City of Bloomfield Hills v. Ziegelman

• Decision Date: 20 October 1981
• Docket Number: Docket No. 50796
• Citation: 110 Mich.App. 530,313 N.W.2d 137
• Parties: CITY OF BLOOMFIELD HILLS, a Michigan municipal corporation, Plaintiff-Appellee, and Fernando N. Salazar, M.D., Intervening Plaintiff-Appellee, v. Norman ZIEGELMAN and Monica Ziegelman, his wife, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

Page 137

313 N.W.2d 137

110 Mich.App. 530

CITY OF BLOOMFIELD HILLS, a Michigan municipal corporation Plaintiff-Appellee and Fernando N. Salazar, M.D., Intervening Plaintiff-Appellee, v. Norman ZIEGELMAN and Monica Ziegelman, his wife Defendants-Appellants.

Docket No. 50796.

Court of Appeals of Michigan.

Oct. 20, 1981.

Rehearing Denied Dec. 11, 1981.

Released for Publication Dec. 22, 1981.

Davidson, Gotshall, Kohl, Secrest, Wardle, Lynch & Clark by William P. Hampton, Farmington Hills, for the City of Bloomfield Hills.

Richard D. Rattner, Royal Oak, for intervening plaintiff-appellee Salazar.

Hardig, Goetz, Heath & Merritt by Joseph L. Hardig, Jr., and James L. Allen, Birmingham, for defendants-appellants.

Before V. J. BRENNAN, P.J., and KAUFMAN and BORRADAILE, ^* JJ.

BORRADAILE, Judge.

This case involves an architect who constructed a home on a 1.14-acre lot owned by him and his wife in the City of Bloomfield Hills and later applied for a permit to build a backyard tennis court. The City disapproved the tennis court plans, basing its refusal on the fact that the tennis court would violate the zoning ordinance which prohibits any structure within 35 feet of the rear property line.

Defendants sought a rear yard variance but the zoning board of appeals denied the request, finding that the word "building" included the word "structure" and that a building or structure included any part thereof. The board also found that: (1) reasonable use could be made of the lot without the variance; (2) petitioner had not demonstrated that because of the zoning ordinance and size and shape of the lot in question reasonable use of the lot could not be made without the variance; (3) nothing unique about the particular lot justified a variance; (4) petitioner had advance knowledge of the legal set-back requirements but chose to place the residence in its location nevertheless; and (5) variance was not justified where conditions were created by the lot owner's own acts rather than by circumstances relating peculiarly to the land itself. Under the authority of Puritan-Greenfield Improvement Ass'n v. Leo, 7 Mich.App. 659, 153 N.W.2d 162 (1967), the appeals board denied the application.

Shortly after the denial, the City discovered that defendants were laying gravel in the shape of a tennis court and commenced suit seeking a temporary restraining order and a permanent injunction. The temporary restraining order was issued, subsequently dissolved and then reinstated some months later.

Defendants filed a counterclaim for declaratory judgment alleging that a tennis court of asphalt with fence backstops was not a "structure" within the provision of the city zoning ordinance; that the ordinance's definition of "structure" was unconstitutionally vague and unreasonable; that a tennis court is an "accessory structure" subject to a lesser set-back requirement under other provisions of the ordinance; that defendants were denied equal protection because plaintiff selectively enforced the ordinance; and, by later amendment, that the court should determine if any of six alternative types of tennis courts other than that submitted were "structures" within the ordinance.

Defendants filed a motion for summary judgment on the first two issues as to whether a tennis court is a "structure" and whether the zoning ordinance provision defining structures was unconstitutionally vague. The trial court denied the motion on both counts.

Intervening plaintiff, an adjoining neighbor to defendants, was permitted to intervene in opposition to the building of the tennis court in violation of the zoning ordinance. At a bench trial on the matter, much testimony was introduced as to whether the zoning board of appeals abused its discretion in denying the variance, an issue not involved in the present appeal. No evidence was introduced as to selective enforcement. The trial court, presided over by a different judge than the one denying the above noted motion for summary judgment, initially refused to allow evidence as to whether tennis courts are structures. However, later in the trial it permitted expert witnesses to testify at length as to whether tennis courts are structures and as to the purposes of a set-back requirement for structures. Defendants' expert, while disagreeing with plaintiff's expert that tennis courts are structures, agreed that set-back requirements for structures serve the purposes of providing privacy, open space and reduction of run-off of surface water.

The trial court, in dismissing the counterclaim in its entirety, found that the zoning board of appeals did not abuse its discretion in denying the variance, refused to render a declaratory judgment as to alternative types of tennis courts, found that its predecessor had found tennis courts to be structures and that the zoning ordinance was constitutionally valid and concluded that plaintiff was entitled to a permanent injunction restraining defendant from constructing a tennis court in the rear 35-foot set-back area unless prior approval was obtained in conformity with the zoning ordinance requirements.

After the judgment was entered on March 12, 1980, defendant secured a permit to build a practice tennis court containing only a grassy area within the set-back area. Shortly thereafter, defendants built a tennis court with a porous type limestone clay surface, coming within 10 feet of the property line, within the set-back area. Defendants placed a layer of topsoil and grass but put in no fences. Plaintiff, on discovering that defendants had put a layer of clay beneath the grass, sought an order holding defendants in contempt of court.

Defendants' new attorney sought reconsideration of the court's previous findings and admitted that, as to the type of tennis court originally proposed by defendants, the constitutional question had been abandoned. Apparently, the motion for rehearing was filed September 5, 1980, being dated August 29, 1980, but long after the time for making a motion for new trial had expired. See GCR 1963, 527.2. Defendants by the motion sought an evidentiary hearing limited to whether the city zoning ordinance constituted an unreasonable exercise of the police power as it related to the clay surfaced tennis court for which defendants were found guilty of contempt of the court's order of March 12, 1980.

The trial court by an order filed September 19, 1980, denied defendants' motion for reconsideration, found defendant Norman Ziegelman in contempt and required him to purge himself or be jailed for 60 days, and also denied a motion staying proceedings. This Court, on September 22, 1980, granted a stay.

On April 1, 1980, defendants filed a claim of appeal relating to the March 12, 1980, judgment, and on September 11, 1980, filed a claim of appeal as to all subsequent orders in the case. They raise three questions: (1) is a tennis court a "building" or "structure" subject to the City of Bloomfield Hills zoning ordinance set-back requirements; (2) were they denied due process when the trial court refused to allow further testimony that a tennis court was not a structure when the trial judge's predecessor had denied their motion for summary judgment; and (3) were they denied due process when denied a hearing on the constitutionality of the zoning ordinance as applied to a clay surfaced tennis court?

As defendants note, a city's zoning authority is derived from the city and village zoning enabling act, M.C.L. § 125.581 et seq.; M.S.A. § 5.2931 et seq. The statute does not grant unlimited authority to restrict all activities or objects; zoning restrictions must be limited to "buildings" or "structures" and must bear a reasonable relationship to the city's police powers.

In Gorieb v. Fox, 274 U.S. 603, 47 S.Ct. 675, 71 L.Ed. 1228 (1927), the Court, in applying the standard set forth in Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926), holding that an ordinance was not unconstitutional unless clearly arbitrary and unreasonable with no substantial relation to the public health, safety, morals or general welfare, found that set-back ordinances were constitutional. Set-back ordinances were upheld in Michigan in McClain v. Hazel Park, 357 Mich. 459, 98 N.W.2d 560 (1959), and Gordon v. City of Warren Planning & Urban Renewal Comm., 29 Mich.App. 309, 185 N.W.2d 61 (1971).

Article XIV, sec. 1400 of the zoning ordinance provides that no building can be erected in the rear 35 feet of a property in A-3 (one family dwelling district) zones. Article II, sec. 201(8) defines "building" as "a structure that encloses space intended for the occupancy of persons or animals or the storage of goods and chattels for purpose of residence, recreation, services and economic enterprises, which structure shall have a roof supported by columns or walls." Article II, sec. 201(60) defines "structure" as "anything constructed or erected, the use of which requires location on the ground or attachment to something having location on the ground." Article XVI, sec. 1612 states in part: "Further, any walk, terrace, or other pavement serving a like function, and not in excess of nine (9) inches above the grade upon which placed, shall for the purpose of this Ordinance, not be considered a structure and shall be permitted in any required yard."

Judge Bernard Kaufman, whose untimely death caused trial of the case to be reassigned to Judge George LaPlata, had ruled on defendants' motion for summary judgment that "structure is * * * any construction or any production or piece of work artificially built up or composed of parts joined together in some definite manner," citing C. K. Eddy & Sons v. Tierney, 276 Mich. 333, 267 N.W. 852 (1936). The Eddy case dealt with concrete islands and pumps, driveways, gasoline tanks and storage space as a part of a public garage. The Eddy Court cited Mendoza v. Central Forest Co., 37 Cal.App. 289, 174 P. 359 (1918),...