This is an appeal in the nature of certiorari from denial in the circuit court of Oakland county of the relief sought by mandamus. Mr. Justice BUSHNELL has written for affirmance. For the reasons herein noted I do not concur.
The facts and circumstances giving rise to this litigation fairly appear in my Brother's opinion. In his appeal plaintiff asserts that under the circumstances of this case the provision in the amended zoning ordinance which "prohibits the erection of houses having less than 1,300 square feet of usable floor area" is unreasonable. The precise issue is whether defendants' denial of plaintiff's application for a building permit made July 22, 1941, was, under
the circumstances of this case, an unreasonable exercise of police power. Consideration of this question alone affords a basis of decision of this appeal.
The reasonableness of the exercise of police power herein sought to be enforced is always subject to judicial review. The determination as to reasonableness must be made in the light of the facts presented in each case. "Each zoning case must be determined upon its own facts and circumstances." Moreland v.Armstrong, 297 Mich. 32, 36.
In passing the zoning ordinance of defendant city the municipality's area was divided into various zones. One of these zones embodies the so-called Bronx subdivision in which plaintiff's property is located. In this subdivision there are 465 vacant lots restricted to residential use, and 378 lots which are occupied by residences. Over 130 of such residences do not comply with the minimum requirement of 1,300 square feet of usable floor area. Some of such noncomplying dwellings were erected prior to the effective date of the amended ordinance, April 11, 1940; but the record discloses that approximately 10 per cent. of the houses erected in this subdivision since the ordinance became effective do not comply with the required minimum usable floor area specified in the ordinance.
While they are not parties to this suit, it appears from the record that others who have been active in the prosecution of this suit "own a large number of lots in this subdivision." In other words the question of the reasonableness or unreasonableness of enforcing the ordinance provision must be considered, among other things, in the light of the fact that a very substantial portion of the dwellings already erected on lots in the subdivision do not comply with the ordinance provision; and that there is a large number of vacant lots in this subdivision, the
use of which is very materially restricted by the noted amended ordinance provision. The record contains uncontradicted testimony that "there were a lot of people who wanted to build smaller houses and they couldn't build them after the ordinance was enacted."
The dwelling plaintiff proposed to erect contained 980 square feet of usable floor area, and in every other respect it complied with building restrictions applicable to this subdivision. In the record it appears and it is stressed in plaintiff's brief that with his proposed area of 980 square feet of floor space a dwelling can be erected which in every respect is in as full accord with the requirements of public safety, public health or public welfare as a dwelling containing 1,300 square feet of such area. For example, a house containing 980 square feet of usable floor area could be designed in the following manner:
Living room 14 X 18 252 sq. feet floor area Dining room 10 X 14 140 sq. feet floor area Kitchen 8 X 10 80 sq. feet floor area Two bedrooms, each 10 X 16 320 sq. feet floor area ___ Total 792 sq. feet floor area
The above allocation of floor area would leave in plaintiff's proposed 980 square feet a balance of 188 square feet of floor area for miscellaneous use in closets, toilets or enlargement of any of the rooms above suggested. A multiplicity of like designs might be suggested; but from the above it is obvious that a home can be constructed which is adequate in every sense in so far as requirements can be made under the guise of exercising police power. The restriction in this ordinance as applied to the situation presented by this record in no way promotes or protects in this subdivision public health, safety, morals or welfare. Its application to plaintiff's property is not only unreasonable but is also an unjust
limitation of a reasonable and lawful use of his property. For that reason we should hold in the instant case as we held in the recent decision of Pere Marquette R. Co. v. Muskegon TownshipBoard, 298 Mich. 31, wherein the syllabi read:
"In determining validity of township zoning ordinance as applied to particular parcel of property, the court must consider whether the zoning of such parcel advances the public health, safety, and general welfare of the people.
"Each zoning case, as a rule, stands by itself and its reasonableness must be judged by the circumstances in each particular case."
Notwithstanding Mr. Justice BUSHNELL cites the above-quoted case and says: "But in the last analysis, we must consider whether the particular provision of the zoning law advances the public health, safety, and general welfare of the people," it seems clear that both he and the trial judge in the main would deny plaintiff relief on the ground that enforcing the ordinance provision would tend to enhance the value of other properties in this subdivision. My Brother quotes from Cady v. City ofDetroit, 289 Mich. 499, wherein the opinion signed by the majority of the court in part states:
"Ordinances having for their purpose * * * the stabilization of the use and value of property * * * are within the proper ambit of the police power."
If isolated the quoted statement affords some justification for my Brother's conclusion that the instant case should be affirmed on the ground that compliance with the ordinance will enhance or stabilize values. But quite obviously the quoted statement should be read and construed in connection with the facts in the case in which it appears. And it should be noted that it was not essential to decision
in that case, other grounds in justification of police power regulations being apparent. Further, it may be seriously questioned if in the Cady Case we did not overstate the legitimate scope of police power.
A more accurate statement of the law in this particular is found in Brookdale Homes, Inc., v. Johnson, 123 N.J. Law, 602
(10 Atl. [2d] 477), wherein it is held that it is requisite to the validity of a zoning ordinance that the restrictions thereby imposed tend in some degree at least to promote public health, public morals, public safety or public welfare. We quote the syllabi:
"While the legislature has given municipalities the right to pass ordinances to regulate and restrict the height, number of stories and sizes of building, such ordinances to be valid must be designed to promote public health, safety, and general welfare, and do not carry with them the right arbitrarily or capriciously to deprive a person of the legitimate use of his property.
"No person under the zoning power can legally be deprived of his right to build a house on his land merely because the cost of that house is less than the cost of his neighbor's house."
In the instant case plaintiff called for cross examination under the statute
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This is an appeal in the nature of certiorari from denial in the circuit court of Oakland county of the relief sought by mandamus. Mr. Justice BUSHNELL has written for affirmance. For the reasons herein noted I do not concur.
The facts and circumstances giving rise to this litigation fairly appear in my Brother's opinion. In his appeal plaintiff asserts that under the circumstances of this case the provision in the amended zoning ordinance which "prohibits the erection of houses having less than 1,300 square feet of usable floor area" is unreasonable. The precise issue is whether defendants' denial of plaintiff's application for a building permit made July 22, 1941, was, under
the circumstances of this case, an unreasonable exercise of police power. Consideration of this question alone affords a basis of decision of this appeal.
The reasonableness of the exercise of police power herein sought to be enforced is always subject to judicial review. The determination as to reasonableness must be made in the light of the facts presented in each case. "Each zoning case must be determined upon its own facts and circumstances." Moreland v.Armstrong, 297 Mich. 32, 36.
In passing the zoning ordinance of defendant city the municipality's area was divided into various zones. One of these zones embodies the so-called Bronx subdivision in which plaintiff's property is located. In this subdivision there are 465 vacant lots restricted to residential use, and 378 lots which are occupied by residences. Over 130 of such residences do not comply with the minimum requirement of 1,300 square feet of usable floor area. Some of such noncomplying dwellings were erected prior to the effective date of the amended ordinance, April 11, 1940; but the record discloses that approximately 10 per cent. of the houses erected in this subdivision since the ordinance became effective do not comply with the required minimum usable floor area specified in the ordinance.
While they are not parties to this suit, it appears from the record that others who have been active in the prosecution of this suit "own a large number of lots in this subdivision." In other words the question of the reasonableness or unreasonableness of enforcing the ordinance provision must be considered, among other things, in the light of the fact that a very substantial portion of the dwellings already erected on lots in the subdivision do not comply with the ordinance provision; and that there is a large number of vacant lots in this subdivision, the
use of which is very materially restricted by the noted amended ordinance provision. The record contains uncontradicted testimony that "there were a lot of people who wanted to build smaller houses and they couldn't build them after the ordinance was enacted."
The dwelling plaintiff proposed to erect contained 980 square feet of usable floor area, and in every other respect it complied with building restrictions applicable to this subdivision. In the record it appears and it is stressed in plaintiff's brief that with his proposed area of 980 square feet of floor space a dwelling can be erected which in every respect is in as full accord with the requirements of public safety, public health or public welfare as a dwelling containing 1,300 square feet of such area. For example, a house containing 980 square feet of usable floor area could be designed in the following manner:
Living room 14 X 18 252 sq. feet floor area Dining room 10 X 14 140 sq. feet floor area Kitchen 8 X 10 80 sq. feet floor area Two bedrooms, each 10 X 16 320 sq. feet floor area ___ Total 792 sq. feet floor area
The above allocation of floor area would leave in plaintiff's proposed 980 square feet a balance of 188 square feet of floor area for miscellaneous use in closets, toilets or enlargement of any of the rooms above suggested. A multiplicity of like designs might be suggested; but from the above it is obvious that a home can be constructed which is adequate in every sense in so far as requirements can be made under the guise of exercising police power. The restriction in this ordinance as applied to the situation presented by this record in no way promotes or protects in this subdivision public health, safety, morals or welfare. Its application to plaintiff's property is not only unreasonable but is also an unjust
limitation of a reasonable and lawful use of his property. For that reason we should hold in the instant case as we held in the recent decision of Pere Marquette R. Co. v. Muskegon TownshipBoard, 298 Mich. 31, wherein the syllabi read:
"In determining validity of township zoning ordinance as applied to particular parcel of property, the court must consider whether the zoning of such parcel advances the public health, safety, and general welfare of the people.
"Each zoning case, as a rule, stands by itself and its reasonableness must be judged by the circumstances in each particular case."
Notwithstanding Mr. Justice BUSHNELL cites the above-quoted case and says: "But in the last analysis, we must consider whether the particular provision of the zoning law advances the public health, safety, and general welfare of the people," it seems clear that both he and the trial judge in the main would deny plaintiff relief on the ground that enforcing the ordinance provision would tend to enhance the value of other properties in this subdivision. My Brother quotes from Cady v. City ofDetroit, 289 Mich. 499, wherein the opinion signed by the majority of the court in part states:
"Ordinances having for their purpose * * * the stabilization of the use and value of property * * * are within the proper ambit of the police power."
If isolated the quoted statement affords some justification for my Brother's conclusion that the instant case should be affirmed on the ground that compliance with the ordinance will enhance or stabilize values. But quite obviously the quoted statement should be read and construed in connection with the facts in the case in which it appears. And it should be noted that it was not essential to decision
in that case, other grounds in justification of police power regulations being apparent. Further, it may be seriously questioned if in the Cady Case we did not overstate the legitimate scope of police power.
A more accurate statement of the law in this particular is found in Brookdale Homes, Inc., v. Johnson, 123 N.J. Law, 602
(10 Atl. [2d] 477), wherein it is held that it is requisite to the validity of a zoning ordinance that the restrictions thereby imposed tend in some degree at least to promote public health, public morals, public safety or public welfare. We quote the syllabi:
"While the legislature has given municipalities the right to pass ordinances to regulate and restrict the height, number of stories and sizes of building, such ordinances to be valid must be designed to promote public health, safety, and general welfare, and do not carry with them the right arbitrarily or capriciously to deprive a person of the legitimate use of his property.
"No person under the zoning power can legally be deprived of his right to build a house on his land merely because the cost of that house is less than the cost of his neighbor's house."
In the instant case plaintiff called for cross examination under the statute* Arthur H. Roberts who stated that his "official capacity in Huntington Woods is finance commissioner." In part he testified:
"I recall the ordinance which was passed upon by the commission. I think I was sponsor of it. * * * The moving consideration then for passing this ordinance with 1,300 square feet is to protect the people who live there, who had homes there, those that had already built there, wanted to protect theirinvestment."
From this record it is difficult, if not impossible, to find any other justification for defendants' attempt to enforce this ordinance against plaintiff than a desire to enhance or protect the value of other improved property in the subdivision. In the prevailing opinion in Wolverine Sign Works v. City ofBloomfield Hills, 279 Mich. 205, it is said: "Aesthetics may be an incident but cannot be the moving factor" in enforcing police power restrictions. Likewise it may be said that preservation or enhancing the value of other property in a given zone "may be an incident but cannot be the moving factor."
The underlying principles supporting our conclusion herein are aptly stated in 3 (1943 Rev.) McQuillin's Municipal Corporations (2d Ed.), pp. 504, 505:
"In recent times there is a disposition greater than ever before to use the police power to secure objects strongly desired by the public or an aggressive minority thereof. This attitude of mind restricts personal liberty and property rights and assumes that a public desire, when strong and persistent, is the equivalent of a real, vital and compelling public need. There is great danger involved in overlooking the constitutional guaranties and neglecting to give them full force and effect as designed. These guaranties, the result of years of struggle and sacrifice, have been made the very heart of our governmental process. Though the exercise of the police power in its very nature, as the power to govern, includes an indefinite and indefinable element of public welfare which the legislatures may in the first instance determine, subject to adjudication by the courts, which have shown in late years an increasing disposition to sustain, it must be remembered that this essential power has its
limitations. Experience has demonstrated the wisdom of placing restrictions upon `the use of the police power and eminent domain that those charged with the conduct of public affairs may not, in disregard of the rights of the individual, render the government despotic. * * * Constitutional inhibitions must not be set aside or wiped out by every wave of popular clamor. There is too much disposition to set aside and ignore the organic law when there is a popular wave demanding such course. It is for the courts to steady the ship of State and hold the organic law intact.' * * * We should not suffer it to be used to destroy, little by little, the organic safeguards of personal and property rights until they all disappear."
It is not necessary for decision herein and we do not hold that under proper circumstances a municipality may not exercise its delegated police power in the manner herein attempted by defendants. Instead the extent of our holding herein is that under the circumstances of the instant case the enforcement against the plaintiff of the provision in the amended ordinance fixing the minimum amount of floor area is unreasonable. In other words, under the circumstances disclosed by this record lot owners in the Bronx subdivision ought not to be deprived of utilizing their properties in the manner undertaken by plaintiff for the reason that property rights should not be divested under the authority of a municipality's police power, unless by so doing the public health, safety or welfare would be subserved. That requisite is not met in the instant case. Plaintiff's application for a building permit should have been granted. The writ of mandamus will issue as prayed, with costs of both courts to plaintiff.
BOYLES, C.J., and CHANDLER, STARR, WIEST, and SHARPE, JJ., concurred with NORTH, J.
* See 3 Comp. Laws 1929, § 14220 (Stat. Ann. § 27.915). — REPORTER.