Bloomfield Tp. v. Beardslee

• Decision Date: 01 October 1956
• Docket Number: No. 51,51
• Citation: 84 N.W.2d 537,349 Mich. 296
• Parties: TOWNSHIP OF BLOOMFIELD, a municipal corporation, Oakland County, Michigan, Plaintiff, Cross-Defendant and Appellee, v. Floyd BEARDSLEE and Aurilla Beardslee, husband and wife, Floydene B. Brownlee and Evelyn B. Malcolm, jointly and severally, Defendants, Cross-Plaintiffs and Appellants. ,
• Court: Michigan Supreme Court

Page 537

84 N.W.2d 537

349 Mich. 296

TOWNSHIP OF BLOOMFIELD, a municipal corporation, Oakland

County, Michigan, Plaintiff, Cross-Defendant and Appellee, v. Floyd BEARDSLEE and Aurilla Beardslee, husband and wife,

Floydene B. Brownlee and Evelyn B. Malcolm,

jointly and severally, Defendants,

Cross-Plaintiffs and Appellants.

No. 51, Oct. Term, 1956.

Supreme Court of Michigan.

July 31, 1957.

Poole, Warren & Littell, Detorit, for appellants.

A. Floyd Blakeslee, Pontiac, for plaintiff, cross-defendant and appellee.

Before the Entire Bench, except BOYLES, J.

SMITH, Justice.

This case involves a zoning controversy. The defendants own gravel-bearing property in the township of Bloomfield and they wish to develop it commercially. The trouble is that it is in an area zoned for residential purposes. The township hence seeks to restrain the operation. The owners, by cross-bill, attempt to enjoin the township's interference with their mining operation. The trial court upheld the ordinance, and the defendants (who will hereafter be referred to as the owners) took a general appeal. Thus the bar bones of the controversy. Other facts will be filled in as we go on.

Upon appeal the owners assert that the zoning ordinance is invalid because adopted at a special meeting of the township board, is not based upon a plan formulated as required by the enabling act, and that it is invalid and unconstitutional as applied to the owner's property because it is unreasonable, arbitrary and confiscatory. In addition, they claim a prior, nonconforming use.

The owners had purchased the property now in litigation early in 1951. It is in section 1 of the township, being the southeast 1/4 thereof, bounded on the south by section 12, the southwest by section 11, and on the west by section 2. Since 1913 the appellants have conducted gravel removal operations on their property in section 2. The site in section 1 was purchased in anticipation of the exhaustion of this source. The land in sections 1, 2, 11, 12, and certain others comprising roughly the northeast corner of the township was unzoned until 1952. (The other township property, described as district 1, had been ozned purely residential in 1940). At a special meeting of the township board on January 30, 1952, the northeast corner was zoned as district 2, upon the same basic plan as was used for district 1.

At this point we face the first of the owners' objections to the validity of the enactment of the zoning ordinance, namely, that the enactment is not grounded on a basic plan 'to promote the public health, safety, morals and general welfare' in accordance with the township rural zoning act. ¹ The statute, it is urged, provides a mandatory requirement for the enactment of zoning ordinances and sets forth the factors to be considered in formulating a basic plan of zoning for a district, no single one of which, i. e., the conservation of property values, will sustain the ordinance, if there is a total disregard of others, e. g., extraction and conservation of natural resources.

With respect to the plan adopted, it was the testimony of a member of the township zoning commission that they 'had experienced people go over the territory.' and that 'the territory and surroundings were taken into account.' They had, it was testified, 'various experts in, land men who went over the proposition.' In addition, the chairman of the commission testified that the basic plan in force under the zoning ordinance for district 1 of the township (which had been in operation for many years) was considered as the basis for zoning district 2. This was sufficient in their opinion to become the basic plan for this contested ordinance. The ordinance and map were approved by the Oakland county zoning committee.

We cannot conclude, from the above, and the record as a whole before us, that the zoning ordinance was enacted, as charged, without the formulation of a basic plan as required by the statute. The contrary seems to have been the case. The reasonableness of the plan, of course, and consequently of the ordinance, are different, though related, questions. We are unpersuaded that the lower court was in error in its rejection of the argument thus made.

The next objection raised by the owners with respect to the enactment of the ordinance is that it was adopted at a special meeting of the township board. This is said to be in violation of an asserted statutory mandate that such adoption may be accomplished only at a regular meeting. ² The township admits the enactment at a special meeting. It urges, however, that the distinction between regular and special meetings has, in and of itself, no legal significance with respect to the issue before us, pointing to P.A.1951, No. 46, which provides in part as follows:

'* * * Special meetings of the township board shall be held at such times as may be fixed by the board at any meeting or when in the discretion of the supervisor it appears advisable. * * * However, if all of the members of the said board are present at any special meeting thereof, then any business which might lawfully come before a regular meeting of the said board may be transacted at such special meeting.' C.L.S.1954, § 41.72a, Stat.Ann.1955 Cum.Supp. § 5.64(1).

We are constrained to agree that the legislative intent, here expressed, is that the township board has the authority to do at any special meeting any matter which might be transacted at a regular meeting provided other statutory requirements are fulfilled. We are mindful in this regard that the burden of proof is upon him who attacks the ordinance to show by competent evidence that it was not legally enacted, Thorne v. Squier, 264 Mich. 98, 249 N.W. 497, 89 A.L.R. 126, and that an ordinance, like a statute, is presumed valid unless the contrary is shown by competent evidence, Harrigan & Reid Co. v. Burton, 224 Mich. 564, 195 N.W. 60, 33 A.L.R. 142. The appellants have established only that the ordinance was enacted at a special meeting and the record discloses nothing more ominous. In view of this we cannot say the presumption of validity is rebutted. The trial court's findings in this respect are worthy of repetition:

'The challenge that the ordinance is invalid because of the failure of a valid statutory enactment is based upon the most exacting of technical objections. A public hearing was held upon the ordinance subsequent to notices for that purpose having been published in the Birmingham Eccentric and the Pontiac Daily Press. The ordinance and maps were submitted to the Oakland County Zoning Commission and approval received. The ordinance was adopted by the Township Board and published in the Birmingham Eccentric and it was entered in the Book of Ordinances. There was a substantial compliance with the statute in the enactment of the ordinance in the opinion of the ocurt to justify holding its validity.'

The owners challenge, also, the constitutionality of this zoning ordinance as applied to their property because it is said to be unreasonable, arbitrary, and confiscatory. The charge made requires an exhaustive examination of the area affected, its location, its use, and the activities now, and in the reasonably foreseeable future, to be found thereon, as well as the nature of the use excluded. The exhibits show an area of gently rolling hills, in part heavily wooded. We may take judicial notice of its proximity to great centers of population in its area. In the decade from 1944 to 1954 the township saw increase ('mostly all residential') from an assessed valuation of $8,069,480 to $21,278,635. It is an area of relatively expensive homes. The township officials do not 'expect a density of population growth in this area comparable to an urban development.' Immediately south of section 1 is section 12, the adjoining portion of which contains Kentmore subdivision, with homes under construction ranging in value from $28,500 to $40,000. Not contained in the township, but located in the adjoining Troy township, to the east, is the Charnwood Hills subdivision, the northwest corner of which adjoins the property in question. This contains over a hundred lots, of an average size of one and oen-quarter acres, with some 80 homes costing upwards from $25,000 either built or nearing completion. The trial court's finding that 'Bloomfield township as a whole is acknowledged as an area extremely well situated, lending itself to the best type of suburban development' is amply justified by the record.

Gravel, also, is found in the area, and it is the occurrence of this natural deposit in a township so well adapted to, and so extensively utilized by, residential development which lies at the root of our problem. In section 11, immediately south of section 2 (which contains the owner's presently operating pit) is located the township gravel pit. We note, in passing, that in section 1, where the property in question is situated, 3 or 4 houses have been built in the last 10 years, while in section 2, in which the mining operations have taken place, no permits have been issued in the same decade. The operation of the owner in section 2 (unquestioned as a nonconforming use) employs 'bulldozers and crushers on the property, two stone crushers and a vibrator (screening process).' It does 'not have a washer.' The primary operation is the 'excavation of highway gravel and stock piling it for purchase.' In the opinion of several real estate brokers, gravel operations upon the property in question would depreciate all of the surrounding property up to a half mile, and 'would be definitely and decidedly detrimental to the sale and to the use and enjoyment of residential property in the immediate vicinity.' The testimony of neighbors in the immediate vicinity of the existing operation varied. Some testified that the operation of the gravel pits was not bothersome to them. Another that it was objectionable (noise, dust, and disturbance of rest) and...