Drummer Development Corp. v. Township of Avon

Michigan Court of Appeals

Drummer Development Corp. v. Township of Avon

214 N.W.2d 60, 51 Mich. App. 21, 1973 Mich. App. LEXIS 683

CourtMichigan Court of Appeals

DecidedDecember 28, 1973

DocketDocket 15444

StatusPublished

Cited by24 cases

This text of 214 N.W.2d 60 (Drummer Development Corp. v. Township of Avon) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Drummer Development Corp. v. Township of Avon, 214 N.W.2d 60, 51 Mich. App. 21, 1973 Mich. App. LEXIS 683 (Mich. Ct. App. 1973).

Pincite

Opinions

Garland, J.

This is a zoning case. The plaintiffs brought this action seeking a determination that the zoning ordinance of the Township of Avon is unconstitutional as applied to their property. The property is presently zoned single-family residential and plaintiffs seek to have it zoned commercial. The trial court denied relief and we affirm.

Plaintiffs own lots 52 and 53 of Hitchman’s Haven Estates subdivision in Avon township. Lot 52 is unimproved and lot 53 is occupied by a single-family residence renting for $180 per month. Both lots are on the north side of Walton Boulevard, a busy thoroughfare. Lot 52 borders on its west Texas Avenue which is an ingress street to the subdivision.

Although in recent years an area directly across [23]*23Walton has been rezoned and a bank constructed thereon, there are no other deviations from residential use on either side of Walton in either direction for one-half mile except a doctor’s office, which is a little less than a quarter of a mile to the west of the property here involved. Old Perch Road, running north and south, lies to the east of the bank and a traffic light has been installed at its intersection with Walton.

At the time of trial plaintiffs’ property was valued at between $29,000 and $39,000, but plaintiffs claim that the value of the two lots, if both were vacant and restricted to single residential use, is $10,000, and that if rezoning is granted these same lots vacant would have a value of $100,000. Plaintiffs purchased the property for $60,000 in the hope and anticipation that rezoning would be permitted and the construction of an office building would then follow. It is therefore urged that because of this the zoning is confiscatory and that it is unreasonable and that the property is not being put to its best use. Here, where the property is being used for residential purposes and is of substantial value when put to that use, such an argument has no relevance.

"It is not relevant where, as here, the issue is whether present zoning deprives the property of any reasonable use. * * * In deciding that disputed factual question, evidence that the land would be worth more if it were zoned differently or not zoned at all is not pertinent because, even if true, it does not negate the feasibility of the use or uses permitted by the challenged zoning restriction.” Reibel v City of Birmingham, 23 Mich App 732, 738, 739-740; 179 NW2d 243, 246, 247 (1970).

Precisely the same argument was made in Brae Burn, Inc v Bloomfield Hills, 350 Mich 425; 86 [24]*24NW2d 166 (1957), to which the Court replied on pages 433-434; 86 NW2d, page 170:

"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 365 (47 S Ct 114, 71 L Ed 303, 54 ALR 1016) [1926], 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.”

The fact that the plaintiffs failed to purchase property properly zoned for the use intended and were thereafter unsuccessful in their efforts toward rezoning, is not, standing alone, a sufficient basis upon which to declare the ordinance unconstitutional. The plaintiffs took a chance and must now bear the consequences of their unsuccessful gamble.

Again as was stated in Reibel, supra, on page 740; 179 NW2d, page 247,

"It is perfectly understandable that the judge concluded that a lot upon which a residence can be constructed and which for such use is worth $4,500, is a lot that can feasibly be used as it is zoned and therefore, that the present zoning is not confiscatory or unconstitutional.”

In the case at bar the trial judge reached the same conclusion based upon a finding that the property is presently being used as a single family [25]*25residence and has substantial value when so used. This being so, we affirm.

McGregor, P. J., concurred.

Free access — add to your briefcase to read the full text and ask questions with AI

Garland, J.

This is a zoning case. The plaintiffs brought this action seeking a determination that the zoning ordinance of the Township of Avon is unconstitutional as applied to their property. The property is presently zoned single-family residential and plaintiffs seek to have it zoned commercial. The trial court denied relief and we affirm.

Plaintiffs own lots 52 and 53 of Hitchman’s Haven Estates subdivision in Avon township. Lot 52 is unimproved and lot 53 is occupied by a single-family residence renting for $180 per month. Both lots are on the north side of Walton Boulevard, a busy thoroughfare. Lot 52 borders on its west Texas Avenue which is an ingress street to the subdivision.

Although in recent years an area directly across [23]*23Walton has been rezoned and a bank constructed thereon, there are no other deviations from residential use on either side of Walton in either direction for one-half mile except a doctor’s office, which is a little less than a quarter of a mile to the west of the property here involved. Old Perch Road, running north and south, lies to the east of the bank and a traffic light has been installed at its intersection with Walton.

At the time of trial plaintiffs’ property was valued at between $29,000 and $39,000, but plaintiffs claim that the value of the two lots, if both were vacant and restricted to single residential use, is $10,000, and that if rezoning is granted these same lots vacant would have a value of $100,000. Plaintiffs purchased the property for $60,000 in the hope and anticipation that rezoning would be permitted and the construction of an office building would then follow. It is therefore urged that because of this the zoning is confiscatory and that it is unreasonable and that the property is not being put to its best use. Here, where the property is being used for residential purposes and is of substantial value when put to that use, such an argument has no relevance.

"It is not relevant where, as here, the issue is whether present zoning deprives the property of any reasonable use. * * * In deciding that disputed factual question, evidence that the land would be worth more if it were zoned differently or not zoned at all is not pertinent because, even if true, it does not negate the feasibility of the use or uses permitted by the challenged zoning restriction.” Reibel v City of Birmingham, 23 Mich App 732, 738, 739-740; 179 NW2d 243, 246, 247 (1970).

Precisely the same argument was made in Brae Burn, Inc v Bloomfield Hills, 350 Mich 425; 86 [24]*24NW2d 166 (1957), to which the Court replied on pages 433-434; 86 NW2d, page 170:

"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 365 (47 S Ct 114, 71 L Ed 303, 54 ALR 1016) [1926], 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.”

The fact that the plaintiffs failed to purchase property properly zoned for the use intended and were thereafter unsuccessful in their efforts toward rezoning, is not, standing alone, a sufficient basis upon which to declare the ordinance unconstitutional. The plaintiffs took a chance and must now bear the consequences of their unsuccessful gamble.

Again as was stated in Reibel, supra, on page 740; 179 NW2d, page 247,

"It is perfectly understandable that the judge concluded that a lot upon which a residence can be constructed and which for such use is worth $4,500, is a lot that can feasibly be used as it is zoned and therefore, that the present zoning is not confiscatory or unconstitutional.”

In the case at bar the trial judge reached the same conclusion based upon a finding that the property is presently being used as a single family [25]*25residence and has substantial value when so used. This being so, we affirm.

McGregor, P. J., concurred.

Cite This Page — Counsel Stack

Bluebook (online)

214 N.W.2d 60, 51 Mich. App. 21, 1973 Mich. App. LEXIS 683, Counsel Stack Legal Research, https://law.counselstack.com/opinion/drummer-development-corp-v-township-of-avon-michctapp-1973.

Opinions

Related

Cite This Page — Counsel Stack