Ed Zaagman, Inc. v. City of Kentwood

• Citation: 277 N.W.2d 475,406 Mich. 137
• Decision Date: 27 March 1979
• Docket Number: 7,57342,Docket Nos. 57225,Nos. 6,s. 6
• Parties: ED ZAAGMAN, INC., a Michigan Corporation, Plaintiff-Appellant, v. CITY OF KENTWOOD, a Municipal Corporation, Defendant-Appellee. Michael C. TURKISH and Marilyn C. Turkish, his wife, Plaintiffs-Appellees, v. CITY OF WARREN, a Michigan Municipal Corporation, Defendant-Appellant. Calendar
• Court: Supreme Court of Michigan

Page 475

277 N.W.2d 475

406 Mich. 137

ED ZAAGMAN, INC., a Michigan Corporation, Plaintiff-Appellant, v. CITY OF KENTWOOD, a Municipal Corporation, Defendant-Appellee.

Michael C. TURKISH and Marilyn C. Turkish, his wife, Plaintiffs-Appellees, v. CITY OF WARREN, a Michigan Municipal Corporation, Defendant-Appellant.

Docket Nos. 57225, 57342.

Calendar Nos. 6, 7.

Supreme Court of Michigan.

Argued Oct. 5, 1976.

Decided March 27, 1979.

Varnum, Riddering, Wierengo & Christenson by Jon F. DeWitt, Jeffrey L. Schad, Grand Rapids, for plaintiff-appellant.

Rhoades, McKee & Boer by Dale W. Rhoades, Grand Rapids, for defendant-appellee.

Clan Crawford, Jr., Louis C. Andrews, Jr., Atty. Michigan Municipal League, Adele P. Laporte, Asst. City Atty., Jerold Lax, Harris, Lax, Goldman & Gregg, Ann Arbor, Sherwin M. Birnkrant, Director of Law, City of Pontiac, President, Michigan Association of Municipal Attorneys, Pontiac, Robert Reese, Corp. Counsel, City of Romulus, Chairman, Zoning Committee, Michigan Association of Municipal Attorneys, Romulus, for amicus curiae, State Bar.

W. Thomas Marrocco, Jr., Warren City Atty., John J. Murray, Chief Asst. City Atty., Warren, for defendant and appellant.

Bodman, Longley, Bogle, Armstrong & Dahling by Michael B. Lewiston, Detroit, for plaintiffs and appellees.

Bauckham, Reed, Lang & Schaefer by John H. Bauckham, Kalamazoo, amicus curiae.

Avern Cohn, William B. Dunn, Norman Hyman, Detroit, for amicus curiae, State Bar.

WILLIAMS, Justice (for affirmance).

TURKISH v. CITY OF WARREN

This zoning case causes us to revisit Kropf, ¹ Sabo, ² and Kirk. ³ We hold that the majority rule enunciated in both Kropf and Kirk as well as the minority opinion of Justice Williams in Sabo remain the law in Michigan today insofar as the appropriate standard for determining the validity of zoning ordinances is concerned. Accordingly, we affirm the Court of Appeals ruling of unconstitutionality, but remand this matter to the Warren city council acting as zoning authority for further action consistent with this opinion.

I. THE APPROPRIATE STANDARD

The appropriate standard for determining the constitutional validity of municipal zoning determinations was succinctly set forth in Kirk as follows:

"The principles and tests to use to determine whether the present zoning of plaintiffs' property is valid was detailed in Kropf.

"The important principles require that for an ordinance to be successfully challenged plaintiffs prove:

" '(F)irst, that there is no reasonable governmental interest being advanced by the present zoning classification itself * * * or

" '(S)econdly, that an ordinance may be unreasonable because of the purely arbitrary, capricious and unfounded exclusion of other types of legitimate land use from the area in question.' 391 Mich. 139, 158, 215 N.W.2d 179, 186.

"The four rules for applying these principles were also outlined in Kropf. They are:

"1. ' "(T)he ordinance comes to us clothed with every presumption of validity." ' 391 Mich. 139, 162, 215 N.W.2d 179, 189, quoting from Brae Burn, Inc. v. Bloomfield Hills, 350 Mich. 425, 86 N.W.2d 166 (1957).

"2. ' "(I)t is the burden of the party attacking to prove affirmatively that the ordinance is an arbitrary and unreasonable restriction upon the owner's use of his property * * *. It must appear that the clause attacked is an arbitrary fiat, a whimsical Ipse dixit, and that there is no room for a legitimate difference of opinion concerning its reasonableness." ' 391 Mich. 139, 162, 215 N.W.2d 179, 189, quoting Brae Burn, Inc.

"3. 'Michigan has adopted the view that to sustain an attack on a zoning ordinance, an aggrieved property owner must show that if the ordinance is enforced the consequent restrictions on his property preclude its use for any purposes to which it is reasonably adapted.' 391 Mich. 139, 162-163, 215 N.W.2d 179, 189.

"4. ' "This Court, however, is inclined to give considerable weight to the findings of the trial judge in equity cases." ' 391 Mich. 139, 163, 215 N.W.2d 179, 189, quoting Christine Building Co. v. City of Troy, 367 Mich. 508, 518, 116 N.W.2d 816 (1962)." 398 Mich. 429, 439-440, 247 N.W.2d 848, 852-853. See Sabo v. Monroe Twp., 394 Mich. 531, 542, 232 N.W.2d 584 (1975). (Separate opinion of Williams, J., for reversal of the trial court).

II. FACTS

This is an unusual zoning case involving what the defendant's Director of Planning has described as "a problem piece" of property (Tr. II, p. 73). Plaintiffs allege that, because of two factors, the cost of developing their property under the challenged R-1C single family zoning ordinance would equal plaintiffs' potential sales return, thereby rendering the disputed zoning designation unconstitutionally confiscatory as applied to their parcel. Throughout both their pleadings and proofs, plaintiffs have urged that their parcel be judicially reclassified to permit the construction of multiple family dwellings, ⁴ an R-3 use. ⁵ The first of two factors identified by plaintiffs in support of their position concerns the allegation that, despite plaintiffs' efforts to persuade the City to develop the abutting area with a uniform road system, defendant has consistently permitted the platting of surrounding land in such a manner as to render plaintiffs' property landlocked and roadless. The second factor put forward by plaintiffs concerns the further allegation that, due to the extreme narrowness of plaintiffs' parcel, in order to develop their land in accordance with the disputed R-1C zoning scheme plaintiffs would have to construct a road servicing only one rather than two rows of homes. Under this circumstance, homes constructed on plaintiffs' property would necessarily face the backs of already existing residences, an obviously undesirable arrangement.

The trial court held that in view of these circumstances the City's zoning designation was "unreasonable, arbitrary and confiscatory" and therefore constitutionally invalid. That court specifically declined to consider the case as coming "within the purview of a preferred use doctrine", Bristow v. Woodhaven, 35 Mich.App. 205, 192 N.W.2d 322 (1971), and relied on this Court's ruling in Bassey v. Huntington Woods, 344 Mich. 701, 704-705, 74 N.W.2d 897, 899 (1956), that: "An ordinance that prevents the property owner from making any beneficial use of his property is both unreasonable and confiscatory." In its order of judgment the trial court granted the definitive relief sought in plaintiffs' complaint, stating:

"2. Defendant City of Warren, its agents, officers, employees, attorneys and all persons acting in concert with it, are hereby enjoined from interfering with plaintiffs' use of the Property in accordance with defendant's R-3 zoning classification."

The Court of Appeals affirmed the trial judge's finding of confiscation as supportable by the record, citing Smith v. Wood Creek Farms, 371 Mich. 127, 123 N.W.2d 210 (1963). That court, however, simultaneously offered the following gratuitous remark:

"We would prefer to reverse without prejudice to an application to the legislative body of defendant seeking an administrative hearing with regard to the reasonableness of plaintiffs' proposed (R-3 multiple family dwelling)

use." 61 Mich.App. 435, 440, 232 N.W.2d 732, 734 (1975).

III. APPLICATION OF THE APPROPRIATE STANDARD ON DE

NOVO REVIEW TO THE FACTS

Applying those rules enumerated in Part I discussing Kirk, supra, it is clear that this matter is particularly governed by rule 3 of Kropf,391 Mich. at 162-163, 215 N.W.2d at 189, I. e., "to sustain an attack on a zoning ordinance, an aggrieved property owner must show that if the ordinance is enforced the consequent restrictions on his property preclude its use for any purposes to which it is reasonably adapted". It is, of course, plaintiffs' duty " 'to prove affirmatively that the ordinance is an arbitrary and unreasonable restriction upon the owner's use of his property' " (Kropf, at 162, 215 N.W.2d at 189, rule 2), as the " 'ordinance comes to us clothed with every presumption of validity' " (Kropf, at 162, 215 N.W.2d at 189, rule 1).

Applying these three rules to the totality of circumstances adduced at trial, our review of the record supports the finding that defendant's platting of surrounding land has landlocked plaintiffs' parcel to the extent that all reasonable uses are precluded under the R-1C zoning designation; plaintiffs have affirmatively proven that their development costs under the disputed R-1C ordinance would be roughly equivalent to any potential sales returns on the developed property, thereby rendering the classification scheme unreasonable and void. Therefore, reviewing the record De novo, yet affording " 'considerable weight to the findings of the trial judge in equity' " (Kropf, at 163, 215 N.W.2d at 189, rule 4), we uphold the rulings of unconstitutionality made by both the trial court and Court of Appeals. As applied to plaintiffs' property, defendant's R-1C zoning classification is adjudged "unreasonable, arbitrary and confiscatory", thereby rendering the disputed R-1C zoning designation constitutionally invalid and void.

IV. EFFECT OF CONSTITUTIONAL INVALIDITY

Having found defendant's R-1C single family zoning ordinance void, the following issues require our attention: (1) what effect is to be accorded our De novo finding of unconstitutionality?; and (2) through what procedure is this effect to be determined?

More specifically, the first question to be resolved is whether, considering both plaintiffs' asserted interest in constructing multiple family dwellings on their parcel a permitted R-3 use and the trial court's order generally enjoining defendant "from interfering with plaintiffs' use of the Property in accordance with defendant's R-3 zoning classification", plaintiffs may construct any structure deemed permissible within the R-3 classification or only that specific use prescribed at trial. For example, may plaintiffs...