Biske v. City of Troy

• Decision Date: 09 April 1969
• Docket Number: No. 16,16
• Parties: George BISKE, deceased, Succeeded by Elsie Biske and H. J. Hall, Jr., Plaintiffs and Appellants, v. CITY OF TROY, a Municipal Corporation, Defendant and Appellee.
• Court: Michigan Supreme Court

Page 453

166 N.W.2d 453

381 Mich. 611

George BISKE, deceased, Succeeded by Elsie Biske and H. J Hall, Jr., Plaintiffs and Appellants, v. CITY OF TROY, a Municipal Corporation, Defendant and Appellee.

No. 16.

Supreme Court of Michigan.

April 9, 1969.

Samuel W. Barr, Detroit, for plaintiffs-appellants.

Burke & Sawyer, Stanley E. Burke, Thomas G. Sawyer, Troy, for defendant-appellee City of Troy.

Before BRENNAN, C.J., and DETHMERS, KELLY, BLACK, T. M. KAVANAGH, ADAMS, and T. G. KAVANAGH, JJ.

PER CURIAM.

Plaintiffs' complaint, filed January 21, 1964, presents another zoning cause against the city of Troy. The cause alleged is essentially equitable in nature and differs in that regard from Brae Burn, Inc. v. City of Bloomfield Hills, 350 Mich. 425, 86 N.W.2d 166; a case we shall presently consider. Here the equitable features of plaintiffs' cause are of importance in conjunction with our monotonously repeated precepts that 'in determining the reasonableness of a zoning ordinance each case must be determined upon its own facts.' ¹ and that considerable weight is given to the findings of trial judges upon review of zoning cases presenting equitable issues. To quote Justice T. M. Kavanagh, writer of the Court's opinion in the Christine Case (pp. 517, 518, 116 N.W.2d p. 820):

'We hear and consider chancery cases De novo on the record on appeal. Johnson v. Johnson, 363 Mich. 354, 109 N.W.2d 813; Osten-Sacken v. Steiner, 356 Mich. 468, 97 N.W.2d 37; Futernick v. Cutler, 356 Mich. 33, 95 N.W.2d 838; A & C Engineering Co. v. Atherholt, 355 Mich. 677, 95 N.W.2d 871; Straith v. Straith, 355 Mich. 267, 93 N.W.2d 893; Ball v. Sweeney, 354 Mich. 616, 93 N.W.2d 298. This Court, however, is inclined to give considerable weight to the findings of the trial judge in equity cases. This is primarily because the trial judge is in a better position to test the credibility of the witnesses by observing them in court and hearing them testify than is an appellate court which has no such opportunity. We do not ordinarily disturb the findings of the trial judge in an equity case unless, after an examination of the entire record, we reach the conclusion we would have arrived at a different result had we been in the position of the trial judge. The trial judge here found, after listening to the witnesses testify and examining the exhibits, that the plaintiffs had shown the zoning ordinance to be unreasonable and arbitrary. After an examination of the entire record, we feel the trial judge reached a correct conclusion.' ²

Upon proofs received and findings made, judgment entered in circuit upholding plaintiffs' complaint that Troy's zoning ordinance could not be applied validly to the corner-most portion (200 feet by 150 feet) of their 660 by 330 foot parcel which forms the northwest corner at the intersection of Livernois and Big Beaver roads. On appeal Division 2 reversed as to this controlling issue (Biske v. City of Troy, 6 Mich.App. 546, 149 N.W.2d 899).

When plaintiffs applied here for leave to appeal our attention arrived at concentration upon Division 2's thought that 'In this whole area of city planning and urban renewal, the courts may have to re-evaluate their predilection of looking to precedents of the past.' and that 'The fact that it (Troy's master plan) has been adopted formally or informally by a responsible political body is of itself evidence of its reasonableness.' (pp. 551, 552, 149 N.W.2d p. 902). There is thus presented the issue as to the impact of a projected--but not legally adopted and hence whimsically malleable--master plan upon zoning cases.

In the first place it is clear, as observed by Judge Pratt (post at 459), that the proposed master plan of Troy, upon which the ordinance tested here was based, has not been adopted as provided by statute. C.L.1948, § 125.38. In the second place Brae Burn, Inc. v. City of Bloomfield Hills, 350 Mich. 425, 86 N.W.2d 166, cited below as supporting a proposition that 'The reasonableness of a particular zoning must also be considered in the light of planned area development of a political body having the authority to plan and implement such future development.' (6 Mich.App. at 552, 149 N.W.2d p. 902), provides for the claimed application of this ordinance no such underpinning.

Division 2 has, we conclude, missed the point as regards the evidentiary weight of Troy's proposed master plan. Before we may credit any such plan as being 'of itself evidence of its reasonableness.', we must first determine whether that plan is In fact a validly adopted master plan. Here we agree with plaintiffs' brief-declared statement that 'If a 'Master Plan' is going to be adopted by a community, such plan should at least be adopted formally by the community, and the community be given an opportunity to pass on it in accordance with the statute.'

Overlooking the fact that 4 members only of the Court endorsed the opinion of Brae Burn, we find that the case was one of Mandamus against the City of Bloomfield Hills and certain of its officials to enforce the issuance of a building permit; also that no 'master plan' was involved but only the municipal zoning ordinance.

Justice Talbot Smith wrote (p. 438 of 350 Mich., p. 173 of 86 N.W.2d of Brae Burn):

'Tested by these established principles it is clear beyond question that it lies within the competence of the city of Bloomfield Hills to plan its future growth and development, that its legislative body had authority to act, and that, so far as here questioned, the requirements of administrative and procedural due process have been observed * * *.'

By the context of the opinion this can only refer to the zoning ordinance of the city. As for the case at bar, the introduction of an unadopted 'master plan' as evidence of reasonableness of the application of Troy's zoning ordinance (here 'The most significant exhibit' according to Judge Pratt), is an innovation. The shopping center and the office complex hoped for in the master plan may never develop. Nor may we presume or assume that they have come into being during the interval of years which have elapsed since the circuit court's judgment was entered. Perhaps the possibility should be considered in a zoning case, but that does not authorize a holding that such a plan (not the zoning ordinance the city would apply) 'is of itself evidence of its reasonableness.'

The mandatory requirement, that 'The commission shall make and adopt a master plan for the physical development of the municipality, including any areas outside of its boundaries which, in the commission's judgment, bear relation to the planning of the municipality' (See P.A.1931, No. 285, § 6 (C.L.1948, § 125.36), as amended by P.A.1962, No. 138), is of no little significance when courts are called upon to consider the reasonableness of zoning which depends upon the predictions of such a plan and the need for reasonable stability thereof once the plan has been adopted pursuant to the procedure required by section 8 of the act (C.L.1948, § 125.38). In short, we are not disposed to grant any municipal master plan, not yet adopted according to section 6, the evidentiary value of reasonableness which Division 2 accords this one. The point is that the statutory requirement of formal adoption has a purpose, a rather manifest one, and our decision here should tend to effectuate that purpose. We come, then, to the usual question: Is the ordinance brought to test reasonable in the attempted application thereof to plaintiffs' said parcel? Our judgment, comporting with that of the trial judge, is negative.

The case is but another, as in the Christine and Roll Cases, supra, where the findings and conclusions of the chancellor are amply supported by proof showing that Troy has depended too much upon an unofficial plan and that it has considered too little how its enacted limitation of use of plaintiffs' 200 150 foot corner parcel, to that of O--1 (office building), hinges so much upon speculative standards. Meanwhile the hapless property owner waits, pays taxes and hopes that either the anticipated development will come shortly or that the zoning authority will release to some extent its griphold of his property right. What was written for the Court by Justice Dethmers, in Gust v. Township of Canton, 342 Mich. 436, 442, 70 N.W.2d 772, 774 comes to mind here:

'The extent of the owner's right to the free use of his property in the manner deemed best by him is not to be determined by such speculative standards. The test of validity is not whether the prohibition may at some time in the future bear a real and substantial relationship to the public health, safety, morals or general welfare, but whether it does so now.'

To the same effect is Justice T. M. Kavanagh's discourse in Christine, supra at 516 of 367 Mich., at 819 of 116 N.W.2d:

'Our courts have consistently held that the reasonableness of a zoning restriction must be tested according to existing facts and conditions and not some condition which might exist in the future. See the discussion in Comer v. City of Dearborn, 342 Mich. 471, 477, 70 N.W.2d 813, where Justice Carr quotes from the case of Corthouts v. Town of Newington, 140 Conn. 284, 288, 99 A.2d 112, 38 A.L.R.2d 1136, as follows:

"Zoning regulations constitute a valid exercise of the police power only when they have a 'rational relation to the public health, safety, welfare and prosperity of the community' and are 'not such an unreasonable exercise of (the police) power as to become arbitrary, destructive or confiscatory.' State v. Hillman, 110 Conn. 92, 100, 105, 147 A. 294. Whether a zoning ordinance meets this test must be determined in the light of existing conditions, in order that the purpose for which the police power is invoked may be promoted. Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 387, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R. 1016."

The foregoing considerations bring us to Judge Pratt's opinion. We adopt...