Willingham v. City of Dearborn

Michigan Supreme Court

Willingham v. City of Dearborn

101 N.W.2d 294, 359 Mich. 7, 1960 Mich. LEXIS 427

CourtMichigan Supreme Court

DecidedFebruary 25, 1960

DocketDocket 17, Calendar 47,996

StatusPublished

Cited by18 cases

This text of 101 N.W.2d 294 (Willingham 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

Willingham v. City of Dearborn, 101 N.W.2d 294, 359 Mich. 7, 1960 Mich. LEXIS 427 (Mich. 1960).

Pincite

Opinions

Black, J.

Pursuing requirement of a then-existing zoning ordinance of the city of Dearborn, plaintiff applied to the city for a building permit. His purpose was that of construction of a service garage, measuring 20 feet in width by 60 feet in length, on his otherwise-used residence lot fronting Telegraph road. According to the city, plaintiff’s application was denied at the time as “incomplete,” principally on account of failure of plaintiff to specify, in the application, a “minimum 160 feet setback from front property line to front of building to comply with established setback line for all other buildings in this block.”

At the time of such denial no ordinance required any such setback of construction. And the allegation of “incomplete” application was found below as being without substance aside from the city’s ordinance-unsupported demand for specification of such minimal setback.

This petition, for mandamus to compel issuance of a permit according to such application, was filed January 31, 1958. Issue was joined February 6, 1958. May 13,1958, the pretrial hearing was conducted and the required pretrial statement was prepared and filed. At the opening of hearing upon the pleaded issues (July 24,1958) the defendant city filed a pleading headed “Notice to court of amendment of city ordinance and amended and supplemental answer to petition for peremptory writ of mandamus.” By such pleading the city sought to interpose an additional defense by way of a new and amendatory or-¿finance,[9]*9

* †adopted by the city council June 3, 1958, the essence of which appears in the margin.

The pleading included formal motion for leave to amend the city’s answer, and to amend the pretrial statement, so as to include such proposed additional defense. The trial judge, manifestly and understandably irked by such pendente legislation and its suit-defensive purpose, refused to permit the amendment and went on to decide the issues the parties had presented by their original pleadings and the specifically worded pretrial statement. He said:

“The court can place no other construction on this activity on the part of the legislative or 'executive branches of government than to take care of a new situation presented by the facts in this case and perhaps to be used as a medium wherein and whereby the petitioner would be stopped in his desire to use his property in a manner that would not cause an injustice to either himself or the city of Dearborn.

“It can be seen at once in this record as made that if this petitioner had to build his building 160 feet back from the lot line there would be a considerable amount of frontage that he would either have to make into a parking lot or grounds unusable — or perhaps make it into a garden atmosphere that could be of some worth to the vicinity as a whole.”

The pretrial statement (now termed “a summary of the results of the pretrial conference”†), not having been “modified at or before the trial to prevent manifest injustice,” controlled and limited the triable [10]*10issues. They were the issues the parties had pleaded. It is not claimed that denial of modification thereof amounted to an abuse of discretion or that such modification was necessary “to prevent manifest injustice.” Indeed, the whole record considered, injustice to plaintiff might have resulted from any such last-minute order providing a defense which did not exist when the petition was filed. And so I would hold that the pleadings and pretrial statement excluded and now exclude consideration of the aforesaid amendatory ordinance as a possible bar against mandamus in this case.

I discover no error and vote to affirm, with costs to plaintiff.

Dethmers, C. J., and Kelly and Kavanagh, JJ., concurred with Black, J.

By the amendatory ordinance plaintiff’s property became zoned in such way as to prohibit construction and use of the proposed service garage building according to the plan of plaintiff’s said application. The amendment provides:

“Sec. 603.2. Influence of existing buildings on depth. Where a front yard of greater or less depth than required in section 603.1 exists in 50% of buildings on one side of a street on any block, the depth of front yard of any building subsequently erected or placed on any 1 of such lots shall not be less, and need not be greater, than the average depth of the front yards of such existing buildings.”

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

Black, J.

Pursuing requirement of a then-existing zoning ordinance of the city of Dearborn, plaintiff applied to the city for a building permit. His purpose was that of construction of a service garage, measuring 20 feet in width by 60 feet in length, on his otherwise-used residence lot fronting Telegraph road. According to the city, plaintiff’s application was denied at the time as “incomplete,” principally on account of failure of plaintiff to specify, in the application, a “minimum 160 feet setback from front property line to front of building to comply with established setback line for all other buildings in this block.”

At the time of such denial no ordinance required any such setback of construction. And the allegation of “incomplete” application was found below as being without substance aside from the city’s ordinance-unsupported demand for specification of such minimal setback.

This petition, for mandamus to compel issuance of a permit according to such application, was filed January 31, 1958. Issue was joined February 6, 1958. May 13,1958, the pretrial hearing was conducted and the required pretrial statement was prepared and filed. At the opening of hearing upon the pleaded issues (July 24,1958) the defendant city filed a pleading headed “Notice to court of amendment of city ordinance and amended and supplemental answer to petition for peremptory writ of mandamus.” By such pleading the city sought to interpose an additional defense by way of a new and amendatory or-¿finance,[9]*9

* †adopted by the city council June 3, 1958, the essence of which appears in the margin.

The pleading included formal motion for leave to amend the city’s answer, and to amend the pretrial statement, so as to include such proposed additional defense. The trial judge, manifestly and understandably irked by such pendente legislation and its suit-defensive purpose, refused to permit the amendment and went on to decide the issues the parties had presented by their original pleadings and the specifically worded pretrial statement. He said:

“The court can place no other construction on this activity on the part of the legislative or 'executive branches of government than to take care of a new situation presented by the facts in this case and perhaps to be used as a medium wherein and whereby the petitioner would be stopped in his desire to use his property in a manner that would not cause an injustice to either himself or the city of Dearborn.

“It can be seen at once in this record as made that if this petitioner had to build his building 160 feet back from the lot line there would be a considerable amount of frontage that he would either have to make into a parking lot or grounds unusable — or perhaps make it into a garden atmosphere that could be of some worth to the vicinity as a whole.”

The pretrial statement (now termed “a summary of the results of the pretrial conference”†), not having been “modified at or before the trial to prevent manifest injustice,” controlled and limited the triable [10]*10issues. They were the issues the parties had pleaded. It is not claimed that denial of modification thereof amounted to an abuse of discretion or that such modification was necessary “to prevent manifest injustice.” Indeed, the whole record considered, injustice to plaintiff might have resulted from any such last-minute order providing a defense which did not exist when the petition was filed. And so I would hold that the pleadings and pretrial statement excluded and now exclude consideration of the aforesaid amendatory ordinance as a possible bar against mandamus in this case.

I discover no error and vote to affirm, with costs to plaintiff.

Dethmers, C. J., and Kelly and Kavanagh, JJ., concurred with Black, J.

By the amendatory ordinance plaintiff’s property became zoned in such way as to prohibit construction and use of the proposed service garage building according to the plan of plaintiff’s said application. The amendment provides:

“Sec. 603.2. Influence of existing buildings on depth. Where a front yard of greater or less depth than required in section 603.1 exists in 50% of buildings on one side of a street on any block, the depth of front yard of any building subsequently erected or placed on any 1 of such lots shall not be less, and need not be greater, than the average depth of the front yards of such existing buildings.”

Cite This Page — Counsel Stack

Bluebook (online)

101 N.W.2d 294, 359 Mich. 7, 1960 Mich. LEXIS 427, Counsel Stack Legal Research, https://law.counselstack.com/opinion/willingham-v-city-of-dearborn-mich-1960.

Opinions

Related

Cite This Page — Counsel Stack