Cent. High Sch. Athletic Ass'n v. City of Grand Rapids

• Decision Date: 06 January 1936
• Docket Number: No. 92.,92.
• Citation: 264 N.W. 322,274 Mich. 147
• Parties: CENTRAL HIGH SCHOOL ATHLETIC ASS'N v. CITY OF GRAND RAPIDS et al.
• Court: Michigan Supreme Court

274 Mich. 147

264 N.W. 322

CENTRAL HIGH SCHOOL ATHLETIC ASS'N

v.CITY OF GRAND RAPIDS et al.

No. 92.

Supreme Court of Michigan.

Jan. 6, 1936.

Action by the Central High School Athletic Association against the City of Grand Rapids and another. From an adverse decree, plaintiff appeals.

Affirmed.Appeal from Superior Court of Grand Rapids, in Chancery; Thaddeus B. Taylor, Judge.

Argued before the Entire Bench.

Laurence W. Smith, of Grand Rapids, for appellant.

Louis H. Grettenberger, of Grand Rapids, for appellees.

BUSHNELL, Justice.

Appellant's brief would have been more helpful had counsel followed sections 3 and 4 of rule 67, Michigan Court Rules 1933, which provide:

‘Following the statement of facts, the appellant shall, under the heading ‘Argument,’ set forth his argument, with page references to the record, where facts are referred to. The main points of the argument shall be set out in bold face type.

‘There shall be a concluding section, under the heading ‘Relief,’ specifying the order, judgment or decree to which the appellant contends he is entitled.'

We do, however, appreciate appellant's index to cases cited, although not required by rule.

This case involves the applicability of the so-called ‘Declaratory Judgment Act,’ 3 Comp.Laws 1929, §§ 13903-13909, to proceedings taken under the zoning statutes, 1 Comp.Laws 1929, § 2633 et seq., and the zoning ordinance of the city of Grand Rapids as of May 1, 1934. It raises questions of practice in such situations. The present declaratory judgment act was construed in Washington-Detroit Theatre Co. v. Moore, 249 Mich. 673, 677, 229 N.W. 618, 619, 68 A.L.R. 105, and the zoning ordinance of defendant city in Beardsley v. Evangelical Lutheran Bethlehem Church, 261 Mich. 458, 246 N.W. 180, 181. Both of these cases have been published so recently that we refrain from undue quotations.

The facts out of which the controversy arose are tersely stated by the trial judge as follows: ‘In 1907 the board of education of the city of Grand Rapids acquired certain lands by gift to be used as an athletic field. In 1922, it leased this property to plaintiff, a voluntary association composed of students and faculty members of the Central High School of Grand Rapids. Plaintiff proposed in 1934 to erect a seven foot wall around the premises. Both the board of education and the petitioner filed an appeal with the zoning board of appeals to modify the zoning ordinance to permit the erection of this wall. Final disposition of this matter was made by the board of zoning appeals October 15, 1934, when permission was granted to build a four-foot wall.'

The court held: ‘The decision of the board so far as the finding of facts is concerned is final and no provision is made for a review of its findings. I am, therefore, of the opinion that the remedy sought in the present case by petitioner is not proper, and that the motion to dismiss will, therefore, be granted.'

Appellant contends that the court should have granted a declaration of rights under the admitted facts. The bill was filed against the city and its building inspector. We fail to find where either defendant admitted anything. Each appeared specially and stated that plaintiff was not a proper party, was not interested in the land in question, and denied the existence of any controversy between plaintiff and itself or himself.

Did the court err in holding that the findings of the zoning board of appeals were final? The court held: ‘The declaration of the board so far as the finding of facts is concerned is final.’ And this is in accordance with the language of section 16-E of the ordinance: ‘The decision of such board shall be final so far as it involves discretion or the findings of facts.’ This language was approved in the Beardsley Case, supra, where we said: ‘The decision is final, in the absence of fraud or bad faith.'

The lease to which the trial judge refers is in its terms essentially an agreement, in which it is recognized that all improvements and equipment added to the athletic field are to become the property of the board of education. In considerationof the expenditure of $5,000 by the board of control, the agreement recites that the students of Central High School are privileged to use the property for a period not to exceed fifteen years, under certain conditions. The board of education, however, reserves the right to terminate the agreement, for cause, at any time.

The record before us shows that on January 9, 1934, the board of education requested the board of zoning appeals to permit the erection of a seven-foot brick wall, which was granted January 15, upon certain conditions, one of which was that its height should not exceed four feet. Plaintiff remained silent until September 17, when it requested permission to erect a temporary board fence. This request was subsequently abandoned, and in its place reconsideration was asked of the seven-foot brick wall petition. The board of education seems to have joined in this petition, at least it is so stated in a letter dated October 6, 1934, and signed by the principal of Central High School. Hearings upon the supplementary petitions resulted in permission to...