Senefsky v. Lawler, Motion No. 439.

• Decision Date: 29 December 1943
• Docket Number: Motion No. 439.
• Citation: 307 Mich. 728,12 N.W.2d 387
• Parties: SENEFSKY v. LAWLER, Superintendent of Public Works of City of Huntington Woods, et al.
• Court: Michigan Supreme Court

307 Mich. 728

12 N.W.2d 387

SENEFSKY

v.LAWLER, Superintendent of Public Works of City of Huntington Woods, et al.

Motion No. 439.

Supreme Court of Michigan.

Dec. 29, 1943.

Mandamus by Joseph J. Senefsky against William A. Lawler, Superintendent of Public Works of the City of Huntington Woods, and City of Huntington Woods to compel the issuance of a building permit to plaintiff. Writ denied, and plaintiff appeals in the nature of certiorari.

Writ of mandamus issued.

BUSHNELL and BUTZEL, JJ., dissenting.Appeal from Circuit Court, Oakland County; H. Russel Holland, judge.

Before the Entire Bench.

Bethune D. Blain, of Detroit, for appellant.

Arthur E. Moore, of Royal Oak, for appellees.

NORTH, Justice.

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, 297 N.W. 60, 62.

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 1300 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% 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 to 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 then 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 sefety, 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 Ry. Co. v. Muskegon Township Board, 298 Mich. 31, 298 N.W. 393, wherein the syllabus reads: ‘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 of Detroit, 289 Mich. 499, 286 N.W. 805, 810, 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.L. 602, 10 A.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 syllabus:

‘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 1300 square feet is to protect the people who live there, who had homes there, those that had already built there, wanted to protect their investment.’

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. Bloomfield Hills, 279 Mich. 205, 271 N.W. 823, 825, it is said: ‘Esthetics 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 McQuillin's Municipal Corporations, Second Edition, Vol. 3, pages 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 equivalant of a...