Grand Trunk Western R. Co. v. City of Detroit
| Decision Date | 08 December 1949 |
| Docket Number | No. 46,46 |
| Citation | 326 Mich. 387,40 N.W.2d 195 |
| Parties | GRAND TRUNK WESTERN R. CO. et al. v. CITY OF DETROIT. |
| Court | Michigan Supreme Court |
Friedman, Meyers & Keys, Detroit, for plaintiff-appellant Kolman shapiro.
H. V. Spike and William W. MacPherson, Detroit, for plaintiffs-appellants Grand Trunk Western R. Co. and Industrial Land Co.
Warner, Norcross & Judd, Grand Rapids, for plaintiffs-appellants Inter-State Motor Freight System and Acme Truck Rentals, Inc.
Richard S. Weber, Detroit, for plaintiffs-appellants Weber.
Raymond J. Kelly, Corporation Counsel, John G. Dunn, Arthur L. Barkey, Assistant Corporation Counsel, Detroit, for defendant-appellee.
Before the Entire Bench.
Plaintiffs Grand Trunk Western Railroad Company et al. filed a bill to restrain the enforcement of a rezoning ordinance of the defendant City of Detroit. They alleged that the ordinance is unreasonable and illegal and ask that it be declared null and void so far as it affects their property. After a hearing, the trial court dismissed the bill and plaintiff appeals. We shall detail the ordinance, a description of the property involved, its character, and as many of the facts set forth in the lengthy record as we deem necessary to resolve the determining issues of the case.
Plaintiffs attack the validity of the rezoning ordinance of the city of Detroit adopted July 16, 1941, as applied to their respective parcels of property, the use of which the ordinance restricts to multiple dwellings two and one-half stories in height. This ordinance was adopted almost on the heels of a former one which became effective the previous December and zoned the use of a large part of the same properties for heavy manufacturing purposes and a small part for light manufacturing. The record shows no change in the character of the property during this short interval of time nor for many years prior thereto.
The area in question is located approximately one mile east of the central downtown section of the city. It is thirteen blocks in length and one block (the equivalent of two short city blocks) in width in a very old section of the city. It is bounded on the north by Gratiot avenue and a nearby cross street and on the south by Jefferson avenue, on the east by St. Aubin avenue and on the West by Orleans street. The area is bisected by the right of way of the main line of the railroad, running north and south, of plaintiff Grand Trunk Western Railroad Company, referred to herein as Grand Trunk. This right of way consists of four tracks, two of which are used for regular trains and the other two for switching purposes. Grand Trunk has depressed these tracks and, except in a few places, owns long strips of land abutting each side of the right of way. A map introduced as an exhibit indicates that co-plaintiff Inter-State Motor Freight System owns or has acquired an interest in Grand Trunk's strips adjoining the east side of the right of way between two cross streets, and that co-plaintiff Shapiro owns or has acquired an interest in similar lands further north on the same side of the right of way. The properties of the other plaintiffs adjoin the vacant lands of the Grand Trunk that abut its tracks. Altogether, plaintiffs' property covers many hundred thousands of square feet, about 90 per cent of which is unimproved.
The rezoned area itself contains freight terminals, junk yards, factories, gasoline stations, a coal yard, a mattress factory, a steel treating company with furnaces in operation, tool and dies companies, a cleaning and dyeing plant, two foundries, a pattern shop, et cetera. It also contains 528 residences, which are at least 40 to 50 years old. From the photographs in the file it would appear that many of them are much older and in a sad state of disrepair.
Very large packing and other wholesale food purveyors have their places of business and warehouses in the vicinity north of the area rezoned by the ordinance. The Detroit Eastern market, a very large wholesale and retail food center, is but a few blocks distant. Immediately south of Jefferson avenue, the southern line of the area, are numerous large buildings abutting the railroad's right of way and used for nonresidential purposes.
The legality of the ordinance as applied to these lands is assailed for several reasons. In adopting the ordinance, was reasonable consideration given to the character of the district, its peculiar suitability for particular uses, the conservation of property values, and the general trend and character of building and population developments as is required by the zoning law? Did it result in effect in a confiscation of property, was it unreasonable and arbitrary in nature and therefore illegal?
The claim is made that the new zoning ordinance does not affect the present uses to which the property is put and that, therefore, there is no cause for complaint. This is fallacious reasoning. The plaintiffs do claim the right to build on their presently vacant and unproductive property, but are prevented from doing so except in conformity with the provisions of an ordinance that they contend illegally, arbitrarily and unreasonably deprives them of their rights.
The record shows that shortly after the railroad tracks were lowered the financial depression of the thirties set in; that this was followed by the war period during which both labor and materials were unavailable except for armament; that large parcels of property in outlying districts of the city having railroad frontage were first developed, few of the latter now being available; that at the present time there is a scarcity of property with railroad siding facilities near the center of the city and such of these as are available have great value.
Testimony shows that Grand Trunk has recently received a number of inquiries in regard to its property but owing to the present zoning ordinance it has been unable to enter into any transactions. It was further shown that Grand Trunk could level off its slanting strips of land beside its right of way and such leveled land could be used to good advantage for sidings by buildings erected on adjacent lands with their lower floors on a level with the railroad tracks. This would result in the economical, rapid and easy handling of merchandise and freight in these structures and also use Grand Trunk's lands for railroad purposes.
Plaintiffs introduced testimony to show that their land was seven to ten times more valuable for industrial than for residential uses. Defendant's witnesses conceded that the land was three times more valuable if not restricted to residential purposes.
There is a preponderance of evidence that the property as rezoned is totally unfit for the sole purpose permitted by the ordinance and that no one with any business sense whatsoever would build such multiple dwellings two and one-half stories in height in this area. Defendant claims that it is the most blighted area in the entire city. It was shown that there is a clanging of bells, dirt, noises and smoke from the passing trains and switching engines. No new residential buildings have been erected in the area for many long years. The evidence clearly shows that none are apt to be constructed unless the entire area is first condemned. Defendant concedes that the entire area must be condemned before the blight on it can be removed. The effect of the ordinance is to prevent the use of much of plaintiffs' property in the zone in question for any profitable purpose. There is no foreseeable return to most of them from their vacant property if the status quo established by the ordinance is maintained.
Plaintiff Shapiro sought a permit to erect an abattoir on his premises which abut the railroad's right of way. He purchased his property from Wilson & Company and others. The property has a solid wall abutting railroad tracks, the right to use what formerly may have been sloping land adjacent thereto or the ownership thereof evidently having been acquired by him or his predecessors in title and leveled off. A railroad siding runs alongside his property. This plaintiffs for the first time became aware of the adoption of the new ordinance when he was refused the permit. Father Schneider, the administrator of St. Joseph's Parish, whose buildings consist of a church and rectory, two schools, the Christian Brothers home, and a convent, all grouped together, had filed a protest to the issuance of the permit. St. Joseph's Commercial College and the home mentioned lie across the tracks and about 150 feet west of the Shapiro property. At a hearing of the instant case, Father Schneider, as witness for defendant, testified on cross-examination that he did not object to the use of the property for warehouses on the lower portion of the area but that he did object to noises from manufacturing concerns, which would disturb the school where approximately 500 boys were receiving their education. He stressed the need of playgrounds. His testimony clearly shows the unfitness of the area for multiple dwellings two and one-half stories in height, the only use permitted by the ordinance. He stated in part: ...
To continue reading
Request your trial