Brill v. City of Grand Rapids, 11

• Citation: 383 Mich. 216,46 A.L.R.3d 121,174 N.W.2d 832
• Decision Date: 09 March 1970
• Docket Number: No. 11,11
• Parties: , 46 A.L.R.3d 121 Robert H. BRILL et al., Plaintiffs-Appellants, v. CITY OF GRAND RAPIDS, a Municipal corporation, and Simon J. DeBoer, City Treasurer for the City of Grand Rapids, Defendants-Appellees.
• Court: Supreme Court of Michigan

Page 832

174 N.W.2d 832

383 Mich. 216, 46 A.L.R.3d 121

Robert H. BRILL et al., Plaintiffs-Appellants, v. CITY OF GRAND RAPIDS, a Municipal corporation, and Simon J DeBoer, City Treasurer for the City of Grand Rapids, Defendants-Appellees.

No. 11.

Supreme Court of Michigan.

March 9, 1970.

Appeal from the Circuit Court for the County of Kent and the Court of Appeals (Division 3).

J. M. Neath, Jr., George L. Whitfield, R. Malcolm Cumming, Warner, Norcross & Judd, Grand Rapids, for plaintiffs-appellants.

Hillman, Baxter & Hammond, Rhoades, McKee & Boer, Grand Rapids, for defendants-appellees.

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

PER CURIAM.

A decade ago this Court reported unanimously its theretofore carefully considered opinion of Fluckey v. City of Plymouth (Jan. 4, 1960), 358 Mich. 447, 100 N.W.2d 486. By purposeful design that opinion set forth at length specific passages of an unusually able analysis which, for the case, had been prepared by the Hon. Victor J. Baum, of the third circuit. It was thought at the time that Judge Baum's decision, and ours in turn, would provide a firm precedent for holding that the pavement-widening to double-width of what theretofore had been a comparatively quiet residential street, the salient purpose of the improvement being that of providing for fast and heavy through motor traffic, conferred no benefit upon the adjacent residential properties sufficient to justify the special assessment thereof.

The Fluckey Case, however, was not accepted for application to this Brill Case, either in circuit or on appellate review. See Brill v. City of Grand Rapids (1968), 12 Mich.App. 297, 162 N.W.2d 840. Fluckey cannot be distinguished presently, save only by observing that the instant nobenefit proof is stronger if anything than that shown in Fluckey. We therefore reverse on the main issue, ¹ adding only additional factual reasons, not shown in Fluckey, for upholding the complaint of these residential owners as against the defendant city's claim of right to specially assess their property for benefits allegedly bestowed by this highway widening improvement.

The essential facts established by the present plaintiffs are so near duplicative of those adduced before Judge Baum as to justify application thereto of specific portions of his opinion. Such portions are quoted from Fluckey at 451, 452 of 358 Mich., at 488 of 100 N.W.2d.

'It seems to me that no reasonable person or body could have concluded that the conversion of a two-lane rural black-top road, in a high-class residential district, to a four-lane concrete highway would result in a net benefit to the residential properties abutting it. The east side of Sheldon is zoned 'R--1.' The homesites there constitute very highgrade residential properties. These improved homesites were worth $12,500 to $35,000 when the project was undertaken. Along with the testimony, a view of the project site confirmed to me that many of the parcels are in the twenty to thirty thousand dollar class. There are young children in the families of many of the residents. It was patent at the outset that the widening and paving project would diminish rather than enhance the value of the residential property. The project would make possible traffic of a tonnage much heavier than that which could use Sheldon road prior to the improvement. The widening from two lanes to four lanes was an invitation to a greater volume of traffic which couldn't possibly result in any benefit to residential properties abutting on this road, however much business properties might be benefited.'

'It is clear from this testimony that there was a feeling on the part of the commission that any road improvement automatically carries with it special benefit. This was the thrust of the testimony of many of the commissioners. This was also the gist of testimony on the part of a number of other witnesses for the defendants. This idea that road improvements automatically carry with them special benefits to abutting property may have been true once, before communities had installed on a widespread basis impervious road surfaces which could be used easily by automobiles. It was probably safe to say that every time such a surface was installed on a right-of-way, for the first time, the adjacent owners were specially benefited.

'A simple equation of cost and benefit may not have been irrational in those days at the advent of the auto age. But, the order changed. Original paving of a dirt road without any change in its width of, say, 20 feet, may be clearly of special benefit to abutting owners. One cannot say the same about the widening of a road in a residential district and its repavement when the pre-existing impervious hard surface was amply adequate for abutting owners. Our communities, our way of life, have grown and become more complex. Under zoning and deed restrictions, residential islands have evolved.'

Reading through a record of more than 1,000 printed pages, it is not difficult to perceive what since Fluckey has happened to Grand Rapids' Burton street and the residences fronting on that street. Prior to this two and a half mile long pavement-widening project Burton was a county road, black-top paved to a width of 20 feet, with gravel of dirt shoulders and conventional roadside drainage ditches on both sides. In general the street served locally an excellent residential district, and there was no through or heavy traffic. Now it is paved to a width of 44 feet. The ditches have disappeared in favor of underground drainage of the new highway. Curbing has been installed. The homes of...