Binkowski v. Shelby Tp.

• Decision Date: 24 April 1973
• Docket Number: Docket No. 13342,No. 2,2
• Parties: Don BINKOWSKI, Plaintiff-Appellant, v. TOWNSHIP OF SHELBY, a municipal corporation of Macomb County, Michigan, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 243

208 N.W.2d 243

46 Mich.App. 451

Don BINKOWSKI, Plaintiff-Appellant, v. TOWNSHIP OF SHELBY, a municipal corporation of Macomb

County, Michigan, Defendant-Appellee.

Docket No. 13342.

Court of Appeals of Michigan, Division No. 2.

April 24, 1973.

Released for Publication June 21, 1973.

Emil E. Cardamone, McAlpine & Cardamone, Warren, for plaintiff-appellant.

Roy W. Rogensues, Fraser, for defendant-appellee.

Before BRONSON, P.J., and V. J. BRENNAN and O'HARA, ^* JJ.

V. J. BRENNAN, Judge.

This case was tried on stipulated facts before a judge of the Macomb County Circuit Court. The pertinent portion of that stipulation is as follows:

'This is a zoning case wherein Plaintiff seeks judicial relief from denial of a zoning change by defendant municipality.

'Plaintiff is a land contract vendee of 70.975 acres of vacant land located at the northwest corner of 23 Mile and Hayes Roads in Shelby Township.

'Defendant has in effect a zoning ordinance and accompanying zoning district map. Plaintiff's lands are classified thereunder for single-family residential use, except for a small segment at the precise corner of 23 Mile and Hayes Roads which is classified for professional business use.

'Plaintiff applied to Defendant for a zoning change to an 'MHP' zoning classification to permit construction of a mobile home park on the property in question. He also requested that a small portion of said property at the precise corner of 23 Mile and Hayes Roads be rezoned to permit construction of an appurtenant commercial shopping center.

'The Shelby Township Planning Commission, with 5 of its 9 members present and voting, favorably recommended Plaintiff's requested zoning change, by a vote of 3 'yes' and 2 'no'. The Macomb County Planning Commission concurred with the Shelby Planning Commission's favorable recommendation. However, the Defendant Township Board, the legislative body, denied Plaintiff's requested zoning change at its November 21, 1970, meeting, by a vote of 6 'yes' and 0 'no.'

'Defendant Township, east of the M--53 freeway, is sparsely populated and its land area is substantially undeveloped or devoted to agricultural use. There are no public water or sewer facilities available to serve the premises in question.

'Early in 1970, the text of Defendant Township's existing zoning ordinance was amended to create a new 'MHP' zoning district to permit mobile home parks therein and to regulate and control their use. The accompanying zoning district map was not amended to provide any MHP districts.

'No developed mobile home parks presently exist in Defendant Township. The only identifiable MHP district existing in the Township is a presently-vacant 57-acre parcel on the north side of 22 Mile Road, east of the M--53 freeway. This parcel was rezoned for mobile home park use by the Township Board in November, 1970, at the request of the property owner.

'Plaintiff's property is vacant land entirely surrounded by undeveloped property. The properties to the east, west, north and south are devoted to agricultural use with a scattering of homes fronting on 23 Mile Road. The southeast corner is the site of the new Berz Airport which presently is under construction.'

Based on this stipulation of facts, each party moved for summary judgment pursuant to GCR 1963, 117.2(3). The trial court, in a written opinion, decided to grant defendant's motion. The relevant portions of the trial court's opinion are as follows:

'The question that the Court finds squarely presented is whether or not the action of the Shelby Township Board was a valid exercise of the so-called police power granted by the State of Michigan to the Township or other municipal unit.

'There has been no showing, either in pleadings or in factual testimony, that the plaintiff cannot use the lands in question according to the existing zoning pattern but rather that it is his preference to use it for another purpose; namely, mobile home development.

'It is the opinion of the Court that it is the burden of proof of the plaintiff to establish that the zoning placed upon the property is arbitrary, capricious, confiscatory or unreasonable. The ordinance of the Township of Shelby recently amended does provide an area for mobile home development, although, admittedly not in use at this time. This is not a question that a zoning ordinance neither prohibits entirely or has made no provision for mobile home use. The burden of proof is upon the plaintiff to establish the invalidity of the Township zoning ordinance, Township of Commerce vs. Rayberg, 5 Michigan Appeals 554, (147 N.W.2d 453) and this Court, as stated in Bray Burn, Inc. (sic) vs. Bloomfield Hills, 350 Michigan 425, (86 N.W.2d 166) 'this Court does not set (sic) as a super zoning commission' . . . let us state the proposition clearly as may be: it is not our function to approve the ordinance before us as to wisdom or desireability (sic) . . .

'It is, therefore, the ruling of this Court that the plaintiff has not defeated the presumption of validity nor shown the ordinance to be arbitrary, capricious, unreasonable or confiscatory as to the land in question.'

From the judgment for defendant entered pursuant to this opinion, the plaintiff appeals and raises several arguments for our consideration. On careful analysis, we find that this Court is presented with one basic issue: Which party has the burden of proof in this litigation, and was it met?

A proper resolution of the question presented to us requires a careful consideration of this Court's recent and memorable opinion in Bristow v. City of Woodhaven, 35 Mich.App. 205, 192 N.W.2d 322 (1971). To begin our analysis, let us state that we agree with the underlying sentiment and motivating consideration behind Judge Gillis' opinion in Bristow: that a municipality should not be allowed to interfere with the proper growth, and with the manifest needs of the larger community of which it is a part. The zoning laws of this state were not adopted as, and the courts will not permit them to be used for, a vehicle by which a fragment of the larger community will be allowed to pick and choose the manner and degree in which it will participate in the development of the larger community with total disregard for the needs of that larger community. However, we feel that we must take issue with some of the language employed by the Bristow panel, and more particularly we must take issue with the manner in which other panels of this Court have subsequently interpreted Bristow.

In Simmons v. Royal Oak, 38 Mich.App. 496, 497, 196 N.W.2d 811 (1972), and Green v. Lima Twp., 40 Mich.App. 655, 658, 199 N.W.2d 243 (1972), the following language from Bristow is used to support the conclusion that total exclusion of a preferred use shifts the burden of proof to the defendant zoning authority.

'A review of the cases indicates that certain uses have come to be recognized as advancing the general public interest; such recognition is found in our State Constitution, statutes, judicial precedents, or a combination of these factors. * * * (W)here a proposed use has acquired a 'favored' status and is appropriate for a given site, the presumed validity of a restrictive local ordinance fades and the burden shifts to the municipality to justify its exclusion.' (Bristow, supra, 35 Mich.App. p. 212, 192 N.W.2d p. 325.)

We believe that both Simmons and Green misread Bristow. They assume that the word 'burden' in this passage refers to the burden of proof. From the context of the Bristow opinion, and especially from the immediately preceding paragraph, it is apparent that the reference is to the 'burden of going forward'. The pertinent portion of that paragraph reads as follows:

'Therefore, in such limited situations, the proponent of a preferred or protected but prohibited use may establish a Prima facie case thereby casting upon the municipality The burden of going forward (emphasis added) to justify its prohibition of a use heretofore recognized as beneficial to the public welfare.' (Bristow, 35 Mich.App. p. 211, 192 N.W.2d p. 325.)

An analysis of the authority utilized by the Court in Bristow would compel us to reach the same conclusion. The analysis on this point in Bristow, supra, pp. 211--212, 192 N.W.2d p. 324, begins with a reference to an observation in a law review article that in certain situations '(c)ourts have eradicated the presumption of validity, shifted the burden of going forward onto the municipality, or even shifted the burden of proof of reasonableness to the zoning municipality'. ¹ In the next paragraph, the Court observes that '* * * where a proposed use has acquired a 'favored' status and is appropriate for a given site, the presumed validity of a restrictive local ordinance fades and the burden shifts to the municipality to justify its exclusion.' This is, of course, the language relied upon by panels of this Court in Simmons and Green to justify the conclusion that it is the burden of proof which shifts. The cases on which the Bristow Court seems to rely for that assertion are Roman Catholic Archbishop of Detroit v. Village of Orchard Lake, 333 Mich. 389, 394, 53 N.W.2d 308, 310 (1952), and Sisters of Bon Secours Hospital v. Grosse Pointe, 8 Mich.App. 342, 154 N.W.2d 644 (1967).

The language from Archbishop, supra, on which the Bristow panel relies is as follows:

'A thesis so inconsistent with the spirit and genius of our free institutions and system of government and the traditions of the American people will not be accepted by way of presumption, Nor at all in the absence of competent evidence establishing a real and substantial relationship between the attempted exclusion and public health, safety, morals or the general welfare and, hence, the reasonableness and validity of the restriction upon the use of private property as a legitimate exercise of the state's police powers.' (Emphasis added.)

The Supreme Court in Archbishop held that the presumption of...