Franchise Realty Interstate Corp. v. City of Detroit, 72

• Decision Date: 03 December 1962
• Docket Number: No. 72,72
• Citation: 118 N.W.2d 258,368 Mich. 276
• Parties: FRANCHISE REALTY INTERSTATE CORPORATION, an Illinois Corporation, Petitioner and Appellant, v. CITY OF DETROIT, a Michigan Municipal Corporation, and Heinz Gerlach, Chief License FRANCHISE REALTY INTERSTATE CORP. v. CITY OF DETROIT Building and Safety Engineering of the City of Detroit, Respondents and Appellees.
• Court: Michigan Supreme Court

Page 258

118 N.W.2d 258

368 Mich. 276

FRANCHISE REALTY INTERSTATE CORPORATION, an Illinois

Corporation, Petitioner and Appellant, v. CITY OF DETROIT, a Michigan Municipal Corporation, and Heinz

Gerlach, Chief License FRANCHISE REALTY INTERSTATE CORP. v. CITY OF DETROIT Building and Safety Engineering of the City

of Detroit, Respondents and Appellees.

No. 72.

Supreme Court of Michigan.

Dec. 3, 1962.

Dickinson, Wright, McKean & Cudlip, Detroit, for appellant.

Robert Reese, Corp. Counsel, John F. Hathaway, Asst. Corp. Counsel, Detroit, for appellees.

Before the Entire Bench, except ADAMS, J.

BLACK, Justice (for affirmance).

February 9, 1961 plaintiff duly applied, to the defendant city, for a permit authorizing construction of a 'drive-in' restaurant on its recently purchased parcel of Detroit property. The parcel was then zoned B-2, permitting such construction and use. Some 3 weeks later the city notified plaintiff that the latter's plans, submitted with the application, required certain corrections. The corrections were made. A week or so later the city's building department advised plaintiff that no permit would be issued; that a petition to rezone such parcel had just been filed per ordinance authorizing such a petition.

The common council of the defendant city promptly resolved that a publif hearing, upon the petition to rezone, be conducted April 7 next at ten o'clock in the morning. March 31 plaintiff filed in circuit the instant petition for mandamus to compel issuance of the permit it had applied for. Hearing on order to show cause was set for April 7, at two in the afternoon. April 7, at ten in the morning, the resolved public hearing was held. It concluded, allegedly, with announcement that a decision would be made at the regular meeting of the council to be held April 11. However, after plaintiff and its counsel left the hearing, the council again took up the matter and voted to amend--with immediate effect--the then ordinance so as to prohibit plaintiff's intended use of such parcel. That afternoon the circuit judge, being advised of the council's action, adjourned hearing of the order to show cause. Thereafter defendants amended their answer to plaintiff's said petition so as to include the amendatory ordinance as a defense, to which amended answer plaintiff filed an amended reply.

The pleaded issues came to testimonial trial October 31, 1961 and resulted in judgment denying and dismissing plaintiff's said petition. It reviews on granted leave.

This case is a substantial duplicate of Willingham v. City of Dearborn, 359 Mich. 7, 101 N.W.2d 294. There is a decisive difference, however. In Willingham the discretion of the trial judge was inclined against permission to amend tarde the pretrial statement, also the defendant city's answer, so as to include a defense manufactured by amendment of the city's zoning ordinance after the property owner's petition for mandamus and been filed. Here the answering and replicating pleadings were duly amended so as to bring squarely before the court a like defense which, at the time of filing of plaintiff's petition for mandamus, was non-existent. Further, in the present case, the subsequently prepared and unamended pretrial statement recites unqualified satisfaction--all around--with such amended pleadings.

The circuit...