Guy v. Brandon Tp.

• Decision Date: 22 January 1990
• Docket Number: Docket No. 99185
• Citation: 181 Mich.App. 775,450 N.W.2d 279
• Parties: James L. GUY and James L. Mann, Plaintiffs-Appellants, Cross-Appellees, v. BRANDON TOWNSHIP, Defendant-Appellee, Cross-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 279

450 N.W.2d 279

181 Mich.App. 775

James L. GUY and James L. Mann, Plaintiffs-Appellants, Cross-Appellees, v. BRANDON TOWNSHIP, Defendant-Appellee, Cross-Appellant.

Docket No. 99185.

Court of Appeals of Michigan.

Submitted June 15, 1988.

Decided Dec. 28, 1989.

Released for Publication Jan. 22, 1990.

Beier, Howlett, Ternan, Jones, Shea & Hafeli, P.C. by Lawrence R. Ternan, Bloomfield Hills, for plaintiffs-appellants, cross-appellees.

Campbell, Keenan & Harry by Richard A. Campbell, Clarkston, for defendant-appellee, cross-appellant.

Before SHEPHERD, P.J., and HOLBROOK and SCHWARTZ, ^* JJ.

PER CURIAM.

After conducting a bench trial and a post-trial hearing pursuant to Ed Zaagman, Inc. v. Kentwood, 406 Mich. 137, 277 N.W.2d 475 (1979), the trial court entered a judgment invalidating defendant township's zoning ordinance requiring a minimum area for each lot of 2 1/2 acres and approving the township's rezoning of plaintiffs' land to single-family residential status with a one-acre minimum lot requirement. We affirm in part, but vacate the rezoned midsatisfactory use and reverse the trial court's ruling that plaintiffs were not entitled to damages as a matter of law for a temporary taking.

I

Because plaintiffs' appeal is primarily concerned with questions of remedy, we deem it expedient to initially address defendant's cross appeal challenging the trial court's antecedent conclusion that the 2 1/2-acre zoning requirement was unconstitutional. Plaintiffs' claim sought invalidation of the 2 1/2-acre minimum lot requirement, which effectively precluded them from going ahead with plans to develop their land into a mobile home park subdivided into half-acre lots. According to the trial court's findings, plaintiff did prove that the 2 1/2-acre requirement, combined with the condition of the land and the development of the surrounding land, deprived the land of any substantial value. Plaintiffs' proofs demonstrated that residential development would be economically feasible only if the density requirement of 2 1/2 acres per lot were reduced.

Because this appeal is taken from the trial court's ruling on a constitutional challenge to a zoning ordinance, our review is de novo. Nevertheless, we accord considerable deference to the findings of the trial judge, and those findings will not be disturbed unless we would have reached a different result had we occupied the trial judge's position. Howard Twp. Bd. of Trustees v. Waldo, 168 Mich.App. 565, 568-569, 425 N.W.2d 180 (1988). The determination whether an unconstitutional taking has occurred involves essentially an ad hoc factual analysis. Cryderman v. Birmingham, 171 Mich.App. 15, 27, 429 N.W.2d 625 (1988).

"[O]ne who purchases with knowledge of zoning restrictions may nonetheless be heard to challenge the restriction's constitutionality. An otherwise unconstitutional ordinance ... does not lose this character and immunize itself from attack simply by the transfer of property from one owner to another." Kropf v. Sterling Heights, 391 Mich. 139, 152, 215 N.W.2d 179 (1974); Johnson v. Robinson Twp. 420 Mich. 115, 125, 359 N.W.2d 526 (1984).

In the case at bar, the trial court found that the 2 1/2-acre minimum lot requirement effectively precluded use of plaintiffs' land for any purpose to which it was reasonably adapted, thereby substantially destroying the value of the property. This amounts to an unconstitutional taking. See Troy Campus v. Troy, 132 Mich.App. 441, 450-451, 349 N.W.2d 177 (1984). Based on our review of the evidence at trial, we are unable to find fault with this finding and conclude that plaintiffs did meet their burden of proving that the zoning effected a confiscation of their property. We are not convinced that plaintiffs' land is capable of being reasonably adapted for agriculture or for any other use permitted by the challenged zoning. See Gackler Land Co. Inc. v. Yankee Springs Twp., 427 Mich. 562, 572-573, 398 N.W.2d 393 (1986). In their limited use of the land for various tasks incidental to development of adjacent property, including gravel extraction and storage of equipment, plaintiffs realized only an insubstantial, transitory value. This is not enough to preclude a confiscation claim.

Defendant's contention in avoidance of a finding of confiscation is that the trial court, in ruling that the zoning requirement effected confiscation without just compensation, ignored evidence that the unsuitable nature of plaintiffs' land for agricultural use permissible under the zoning ordinance was caused by unilateral acts of plaintiffs and their predecessors in interest. Defendant argues that plaintiffs' inability to make any valuable use of their land is therefore self-created, which should preclude them from seeking rezoning for high-density residential development.

The evidence indicates that plaintiffs, since their acquisition of the land in 1977 and their subsequent development of adjacent property as a mobile home park, removed some gravel pursuant to a consent order with the township, moved modest amounts of topsoil, and made other alterations to the topography. However, there is no indication that any acts attributable to plaintiffs resulted in the wholesale removal of topsoil or otherwise rendered the land unfit for farming. It is not clear whether the land was ever a viable site for agriculture in its natural state. Plaintiffs testified that they heard that the county used the land for gravel mining some thirty to fifty years ago, which may account for the lack of topsoil.

The self-created-hardship rule advanced by defendant was applied in Johnson, supra, where the plaintiffs sought a variance from a zoning ordinance requiring each lot to have a ninety-nine-foot minimum width. Although originally the plaintiffs' parcel was part of a larger parcel conforming to the ninety-nine-foot requirement, a former owner, who was also the grandfather of one plaintiff, executed conveyances that effectively partitioned the parcel into two nonconforming parcels. After its principal holding that the Zoning Board of Appeals did not abuse its discretion by denying a variance, the Supreme Court summarily rejected a claim of unconstitutional prohibition of the plaintiffs' desired use: "Since, prior to the split, this land was being properly used in conformance with the zoning ordinance, we can see no sense in which the township can be said to have unconstitutionally deprived the plaintiffs of their property rights." Id., 420 Mich. p. 126, 359 N.W.2d 526. See also Bierman v. Taymouth Twp., 147 Mich.App. 499, 507, 383 N.W.2d 235 (1985), lv. den. 425 Mich. 869 (1986) ("A properly adopted zoning ordinance does not become an arbitrary and unreasonable restriction upon an owner's use of his or her land simply because they or their predecessors in title have voluntarily disrupted the natural condition of the land so as to make it useless in its resulting state").

The claim of self-created hardship in this case finds minimal support in the record. There is no indication that the minor alterations made since plaintiffs acquired title diminished the suitability of the land for agricultural use. Plaintiffs' own testimony concerning gravel mining operations some thirty to fifty years ago by the county was unsubstantiated and devoid of any specific detail. In view of the sparse factual record, we are not persuaded that the conduct of a remote predecessor in title permitting gravel mining should be attributed to plaintiffs as a self-imposed hardship, particularly since it is unclear that the land was ever suitable for agricultural purposes in its natural state. Evidence of a self-created hardship was far from convincing, and we are compelled by a de novo review of the entirety of the evidence to reach the same conclusion as the trial court. We affirm the trial court's ruling that the 2 1/2 acre zoning requirement was unconstitutional.

II

After ruling that the challenged ordinance was unconstitutional, the trial court, adhering to the remedial procedures set forth in Zaagman, supra, remanded the matter to the township zoning authority for adoption of an amended ordinance. While the remand was pending, the Supreme Court decided Schwartz v. Flint, 426 Mich. 295, 395 N.W.2d 678 (1986), thereby overruling the remedial procedures previously required by the Zaagman decision. The trial court then ruled that it correctly applied the Zaagman procedure and, in the alternative, that even if it were assumed that Schwartz were deemed controlling, this change in the law would not alter the disposition of the instant case. Final judgment was entered ordering implementation of the rezoned requirement of one-acre minimum area per lot as an appropriate midsatisfactory use.

Prior to Schwartz, the Zaagman procedure required that, upon invalidation of a zoning ordinance, the case be remanded to the appropriate zoning authority for adoption of an amended ordinance embodying a midsatisfactory use, i.e., a zoning regulation of land use "comporting with the dictates of equity as well as the requirements of constitutional reasonableness as applied to an aggrieved landowner's parcel." Zaagman, supra, 406 Mich. p. 180, 277 N.W.2d 475. As applied to this case, the procedure further required that the circuit court resolve post-remand disputes over whether the midsatisfactory use embodied in the amended ordinance should be implemented. In Schwartz, the Court abruptly disavowed Zaagman, citing the need to free the zoning process from judicial intrusion and the practical unworkability of the Zaagman procedure. In its place, the Court instituted the "specific reasonable use" rule of relief from unconstitutional zoning. Schwartz, supra, 426 Mich. p. 327, 395 N.W.2d 678. Pursuant to that rule, the trial court, once it has declared a zoning ordinance invalid, must decide whether the plaintiff land user has met the burden of proving by a preponderance of the evidence that his proposed use...