Hessee Realty, Inc. v. City of Ann Arbor

• Decision Date: 29 May 1975
• Docket Number: No. 2,Docket No. 19849,2
• Parties: HESSEE REALTY, INC., a Michigan Corporation, Plaintiff-Appellant, v. CITY OF ANN ARBOR, a Michigan Municipal Corporation, et al., Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 695

232 N.W.2d 695

61 Mich.App. 319

HESSEE REALTY, INC., a Michigan Corporation, Plaintiff-Appellant, v. CITY OF ANN ARBOR, a Michigan Municipal Corporation, et al.,

Defendants-Appellees.

Docket No. 19849.

Court of Appeals of Michigan, Division No. 2.

May 29, 1975.

As Amended on Rehearing Granted July 21, 1975.

Released for Publication Sept. 9, 1975.

Conlin, Conlin, McKenney & Meader by Chris L. McKenney, Ann Arbor, Bromberg, Robinson, Shapero & Cohn by Stephen A. Bromberg, Southfield, for plaintiff-appellant.

Edwin L. Pear, City Atty., Ann Arbor, for defendants-appellees.

Dobson, Griffin & Barense by William D. Barense, Ann Arbor, for intervenors.

Before QUINN, P.J., and BASHARA and KAUFMAN, JJ.

KAUFMAN, Judge.

Plaintiff appeals from a denial of its request for mandamus by the Washtenaw County Circuit Court. Plaintiff had requested the trial court to order defendant's City Council to give plaintiff the site plan approval and building permits requisite to developing a parcel of land. The planned development was in conformity with the land use permitted by defendant's zoning ordinance.

Plaintiff purchased the subject land, 41.1 acres within the City of Ann Arbor, in June, 1972. ¹ At that time and throughout the litigation the land was zoned 'R4B', multifamily residential, and plaintiff intended to construct apartment units on the property. In November, 1972, plaintiff, pursuant to the requirements of defendant's Subdivision and Land Use Control Ordinance, submitted a site plan to the Ann Arbor Planning Commission. In accordance with established procedures, the Commission referred the site plan to ten different city departments for their review. A number of the departments suggested changes in the plan, and plaintiff agreed to modify the plan in compliance with the suggestions. At a January 9, 1973, public meeting, the Planning Commission considered plaintiff's construction plans and, after finding that plaintiff had made the requested revisions, approved the site plan and recommended the issuance of a building permit.

The plan, with the Planning Commission's approval, was then submitted to the defendant's City Council. The Council voted to return the site plan to the Planning Commission so that the Board of Education might be asked to analyze the potential impact of the plan on the local schools. The Board refused to give an opinion, claiming that it lacked jurisdiction to consider the propriety of new building developments and that plaintiff's plans were too indefinite to be analyzed as to school impact. On February 27, 1973, the Planning Commission reconsidered plaintiff's plan, which was the same one it had earlier approved, and this time, rejected it. The Commission gave no reasons for its change of mind. The City Council then held a March 5 public meeting to reconsider plaintiff's plan. Several Ann Arbor residents spoke against the plan. The Council, alluding to possible traffic problems, voted unanimously to reject the plan and to deny the issuance of a building permit.

Plaintiff then instituted the instant action. It asked the Circuit Court to grant a writ of mandamus, ordering defendant's City Council to approve the site plan and issue a building permit. The Court refused to grant the requested writ.

To present a property request for mandamus,

'plaintiffs must have a clear legal right to performance of the specific duty sought to be compelled; defendants must have the clear legal duty to perform such act; and it must be a ministerial act, one 'where the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment.' 38 C.J. p. 598.' Toan v. McGinn, 271 Mich. 28, 34, 260 N.W. 108, 111 (1935). See also Kortering v. Muskegon, 41 Mich.App. 153, 199 N.W.2d 660 (1972).

In denying plaintiff's request, the trial court held that defendant's Subdivision and Land Use Control Ordinance gives the City Council discretion in deciding whether to approve or reject the Planning Commission's recommendations concerning site plans and building permits. The court stated further that, while '(t)he site plan ordinance does not * * * grant discretion to any city official to improperly withhold approval of a site plan', the City Council did not act arbitrarily in denying plaintiff's site plan.

On appeal, plaintiff claims that because plaintiff had complied with all applicable statutory requirements, defendant had only a ministerial function to perform, the granting of a building permit. Alternatively, plaintiff contends that, if defendant's City Council had discretion, its decision to deny the building permit was an abuse of that discretion.

Thus, we must examine defendant's Subdivision and Land Use Control Ordinance to determine if defendant's City Council has discretion in approving site plans and granting building permits and, if it does, to ascertain the breadth of that discretion. Our reading of the Ordinance supports the trial court's finding that the City Council has discretion in this area. The Ordinance mandates the City Council to examine the recommendations of the Planning Commission concerning proposed site plans and be the final arbiter of the acceptability of such plans. The Ordinance does not bind the City Council to the recommendations of the Planning Commission but makes the Council an independent examiner. It requires that the site plan shall first be submitted to the Planning Commission which shall consult relevant city agencies, make recommendations and finally approve or reject the plan. Then, the

'Commission's recommendations and all related reports shall be submitted to Council for its consideration; the Council shall, after holding public hearings on said site plan, Take final action * * *.' Ann Arbor Code, Title V, ch. 57, § 5:124(2)(B) (Emphasis supplied.)

The ordinance does not, however, provide a clear indication as to the breadth of defendant's discretion. At one extreme the City Council might be given broad 'legislative' powers to review the proposed site plan De novo, independent of Planning Commission findings, and be able to reject a plan which complies with all the statutory standards because it deems the plan to be contrary to its conception of public welfare. At the narrow extreme, the Council would be limited, much as an 'administrative' appellate board, to the job of reviewing the Planning Commission's deliberations and recommendations to make sure that they are consistent with applicable standards.

If we hold that City Council is a 'legislative' body for these purposes, a view supported by defendant and by the trial court, we would have to accord it broad powers and uphold all exercises of that power shown to be 'reasonable'. Kropf v. Sterling Heights, 391 Mich. 139, 161--162, 215 N.W.2d 179 (1974). If we, as plaintiff urges, deem the Council an administrative body for these purposes, we must determine whether its decision is based upon 'competent, material and substantial evidence on the whole record'. Const.1963, art. 6, § 28; Keating International Corp. v. Orion Township 51 Mich.App. 122, 214 N.W.2d 551 (1974). ²

We find that the requirements of the Ordinance, read in their statutory context, give defendant's Council only narrow 'administrative' powers of review. Laws regulating land use must be considered in the context of what is often a conflict between two significant rights: (1) the...