Burger King Corp. v. City of Detroit

• Decision Date: 11 May 1971
• Docket Number: No. 1,Docket No. 11496,1
• Citation: 33 Mich.App. 382,189 N.W.2d 797
• Parties: BURGER KING CORPORATION, a foreign corporation et al., Plaintiffs-Appellees, v. The CITY OF DETROIT, a municipal corporation et al., Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 797

189 N.W.2d 797

33 Mich.App. 382

BURGER KING CORPORATION, a foreign corporation et al Plaintiffs-Appellees, v. The CITY OF DETROIT, a municipal corporation et al Defendants-Appellants.

Docket No. 11496.

Court of Appeals of Michigan, Division No. 1.

May 11, 1971.

Released for Publication Sept. 27, 1971.

Michael M. Glusac, Corp. Counsel, John F. Hathaway, Asst. Corp. Counsel, Detroit, for defendants-appellants.

James M. Baysinger, Bodman, Longley, Bogle, Armstrong & Dahling, Detroit, for plaintiffs-appellees.

Before V. J. BRENNAN, P.J., and J. H. GILLIS and T. M. BURNS, JJ.

J. H. GILLIS, Judge.

Plaintiff Burger King Corporation ¹ applied with the Department of Building and Safety Engineering of the City of Detroit requesting permission to construct a restaurant at Grand River and Forrer Avenues in the defendant City. The department, having decided that the proposed business constituted a drive-in restaurant, ² a use permitted only with approval, referred the matter to the City Plan Commission for the public hearing and findings ³ which are required by the zoning ordinance governing the subject parcel. ⁴ Plaintiff's request was denied by the City Plan Commission, whereupon a complaint for mandamus was filed and an order to show cause issued. Plaintiff asserts that its proposed business does not constitute a drive-in restaurant. The defendant City filed an answer, an amended answer, and affidavits; plaintiff countered with a reply and opposing affidavits. Thereafter, a hearing was held on the show cause and the court, at held on the show cause and the pleadings, affidavits, briefs of parties and oral arguments, issued the requested writ directing defendant City to provide the necessary permits for construction of plaintiff's proposed restaurant. From that decision, this appeal ensues.

The lower court erred in granting relief to plaintiff solely on the pleadings before it. Lepofsky v. City of Lincoln Park (1968), 9 Mich.App. 501, 157 N.W.2d 463. In a mandamus action, the burden is on the plaintiff to present proof that the defendant has a clear, legal duty to perform in the manner requested. Toan v. McGinn (1935), 271 Mich. 28, 260 N.W. 108. There was here a complete failure of proofs and, consequently, insufficient basis to grant the relief requested. 'That the action is in mandams does not dispense with the necessity of proof.' Quandt v. Schwass (1938), 286 Mich. 433, 438, 282 N.W. 206, 209. The lower court holding must, therefore, be reversed.

In view of our disposition of this matter, it is unnecessary to address ourselves to the remaining issues raised on appeal. We merely wish to point out that where the language or operation of an ordinance is unchallenged, it is incumbent upon the trial court to give force to the definitions contained in the ordinance. See Hemphill v. Orloff (1927), 238 Mich. 508, 519, 213 N.W. 867; Erlandson v. retirement Commission (1953), 337 Mich. 195, 204, 59 N.W.2d 389.

Reversed and...