Marconeri v. Village of Mancelona

335 N.W.2d 21, 124 Mich. App. 286

• Court: Michigan Court of Appeals
• Decided: March 21, 1983
• Docket: Docket 58488
• Status: Published

Opinions

R. B. Burns, P.J.

Plaintiffs appeal from a judgment which declined to grant injunctive relief to plaintiffs because they had failed to demonstrate harm. Plaintiffs, owners of property adjacent to defendant bank, sought a temporary restraining order and a permanent injunction enjoining the bank from constructing a driveway for a drive-in window over a sidewalk running in front of their properties. The defendant village approved these plans, even though the proposed plans would require a curb cut of 34 feet. The width of this curb cut violates Chapter 4001-9 of the Mancelona Village Ordinance Code, which provides: "No single curb cut shall exceed twenty-five (25) feet nor be less than ten (10) feet.” The driveway was completed one year before the case went to trial.

Despite their pleadings and claims of unsafe pedestrian conditions due to the length of the curb cut, plaintiffs’ primary complaint seems to be with the increased street traffic due to the bank’s drive-in window. This window backs up traffic on the street running in front of their businesses, blocking both pedestrian and vehicle ingress and egress to plaintiffs’ business.

Injunctive relief is equitable in nature. In equity cases, this Court’s review of the record is de novo with due deference being given to the findings of the trial court. This Court will sustain those findings unless its ruling would have been contrary to that of the trial court. Cascade Twp v Cascade Resource Recovery, Inc, 118 Mich App 580; 325 NW2d 500 (1982). Further, an ineffectual injunction will not be granted. See Three Lakes Ass’n v Kessler, 91 Mich App 371; 285 NW2d 300 (1979).

In the present case, requiring the driveway to be 25 feet in width or less will only compound plaintiffs’ problems, not solve them. Should this Court require the bank to decrease the width of their drive, by enjoining the use of the wider drive, it would either decrease the number of windows available or the number of spots available to cars lining up to use these windows. Thus, the ultimate effect of the injunction and subsequent narrowing of the driveway would be to increase the blockage of the street, both in duration and occurrence. The other alternative, requiring the bank to route traffic onto the street, would clearly be hazardous to pedestrian traffic. This solution would create a blind spot because of the corner of the bank which would prevent drivers, as well as pedestrians, from anticipating the presence of danger.

Unquestionably, this Court could require the bank to go through the necessary procedure to obtain a curb-cut permit. Further, it could require that this cut be less than 25 feet in width. By doing this, however, this Court would not prevent that type of danger or harm which plaintiffs are alleging they have suffered. Under these circumstances, an injunction should not be issued. See, e.g., Dutch Cookie Machine Co v Vande Vrede, 289 Mich 272; 286 NW 612 (1939).

Accordingly, the trial court’s refusal to grant plaintiffs’ injunction is affirmed.

M. B. Breighner, J., concurred.