Levin, P. J.
The plaintiffs owned a 15-1/2 acre site upon which they desired to construct low-rise multiple dwellings. They submitted a site plan to the defendant City of Warren Planning and Urban Renewal Commission and, when that body failed to approve the plan, commenced this action. At the conclusion of a hearing the trial judge indicated that he would probably grant the plaintiffs relief, but suggested that the parties attempt to relocate some of the proposed buildings outside the path of a proposed widening of Mound Road, which abuts the easterly boundary of the site.
The parties entered into an agreement, which was embodied in a judgment, to relocate two of the proposed buildings outside the path of the proposed widening of Mound Road.
Due to a mistake by a planning consultant employed by the plaintiffs it appeared that there were 69 more feet in the existing right-of-way than there actually is; since the 69 feet does not exist, 69 addi[314]*314tional feet will have to be taken from the site if Mound Road is ultimately widened.
The plaintiffs would not have entered into the agreement unless all the buildings could be constructed, and the two buildings in question could not be constructed on the site outside of the proposed right-of-way and the required setback therefrom without the 69 feet because there is not enough land west of the setback line upon which to construct them.
We conclude that the agreement was based on a mutual mistake and set aside the agreement and judgment, and adjudicate the rights of the parties as if there had been no agreement or judgment.
L
Mound Road is now 204 feet wide. The state highway department has plans to widen it by 200 feet but when or whether those plans will be implemented is uncertain. If they are, the entire 200 feet will be taken on the west side, plaintiffs’ side, of the road as it crosses plaintiffs’ property. • Under the plan as originally submitted by the plaintiffs, buildings 1, 2, 3 and 6 would be located in the path of the proposed widened road.
Pursuant to the judge’s suggestion the parties met and it was decided that all four buildings could not be relocated west of the 40-foot city-ordinance-required setback from the widened road but that two buildings, 3 and 6, could be relocated west of a line 240 feet from the existing west boundary of Mound Road — 200 feet for the new right-of-way and 40 feet for the setback. It was thereupon agreed that buildings 1 and 2, the two buildings closest to Mound Road, would be built as shown on the site plan originally submitted but that buildings 3 and [315]*3156 would be relocated west of the 240-foot line. A revised site plan was drawn and a judgment was entered providing that the plaintiffs may construct the buildings in accordance with the revised site plan.
Construction was begun and then it was discovered that buildings 3 and 6 were in fact being built east of the 240-foot line.1 The site plan submitted by the plaintiffs was rechecked. It shows the center line of Mound Road and the east section line of Section 52 to be coincident. In fact, the center line of Mound Road is 69 feet west of the east section line.
The person in charge of construction for the plaintiffs, while aware that the two lines did not coincide, was not aware of the settlement. Paced with the ambiguity implicit in the fact that the site plan showed that the east property line was 171 feet west of both the center line of Mound Road and the east section line, he located the actual construction sites in relation to the east section line rather than the center line, i.e., he decided to construct the buildings 69 feet closer to the center of Mound Road than shown on the plan which, however, was no closer to the east section line than shown on the plan.3
The defendant sought an injunction restraining the plaintiffs from continuing with construction and requiring that they remove the partially-completed buildings. After a testimonial hearing the judge ruled that buildings 1 and 2 (which it was contemplated under the agreement reached by the parties [316]*316would have to be condemned if Mound Road is widened) could remain provided that buildings 3 and 6, which under the agreement were to be located west of the 240-foot line, were first removed.
The plaintiffs appeal claiming that the judge should have modified the judgment he originally entered because it was based on a mutual mistake, and because the defendant had no legal right to prevent the plaintiffs from locating structures within the area of the proposed expansion of Mound Road. The plaintiffs alternatively contend that the judge, in the proper exercise of his discretion, should have refused to require the removal of partially completed buildings 3 and 6.
We are satisfied that the judgment was based on a mutual mistake, and that plaintiffs should be relieved of the judgment and the question of the defendant’s right to prohibit the construction of buildings within the path of the proposed widening of Mound Road decided on its merits. On the merits we conclude that the city is not authorized to prevent the construction of these buildings even though their construction will add to the cost of condemning the land upon which they are constructed if the land is required for the widening of Mound Road.
Accordingly, there is no need to reach the question whether the judge should, as a matter of discretion, have refused to order the removal of partially constructed buildings 3 and 6.4 Nor do we see any [317]*317need to decide whether, as defendants contend and the judge found, the judgment originally entered was a consent judgment.
II.
Even if the judgment was a consent judgment and, therefore, is contractual as well as adjudicatory in nature,* *5 it, like all contracts6 and judgments,7 is subject to the power of the courts to modify and vacate in order to correct a mistake.
“A mistake may be such as to constitute sufficient cause for opening, modifying, or vacating a judgment, * * * The rule prevails in the case of a judgment * * * by consent, which has been held subject to modification so as to indicate the real intention of the parties. There is also authority for the proposition that a mistake of one of the parties is sufficient to afford relief against a consent judgment.” 46 Am Jur 2d, Judgments, § 717, pp 870, 871.8
It is also established that an agreement, impossible of performance because of facts existing at the time it was entered into of which the parties were ignorant, may be avoided if the agreement was based upon the supposed possibility of performance without regard to who furnished the erroneous information and even though the person pleading the rais[318]*318take had the means of discovering it or by care and diligence might have avoided it. “It is presumed that parties contract with reference to the existence of a state of things making performance possible.” 17 Am Jnr 2d, Contracts, § 144, p 491.9
If, as mistakenly shown on the site plan, the center line of Monnd Road and the east section line of Section 5 coincided, then the existing right-of-way would be 171 feet wide, i.e.,
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Levin, P. J.
The plaintiffs owned a 15-1/2 acre site upon which they desired to construct low-rise multiple dwellings. They submitted a site plan to the defendant City of Warren Planning and Urban Renewal Commission and, when that body failed to approve the plan, commenced this action. At the conclusion of a hearing the trial judge indicated that he would probably grant the plaintiffs relief, but suggested that the parties attempt to relocate some of the proposed buildings outside the path of a proposed widening of Mound Road, which abuts the easterly boundary of the site.
The parties entered into an agreement, which was embodied in a judgment, to relocate two of the proposed buildings outside the path of the proposed widening of Mound Road.
Due to a mistake by a planning consultant employed by the plaintiffs it appeared that there were 69 more feet in the existing right-of-way than there actually is; since the 69 feet does not exist, 69 addi[314]*314tional feet will have to be taken from the site if Mound Road is ultimately widened.
The plaintiffs would not have entered into the agreement unless all the buildings could be constructed, and the two buildings in question could not be constructed on the site outside of the proposed right-of-way and the required setback therefrom without the 69 feet because there is not enough land west of the setback line upon which to construct them.
We conclude that the agreement was based on a mutual mistake and set aside the agreement and judgment, and adjudicate the rights of the parties as if there had been no agreement or judgment.
L
Mound Road is now 204 feet wide. The state highway department has plans to widen it by 200 feet but when or whether those plans will be implemented is uncertain. If they are, the entire 200 feet will be taken on the west side, plaintiffs’ side, of the road as it crosses plaintiffs’ property. • Under the plan as originally submitted by the plaintiffs, buildings 1, 2, 3 and 6 would be located in the path of the proposed widened road.
Pursuant to the judge’s suggestion the parties met and it was decided that all four buildings could not be relocated west of the 40-foot city-ordinance-required setback from the widened road but that two buildings, 3 and 6, could be relocated west of a line 240 feet from the existing west boundary of Mound Road — 200 feet for the new right-of-way and 40 feet for the setback. It was thereupon agreed that buildings 1 and 2, the two buildings closest to Mound Road, would be built as shown on the site plan originally submitted but that buildings 3 and [315]*3156 would be relocated west of the 240-foot line. A revised site plan was drawn and a judgment was entered providing that the plaintiffs may construct the buildings in accordance with the revised site plan.
Construction was begun and then it was discovered that buildings 3 and 6 were in fact being built east of the 240-foot line.1 The site plan submitted by the plaintiffs was rechecked. It shows the center line of Mound Road and the east section line of Section 52 to be coincident. In fact, the center line of Mound Road is 69 feet west of the east section line.
The person in charge of construction for the plaintiffs, while aware that the two lines did not coincide, was not aware of the settlement. Paced with the ambiguity implicit in the fact that the site plan showed that the east property line was 171 feet west of both the center line of Mound Road and the east section line, he located the actual construction sites in relation to the east section line rather than the center line, i.e., he decided to construct the buildings 69 feet closer to the center of Mound Road than shown on the plan which, however, was no closer to the east section line than shown on the plan.3
The defendant sought an injunction restraining the plaintiffs from continuing with construction and requiring that they remove the partially-completed buildings. After a testimonial hearing the judge ruled that buildings 1 and 2 (which it was contemplated under the agreement reached by the parties [316]*316would have to be condemned if Mound Road is widened) could remain provided that buildings 3 and 6, which under the agreement were to be located west of the 240-foot line, were first removed.
The plaintiffs appeal claiming that the judge should have modified the judgment he originally entered because it was based on a mutual mistake, and because the defendant had no legal right to prevent the plaintiffs from locating structures within the area of the proposed expansion of Mound Road. The plaintiffs alternatively contend that the judge, in the proper exercise of his discretion, should have refused to require the removal of partially completed buildings 3 and 6.
We are satisfied that the judgment was based on a mutual mistake, and that plaintiffs should be relieved of the judgment and the question of the defendant’s right to prohibit the construction of buildings within the path of the proposed widening of Mound Road decided on its merits. On the merits we conclude that the city is not authorized to prevent the construction of these buildings even though their construction will add to the cost of condemning the land upon which they are constructed if the land is required for the widening of Mound Road.
Accordingly, there is no need to reach the question whether the judge should, as a matter of discretion, have refused to order the removal of partially constructed buildings 3 and 6.4 Nor do we see any [317]*317need to decide whether, as defendants contend and the judge found, the judgment originally entered was a consent judgment.
II.
Even if the judgment was a consent judgment and, therefore, is contractual as well as adjudicatory in nature,* *5 it, like all contracts6 and judgments,7 is subject to the power of the courts to modify and vacate in order to correct a mistake.
“A mistake may be such as to constitute sufficient cause for opening, modifying, or vacating a judgment, * * * The rule prevails in the case of a judgment * * * by consent, which has been held subject to modification so as to indicate the real intention of the parties. There is also authority for the proposition that a mistake of one of the parties is sufficient to afford relief against a consent judgment.” 46 Am Jur 2d, Judgments, § 717, pp 870, 871.8
It is also established that an agreement, impossible of performance because of facts existing at the time it was entered into of which the parties were ignorant, may be avoided if the agreement was based upon the supposed possibility of performance without regard to who furnished the erroneous information and even though the person pleading the rais[318]*318take had the means of discovering it or by care and diligence might have avoided it. “It is presumed that parties contract with reference to the existence of a state of things making performance possible.” 17 Am Jnr 2d, Contracts, § 144, p 491.9
If, as mistakenly shown on the site plan, the center line of Monnd Road and the east section line of Section 5 coincided, then the existing right-of-way would be 171 feet wide, i.e., 69 feet wider than the 102 feet presently devoted to the west lane of Mound Road. On that assumption, only 131 additional feet would be required to provide 200 feet for the widening of Mound Road. And if that were the fact, only 131 feet of plaintiffs’ property would have to be condemned and the 240-foot line (the line 240 feet west of the west line of the present Mound Road) would be only 171 feet10 west of the east property line of the project. The parties thought those were the facts. They were not the facts; in fact the 240-foot line was 240 feet — not 171 feet — west of the east property line.
[319]*319Thus the parties thought they had 69 feet more within the interior of the project to locate two of the buildings than they in fact had. The defendant contends that its expectation that buildings 3 and 6 would be built west of the 240-foot line should be protected. The plaintiffs contend, however, that they only agreed to build buildings 3 and 6 west of the 240-foot line because they thought that the 240-foot line was only 171 feet west of the east property line.
It is entirely true that the defendant was not aware of the mistake as to the location of the center line of Mound Road. It is also true that one of plaintiffs’ construction personnel was aware of that fact. It is also undisputed that a planning consultant employed by the plaintiffs made the mistake of assuming that the center line of Mound Road and the east section line of Section 5 coincided and caused the site plan to be drawn showing this to be the case.11
But, while one of the plaintiffs’ construction personnel knew that the center line of Mound Road was 69 feet west of the east section line, it is not claimed that the significance of this fact in relation to the agreement was known to anyone including the plain[320]*320tiffs or any of their employees until the mistake was discovered some time after construction was begun. It is not claimed that when the plaintiffs agreed to relocate buildings 3 and 6 they or anyone else knew that their expectations and the expectations of the defendant could not both be fulfilled.
Indisputably the defendants entered into the agreement for the relocation of buildings 3 and 6 with the purpose of having them located west of the 240-foot line. It is equally indisputable, however, that the plaintiffs would not have entered into the agreement unless buildings 3 and 6 could be built, and buildings 3 and 6 could not be built west of the true 240-foot line because without the 69 feet there is not enough land west of the 240-foot line upon which to construct them.12
The agreement was based upon the mutual mistake that buildings 3 and 6 could be relocated outside of the 200-foot path of the proposed widening of Mound Road and the 40-foot setback from the widened road.
III.
Where an agreement or judgment is entered based on a mistake, the appropriate remedy will depend on the facts and circumstances of the case.13 Here we think that the sound and appropriate disposition is to set aside the agreement and judgment and to [321]*321analyze the rights of the parties as if they had not been made and entered. Accordingly, we now address ourselves to the question whether the city had the right to require the plaintiffs to set back 40 feet from the proposed expanded Mound Road.
The city relies on § 4.36 of its zoning ordinance:
“4.36 Building Setbacks on Major Streets and Highways
“(a) No building or structure shall be erected or constructed within the area set down by the city’s master thoroughfare plan.
“(b) All setbacks, where required, shall be measured from the proposed right-of-way established by the city’s master thoroughfare plan.”
The parties seem to be in agreement that the defendant planning commission did in fact adopt a master thoroughfare plan showing that Mound Road was or would be 300 or 350 feet wide. The defendant contends that this was sufficient notice that Mound Road henceforth would be at least 150 feet wide on each side and that, accordingly, no building could be lawfully constructed east of a line 190 feet (150 feet for Mound Road and 40-foot set back from Mound Road) west of the center line of Mound Road. If this is true, then buildings 3 and 6, around which most of the controversy in this litigation has centered, could remain because they are located over 250 feet west of the center line of Mound Road. However, buildings 1 and 2, the easterly boundary of which is only 142 feet west of the center line of Mound Road would be improperly located.
The plaintiffs challenge ordinance § 4.36 on the ground that it unconstitutionally deprives the plaintiffs of all use of a portion of their property without payment of fair compensation and also on the ground that the state legislature has not authorized cities to require property owners to locate new structures [322]*322with, reference to contemplated future, but as yet not established, streets and highways.
We turn first to the question whether the state legislature has authorized cities to establish such a requirement. The parties have referred us to three acts, PA 1925, No 381; PA 1943, No 222; and PA 1931, No 285.
PA 1925, No 381 concerns inter-county super-and limited-access highways. Section 4 of that act provides for the establishment of an inter-county highway plan and for its recording after it has been approved by the governing bodies of each city and village affected. After the plan has been recorded no plat may be accepted which is not in conformity with the plan and “no structure shall be built on the land within the lines of any proposed highway except on a permit granted by the inter-county commission” which prepares the inter-county highway plan. It is not contended that Mound Road has been established in accordance with the provisions of Act 381.
PA 1943, No 222 authorizes planning commissions, after the adoption of a master plan, to certify plats of precise portions thereof to the legislative body and to regulate buildings within such lines. This act provides that after a city planning commission has adopted a master plan it may certify to the legislative body of the municipality “detailed and precised [sic] plats, each showing the exact location of the proposed future outside lines of 1 or more new, extended or widened streets, avenues, places or other public ways, or of 1 or more parks, playgrounds or other public grounds or extensions thereof shown on such adopted master plan”.14
The act further provides that the legislative body of the city may adopt such a precise plat certified to it by the planning commission after notice to the [323]*323owners of the land affected by the proposed precise plat,15 and that the legislative body of the city may provide by ordinance that “no permit shall be issued for, and no building or structure or part thereof shall be erected on any land located within the proposed future outside lines of any new, extended or widened street, avenue, place or other public way, or of any park, playground or other public grounds or extension thereof shown on any such certified and adopted plat.”16
During oral argument in our Court the defendant conceded that it could not show that the required notice to property owners had been given and, thus, it could not rely on Act 222 in this case.
We turn now to PA 1931, No 285,17 concerning the creation, powers and duties of planning commissions. This act authorizes any municipality to adopt a “municipal plan * * * and create by ordinance a planning commission with the powers and duties herein set forth.”18 The act provides that the commission shall make and adopt a master plan for the physical development of the municipality, including, among other things, “the general location, character and extent of streets, viaducts, subways, bridges, waterways, flood plains # * *; also the removal, relocation, widening, narrowing, vacating, abandonment, change of use or extension of any of the foregoing ways, grounds, open spaces * * * ”.19 It is further provided that the “plan shall be made with the general purpose of guiding and accomplishing a coordinated, adjusted, and harmonious development of the municipality and its environs which will, in accordance with present and future needs, [324]*324best promote health, safety, morals, order, convenience, prosperity, and general welfare, as well as efficiency and economy in the process of development; including, among other things, adequate provision for traffic”.20
Planning commissions are not, however, given general power in Act 285 to prevent construction or uses inconsistent with their plans as in Acts 381 and 222 previously discussed. The discrete prohibitions in Act 285 provided are not applicable on the facts of this case:
The multiple dwellings constructed and under construction by the plaintiffs are not public buildings and, therefore, the plaintiffs are not subject to the commission’s jurisdiction under § 9.
The authority provided in § 14 regarding the proper arrangement of streets in relation to other existing or planned streets is merely part of the regulations “governing the subdivision of land”. The plaintiffs, the owners of 15-1/2 acres of land, did not submit a subdivision plan; they made no attempt to record a plat. They did not bring themselves within the provisions of §§13 and 14 concerning the subdivision of land and the regulation of the arrangement of streets.
It is true that'under § 11 the commission has “such powers as may be necessary to enable it to fulfill its functions, promote municipal planning, or carry out the purposes of this act”. That provision cannot properly be read as a roving commission to do whatever the commission thinks is in the public interest in regard to the use of land without, it will be observed, any review even by the city’s legislative body as to the specific exercises of such broadly-worded authority.21
[325]*325Also relevant is tlie city and village zoning enabling act22 and the home rule act.23 The zoning enabling act provides that the legislative body of cities may “regulate and determine the area of the yards, courts, and other open spaces, and for such purposes divide any city or village into districts”.24 Section 4-i of the home rule act provides that the charter of a city may provide for the regulation by ordinance of, among other things, “required open spaces for light and ventilation of such buildings”.
In Ridgefield Land Co. v. City of Detroit (1928), 241 Mich 468, the Supreme Court of Michigan ruled, in a case decided after the adoption of zoning enabling legislation, that the City of Detroit could require a property owner to dedicate additional land for the widening of Livernois Avenue and the establishment of a ten-foot building line on Pembroke [326]*326Avenue as conditions precedent to the approval of a plat.25 The Court observed (pp 472, 473):
“here the city is not trying to compel a dedication. It cannot compel the plaintiff to subdivide its property or to dedicate any part of it for streets. It can, however, impose any reasonable condition which must be complied with before the subdivision is accepted for record. In theory, at least, the owner of a subdivision voluntarily dedicates sufficient land for streets in return for the advantage and privilege of having his plat recorded. Unless he does so, the law gives him no right to have it recorded. In Ross v. Goodfellow, 7 App DC 1, 10, 11, it is said:
“ ‘It must be remembered that each owner has the undoubted right to lay off his land in any manner that he pleases, or not to subdivide it at all. He cannot be made to dedicate streets and avenues to the public. If public necessity demands parts of his lands for highways, it can be taken only by condemnation and payment of its value. But he has no corresponding right to have his plat of subdivision so made admitted to the records.’ ” (Emphasis supplied.)
We are persuaded that the legislature did not intend when it adopted the zoning enabling act in 1921 and the pertinent provision in the home rule act in 1929 to confer upon cities the authority to require that land be set aside for roads and streets. Zoning regulation of the area of “yards, courts and other open spaces” is, as the home rule act expressly provides, largely intended to provide for adequate light and ventilation between structures. It also serves traffic safety, fire protection and aesthetic interests. Zoning is justified under the police power,26 but, except in extraordinary circumstances, not present in [327]*327this case, private property cannot he appropriated without compensation under the police power.27
The conceptual difference between requiring a yard setback for light and air (which the State need not pay for) and requiring that land be set aside for a public use (which, before it can be put to that use, the State must pay for) may not he readily explicable. It is, nevertheless, perfectly clear that there is a difference, a constitutional difference, between telling a property owner that he must provide space between his building and that of his neighbor and telling him to set aside land for possible future condemnation.
Just as the taking of property without payment cannot, except in extraordinary circumstances, be justified as an exercise of the police power, so too the State may not, in the name of the police power, require a property owner to refrain indefinitely and without payment from using and enjoying his property.28 The Michigan legislature did not, when it adopted zoning enabling legislation, ignore this constitutional limitation; it did not authorize local units of government to use the police power to require the reservation of property that a public authority might some day wish to condemn.
IY.
Our decision that there is no enabling legislation authorizing the defendant city to require that land be set aside for future roads and streets makes unnecessary decision on the constitutional issue posed by the plaintiffs of whether the legislature can authorize local units of government to block the use [328]*328of land when it is contemplated that at some future time the land may he condemned for public purposes. We are inclined to the view that the legislature may confer such authority under carefully drawn legislation, e.g., legislation providing that such a restriction of particular land cannot be adopted except upon due notice to affected property owners,29 compensation for the deprivation of use, assurances that the question whether the land will in fact be condemned and its actual condemnation are resolved within a reasonable period of time after the imposition of the restriction.30
The restriction relied on by the defendant city, ordinance § 4.36, contains none of the safeguards which we' think might be necessary to sustain its constitutionality. The city’s master thoroughfare plan and the accompanying restriction on plaintiffs’ use of their property can be adopted without any notice to the plaintiffs or any predecessor-owner. There is no time limit for the resolution of the question whether the land will in fact be condemned; plaintiffs’ property is indefinitely tied up, perhaps [329]*329perpetually, without any provision for compensation.
The defendant’s ordinance in effect requires the dedication by the plaintiffs of a substantial portion of their property to public purposes without any provision for compensation; when and if a condemning authority ever gets around to condemning the land and paying compensation it could very well be on a basis considerably depreciated from what the land is presently worth — it might even then be contended without embarrassment that the plaintiffs’ inability, because of the restriction, to use the land for any constructive purpose should affect the amount payable by the condemning authority.
Reversed; the injunction is dissolved. Costs to plaintiffs.
Bronson, J., concurred.