general residential area” and that the specific parcel in question, parcel A, “could be1 used for residential purposes but only at greatly diminished value.” The trial court, after stating that the sole issue was one of constitutional reasonableness, concluded as follows:

“1. Plaintiff’s property is particularly well suited for a desirable shopping center for the area in question.

“2. There is a definite need for a shopping- center in this area.

“3. The present use of plaintiff’s property and its future use as a shopping center are not detrimental in any respect to any of the surrounding property.

“4. The highest and best use for this property is for such shopping center.

“5. Though the property might conceivably be used for residential purposes, it would be only at a greatly deflated and unjustifiable reduced value.

“6. Prom the standpoint of municipal planning, the only justification for placing this property in a residential zone would be solely for esthetic reasons.”

Here, upon review de novo, defendants, the city and its officials, contend that the trial court erred in such findings and conclusions. They say that on the basis of the surrounding neighborhood being-residential, the property itself suitable for residential development with financing available, this, coupled with other relevant factors, makes the zoning ordinance reasonable. They also ' argue that “The trial court in determining this case upon its conclusions as to suitability, desirability and need for a shopping center in the area, was actually sitting as a super-zoning commission. It was performing the legislative function. * * * It was substituting- its judgment for that of the legislative body in making this decision.” (Emphasis supplied.)

Plaintiff’s position is that the zoning ordinance is arbitrary, unreasonable, and confiscatory because: (1) it is the result of legislative caprice; (2) it fails to serve a useful purpose for the general welfare of the community; (3) the ordinance substantially destroys the value of the property; and (4) “a zoning ordinance must provide for the highest and best use of property, and should provide for the reasonable business needs of the community.”

We are in substantial agreement with the position of defendants and therefore must reverse. In the first place, the trial court’s conclusions, quoted above, clearly indicate that it was substantially discharging a legislative function in determining the “desirability” and “need” for a shopping center. In the second place, the facts clearly preponderate in the direction of reasonableness of the ordinance.

Certain basic principles are summed up in Anderson v. City of Holland, 344 Mich 706, where it was said that:

“The legal principle is firmly established that zoning ordinances, when reasonable in their provisions, are a valid exercise of the police power. Village of Euclid v. Ambler Realty Company, 272 US 365 (47 S Ct 114, 71 L ed 303, 54 ALR 1016); Austin v. Older, 283 Mich 667. The reasonableness of such an ordinance is recognized as the test of its legality. Hitchman v. Township of Oakland, 329 Mich 331. In the application of the test indicated it necessarily follows that each case of this character must be determined on the basis of its own facts and circumstances. Senefsky v. City of Huntington Woods, 307 Mich 728 (149 ALR 1433). It must also be borne in mind that the presumption of validity attends zoning regulations, and that the burden of proof is on one challenging such an ordinance to establish his claim. Portage Township v. Full Salvation Union, 318 Mich 693; Northwood Properties Company v. Royal Oak City Inspector, 325 Mich 419.”

The- line must continually be drawn between what is the proper province of the local legislative body and a reviewing court. It was said in Brae Burn, Inc., v. City of Bloomfield Hills, 350 Mich 425, at page 431 :

“Our laws have wisely committed to the people of a community themselves the determination of their municipal destiny, the degree to which the industrial may have precedence over the residential, and the areas carved out of each to be devoted to commercial pursuits. With the wisdom or lack of wisdom of the determination we are not concerned. The people of the community, through their appropriate legislative body, and not the courts, g’overn its growth and its life. Let us state the proposition as clearly as may be: It is not our function to approve the ordinance before ns as to wisdom or desirability.” (Emphasis supplied.)

Unless it is shown that the local legislative body acted arbitrarily or unreasonably, its determination is final and conclusive. Tel-Craft Civic Association v. City of Detroit, 337 Mich 326.

The Brae Burn Case is particularly helpful in resolving the instant case because it presented several issues strikingly similar to ones presented here. In Brae Burn, a variance had been granted for the operation of a rest home located in an area zoned residential. Upon refusal of a permit to enlarge facilities, suit was instituted. In addition, part of the premises had been conveyed away to other parties who sought to erect a commercial building on a site adjacent to the rest home. There was a substantial disparity of value between property if used for residential purposes or for commercial purposes. Also similar in circumstance to the instant case was the fact that although the property was located in a residential area, there were several commercial uses nearby. Similarly, too, was the fact that in Brae Burn the property was located on a busy thoroughfare, teeming with vehicular traffic.

As indicated, we are not in accord with the holding of the trial court nor in the reasoning of plaintiff offered in support thereof, especially where it dwells upon the need and desirability of a shopping center for the area in question. In Brae Burn we held that the wisdom and desirability of a zoning ordinance are matters particularly within the province of the local legislative body. Unless it can be shown that the local legislative body acted arbitrarily or unreasonably, neither this Court nor any other court may modify or alter the ordinance.

The question remains then whether or not it was shown upon the record before us that the legislative body acted unreasonably or arbitrarily. In this case, there is no question but that the property is located in a residential area. There was substantial testimony tending to show that to permit commercial zoning at the site in question would have harmful effects upon the surrounding residential properties. Assuming that both Nine Mile road and Inkster road are heavily traveled, this, too, is only one of several factors to be considered. As said in Brae Burn, p 432, “We have no Woodward avenue rule,’ no ‘traffic’ rule as such, no ‘diminution in value’ rule. All these are merely factors to be considered, pieces of'the mosaic.”

We may say also that the testimony as to the difference in value between residential and commercial use does not prove confiscation. Again, the point is well delineated in the Brae Burn Case, supra:

“Disparity in values between residential and commercial uses will always exist. In the leading case of Village of Euclid v. Ambler Realty Co., 272 US (47 S Ct 114, 71 L ed 303, 54 ALR 1016), Mr. Justice Sutherland, in upholding the ordinance, noted that the property involved was worth about $10,000 per acre for industrial use, as compared with $2,500 per acre for residential use. If such a showing serves to invalidate an ordinance, the efforts of our people to determine their living conditions will be hopeless. To avoid ‘confiscation’ in this sense (the obtaining of the highest dollar for one particular lot) will result in confiscation of far greater scope in property values in the municipality as a whole due to its inability to control its growth and development. It must be stressed that we are not, on this record (as we pointed out in Anderson v. City of Holland, 344 Mich 706, 710) ‘dealing with a situation in which the property involved is unsuitable for residential purposes and has little or no value if so restricted.’ ”

We do not have the situation here of substantial disparity in value coupled with unsuitability of the property for residential purposes. True, there is substantial disparity in value between the two contending uses, but by the nearly unanimous opinion of witnesses on both sides the property in question may be used for residential purposes. This is unlike the situation in Fenner v. City of Muskegon, 331 Mich 732; City of North Muskegon v. Miller, 249 Mich 52; or in Paka Corporation v. City of Jackson, 364 Mich 122, and other similar cases in which it has been held that devaluation was only one factor in the consideration of whether an ordinance is unreasonable, but that where an ordinance restricts property to a use for which it is not adapted and thereby destroys the greater part of its value a question of reasonableness is presented.

Finally, plaintiff claims that because of substantial majority of properties at major intersections in the city of Southfield are zoned commercial that this shows that the local legislative body was arbi trary and capricious in zoning plaintiff’s property for residential use. This in and of itself proves nothing. We might observe, however, that if it were shown that each intersection where commercial zoning exists is substantially similar to the one in question, that is, similar neighborhood with similar uses and similar zoning, then there could be an issue or arbitrariness.

For the reasons above discussed, we are constrained to reverse the judgment of the trial court and direct the entry of judgment in favor of defendants. Costs to defendants.

Dethmers, Souris, and Adams, JJ., concurred with Smith, J.

This includes a catering service known as the Bowman Farm Cupboard, and a delicatessen and specialty food store. Other uses include a pienie ground, a site for a wedding ceremonial service, and a guest house or apartment.