Bingham v. City of Flint
| Decision Date | 29 November 1968 |
| Docket Number | No. 2,Docket No. 3102,2 |
| Citation | 14 Mich.App. 377,165 N.W.2d 628 |
| Parties | Norris E. BINGHAM and Betty L. Bingham, Plaintiffs-Appellants, v. CITY OF FLINT, a municipal corporation, and Palmer Concrete Products, Inc., a Michigan corporation, Defendants-Appellees |
| Court | Court of Appeal of Michigan — District of US |
Dale A. Riker, Flint, for appellants.
Charles A. Forrest, Jr., Flint, for Flint.
Edward P. Joseph, Flint, for Palmer.
Before McGREGOR, P.J., and LEVIN and QUINN, JJ.
Defendant Palmer Concrete Products, Inc., constructed a cement batch plant on land that had been rezoned from commercial to industrial by the Flint City commission following a public hearing conducted by the Flint Planning commission.
On the day after construction was commenced the plaintiffs, Norris E. Bingham and Betty L. Bingham, owners of property near the rezoned property, filed their complaint in this case seeking a temporary restraining order and permanent injunctive relief against the industrial use of the rezoned property. No relief was granted the Binghams, and they appeal from a judgment which among other things declares that the cement batch plant may remain on the land. 1
The Binghams contend that the ordinance adopted by the Flint city commission making the change in zoning was invalid because no hearing was held by the city commission itself before it acted. We agree and hold that the ordinance was not validly adopted and remand for further proceedings on the question whether Palmer Concrete Products should be required to remove the plant so constructed.
The governing statute is the zoning enabling act applicable to cities and villages, C.L.1948, § 125.581 Et seq., as amended. Section 4 of the statute (C.L.1948, § 125.584 (Stat.Ann.1958 Rev. § 5.2934)) authorizes the legislative body of any city to provide by ordinance for the manner in which the regulations and boundaries of districts or zones shall be determined and enforced or from time to time amended supplemented, or changed, 'provided, however, that A public hearing shall be held before such regulations become effective.' 2 (Emphasis supplied.)
Since section 4 thus far related has not particularized whether the public hearing which it requires needs to be conducted by the legislative body itself, as the Binghams contend, or whether it may be conducted by an agency designated by the legislative body such as a planning commission, as Palmer Concrete Products contends and the trial judge determined, we read on and examine the rest of section 4 for a clue to the legislature's intention. Section 4 goes on to provide that in cities, such as Flint, having a population in excess of 25,000 the following special requirements are applicable:
--the legislative body shall not in the 'first instance' determine the boundaries of districts nor impose regulations until after the final report of a commission which the legislative body may appoint to recommend the boundaries of districts and appropriate regulations to be enforced therein;
--the commission appointed by the legislative body is to make a tentative report and hold public hearings thereon before submitting its final report.
Section 4 continues:
The 'hearing as above provided before the legislative body shall not take place until such final report of such commission has been received, nor shall the ordinance or maps be amended after they are adopted in the first instance until the proposed amendment has been submitted to such commission and it has made report thereon.' 3 (Emphasis supplied.)
Since the only pertinent 4 reference to a public hearing in section 4 preceding the words 'hearing as above provided before the legislative body' is that contained in the phrase 'a public hearing shall be held before such regulations become effective', it appears clear that the statutorily required public hearing--the public hearing required to be held 'before such regulations become effective'--is a hearing conducted by the legislative body itself. See Town of Hillsboro Beach v. Weaver (Fla., 1955), 77 So.2d 463, construing a statute substantially similar to ours.
We are also satisfied that the requirement of a hearing by the legislative body itself applies to amendments as well as to original or 'in the first instance' regulations. 5 In this connection we note that section 4 concludes by providing that after the ordinance and maps have in the first instance been approved by the legislative body of a city or village, amendments or supplements thereto may be made from time to time 'as above provided'.
If the city commission's power to determine the manner in which boundaries of districts or zones are to be established or from time to time amended, supplemented or changed includes the power to delegate the legislative body's hearing function, then 'as above provided' could indeed be interpreted as authorizing the city commission to establish a procedure for consideration and adoption of amendments to its zoning ordinance which does not require the city commission itself to conduct a public hearing on the proposed amendment. A more apparent and less strained interpretation of 'as above provided', one that appeals to us, is to read it as meaning: according to the procedure 'above provided' in this section 4 to the extent this section purports to prescribe the procedure.
The procedure set forth in section 4 indisputably requires a hearing before the legislative body itself 'in the first instance'. In our opinion it was that procedure which the concluding language of section 4 referred to 'as above provided' and which such concluding language of section 4 thereby adopted as applicable for 'amendments or supplements'. So interpreted, the city commission remains free to establish procedures for the adoption of amendments to its zoning ordinance, but only such as are not in conflict with particularized requirements of section 4 of the enabling act, such as the requirement of a public hearing before the legislative body.
The following language of section 4 does not change the matter:
'Where a city has a city plan commission or corresponding commission, the legislative body may appoint such commission to perform the duties above specified.'
The 'duties above specified' do not include All duties above specified. The more sensible construction of the words 'duties above specified' is to read them as referring to those duties which are to be performed by the 'commission' to be appointed by the legislative body, not those to be performed by the legislative body itself. As we read the sentence last quoted above, all it permits the legislative body to do is to delegate to its planning commission the hearing and recommendation functions of the 'commission' to be appointed by the legislative body--thereby avoiding the convening of a separate commission in those communities which have a planning commission.
Section 4 does not authorize the legislative body to delegate its legislative powers under the enabling statute to such a planning commission. Compare Temple v. Portage Township (1962), 365 Mich. 474, 478, 113 N.W.2d 789. Nor does it authorize delegation of the hearing function of the legislative body. Palmer Concrete Products' argument requires an interpretation of section 4 that would permit delegation of the legislative body's hearing function in the amendment situation even though it is clear that separate hearings before the commission appointed by the legislative body and before the legislative body itself are required in the case of an initial promulgation. It seems to us that the sounder construction of section 4 is that precisely the same procedure required in the case of an initial promulgation is to be followed by the legislative body in the case of an amendment.
We, therefore, conclude that section 4 requires the legislative body itself to conduct a public hearing on a proposed amendment to its zoning ordinance before the amendment can become effective and that the duty to conduct such hearing is nondelegable.
We have considered whether the regularity of the proceedings taken to pass the ordinance changing the zoning of Palmer Concrete Products' property is protected from judicial scrutiny and have concluded that whatever presumption of regularity may apply cannot save this ordinance. McClellan v. Judge of Recorder's Court of Detroit (1924), 229 Mich. 203, 211--213, 201 N.W. 209; Tennent v. City of Seattle (1914), 83 Wash. 108, 145 P. 83, 86.
Our Supreme Court has held that an ordinance adopted without a public hearing required by section 4 is void. Krajenke Buick Sales v. Hamtramck City Engineer (1948), 322 Mich. 250, 33 N.W.2d 781. We hold, therefore, that the ordinance which changed the zoning of the land in question from commercial to industrial was void. Since the zoning change was accomplished by...
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...134 N.W.2d p. 173; see, also, Mr. Justice Black's separate concurring opinion in that case.Additionally, see Bingham v. City of Flint (1968), 14 Mich.App. 377, 385, 165 N.W.2d 628; compare 42 Am.Jur.2d, Injunctions, § 58, p. 801, concerning the application of the doctrine of comparative inj......
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