Brandau v. City of Grosse Pointe Park
| Decision Date | 31 January 1969 |
| Docket Number | Docket No. 4742,No. 1,1 |
| Parties | Edgar BRANDAU, Elma Brandau, Hilda Brandau, Louis Brandau, Mary S. Harmes, William J. McBrearty and Jessie McBrearty, and William R. McBrearty and Barbara McBrearty, Plaintiffs-Appellants, v. CITY OF GROSSE POINTE PARK, Michigan, Defendant-Appellee |
| Court | Court of Appeal of Michigan — District of US |
William J. McBrearty, Robert D. Dunwoodie, Dykema, Wheat, Spencer, Goodnow & Trigg, Detroit, for plaintiffs-appellants.
Bodman, Longley, Bogle, Armstrong & Dahling, Detroit, for defendant-appellee.
Before T. G. KAVANAGH, P.J., and R. B. BURNS and J. KELLEY, * JJ.
Plaintiffs appeal a judgment of the trial court holding defendant's zoning ordinance constitutional as applied to plaintiffs' property. The issue is whether the entire record supports this finding.
Plaintiffs own 6 lots in Grosse Pointe Park which are located in a 5-block area along Jefferson avenue. All of their lots front on residential streets having single-family residences and all have been classified residence A since 1928 **. However with the exception of plaintiffs' property and 2 municipally owned vacant lots on the south side of Jefferson avenue, all lots fronting on Jefferson in this 5-block area are zoned for commercial or municipal purposes. Plaintiffs argue that the adjoining commercial properties have made plaintiffs' property unfit for residential use and that it is discriminatory not to rezone their lots to a commercial classification.
This case has been partially before the Court in Brandau v. City of Grosse Pointe Park (1966), 5 Mich.App. 297, 146 N.W.2d 695, wherein we had to determine the propriety of the trial coutrt's granting of defendant's motion to dismiss under GCR 1963, 504.2. At that time we decided in plaintiffs' favor but later remanded for trial and a full determination of the factual issues. Plaintiffs now appeal as a result of that determination.
This Court in hearing zoning matters independently reviews all relevant facts in determining the reasonableness of the ordinance involved. But this Court does so with 3 precepts in mind: that a municipal ordinance is presumed valid; that the burden of persuasion to show the ordinance's invalidity lies upon the party attacking it; and that the findings of the trial court regarding the ordinance will not be set aside unless clearly erroneous. See Reid v. City of Southfield (1967), 8 Mich.App. 553, 155 N.W.2d 252 and Muffeny v. City of Southfield (1967), 6 Mich.App. 19, 148 N.W.2d 235. See also GCR 1963, 517.1.
From the entire record it is clear that the judgment below should not be disturbed. At most the record shows the existence of a debatable question as to the propriety of the zoning and this is not enough to overturn the ordinance. See Muffeny, supra, and Brae Burn, Inc. v. City of Bloomfield Hills (1957), 350 Mich. 425, 86 N.W.2d 166.
Looking at the evidence produced by plaintiffs, it is apparent that they have not conclusively established that they could not reasonably use their property as zoned. Plaintiffs purchased their property at residential prices fully aware of the restrictions and zoning governing them. However, the record discloses that plaintiffs never made a valid attempt to utilize these lots for residential purposes nor made a serious attempt to sell these lots at residential prices. They have not shows that such attempts would have been useless. Instead plaintiffs have only been interested in commercial prices for their lots and in fact bought on the speculation that the property, if rezoned, would be used commercially. But plaintiffs made no effective showing that a market is non-existent for this land as zoned, nor did they make a positive showing that an expansion of commerce in this area was necessary or desirable. In fact, plaintiffs failed to produce any witnesses actually engaged in residential construction in the area while defendant introduced such a witness who even expressed interest in building residences on these lots. Plaintiffs therefore did not clearly and...
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Brandau v. City of Grosse Pointe Park, 6
...at the time of the 1963 hearing and again in 1967. Upon appeal to the Court of Appeals, that Court in affirming (1969), 15 Mich.App. 689, p. 692, 167 N.W.2d 366, p. 367, 'Looking at the evidence produced by plaintiffs, it is apparent that they have not conclusively established that they cou......