Gordon v. City of Warren Planning and Urban Renewal Commission

• Decision Date: 12 January 1971
• Docket Number: Docket No. 8372,No. 2,2
• Citation: 185 N.W.2d 61,29 Mich.App. 309
• Parties: Harold H. GORDON and Louis P. Begin, Plaintiffs-Appellees, v. CITY OF WARREN PLANNING AND URBAN RENEWAL COMMISSION, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 61

185 N.W.2d 61

29 Mich.App. 309

Harold H. GORDON and Louis P. Begin, Plaintiffs-Appellees, v. CITY OF WARREN PLANNING AND URBAN RENEWAL COMMISSION Defendant-Appellee.

Docket No. 8372.

Court of Appeals of Michigan, Division No. 2.

Jan. 12, 1971.

Released for Publication April 2, 1971.

Roy W. Rogensues, Fraser, for Harold H. Gordon.

Kenneth R. McAlpine, Warren, for Louis P. Begin.

John J. Murray, Asst. City Atty., Warren, for defendant-appellee.

Before LEVIN, P.J., and HOLBROOK and BRONSON, JJ.

LEVIN, Presiding Judge.

The plaintiffs owned a 15 1/2 acre site upon which they desired to construct lowrise multiple dwellings. They submitted a site plan to the defendant City of Warren Planning and Urban Renewal Commission and, when that body failed to approve the plan, commenced this action. At the conclusion of a hearing the trial judge indicated that he would probably grant the plaintiffs relief, but suggested that the parties attempt to relocate some of the proposed buildings outside the path of a proposed widening of Mound road, which abuts the easterly boundary of the site.

The parties entered into an agreement, which was embodied in a judgment, to relocate two of the proposed buildings outside the path of the proposed widening of Mound road.

Due to a mistake by a planning consultant employed by the plaintiffs it appeared that there were 69 more feet in the existing right-of-way than there actually is; since the 69 feet does not exist, 69 additional feet will have to be taken from the site if Mound road is ultimately widened.

The plaintiffs would not have entered into the agreement unless all the buildings could be constructed, and the two buildings in question could not be constructed on the site outside of the proposed right-of-way and the required setback therefrom without the 69 feet because there is not enough land west of the setback line upon which to construct them.

We conclude that the agreement was based on a mutual mistake and set aside the agreement and judgment, and adjudicate the rights of the parties as if there had been no agreement or judgment.

I.

Mound road is now 204 feet wide. The state highway department has plans to widen it by 200 feet but when or whether those plans will be implemented is uncertain. If they are, the entire 200 feet will be taken on the west side, plaintiffs' side, of the road as it crosses plaintiffs' property. Under the plan as originally submitted by the plaintiffs, buildings 1, 2, 3 and 6 would be located in the path of the proposed widened road.

Pursuant to the judge's suggestion the parties met and it was decided that all four buildings could not be relocated west of the 40-foot city-ordinance-required setback from the widened road but that two buildings, 3 and 6, could be relocated west of a line 240 feet from the existing west boundary of Mound road--200 feet for the new right-of-way and 40 feet for the setback. It was thereupon agreed that buildings 1 and 2, the two buildings closest to Mound road, would be built as shown on the site plan originally submitted but that buildings 3 and 6 would be relocated west of the 240-foot line. A revised site plan was drawn and a judgment was entered providing that the plaintiffs may construct the buildings in accordance with the revised site plan.

Construction was begun and then it was discovered that buildings 3 and 6 were in fact being built east of the 240-foot line. ¹ The site plan submitted by the plaintiffs was rechecked. It shows the center line of Mound road and the east section line of section 5 ² to be coincident. In fact, the center line of Mound road is 69 feet west of the east section line.

The person in charge of construction for the plaintiffs, while aware that the two lines did not coincide, was not aware of the settlement. Faced with the ambiguity implicit in the fact that the site plan showed that the east property line was 171 feet west of both the center line of Mound road and the east section line, he located the actual construction sites in relation to the east section line rather than the center line, I.e., he decided to construct the buildings 69 feet closer to the center of Mound road than shown on the plan which, however, was no closer to the east section line than shown on the plan. ³

The defendant sought an injunction restraining the plaintiffs from continuing with construction and requiring that they remove the partially-completed buildings. After a testimonial hearing the judge ruled that buildings 1 and 2 (which it was contemplated under the agreement reached by the parties would have to be condemned if Mound road is widened) could remain provided that buildings 3 and 6, which under the agreement were to be located west of the 240-foot line, were first removed.

The plaintiffs appeal claiming that the judge should have modified the judgment he originally entered because it was based on a mutual mistake, and because the defendant had no legal right to prevent the plaintiffs from locating structures within the area of the proposed expansion of Mound road. The plaintiffs alternatively contend that the judge, in the proper exercise of his discretion, should have refused to require the removal of partially completed buildings 3 and 6.

We are satisfied that the judgment was based on a mutual mistake, and that the plaintiffs should be relieved of the judgment and the question of the defendant's right to prohibit the construction of buildings within the path of the proposed widening of Mound road decided on its merits. On the merits we conclude that the city is not authorized to prevent the construction of these buildings even though their construction will add to the cost of condemning the land upon which they are constructed if the land is required for the widening of Mound road.

Accordingly, there is no need to reach the question whether the judge should, as a matter of discretion, have refused to order the removal of partially constructed buildings 3 and 6. ⁴ Nor do we see any need to decide whether, as defendants contend and the judge found, the judgment originally entered was a consent judgment.

II.

Even if the judgment was a consent judgment and, therefore, is contractual as well as adjudicatory in nature, ⁵ it, like all contracts ⁶ and judgments, ⁷ is subject to the power of the courts to modify and vacate in order to correct a mistake.

'A mistake may be such as to constitute sufficient cause for opening, modifying, or vacating a judgment, * * * The rule prevails in the case of a judgment * * * by consent, which has been held subject to modification so as to indicate the real intention of the parties. There is also authority for the proposition that a mistake of one of the parties is sufficient to afford relief against a consent judgment.' 46 Am.Jur.2d, Judgments, § 717, pp. 870, 871. ⁸

It is also established that an agreement, impossible of performance because of facts existing at the time it was entered into of which the parties were ignorant, may be avoided if the agreement was based upon the supposed possibility of performance without regard to who furnished the erroneous information and even though the person pleading the mistake had the means of discovering it or by care and diligence might have avoided it. 'It is presumed that parties contract with reference to the existence of a state of things making performance possible.' 17 Am.Jur.2d, Contracts, § 144, p. 491. ⁹

If, as mistakenly shown on the site plan, the center line of Mound road and the east section line of section 5 coincided, then the existing right-of-way would be 171 feet wide, I.e., 69 feet wider than the 102 feet presently devoted to the west lane of Mound road. On that assumption, only 131 additional feet would be required to provide 200 feet for the widening of Mound road. And if that were the fact, only 131 feet of plaintiffs' property would have to be condemned and the 240-foot line (the line 240 feet west of the west line of the present Mound road) would be only 171 feet ¹⁰ west of the east property line of the project. The parties thought those were the facts. They were not the facts; in fact the 240-foot line was 240 feet--not 171 feet--west of the east property line.

Thus the parties thought they had 69 feet more within the interior of the project to locate two of the buildings than they in fact had. The defendant contends that its expectation that buildings 3 and 6 would be built west of the 240-foot line should be protected. The plaintiffs contend, however, that they only agreed to build buildings 3 and 6 west of the 240-foot line because they thought that the 240-foot line was only 171 feet west of the east property line.

It is entirely true that the defendant was not aware of the mistake as to the location of the center line of Mound road. It is also true that one of plaintiffs' construction personnel was aware of that fact. It is also undisputed that a planning consultant employed by the plaintiffs made the mistake of assuming that the center line of Mound road and the east section line of section 5 coincided and caused the site plan to be drawn showing this to be the case. ¹¹

But, while one of the plaintiffs' construction personnel knew that the center line of Mound road was 69 feet west of the east section line, it is not claimed that the significance of this fact in relation to the agreement was known to anyone including the plaintiffs or any of their employees until the mistake was discovered some time after construction was begun. It is not claimed that when the plaintiffs agreed to relocate buildings 3 and 6 they or anyone else knew that their expectations and the expectations of the defendant could not both be fulfilled.

Indisputably the defendants entered into the agreement for the relocation of buildings 3 and 6 with the purpose of having them located west of the 240-foot line. It is equally indisputable, however, that the plaintiffs would not have entered...