Cleveland v. City of Detroit

• Decision Date: 18 May 1949
• Docket Number: No. 45.,45.
• Citation: 324 Mich. 527,37 N.W.2d 625
• Parties: CLEVELAND et al. v. CITY OF DETROIT (CITY OF ANN ARBOR et al., Interveners).
• Court: Michigan Supreme Court

324 Mich. 527

37 N.W.2d 625

CLEVELAND et al.

v.CITY OF DETROIT (CITY OF ANN ARBOR et al., Interveners).

No. 45.

Supreme Court of Michigan.

May 18, 1949.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Wayne County, in Chancery; Guy A. Miller, judge.

Suit by Cynthia Mills Cleveland against the City of Detroit, a municipal corporation, to enjoin the defendant from erecting, leasing, and operating an automobile parking garage under street surface of boulevard adjoining plaintiff's realty, and for a declaratory judgment as to plaintiff's property rights in half of boulevard adjoining her realty. Elmer J. Leydet subsequently filed a bill of complaint in which he adopted the allegations of the bill of complaint of Cynthia Mills Cleveland, and asserted right to relief for himself and all other taxpayers of the City of Detroit similarly situated. The City of Ann Arbor and the City of Grand Rapids were permitted to intervene as parties defendant. From an adverse decree the City of Detroit appeals.

Decree vacated and decree in conformity with opinion entered.

Before the Entire Bench.

William Alfred Lucking, Detroit, for plaintiff and appellee Cynthia Mills Cleveland.

Raymond J. Kelly, Corporation Counsel, John H. Witherspoon, Helen W. Miller, Assistants Corporation Counsel, Detroit, for defendant and appellant.

Miller, Canfield, Paddock & Stone, Detroit, for intervening defendants City of Ann Arbor and City of Grand Rapids.

BUSHNELL, Justice.

Plaintiff Cynthia Mills Cleveland is the owner of ‘The north fifty (50) feet of Lot 14, Section 10, Governor and Judges Plan of the City of Detroit, as recorded in Liber 45, pages 553 and 555 of Deeds of Wayne County Records; and also the west 5.00 feet of Washington Boulevard, vacated Oct. 8, 1929 (J.C.C. page 2866) lying east of and adjoining in the above described property.’ This property is located on the west side of Washington boulevard between Grand River avenue and Clifford street.

By bill in chancery filed November 5, 1947, she sought to enjoin defendant City of Detroit from ‘erecting, constructing, leasing and operating’ an automobile parking garage under the street surface of Washington boulevard adjoining her property. She also sought a declaratory judgment as to her property rights in the west half of the boulevard adjoining her property, asserting that the proposed construction would violate and impair the protection to which she is entitled under article 1, § 10, of the Constitution of the United States, and the Fourteenth Amendment thereto, and article 2, §§ 9 and 16, and article 8, § 23, of the Michigan Constitution (1908).

Plaintiff Elmer J. Leydet, who describes himself as a resident and taxpayer of the city of Detroit, subsequently filed a bill of complaint in which he adopted the allegations of the Cleveland bill, and asserted right to relief for himself and all other taxpayers of the city similarly situated. He raised questions of the exemption of the proposed underground garage from ad valorem taxation, the expenditure of tax money by the city to relocate municipally and privately owned utilities, as well as general constitutional questions.

The cities of Ann Arbor and Grand Rapids were permitted to intervene as parties defendant because of their interest in the question of parking meters and offstreet parking facilities. Washington Boulevard Underground Parking, Incorporated, participated in the trial of the cause and afterwards the bills of complaint were dismissed as to it for the reason that no testimony had been adduced to show that this non-profit corporation ‘proposes to build, finance or operate’ the garage in question.

The appeal here is from a decree entitled ‘Final Judgment,’ entered on October 29, 1948, in which it was determined that plaintiff Cleveland has title in fee simple to the center of Washington boulevard, abutting and adjoining her property ‘subject to the easement of the public for its use as a public highway;’ that the erection and operation of the proposed garage is unlawful, invalid and an unconstitutional invasion of plaintiff's rights in that such rights have not been acquired by condemnation or otherwise; and that such erection and operation would impose an additional servitude upon plaintiff's title, as well as constitute the putting of the city of Detroit into ‘an unconstitutional private business of a nongovernmental character,’ in competition with plaintiff's present use of her property as an automobile parking lot, and that the exemption of the proposed garage from taxation is also unconstitutional and unlawful. The court further determined that the resolution of the common council of the city of Detroit, which authorized the project, was improper in that the law under which it purported to act (the revenue bond act, being Act No. 94, Pub.Acts 1933, as last amended by Act No. 204, Pub.Acts 1947, Stat.Ann. § 5.2731 et seq., 1 Comp.Laws 1948, § 141.101 et seq.) is invalid and unconstitutional; that the payment by the city of the cost of relocating the utilities is an unlawful use and misappropriation of tax moneys; and that the approval on November 5, 1945, by the electors of Detroit on the question hereinafter quoted was not of such nature as to authorize the project in question.

The court did however hold, although somewhat inconsistently, that parking meters ‘are a public transportation utility,’ which must be paid for and maintained solely from their revenue, which revenue may be combined with that ‘from the proposed underground parking facility,’ but that the project ‘must be self-sustaining.’

The city was permanently enjoined and restrained from proceeding in the premises.

The following explanatory statement of the factual background is quoted from the trial judge's opinion:

‘The garage, as designed, would extend from six inches east of the west curb, across Washington Boulevard, to six inches west of the east curb. It would be 156 feet wide, 1000 feet long, and 2 stories deep. The excavation required for the building, although it will not all be made at once, will cover that area, and will necessitate going upwards of 35 feet down into the ground. All sewers, water pipes, and public utility conduits which are now under the paved portion of Washington Boulevard will have to be relocated. The overall cost of the building is estimated at $3,950,000. The entire pavement of Washington Boulevard would be replaced by a fenced-in hole around 15 feet deep. The work of construction would probably extend over one, possibly two, years. The relocation work alone would take at least six months, on the city's estimate. ‘It is proposed that this cost be defrayed by the issuance of two and one-half millions of dollars in revenue bonds, which are to be paid, principal and interest, out of the net earnings of the garage, when it is earning something. $500,000 has been pledged by property owners, who are all interested in downtown retail establishments.

‘The cost of relocating the public utilities is estimated to be $750,000. The people who made the estimate have not been sworn; nor is any testimony in the case to show that the work can be done for $750,000. It is perfectly within the bounds of possibility that it will cost twice that much to relocate these underground existing works.

‘Under the sidewalks most of the buildings now in existence on Washington Boulevard have sub-surface basements which extend to, or in the neighborhood of the existing curblines. Some of these subsurface basements go as far into the earth as four stories below the street surface. There is no evidence that any of these abutting underground property owners pay any revenue to the city whatever for their use of this underground portion of the public highway.’

A non-profit corporation, known as the Washington Boulevard Underground Parking, Inc., was formed in 1945 by interested property owners, merchants, and other businessmen to explore the feasibility of constructing and financing parking facilities. It subsequently recommended that the city construct this facility at a then estimated cost of a little less that $2,000,000, to be financed through the sale of revenue bonds. After considering the matter, the council submitted the following question to the electors:

‘Do you Favor permitting the City of Detroit to construct and operate a garage for the parking and storage of vehicles beneath the street surface of Washington Boulevard, between Grand Circus Park on the north and Grand River Avenue on the south, said garage to be financed by the issuance of revenue bonds which will not be a general obligation of the city but are to be secured entirely by the revenue derived from the project?’

The people responded affirmatively with a vote of 319,889, and negatively, 68,904. A firm of architects prepared plans and specifications and in 1947 a municipal parking authority was created by ordinance, charged with the duty of determining the parking needs of the city and recommending facilities to meet those needs. At the same time the council adopted a resolution setting up a fiscal plan to meet the then estimated cost of $3,000,000, exclusive of an estimated cost of $750,000 for relocating municipally and privately owned utilities. The plan in question was outlined as follows: $500,000 voluntary payments by property owners in the area, the issuance of $2,500,000 of revenue bonds, and the exemption of the project from ad valorem taxation. The council agreed to accept...