Frischkorn Const. Co. v. Lambert

• Decision Date: 11 September 1946
• Docket Number: No. 83.,83.
• Citation: 24 N.W.2d 209,315 Mich. 556
• Parties: FRISCHKORN CONST. CO. v. LAMBERT, Building Inspector, et al.
• Court: Michigan Supreme Court

315 Mich. 556

24 N.W.2d 209

FRISCHKORN CONST. CO.

v.LAMBERT, Building Inspector, et al.^*

No. 83.

Supreme Court of Michigan.

Sept. 11, 1946.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Wayne County, Frank B. Ferguson, judge.

Mandamus proceeding by the Frischkorn Construction Company, a Delaware corporation, against Leonard Lambert, Building Inspector of Redford Township, the Township of Redford and the Board of Appeals of Redford Township, Wayne County, to compel issuance of building permit to the plaintiff on ground that building restrictions requiring residences to contain at least 14,000 cubic feet were unreasonable and invalid. From an order dircting the issuance of a writ of mandamus, the defendants appeal.

Order affirmed.

Before the Entire Bench.

Kenneth Murray, of Detroit, for plaintiff and appellee.

Joseph W. McDonnell, of Detroit, for defendants and appellants.

CARR, Justice.

This case involves the validity of a provision of a zoning ordinance of defendant township, as applied to certain lots owned by plaintiff. The ordinance in question was adopted in March, 1942, under authority granted by Act No. 302, Pub.Acts 1937, Comp.Laws Supp.1940, § 2651-11 et seq., Stat.Ann.1942 Supp. §§ 5.2962(1) to 5.2962(12). The general purpose of said act was indicated in the title which read as follows:

‘An Act to provide for the establishment in certain organized townships of districts or zones lying wholly outside of the corporate limits of cities and villages, within which districts or zones the use of land, natural resources and structures, the height, the area, the size and location of buildings may be regulated by ordinance, and within which districts regulations may be established for the light, ventilation, sanitation and protection of such buildings, and within which districts the density of population may be regulated by ordinance; to provide for the administering of this act, and for a planning board; to provide penalties for violation; to provide against conflict with state housing code or other acts, ordinances or regulations; to provide for the collection of building permit fees in benefited districts and of taxes therefor; to provide for petition, public hearing and a referendum by the electors.’

This act was repealed by Act No. 184, Pub.Acts 1943, Comp.Laws 1945 Cum.Supp. § 2651-71 et seq., Stat.Ann.1945 Supp. § 5.2963(1) to § 5.2963 (31). By specific provision of the repealing act, however, ordinances previously adopted by townships under the act of 1937, remained in full force and effect, subject to adoption of a new ordinance relating to the subject matter.

The ordinance in question is based on a master plan prepared for the township by a civil engineer and adopted by the township planning board. It divides the township into 10 districts, some of which are subdivided into zones, and prescribes regulations and restrictions with reference to the location of commercial enterprises, to land utilization, the height, area, size, bulk and location of buildings, and lighting, ventilation and sanitation. A commercial zone is established in district 5, with which we are concerned in this case, and also certain residence zones. The ordinance provides that in zone C of said district only single dwellings shall be constructed, containing a minimum of 800 square feet on the first floor level and with a minimum content, computed on a prescribed basis, of 14,000 cubic feet.

Plaintiff, being the owner of lots 1300 and 1461 in Frischkorn's Grand Dale Gardens subdivision, located in zone C, made application for permits to construct dwelling houses thereon, in accordance with specifications set forth in the applications and accompanying plans. Defendant Lambert, the building inspector of the township, refused the permits for the reason that each proposed residence would contain only 12,657 cubic feet. It is conceded that the plans otherwise complied with the ordinance, with the State housing law (Comp.Laws 1929, § 2487 et seq., Stat.Ann. § 5.2771 et seq.), and with building restrictions applicable to the subdivision.

Following the denial of the permits plaintiff appealed to the board of appeals of the township, which sustained the action of the inspector. Thereupon application was made to the circuit court for a writ of mandamus to compel the issuance of the permits. After listening to the proofs and arguments of the parties, and making inspection of zone C, the trial court came to the conclusion that the requirement as to cubical content, prescribed by the ordinance for houses to be constructed in said zone, was as applied to the lots in question, unreasonable and, therefore, invalid. An application for rehearing was made and denied, and defendants have appealed.

It is the claim of plaintiff that the application of the cubical content provision of the ordinance to the residences it desires to construct on the lots referred to would operate to deprive plaintiff of its property without due process of law, amount to a taking of private property for public use without just compensation, and is an attempted unwarranted exercise of police power. It is further claimed specifically that such provision does not tend in any way to promote or protect the ‘public health, safety, morals or welfare.’ On behalf of defendants it is insisted that the minimum requirement in question was authorized by the act of the legislature pursuant to which the ordinance was adopted, and that its application to plaintiff's lots is not unreasonable. It is argued that such requirement tends to promote the public welfare, that it is conducive to the carrying out of the general plan as contemplated by the zoning ordinance, and that plaintiff has failed to establish that its application to plaintiff's lots is unreasonable.

In reaching the conclusion that plaintiff was entitled to the relief sought, the trial court pointed out that in zone B, located in district 5, south of zone C, single residences may be constructed with 600 square feet of first floor space and a content of 12,000 cubic feet; that in zone D, which lies north and east of zone C, like minimum requirements are imposed; and that in zone E, which lies north of the west two-thirds of zone C, minimum requirements are 480 square feet of first floor space, with a content of 7,500 cubic feet. He further found, after viewing the premises, that in the west two-thirds of zone C, the houses are nearly all of one floor construction, with attic space above. In the opinion filed it was said, with reference to the situation in this respect:

‘Approximately 75% or more of the houses in Residence Zone C are of the small home type; that is one floor for living quarters and an attic for storage space.’

On the hearing in the trial court plaintiff offered the testimony of the assistant to the president of plaintiff corporation, and of its construction superintendent. Defendants relied on the testimony of a former building inspector of the township. The witnesses were examined at some length with reference to the feasibility of increasing the attic space by changing the proposed construction, so as to obtain a minimum house content of 14,000 cubic feet. It is conceded that plaintiff's plans, submitted with its applications for the permits, contemplated 816 square feet on the first floor level, slightly in excess of the minimum requirement in this regard. The trial court concluded, from the testimony and from his view of the...