Rockenbach v. Apostle

• Decision Date: 14 May 1951
• Docket Number: No. 31,31
• Citation: 47 N.W.2d 636,330 Mich. 338
• Parties: ROCKENBACH et al. v. APOSTLE et al.
• Court: Michigan Supreme Court

Page 636

47 N.W.2d 636

330 Mich. 338

ROCKENBACH et al. v. APOSTLE et al.

No. 31.

Supreme Court of Michigan.

May 14, 1951.

Alexis J. Rogoski and Robert Bunker Rogoski, Muskegon, for plaintiffs and appellees.

Harold H. Smedley, William T. Caughey, Muskegon, for defendants and appellants.

Before the Entire Bench.

BOYLES, Justice.

Plaintiffs filed the bill of complaint in this case to enjoin the defendants from establishing a funeral home and undertaking establishment on lots 7 and 8, block 94, of the city of Muskegon Heights. After issue was joined and the taking of testimony, the court granted the injunction and from the decree entered the defendants appeal. We review the case de novo, based on the record, and in the light of the decisions of this Court.

Plaintiffs are residents and property owners in the vicinity of said lots 7 and 8, block 94. The defendants propose to change the dwelling now on lot 7 into a funeral home and undertaking establishment, and use lot 8 as an off-street parking lot in conjunction with the proposed funeral home. Block 94 and block 95 are on opposite sides of Peck street in the city of Muskegon Heights. Each block contains 24 lots, 12 lots in each block facing on Peck street. They are about a mile from the main business center of Muskegon Heights. Under a city zoning ordinance, Peck street south of blocks 94 and 95 is zoned commercial while blocks 94 and 95 are zoned class 'B' residential. The next two blocks north of blocks 94 and 95 are also zoned class 'B' residential, except for 4 lots. Class 'B' residential allows the operation of a funeral home upon consent of a five-sevenths vote of the city council. Defendants have obtained the required consent of the council, and have obtained a permit for the alteration into a funeral home of the residence located on lot 7. Of said 12 lots in block 94, 9 are residences, 3 are vacant, 4 of said residences have apartments, 2 of them have rooms for rent to tourists. On of these homes was used by the owner for watch repair, and another in giving physiotherapy baths. There was no other use of the homes in block 94 which could be claimed to be for any business purposes. In block 95 there is a building at the rear of a dwelling where groceries are sold, with the adjacent lot used as a parking place.

Plaintiffs' bill of complaint alleges that the funeral home will cause depreciation of property values, that unpleasant odors and contagious diseases will emanate from the funeral home, that the funeral home will cause a parking problem, that the presence of a funeral home will be a constant reminder of death and cause a general depressive feeling on the part of plaintiffs which will be injurious to their health and well-being, that the large crowds at the home and the coming and going of mourners will cause traffic and parking congestion so as to prevent the plaintiffs free ingress and egress to their respective properties. The defendants deny the allegations, and claim that the area is not a 'strictly' residential area but is an area that is in a transition stage from residential to commercial, and that they have complied with the zoning ordinances. The lower court found that the neighborhood was strictly residential, that there would be no depreciation of property values, and no danger of disase or odors, but that the presence of a funeral home would be depressive and thus be injurious to the plaintiffs' well-being and health.

The questions of fact for consideration are whether lost 7 and 8, block 94, are in a residential district within the meaning of our decisions, whether plaintiffs have shown that the establishment and maintenance of the funeral home and undertaking establishment on said lots 7 and 8 would have a depressive influence upon the residents of that area, and whether it would substantially depreciate the value of their property. Under our decisions, an affirmative answer to these questions would affirm the decree.

The homes in blocks 94 and 95 are used solely for residential purposes with only one exception of any importance--the grocery store at the rear of a house in block 95. One of defendants' claims in support of their position is that lots 7 and 8, block 94, are not located in a 'strictly' residential district, because some of the homes are used as multiple dwellings, apartments for rent, or rooms rented to tourists. The only outward visible evidence of such use consists in approximately 3 small signs, 'Tourist rooms,' in front of obviously fine residences. The fact remains that these homes are still used for residential purposes. The presence of an apartment house or the rental of rooms or apartments does not change such use from being residential. Saier v. Joy, 198 Mich. 295, 164 N.W. 507, L.R.A. 1948A, 825; Dillon v. Moran, 237 Mich. 130, 211 N.W. 67. Defendants also rely on evidence that an owner of one otherwise fine residence makes use of his home to repair watches, and another such owner makes use of his home to give 'physiotherapy' baths. Defendants rely also on the fact that in block 95, across the street from block 94, there is a grocery store at the rear of a residence and a place for parking.

The photographic exhibits and the testimony of many witnesses show that block 94 definitely is a residential district, with attractive modern residences. This is true as to the entire block, and particularly as to the homes north and south on Peck street adjoining defendants' lots 7 and 8. Defendants also rely on the claim that the blocks on Peck street south of block 94 are now commercial. However, 'The question for decision is not what is the condition of districts north or south or east or west of this district, but what is the character of the particular district involved. The fact that business has reached the district does not establish that it has entered it. The testimony and the photographs introduced in evidence are convincing that the district is a strictly residential district. There are many substantial homes, some single dwellings, some duplexes, and some apartments; a few roomers are taken, and some of the places are rented, although in the main the homes are occupied by their owners. The particular district here involved has retained its residential character, although outside of it in some directions business has crept in and become the predominant factor.' Dillon v. Moran, supra.

This case presents one circumstance which apparently has not been before the court for consideration, in determining whether an undertaking establishment may be maintatined in a district claimed to be residential. A zoning ordinance of Muskegon Heights classifying block 94 as 'B' residential and defining the use which might be made of lots in that block, permits funeral homes, provided that consent of five-sevenths of the council be obtained and that certain off-street parking be provided. It is conceded that the defendants have obtained the requisite consent of the council, and have made the necessary provisions for off-street parking. The precise question is, what bearing does this have upon the outcome of a case where the residents of this district seek to enjoin the use of lots in block 94 for a funeral home, on the ground of nuisance? Decisions from other jurisdictions involving undertaking establishments permitted by zoning ordinances in residential districts are at such variance as to facts and circumstances that none can be said to be squarely in point. Nor are such cases in agreement at to the law. Sweet v. Campbell, 282 N.Y. 146, 25 N.E.2d 963; Kirk v. Mabis, 215 Iowa 769, 246 N.W. 759; Linsler v. Booth Undertaking Co., 120 Wash. 177, 206 P. 976; State ex rel. Stephens v. City of Jacksonville, 103 Fla. 177, 137 So. 149; White v. Luquire Funeral Home, 221 Ala. 440, 129 So. 84.

The weight of authority is to the effect that an ordinance which allows the establishment or maintenance of a funeral home or undertaking establishment in a district zoned either for residential or commercial purposes is permissive only, and not controlling as to whether such undertaking establishment would constitute a nuisance which might be enjoined by an equity court. However, proof of the existence of such a zoning ordinance is admissible as evidence of the character of the district, and bearing on the question of nuisance. A nuisance will not be upheld solely on the ground that it has been permitted by municipal ordinance. Sweet v. Campbell, supra; Williams v. Blue Bird Laundry Co., 85 Cal.App. 388, 259 P. 484; Fendley v. City of Anaheim, 110 Cal.App. 731, 294 P. 769; Kosich v. Poultrymen's Service Corp., 136 N.J.Eq. 571, 43 A.2d 15; Perrin's Appeal, 305 Pa. 42, 156 A. 305, 79 A.L.R. 912; White v. Old York Road County Club, 318 Pa. 346, 178 A. 3.

The great weight of the evidence shows that plaintiffs have fully established the fact that the undertaking establishment would have a depressing influence upon them, if located on lots 7 and 8, block 94. Various witnesses testified as follows:

'It would be very depressing, because of the funeral being gathered there and knowing bodies were being brought there. The music of the funeral would be depressing.'

'A funeral home in a residential district such as this is very depressing. Funerals being in session you hear the funeral dirges, possibly the sermon and all the funeral activities going on right in the center of the block.'

'I object to a funeral home being located at this site for it is depressing. It had been a convalescent home and they carried dead bodies out and it was depressing, and cars parked there. The location of a funeral home at that site would be more depressing.'

'Every time you see a body you think of yourself, pretty soon you got to die too and they carry you in and out too. The presence of hearses and funeral cars would have the same effect on me.'

'I would say the presence of a funeral home would have a tendency to depress some individuals to live in...