Eddy v. Tierney

• Decision Date: 16 June 1936
• Docket Number: No. 57,April Term, 1936.,57
• Citation: 267 N.W. 852,276 Mich. 333
• Court: Michigan Supreme Court
• Parties: C. K. EDDY & SONS et al. v. TIERNEY et al.

276 Mich. 333

267 N.W. 852

C. K. EDDY & SONS et al.

v.TIERNEY et al.

No. 57, April Term, 1936.

Supreme Court of Michigan.

June 16, 1936.

Bill by C. K. Eddy & Sons, a corporation, and another, against Thomas Tierney and others. From an adverse decree, plaintiff named appeals.

Affirmed.

Appeal from Circuit Court, Saginaw County, in Chancery; William H. Martin, Judge.

Argued before the Entire Bench.

George Grant and O'Keefe & O'Keefe, all of Saginaw, for appellant C. K. Eddy & Sons.

Picard & Heilman, of Saginaw, for appellees.

TOY, Justice.

Plaintiff and appellant, C. K. Eddy & Sons, a corporation, is the owner of a lot located on the southeast corner of Washington and Federal avenues, in the city of Saginaw, and in the hub of the business and commercial district of that city. Appellant proposes to lease this property to the plaintiff Goodyear Tire and Rubber Company, Inc., of Akron, Ohio, and intends to erect a one and two-story brick and concrete building thereon, together with a concrete ‘island’ containing gasoline pumps and adjoining the building proper.

The plaintiff tire company proposes to occupy and use these premises, when the construction work is completed, for office and display purposes, but principally for the sale of tires, rubber products, batteries, lubricating oils, gasoline, and automobile accessories, and for the rendering of a complete lubricating service upon automobiles, and a repairing service for tires and batteries of automobiles. Appellant first made application for and received a permit from the city building inspector to erect a ‘public garage’ upon said property, within 10 feet of the street line, but objections were made, under the ordinance, by adjoining property owners and were sustained by the zoning appeal board of the city.

Later, appellant prepared and presented a new application to the building inspector, for a permit to build a ‘public garage,’ together with the plans and specifications therefor. The permit was granted.

Thereafter, the plaintiffs filed this bill, in the circuit court, in chancery, alleging the foregoing, and, in addition, averring that immediately after the issuance of the latter permit, the adjoining property owners, defendants herein, threatened to restrain the erection of the proposed building on the ground that it would be in violation of the zoning ordinance of the city, and for other and divers reasons, and that the defendants threatened that if plaintiffs proceeded with the erection of said building, or the letting of contracts therefor, the said defendants would make every effort to restrain such action by injunction; that they would fight it to the limit and carry the proceedings ‘to the Supreme Court, if necessary.’

They allege that they are desirous of settling their rights in advance of the expenditure of large sums of money for the erection of said proposed structure, and they seek a binding declaration of their rights under their building permit and in accord with the zoning ordinance of the city of Saginaw.

Answers in denial of the bill were filed by the named defendants, excepting the Booth Publishing Company, and trial was had. At its conclusion, the learned circuit judge found and declared:

‘That the proposed construction and use of plaintiff's one and two-story building, the construction of the gasoline pumps and island and their proposed use, together with the contemplated use of the entire premises, taken in their entirety and as a whole, constitute one project, and which project is within the contemplation and meaning of Section 7 A (4) of the zoning ordinance of the City of Saginaw, Michigan, and is hereby designated as and declared to be a public garage.’

The decree of the court was entered in accordance therewith.

Plaintiff C. K. Eddy & Sons appeals therefrom.

The ordinance before us is entitled, ‘Zoning Ordinance of the City of Saginaw,’ and became effective August 18, 1927.

The provisions thereof pertinent to decision are:

‘Section I-Definitions. * * *

‘(24) Garage, Public. A space or structure, other than a private or a community garage, for the storage, care, repair or refinishing of motor vehicles, except that a structure or room used solely for the display and sale of such vehicles, in which they are not operated under their own power, and in connection with which there is no repair, maintenance or refinishing service or storage of vehicles other than those displayed, shall not be considered a public garage for the purpose of this ordinance. * * *

‘Section VII-Commercial Districts.

‘(A) Uses. In a commercial district no buildings, structures, or premises, except as otherwise provided in this ordinance, shall be erected or used for any use prohibited in an industrial or unrestricted district, or for any except one or more of the following specified purposes: * * *

‘(3) Mercantile establishments or professional or commercial services which are not comparable in character to any use permitted in industrial or unrestricted districts, and which are not noxious or offensive by reason of the emission of odor, fumes, dust, smoke, vibration or noise, provided that there is not in connection therewith any fabricating, manufacturing, converting, altering, finishing or assembling where mechanical power exceeding 10 rated horsepower is used, or steam pressure in excess of 15 pounds guage pressure is produced, or where more than 15 mechanics or workers are habitually engaged on such work.

‘(4) Public garages, when located:

‘(a) Above or below the ground floor;

‘(b) On the ground floor 30 feet or more from any street line;

‘(c) On the ground floor up to 10 feet from any street line by and with the written consent of more than 60 per cent. of owners of frontage having right of protest, or otherwise, only after public notice be given, both as provided in section (e);

‘(d) On the ground floor less than said 10 feet from any street line by and with the written consent of more than 80 per cent of owners of frontage having right of protest or otherwise, only after public notice be given, both as provided in section (e).’ (Section (e) provides for the posting upon the premises of a placard giving notice of the proposed construction and for the proceedings thereafter if protests are made.)

‘Section XIV-Interpretation; Purpose.

‘In interpreting and applying the provisions of this ordinance, they shall be held to be the minimum requirements adopted for the promotion of the public health, safety, comfort, convenience and general welfare.’

We are asked by appellant to determine whether the proposed construction is a ‘mercantile establishment’ within the meaning of section 7(A)(3) of the zoning ordinance, or a ‘public garage’ within the meaning of section 7 A(4) thereof; and we are requested ‘that if found to be a public garage the court declare whether sub. (b) or sub. (c) of (4), (of the ordinance) requiring consent of adjacent property owners, applies.’

There is before us an actual controversy as to the rights of the respective parties. Our declaratory decree will end it. Therefore plaintiffs' method of seeking relief is proper. Washington-Detroit Theatre Co. v. Moore, 249 Mich. 673, 229 N.W. 618, 68 A.L.R. 105.

Appellant contends that the proposed construction is a ‘mercantile establishment.’ and therefore within the meaning of section 7 A(3) of the ordinance.

But appellant did not seek nor obtain a permit to erect a ‘mercantile establishment,’ but rather one for a ‘public garage.’ The two are separate and distinct from each other. Having procurred a permit to erect a public garage, we think appellant cannot here consistently contend that its proposed structure will be a ‘mercantile establishment.’ Had it desired a permit for that purpose, it should have sought it from the proper city officials and not in this forum.

Appellant having by its election construed the structure to be erected as a public garage, we will here assume that to be the fact.

This assumption, then, brings us to the next contention of appellant, namely, that the proposed structure complies with section 7 A(4)(b) of the zoning ordinance, and will be a public garage, located on the ground floor 30 feet or more from street line.

If it so be construed and declared, then appellant may proceed to the erection thereof under its present permit. If, however, it is found and declared to be a public garage, located ‘on the ground floor up to 10 feet from any street line’ in accordance with section 7 A(4)(c) of the ordinance, then such structure may only be erected ‘by and with the written consent of more than 60 per cent. of owners of frontage having right of protest, or otherwise, only after public notice be given, both as provided in section (e).’

The appellees strive for this latter construction.

The practical difference between the two contentions amounts to this, that if the first construction is to be adopted, then the building proper must be considered as an entity, in and of itself; however, if the concrete island and pumps, driveways, gasoline tanks, and storage space thereon are part of the project, and...