Boron Oil Co. v. City of Southfield
| Decision Date | 25 June 1969 |
| Docket Number | Docket No. 5134,No. 2,2 |
| Citation | 18 Mich.App. 135,170 N.W.2d 517 |
| Parties | BORON OIL COMPANY, Plaintiff-Appellee, v. CITY OF SOUTHFIELD, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
James M. Ginn, Ginn & Kramer, Southfield, for defendant-appellant.
Norman Hyman, Honigman, Miller, Schwartz & Cohn, Detroit, for plaintiff-appellee.
Before LESINSKI, C.J., and QUINN and DANHOF, JJ.
Plaintiff, Boron Oil Company, on June 5, 1967, applied to the defendant, City of Southfield, for a building permit authorizing construction of a gasoline station on certain land located in Southfield. The city engineer of Southfield orally informed plaintiff that certain corrections in the building plans were necessary before the permit could be issued. The plans were then corrected to comply with the building code, but Southfield neither issued the permit nor informed Boron in writing of the reasons for failure to issue the permit.
At the time plaintiff applied for a permit, the land involved was zoned commercial and would have permitted construction of a gasoline station. Therefore, on June 19, 1967, plaintiff instituted this action in circuit court seeking mandamus to order the issuance of the building permit. That same evening, the City Council of Southfield purported to enact an amendment to its zoning ordinance to restrict the land involved to office use only. The amendment was enacted following a public hearing held by the City Council, but according to allegations of plaintiff which were uncontradicted by defendant, there was no public hearing before the Southfield Planning Commission.
Pursuant to the mandamus action, the circuit court issued an order directing defendant Southfield to show cause why the writ of mandamus sought by plaintiff should not issue. Defendant filed answers to both the petition for the writ of mandamus and to the show cause order and moved for summary judgment, alleging failure of plaintiff to state a cause of action. A combined hearing was had no the show cause order and the motion for summary judgment, but no testimony was taken. At the conclusion of the hearing the court found plaintiff entitled to a writ of mandamus and ordered defendant to forthwith issue plaintiff a building permit for the service station.
Defendant City of Southfield appeals.
Southfield contends the circuit court committed error in granting mandamus because the amendatory zoning ordinance passed on the date of institution of the instant action prohibited construction of a gasoline station on the land in question. In support, defendant cites Franchise Realty Interstate Corporation v. City of Detroit (1962), 368 Mich. 276, 118 N.W.2d 258, where the Court denied mandamus after adopting the city of Detroit's defense that its newly amended zoning ordinance prohibited issuance of the requested building permit.
Plaintiff argues, and the circuit court held, that Franchise Realty is inapplicable because the purported amendment to the zoning ordinance was invalid, as it was enacted contrary to C.L.1948, § 125.584 (Stat.Ann.1958 Rev. § 5.2934). We agree. The transcript of the circuit court hearing contains an allegation by plaintiff that Southfield's Planning Commission never held a public hearing regarding the amendatory ordinance. At that hearing defendant's attorney was asked by the court whether a public hearing had been held before the Planning Commission, but the attorney was unable to refute plaintiff's allegation. Furthermore, the court allowed defendant's attorney three additional days after the court hearing within which to further determine whether a public hearing before the Planning Commission had been held. The record contains no assertion by the city that such a hearing did occur. Therefore, there was no disputed issue of fact as to whether the public hearing before the Planning Commission was held.
In Bingham v. City of Flint (1968), 14 Mich.App. 377, 165 N.W.2d 628, this Court considered the validity of an amendatory zoning ordinance of the city of Flint. There, in a situation the reverse of that involved in the instant case, the Flint City Commission adopted an ordinance without itself holding a public hearing, although the Flint Planning Commission had conducted a public hearing. The Bingham Court held the amendatory ordinance invalid because the City commission, which was the legislative body of Flint, failed to hold a public hearing before it acted, as required under § 125.584. The Court stated that an amendment to an ordinance under § 125.584 must be adopted in the same manner as required for the adoption of an ordinance. The principles of Bingham and § 125.584, indicate that amendment of a zoning ordinance in a city having a population in excess of 25,000 requires:
1. That the legislative body shall not in the first instance determine the boundaries of districts nor impose regulations until after the receipt of the final report of a commission which the legislative body may appoint.
2. That the commission, if appointed by the legislative body, shall recommend the boundaries of districts and appropriate regulations to be enforced therein, shall make a tentative report, and shall hold public hearings thereon before submitting its final report.
3. That separate public hearings, both before the commission and before the legislative body, must be held before the amendment of an ordinance.
Southfield, a city having a population of over 25,000, has a planning commission and thus is subject to the special restrictions of Bingham and C.L. 1948, § 125.584. In the instant case, since the amendatory ordinance was enacted without a prior public hearing before the city planning commission, it is void. Section 125.584 and the principles of Bingham require that where the legislative body of a city such as Southfield has created a planning commission, separate public hearings on an amendatory zoning ordinance must be held by the city's planning commission and by its legislative body. Because the amendment is void, in the instant case as in Bingham, 'the commercial zoning remained unaffected by the purported change in zoning.'
Having voided the amendatory ordinance, the circuit court considered the question of whether the building permit should have been issued under the commercial zoning ordinance then in effect. At the circuit court hearing, the court asked counsel for defendant city:
'In other words, being succinct and to the point, there is only one impediment to the issuance of this building permit and that is the fact that you have now, by way of amendment while all of this was pending, acquired a change in zoning that permits only office buildings in that area.'
Counsel for defendant city replied: 'The only present impediment now is zoning.' Were it not for this concession by defendant city, this Court would be required to remand this case for an evidentiary hearing to determine whether the underlying facts indicate compliance with the commercial zoning ordinance of defendant city. However, because counsel for defendant conceded that plaintiff's corrected application for a building permit conformed with all Southfield ordinances other than the amendatory zoning ordinance, and because the amendatory zoning was void, there was no impediment to issuance of the building permit.
Under Article XIX of the building code and zoning ordinances of the city of Southfield:
'Whenever the buildings, land and uses thereof as set forth on the application are in conformity with...
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