Austin v. Older
| Decision Date | 04 April 1938 |
| Docket Number | Motion No. 212. |
| Citation | 278 N.W. 727,283 Mich. 667 |
| Parties | AUSTIN v. OLDER, City Engineer, et al. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Mandamus by James Austin, doing business as the J. Austin Oil Company, against T. Fred Older, City Engineer for Ypsilanti, Mich., and the Board of Appeals under Ypsilanti Zoning Ordinance No. 111, to compel issuance of a building permit to petitioner. From an adverse decision, petitioner appeals.
Affirmed.Appeal from Circuit Court, Washtenaw County; George W. sample, judge.
Argued before the Entire Bench.
Reid & Young, of Detroit (Hooper & Hooper, of Ann Arbor, of counsel), for appellant.
John P. Kirk, of Ypsilanti (Cleary & Weins, of Ypsilanti, of counsel), for appellees.
After denial of certiorari by the circuit court (affirmed by this court, Austin v. Older, 278 Mich. 518, 270 N.W. 771), plaintiff sought mandamus in the circuit court of Washtenaw county to compel the issuance of a building permit. He appeals from an adverse decision.
On the eve of the passage of a zoning ordinance by the city of Ypsilanti (Ordinance No. 111), but before the day it became effective, plaintiff erected a building and appurtenances for a gas station on his property at the intersection of West Cross and Washtenaw avenues, in zone B, a residence district under the ordinance. Although this is a nonconforming use under the ordinance, which restricts the property of plaintiff and the surrounding area to residence purposes, the ordinance permits the continuation of such nonconforming uses as existed at the time of the effective date of the ordinance. Along each side of the one-story building erected by plaintiff, there is a pit used principally for the purpose of draining and lubricating automobiles. Over 10 years after the construction of the building and adoption of the ordinance, plaintiff filed an application with respondent engineer for a permit to remodel and thus modernize the gasoline station. His plans called for the filling in of the pit on one side and the extension of a bay window over the filled in land. On the other side, an addition to the building was planned so as to approximately double its present size. The addition was to be used for what is commonly known as a ‘lubritorium.’ It appears from the architect's sketch that the addition would be artistic in appearance.
The city engineer refused to issue a permit and plaintiff appealed to the board of appeals, consisting of five members appointed by the council, as provided in the ordinance. The appeal was unsuccessful. He claims that he is entitled to remodel and modernize the building provided there is no change in the actual use to which the building and premises are put and provided no more of the premises will be used than are now in use; also that the action of the zoning board of appeals in denying the permit was so arbitrary and unreasonable as to entitle him to a writ of mandamus to compel the issuance of the permit.
Plaintiff's property is in a zone B residence district under the zoning ordinance, section 4 of which restricts the use of buildings in zone B districts to residence, hotel, hospital, educational, and similar purposes, which do not include that of selling gasoline and oil. Section 2 provides: ‘Except as hereinafter provided, no building shall be erected or altered nor shall any building or premises be used for any purpose other than as permitted in the district in which such building or premises is located.’
We also quote section 8:
‘No non-conforming building which has been damaged by fire, explosion, act of God, or act of the public enemy to the extent of more than 80 per cent of the assessed value shall be restored except in conformity with the regulations of this ordinance.’
Section 10 provides that the board of appeals may, after public notice and hearings, authorize a variation in the application of the district regulations, in harmony with other general purposes and intent, where practical difficulties or unnecessary hardships occur.
The proposed improvement consists of a substantial structure, 17 feet by 26 feet, one-story in height, costing $3,000, and whether regarded as an alteration in the existing building or a new structure, it is within section 12 of the ordinance, which provides that no new building or structure shall be erected, nor existing building altered at a cost of $100 or more until a permit has been issued. The case of Paye v. City of Grosse Pointe, 279 Mich. 254, 271 N.W. 826, is not at all applicable. In that case an erection of a new store front without any structural change was held not to be a violation of the ordinance, but we also stated that an alteration did exist when there was a change of form, character, or size of a building. The change contemplated by plaintiff is one in the structural quality of the building and the requisite permit may not be issued unless the zoning regulations are complied with.
It is true that the continuation of such nonconforming uses as existed at the time of the adoption of the ordinance is permitted and plaintiff properly asserts that the building and premises may be used for a gas station, but he contends that, therefore, in order to meet competition, he should have the right to modernize the building by erecting a substantial addition. Unfortunately for plaintiff, this can only be done by making structural changes, and such alterations or additions for a nonconforming use are forbidden by section 2 of the ordinance. Section 8 provides an exception to the blanket prohibition of section 2, but does not provide for the enlargement of a nonconforming use. The purpose of the ordinance is to keep residential, commercial, and industrial uses within certain territorial confines, and to limit, as far as is constitutionally permissible, the continuation of nonconforming uses. The effect of the zoning ordinance would be largely vitiated if a large mercantile establishment or factory would be permitted to supplant a small store or shop which existed at the time of the adoption of the ordinance. State ex rel. Carter v. Harper, 182 Wis. 148, 196 N.W. 451, 33 A.L.R. 269;Piccolo v. Town of West Haven, 120 Conn. 449, 181 A. 615;Conaway v. Atlantic City, 107 N.J.L. 404, 154 A. 6. The action of the city engineer and the board of appeals in refusing the permit was within the spirit of the zoning ordinance and was authorized by its provisions.
We likewise dismiss the claim that the action of the city in refusing the permit was arbitrary or unreasonable. It was shown that the property of plaintiff, used for nonconforming purposes, abuts the lot upon which a residence is located. The contemplated new building, if erected, would not be much more than 10 feet from the side of the house on the adjoining lot. According to a map of the city, the State Normal College is across the street from the gas station. A nonresidential zone has been created on an opposite corner of the intersection. As the contemplated structure was not in accordance with the provisions of the zoning ordinance, the refusal was proper and there was no abuse of discretion by the board of appeals, notwithstanding its power to interpret the provisions of the ordinance where practical difficulties or unnecessary hardship occur. A failure to vary the restrictions in this case cannot be considered an abuse of discretion.
Plaintiff contends, however, that under the decision of Adams v....
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