Cole v. City of Battle Creek

• Decision Date: 02 June 1941
• Docket Number: No. 82.,82.
• Citation: 298 Mich. 98,298 N.W. 466
• Parties: COLE v. CITY OF BATTLE CREEK.
• Court: Michigan Supreme Court

298 Mich. 98

298 N.W. 466

COLE

v.CITY OF BATTLE CREEK.

No. 82.

Supreme Court of Michigan.

June 2, 1941.

Suit by Walter B. Cole against the City of Battle Creek, a municipal corporation, for declaratory judgment under Comp.Laws 1929, § 13903, seeking a declaration of plaintiff's rights under the zoning ordinance of defendant city. From an adverse judgment the defendant city appeals.

Judgment vacated and cause remanded for entry of an order in accordance with opinion.

Appeal from Circuit Court, Calhoun County; Blaine W. Hatch, judge.

Argued before the Entire Bench, except NORTH, J.

Walter P. North, of Battle Creek, for appellant.

N. A. Cobb, of Battle Creek (Roger H. Nielsen, of Battle Creek, of counsel), for appellee.

BUSHNELL, Justice.

Plaintiff Walter B. Cole filed a petition for declaratory judgment under 3 Comp.Laws 1929, § 13903 (Stat.Ann. § 29.501) seeking a declaration of his rights under the zoning ordinance of Battle Creek. Defendant City of Battle Creek moved to dismiss the petition for want of jurisdiction, claiming that the issue raised was determinable only in a law action by mandamus. The court treated the petition as one for a writ of mandamus and yet made a finding entitled, ‘Declaratory Judgment.’ It is unnecessary to pass upon the propriety of this sort of procedure because that question is not urged by the appellant or argued in the briefs. See, however, Central High School Athletic Association v. City of Grand Rapids, 274 Mich. 147, 264 N.W. 322. The court held that the refusal of the Zoning Board of Appeals to grant plaintiff's application for a building permit was unreasonable, unwarranted, and contrary to the express terms of the zoning ordinance.

The property involved in this litigation is a greenhouse and appurtenant buildings which occupy part of a city block owned by plaintiff. This block is bounded on the south by Wendell street, on the north by Sherman Road, on the west by Chestnut street, and on the east by Orchard Place. An east and west alley divides the block and separates plaintiff's main building, located on lots facing Wendell street, from other greenhouse units located across the alley on the Sherman Road lots. The latter are used largely for growing purposes rather than as a place where customers can call to make retail purchases. The Wendell street unit consists of a center building 24 feet in width, with a potting room in the rear which extends into the alley. Greenhouse wings extend east and west from this middle section, that on the east being 112 feet long and that on the west being 75 feet long.

Plaintiff proposes to tear down the Sherman Road greenhouses and an old barn on the rear of the Wendell street property, cut 32 feet off the east end of the east wings of the main building, remove a part of the potting room which now encroaches on the public alley, and build two new wings on the Wendell street building. These new wings are to be erected in front of the existing wings and nearer Wendell street. The proposed new west wing is to be 75 feet long, the same length as the present west wings; the proposed new east wing is to be 80 feet long. Plaintiff desires to remodel and modernize the front end of the center section of the Wendell street building so that, after these alterations have been completed, the remodeled building will have a continuous frontage of 179 feet flush with Wendell street, with plateglass show windows and a new main entrance. He intends to use some of the glass, cypress rafters, cast iron gutters, and other structural members from the Sherman Road units in the erection of the new wings on Wendell street, which are to be set on steel posts and cement foundations. The demolition of the Sherman Road units will release that entire frontage for residential building sites, and the cutting off of 32 feet from the east end of the three existing east wings on the Wendell street building will release one of the Wendell street lots for building purposes.

Plaintiff's application was denied by the building inspector of Battle Creek, and the Zoning Board of Appeals, after a hearing, also denied the application on the ground that the Board was ‘of the opinion that the construction of said buildings on the above premises (which is located in ‘A’ Residence District) would unduly prolong the life of the non-conforming use now existing on the premises.' Plaintiff then instituted this proceeding in the circuit court.

The trial judge held that Cole was entitled to a building permit under the provisions of the second paragraph of section 7 of the Battle Creek zoning ordinance. The court also held that plaintiff's application did not come within the provisions of paragraph 3 of section 7 of the ordinance, but nevertheless held this paragraph unconstitutional.

Plaintiff's property is located in Residence District A and is a nonconforming use within the meaning and terms of the zoning ordinance. Section 7 of the ordinance deals with nonconforming uses and reads in part as follows:

‘Section 7.-Non-Conforming Uses. The lawful use of a premises existing at the time of adoption of this ordinance may be continued, although such use does not conform to the provisions hereof, but if such non-conforming use is discontinued, the future use of said premises shall be in conformity with the provisions of this ordinance.

‘The lawful use of a building existing at the time of the adoption of...