Comer v. City of Dearborn
| Decision Date | 06 June 1955 |
| Docket Number | No. 39,J,39 |
| Citation | 342 Mich. 471,70 N.W.2d 813 |
| Parties | Russel J. COMER, Plaintiff and Appellee, v. CITY OF DEARBORN, a Michigan Municipal Corporation; Harry Hoxie, Director of the Department of Public Works of said City of Dearborn; Michael J. Boyle, Superintendent of Building and Safety of said City of Dearborn; and Fred Sampson, Chief Clerk of the Department of Public Works of said City of Dearborn, Defendants and Appellants. anuary term. |
| Court | Michigan Supreme Court |
Belding & Belding, Dearborn, for appellee.
Dale H. Fillmore, Corp. Counsel, James D. Irvine, James A. Broderick, Assts. Corp. Counsel, Dearborn, for appellants.
Before the Entire Bench.
This proceeding involves the validity of certain provisions of the zoning ordinance and of the building code of the City of Dearborn as applied to plaintiff's land. The property in question is located on the southeast corner of the intersection of Telegraph Road, also known as U. S. Trunkline Highway No. 24, and Leland Court. It has a frontage of 120 feet on the first highway and 134 feet on the second, and is more particularly described as follows:
'The W. 134 feet of Lot 11 and the North 40 feet of the West 134 Feet of Lot 12, Robert M. Grindley Subdivision No. 4 of Little Farms.'
Plaintiff is purchasing the property under an executory land contract.
Desiring to construct a motel on his property, plaintiff made application to the proper officials of defendant city for the purpose of obtaining a certificate of compliance as a preliminary step to securing a building permit. Accompanying the application were tentative plans and specifications for the construction of a motel, one story in height, with 11 rental units and a caretaker's apartment. Nine of the rooms, intended for tourist accommodation, would under the plans, be 14 x 23 feet in size. The plans for the remaining two rooms contemplate a somewhat smaller area.
It is conceded that the zoning ordinance of defendant city (Ordinance No. 33, as amended) classifies the immediate area in which plaintiff's property is situated as 'Industrial A.' Section 701.1 of the oridinance, in specifying the uses permitted in such a district, contains the following provision 'No building or structure or part thereof shall be erected, altered, or used, or lands used in whole or in part in an Industrial A district for other than one or more if the following specified uses:
Section 10.18 of the city building code (Ordinance No. 49-403, as amended) specifies that:
'The floor area for each dwelling unit in a multiple dwelling building shall be not less than 650 square feet.'
In reliance on the ordinance provisions above quoted, defendants denied plaintiff's application. Thereupon he filed in the circuit court of Wayne County a petition for a writ of mandamus, asserting that said provisions, if applied in such manner as to prevent his desired construction and operation of a motel, are invalid on the theory that such application is unreasonable, arbitrary, and operates to deprive him of property rights without due process of law. On the filing of the petition an order to show cause issued. Defendants filed their answer, denying the invalidity of the ordinance provisions in question and asserting also that plaintiff should have joined as parties defendant the members of the zoning board of appeals. Apparently, on the insistence of defendants, plaintiff appealed to said board from the refusal of his application, with a result unfavorable to him.
On the hearing of the matter plaintiff testified in support of his petition, and exhibits were offered by the parties. At the request of counsel, the trial judge inspected the area in which plaintiff's property is located. Following the presentation of arguments, both oral and written, an opinion was filed holding that the above provisions of the ordinances of the city were invalid as to plaintiff's property. A writ of mandamus was accordingly ordered directing the issuance by defendants of a certificate of compliance under the zoning ordinance of the city to permit the plaintiff to make application for a building permit. The writ further provided, in accordance with the order therefor:
'I do further command and firmly enjoin you that if and when the writ directing the issuance of a Certificate of Compliance becomes res adjudicata in favor of the said Russel J. Comer, he, the said Russel J. Comer, may renew his application for a Building Permit, by filing formal application with the appropriate agents of the City of Dearborn, and by submitting final plans and specifications for the construction of the proposed building, and, if such plans are not approved by the appropriate agents of the City of Dearborn and said appropriate agents of the City of Dearborn refuse to issue the Building Permit, the right to determine whether such action by the appropriate agents for the City of Dearborn is in conformity with the law and the provisions of the Building Code of the City of Dearborn is expressly reserved by the Circuit Court for the County of Wayne.'
From the order entered defendants have appealed. It is their claim, in substance, that the ordinance provisions on which they relied in rejecting plaintiff's application are not invalid as applied to the land in question, and that plaintiff is not, under the record in the case, entitled to a certificate of compliance.
As before noted, the property in question is classified by defendant city's zoning ordinance as 'Industrial A.' Obviously to was the intention of the framers of the ordinance, in view of the restrictions imposed with reference to the purposes for which property so zoned may be used, to exclude any use 'for dwelling purposes', and to permit business and industrial uses only. As bearing on the reasonableness of such restrictions the purposes for which property in the immediate vicinity is now being used requires consideration. It appears from the record that in such area there are a number of residences several business places, and very few industrial enterprises. As the situation now is, the neighborhood may not be regarded as an industrial one. The exhibits in the case clearly support this conclusion.
In view of the existing situation we do not think that the ordinance, if construed as prohibiting the construction of a motel on plaintiff's property, is reasonable. As so applied the restriction is invalid. It may be noted further in this connection that the record before us does not justify an inference or conclusion that new industries will be established in this area in such numbers as to result in its becoming primarily industrial rather than devoted to residential and business purposes as at present. On the contrary, we think the proofs in the case justify a finding that no such change may reasonably be expected.
A somewhat analogous situation was presented in Corthouts v. Town of Newington, 140 Conn. 284, 99 A.2d 112, 113, 38 A.L.R.2d 1136. There the ordinance in question prohibited the use of land...
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