McHugh v. City of Dearborn

83 N.W.2d 222, 348 Mich. 311
CourtMichigan Supreme Court
DecidedMay 17, 1957
DocketDocket 52, Calendar 47,061
StatusPublished
Cited by1 cases

This text of 83 N.W.2d 222 (McHugh v. City of Dearborn) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McHugh v. City of Dearborn, 83 N.W.2d 222, 348 Mich. 311 (Mich. 1957).

Opinions

Sharpe, J.

This is a zoning ordinance case in which it is asserted that the ordinance as to plaintiffs’ property in the city of Dearborn is unreasonable, discriminating and unconstitutional. The essential facts necessary to a decision are as follows.

Plaintiffs are residents of the city of Detroit and are the owners of an unplatted parcel of land situated in the city of Dearborn. The land consists of 12 and a fraction acres. It is located on the northwest corner of Michigan avenue and Outer Drive. It is irregular in shape. It has a frontage of approximately 92.47 feet on Michigan avenue and approximately 744.09 feet on Outer Drive. Prom Outer Drive it extends westerly approximately 1,100 feet. The property in question is, in part, low and unlevel. A branch of the Rouge river .flows through the northerly part of the land. On the northeast corner of Michigan avenue and Outer Drive is a parcel of land consisting of 33 acres which is occupied by St. Joseph’s Retreat, an institution licensed for the care and treatment of mental patients. This property has a frontage on Michigan avenue of approximately 1,465 feet and approximately 678 feet on Outer Drive.

Immediately north of plaintiffs’ property are 26 and a fraction acres of undeveloped land owned by the school district of Dearborn. The property immediately north of St. Joseph’s Retreat, consisting of approximately 37 acres, has a frontage of approximately 2,571 feet on Outer Drive. It is also undeveloped and owned by the school district of [313]*313Dearborn. Tbe area to the west of plaintiffs’ property on Michigan avenue is zoned and largely used for business purposes. Michigan avenue is the main business thoroughfare in the city of Dearborn and is designated as US trunk line No 112. Outer Drive extends from the village of G-rosse Pointe Park through' the city of Detroit and through the city of Dearborn. Both streets are used extensively. All of Michigan avenue frontage extending back 110 feet, including plaintiff’s property, is zoned for uses permitted in a business “B” district.

Plaintiffs’ land is zoned under ordinance No 33 of the city of Dearborn for uses permitted in a residential “A” district, except that portion on Michigan avenue which extends 110 feet north of and parallel to the property line of Michigan avenue for uses in a business “B” district.

The cause came on for trial, at which time plaintiffs offered evidence from a registered land survey- or, a city land planning engineer, a registered architect and 3 real-estate men who testified that the premises were unsuitable for residential homes and that the best use of the property would be for business purposes.

Defendant city of Dearborn produced the attorney for the Wayne county board of road commissioners who testified that the board planned to acquire a portion of plaintiffs’ lands for flood control. A Dear-born planning technician testified that a portion of plaintiffs’ property consisting of highlands could provide for 13 residential lots. An assistant engineer for the city of Dearborn testified that homes could be safely built on plaintiffs’ property. A real-estate appraiser testified that the property in question could be laid out and used as a single-family subdivision.

The cause came o.n for trial and at its conclusion, the trial court entered a decree enjoining the city [314]*314of Dearborn and its officials from enforcing tbe mentioned ordinance against that portion of plaintiffs’ property now zoned for residence “A” property and from preventing or interfering with tbe nse by plaintiffs of the property for business “B” uses.

Defendants appeal and urge that the zoning ordinance has a substantial relationship to the public health, safety and welfare. The trial court in an opinion stated:

“This area is distinguishable from all other subdivisions which the court viewed. At most, it would provide a maximum of 13 isolated residential buildings. Other areas, in the range of Michigan avenue and the River Rouge or New York Central Railroad, contain space for and was occupied by upwards of hundreds of homes, all of which makes the other areas properly and adequately suited for residential purposes. These 13 lots would be near '2 of the heaviest trafficked arteries in the city of Dearborn with the consequent noise, gasses, commotion, and hazards. It would be surrounded on 3 sides by practically all commercial and semi-public or public uses. To the north would be a school playground activity. This isolation, together with its topography, with the overflowing influences of the adjacent commercial uses and the huge volume of motor vehicle traffic, depreciates its residential use value to a confiscatory degree. It sets this property apart as being incomparable with the other residential areas viewed by the court.

“The court must give consideration in determining- whether a zoning ordinance is unreasonable and confiscatory to the extent to which property values are diminished by the provisions of the application of the zoning ordinance together with all the other evidence in the case. * * *

“Since this property is isolated from any immediate extensive residential area, no resulting prejudice [315]*315to owners of residential property in the vicinity can occur by a commercial use.”

It is the generally accepted law that a zoning ordi- . nance is presumed constitutional and the burden of showing that it has no substantial relation to public health, morals, safety or general welfare rests upon those who claim it to be unconstitutional. It is also the rule that a zoning ordinance must be reasonable, and the reasonableness becomes the test of its legality. ' See City of North Muskegon v. Miller, 249 Mich 52.

The opinion of the trial court finds support in the evidence given by Don C. Geake, a city land planning engineer, who testified:

“Q. In your opinion would the erection of houses on these 13 lots as per exhibit ‘E’ be an economical investment for a builder?

“A. No.

“Q. Why not?

“A. Well, where would he get mortgage insurance ? He could build them conventionally and possibly obtain some funds to build them in that manner. I feel the resale value of them would have to be certainly of a low nature beyond the competitive homes in other areas that have refinement to offer. The feasibility would seem unlikely to me because they couldn’t compete with the present market conditions and desirability of other areas of competing homes.”

Harry C. Vicary, an architect, testified:

“A. I have lived in Dearborn for a considerable time. I know the Rouge river develops a great stench in the summer when the water is at low level.. I feel that the area involved is rather low, that it would have to take in that portion of the property that is about 6 feet below Michigan avenue level and that it would be fairly low for a good group of residences. I feel that 13 or 14 possible lots there., [316]*316would'be a very small group of homes, not sufficient to establish a desirable neighborhood and I doubt if it would be economical considering the public improvements that would be necessary to develop for residential purposes. * * *

“Traffic on Michigan avenue is terrific. One of the outstanding things to observe while in the office is the many trips that the ambulances, fire apparatus and siren-equipped vehicles make up and down the street.

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Related

McHugh v. City of Dearborn
83 N.W.2d 222 (Michigan Supreme Court, 1957)

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Bluebook (online)
83 N.W.2d 222, 348 Mich. 311, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mchugh-v-city-of-dearborn-mich-1957.