Bzovi v. City of Livonia

• Decision Date: 24 December 1957
• Docket Number: No. 133,A,133
• Citation: 87 N.W.2d 110,350 Mich. 489
• Parties: Daniel BZOVI, Plaintiff, Cross-Appellee and Appellant, v. CITY OF LIVONIA, a Michigan Municipal Corporation, Donald Wilson, Chief Inspector, and the Zoning Board of Appeals, Defendants, Cross-Appellants and Appellees. pril Term.
• Court: Michigan Supreme Court

Page 110

87 N.W.2d 110

350 Mich. 489

Daniel BZOVI, Plaintiff, Cross-Appellee and Appellant, v. CITY OF LIVONIA, a Michigan Municipal Corporation, Donald Wilson, Chief Inspector, and the Zoning Board of Appeals, Defendants, Cross-Appellants and Appellees.

No. 133, April Term.

Supreme Court of Michigan.

Dec. 24, 1957.

Nandino Perlongo, Plymouth, for plaintiff, cross-appellee and appellant.

William N. Ponder, Livonia, for defendant, cross-appellant and appellee, City of Livonia, a Michigan Municipal Corp.

Before the Entire Bench, except SMITH, J.

EDWARDS, Justice.

This is another difficult zoning problem. By so saying, in effect we foretell the result of this case. For we are asked herein to set aside as unconstitutional a certain zoning classification on the grounds that it represents an arbitrary, capricious, and unreasonable legislative judgment.

Plaintiff in this case purchased 54 acres of land at the southwest corner of Middlebelt and Schoolcraft, in the city of Livonia, in November, 1954. At the time of his purchase he knew the provisions of the previously-adopted zoning ordinance of which he now complains. He purchased the property for the purpose of building a large drive-in theater. His application for a building permit for this purpose was refused on the ground that the use contemplated was prohibited by the zoning ordinance.

Plaintiff thereupon brought mandamus proceedings to compel the issuance of such permit, alleging that the specific provision of the zoning ordinance of the city of Livonia which prohibited drive-in theaters at any place in said city was unconstitutional, and that the zoning plan applied to the 54 acres which he had purchased was unreasonable and capricious and hence unconstitutional.

The circuit judge before whom the mandamus proceedings was heard disposed of the first question as follows:

'With reference to the first objection raised by the defendants as a basis for not issuing the building permit, it must be borne in mind that a drive-in theater is a legitimate business enterprise; that the city of Livoniz is a new city containing 36 [sic] acres (square miles) of area, and that the record shows that there is ample vacant and industrial area on which to locate the same. This ordinance prohibits the erection of a drive-in theater anywhere within its corporate limits.

"A zoning ordinance, which prohibits the construction of an outdoor drive-in moving picture theater, is unreasonable and arbitrary where the neighboring territory was either vacant, unimproved land, or devoted to heavy industrial plants, and there also was ample vacant property for residential use.' People ex rel. Trust Company [of Chicago] v. [Village of] Skokie, 408 Ill. 397, 97 N.E.2d 310.

'In King v. James, 88 Ohio App. 213 [at], page 215 :

"We are convinced and apparently it is now conceded that a drive-in theater is not a nuisance per se.'

'In 62 C.J.S. [Municipal Corporation § 237, p.] 597, it is stated:

'The power to prevent or prohibit a business or trade is to be exercised in the event the business or trade is in per se of such a nature that its tendency is dangerous to morals, health, or safety. In other words, if a business is a nuisance per se, the municipal corporation may prevent it. A business cannot be prohibited as a nuisance unless in fact it is a nuisance.'

'Therefore, the court is of the opinion that this ordinance is unreasonable and arbitrary.'

As to this first issue, defendant city took a cross appeal. We believe, however, that the circuit judge was right and we adopt his opinion thereon. For the reasons given therein, we hold that a drive-in theater is a legitimate business. City of Somerset v. Sears, 313 Ky. 784, 233 S.W.2d 530. A zoning ordinance may not be employed to proscribe generally a legitimate business, unless the prohibition has a reasonable relationship to the health, morals or welfare of the community. Gust v. Township of Canton, 342 Mich. 436, 70 N.W.2d 772. We concur in the trial judge's opinion as to the invalidity of section 4.09 of defendant's zoning ordinance purporting to prohibit the establishment of any outdoor theaters, and hence deny the cross appeal of defendant city of Livonia.

The principal question in this case, however, pertains to the zoning pattern defendant city applied to the 54 acres at the corner of Middlebelt and Schoolcraft. Both highways are shown by the testimony to be heavily-traveled thoroughfares. The ordinance recognizes the importance of the intersection by C-2 (commercial) zoning paralleling both highways to a depth of 300 feet. The balance of the 54 acres is zoned RUFB which is a rural urban farm classification under which the drive-in theater would be prohibited as a commercial use.

The record discloses that the RUFB zoning of the interior portion of the piece has the effect of forestalling plaintiff's drive-in theater plan, if held valid, because of the space requirements of the theater.

In contending that the zoning is plainly arbitrary and capricious, plaintiff points to a large race track built on acreage on the southeast corner of the intersection in question. He also points to manufacturing zoning and 2 industrial institutions south of his prcel of acreage, along the Chesapeake & Ohio railroad.

Defendant, on the other hand, points to the fact that the rural urban farm zoning continues from plaintiff's property in a generally continuous line west along Schoolcraft, and to a general residential area to the north and west. The zoning pattern complained of may be more effectively viewed than described in the reproduction which follows of a portion of...