Garb-Ko v. Carrollton Tp.

• Decision Date: 03 October 1978
• Docket Number: GARB-KO,Docket No. 77-3992
• Parties: , a Michigan Corp., and Donna Jean Bruske, Plaintiffs-Appellants, v. TOWNSHIP OF CARROLLTON, a Municipal Corporation, Defendant-Appellee. 86 Mich.App. 350, 272 N.W.2d 654
• Court: Court of Appeal of Michigan — District of US

Page 654

272 N.W.2d 654

GARB-KO, a Michigan Corp., and Donna Jean Bruske, Plaintiffs-Appellants, v. TOWNSHIP OF CARROLLTON, a Municipal Corporation,

Defendant-Appellee.

Docket No. 77-3992.

86 Mich.App. 350, 272 N.W.2d 654

Court of Appeals of Michigan.

Oct. 3, 1978.

Released for Publication Jan. 3, 1979.

[86 MICHAPP 351] Reinert & Reinert by Albert C. Reinert, Saginaw, for plaintiffs-appellants.

Richard A. Mertz, Saginaw, for defendant-appellee.

Before D. E. HOLBROOK, P. J., and KELLY and MARUTIAK, ^* JJ.

PER CURIAM.

This is an appeal by right of the trial court's order limiting the operating hours of the plaintiffs' business establishment. In 1949, Stanley Klenk erected the building in question located in Carrollton Township, Saginaw County, Michigan. Mr. Klenk operated the building as a grocery store until 1959, and kept the hours of 8 a. m. to 10 p. m.

[86 MICHAPP 352] In 1959, Carrollton Township passed a zoning ordinance which placed the property in question in a residential zone. The property was allowed to operate as a nonconforming use and continues to be used as a grocery store until the present time.

In 1959, Mr. Klenk sold the grocery business (not the building itself), and the business was later resold. The various grocery store owners generally operated the business from 8 a. m. to 10 p. m.

In 1971, the plaintiff, Garb-Ko, Inc., agreed to lease the store for a 7-11 operation if the building was refurbished. Mr. Klenk secured a building permit from the township to refurbish the building and in 1971 leased the building to the plaintiff, Garb-Ko, for the operation of their 7-11 store. No conditions or restrictions as far as hours of operation were imposed by the township at the time of the issuance of the building permit for the refurbishing.

When the store first opened in 1971, its hours of operation were from 7 a. m. to 11 p. m. Shortly after its opening, the store hours were changed to 6 a. m. to 12 midnight and after a short time were again changed to 6 a. m. to 2 a. m.

On November 8, 1974, the township board advised the plaintiffs by mail that they must cut back their hours of operation to 7 a. m. to 11 p. m. On July 30, 1975, the plaintiffs commenced this action against the township, seeking to temporarily and permanently restrain the township from interfering with plaintiffs' hours of operation. The township filed a counterclaim against the plaintiffs, asking the court to temporarily and permanently restrain the plaintiffs from extending the hours of operation of the 7-11 store beyond 7 a. m. to 11 p. m.

Testimony was adduced at trial as to the traffic noise and disturbances at the 7-11 store after 11 p. m., and as to the plaintiffs' desire to operate the store on a 24-hour-a-day basis.

The trial court denied the plaintiffs' prayer for permanent injunction and ordered that the plaintiffs may not operate their 7-11 store beyond the hours of 7 a. m. to 11 p. m.

The plaintiffs appeal by right. The precise question on appeal is whether the extension of hours of [86 MICHAPP 353] a grocery store operating as a nonconforming use constitutes an expansion of the nonconforming use which can be lawfully restricted by the defendant township.

Although this precise question has not heretofore been addressed, Michigan courts have, on various occasions, set forth the policy and purpose of the law relating to nonconforming uses.

In Dearden...