Gordon v. City of Warren Planning and Urban Renewal Commission

• Decision Date: 26 July 1972
• Docket Number: No. 2,2
• Citation: 388 Mich. 82,199 N.W.2d 465
• Parties: Harold H. GORDON and Louis P. Begin, Plaintiffs-Appellees, v. CITY OF WARREN PLANNING AND URBAN RENEWAL COMMISSION, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 465

199 N.W.2d 465

388 Mich. 82

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

Defendant-Appellant.

No. 2.

Supreme Court of Michigan.

July 26, 1972.

Roy W. Rogensues, Fraser, for plaintiff-appellee Harold H. gordon.

Kenneth R. McAlpine, Warren, for plaintiff-appellee Louis P. Begin.

Sherman P. Faunce, II, John J. Murray, Warren, for defendant-appellant.

Before the Entire Bench.

SWAINSON, Justice.

Plaintiffs own a 15 1/2 acre tract of land in the city of Warren. In 1967 the tract was zoned for multiple family dwellings. Plaintiffs desired to construct low-rise multiple dwellings and submitted a site plan to defendant planning and urban renewal commission in July 1968. The commission failed to approve the plan and plaintiffs commenced an action for writ of superintending control in the nature of mandamus.

Hearing was had before the trial court on January 13, 1969. Defendant asserted at the hearing that four of plaintiffs' proposed buildings were situated too close to Mound Road because the State Highway Department proposed to build an expressway over Mound Road and this proposed expressway had been incorporated into the city's master thoroughfare plan. Mound Road is presently 204 feet wide. The State Highway Department's plans called for widening Mound Road by 200 feet on the west side of the existing road. (This is the side of the road that abuts plaintiffs' property.) When, or if ever these plans will be implemented, is uncertain, although defendant contends that the proposed plans call for the State Highway Department to commence acquiring property for such widening in 1971 or 1972. Under plaintiffs' plan as submitted to the planning commission, their buildings 1, 2, 3 and 6 would be located in the path of the proposed widened Mound Road.

At the conclusion of the hearing, the court suggested that the parties attempt to relocate some of the proposed buildings outside the path of the proposed widened Mound Road. The parties met pursuant to the trial court's suggestion, and they agreed that buildings 1 and 2 would be built as shown on the site plan; also, that buildings 3 and 6 could be relocated west of a line 240 feet west of the existing boundary of Mound Road--200 feet for the new right-of-way and 40 feet for a setback required under the local zoning ordinance. The reason all four buildings could not be relocated was because of the city ordinance regulating the density of the project.

The agreement, by reference to certain site plans, was embodied in a judgment entered on January 20, 1969. Construction was begun and it was then discovered that a mistake had been made by plaintiffs' planning consultant, so that it appeared there were 69 additional feet in the existing right-of-way than actually existed. This mistake occurred because the judgment order entered on January 20, 1969, incorporated by reference plaintiffs' revised site plan, and, according to the site plan, the center of Mound Road and the east line of section 5 (Town 1 North, Range 12 East, of the city of Warren) appeared as one and the same. However, the east line of section 5 was actually 69 feet east of the center of Mound Road. Due to this error, buildings 3 and 6 were being constructed east of and within the 240-foot line. Buildings 3 and 6 were, respectively, 185 feet and 195 feet west of the present westerly line of Mound Road, and buildings 1 and 2 were, accordingly, also 69 feet closer thereto.

On September 26, 1969, defendant filed complaint for injunctive relief and an order to show cause why all four buildings should not be removed because they were not being built in accordance with the site plan. The trial court ruled that buildings 1 and 2 could remain, provided buildings 3 and 6 were removed.

On appeal to the Court of Appeals, the majority opinion held that the original judgment was based on a mutual mistake and the parties should, therefore, not be bound by it. The court further held that on the merits of the case, the city was not authorized to prevent the construction of the buildings. 29 Mich.App. 309, 185 N.W.2d 61. The dissenting opinion held that the parties entered into a consent judgment and were bound by it. We granted leave to appeal. 384 Mich. 827.

On appeal to this Court, the following four issues were agreed to by both parties:

1. Whether the judgment order of January 20, 1969, was a consent judgment?

2. Whether there was a mutual mistake of a material fact?

3. Whether the city of Warren has the power to prevent a landowner from constructing buildings within a proposed right-of-way as designated by a recorded master thoroughfare plan?

4. Whether the trial judge exceeded his equitable powers in ordering the demolition of plaintiffs' partially completed multiple-dwelling buildings, which were not constructed in accordance with the judgment of January 20, 1969?

We agree with the majority of the Court of Appeals that there was a mutual mistake of fact which abrogates the judgment of the circuit court. We further hold that based on the merits, the ordinance of defendant city is unconstitutional as a violation of due process of law.

I.

Under the revised site plan, the center line of Mound Road and the east section line of section 5 were shown to coincide. In fact, the present center line of Mound Road is 69 feet west of the east section line. ¹ The parties thus mistakenly believed that they had an extra 69 feet within which to locate these buildings. Because they did not, buildings 3 and 6 would be within the proposed widening of Mound Road.

Plaintiffs contend that they entered into the agreement only because they believed their buildings would be west of the 240-foot line. Defendant asserts that a representative of plaintiffs made the mistake and that plaintiffs should be bound by it. It is true that the mistake was made by a planning consultant employed by plaintiffs. One of plaintiffs' construction personnel was, in fact, also aware of this mistake. However, it is also clear that plaintiffs themselves did not have any knowledge of this fact. Both plaintiffs and defendant honestly and in good faith believed that the site plan was proper and that the agreement worked out by the parties could be fulfilled. Thus, we hold that there was a mutual mistake of fact which occurred in the original judgment entered by the trial court.

The question of whether there was a consent judgment is not necessary to a resolution of the issues in this case. Once a determination has been made that a mutual mistake of fact occurred, a court has the power to correct that mistake by vacating the judgment. This is true even in the case of a consent judgment. Hews v. Hews, 145 Mich. 247, 108 N.W. 694 (1906); Horning v. Saginaw Circuit Judge, 161 Mich. 413, 126 N.W. 650 (1910); J. L. Hudson Co. v. Barnett, 255 Mich. 465, 469, 238 N.W. 243 (1931). See, also 46 Am.Jur.2d, Judgments, § 717, p. 870.

We believe such a mistake of fact did occur and we agree with the Court of Appeals that the rights of the parties should be adjudicated on the merits.

Defendant contends that the city of Warren has the authority to prevent a landowner from constructing buildings within a proposed right-of-way as designated by a recorded master thoroughfare plan, and relies on M.C.L.A. § 125.51 et seq.; M.S.A. § 5.3007(1) et seq. in support of such contention. This statute allows a planning commission, after the adoption of a master plan, to certify plats of precise proportions to the local legislative body and to regulate buildings within such lines.

Defendant cites 26 Am.Jur.2d, Eminent Domain, § 169, pp. 843--844, and Miami v. Romer, 73 So.2d 285 (Fla.1954), for the proposition that such statute is constitutional and does not constitute a taking of land. However, the difficulty with defendant's position is that it has failed to follow the procedures outlined in the statute. M.C.L.A. § 125.52; M.S.A. § 5.3007(2) provides in part:

'The legislative body of any city or village may by ordinance adopt any such precised plat certified to it by the planning commission as provided in section 1: Provided, That notice of time and place when and where it shall be considered for final passage shall be sent by mail to the record owners of land located within or abutting on the new lines of such proposed streets, ways, places, parks, playgrounds or other public grounds or...