Independence Tp. v. Skibowski, Docket No. 76577

• Decision Date: 19 October 1984
• Docket Number: Docket No. 76577
• Citation: 136 Mich.App. 178,355 N.W.2d 903
• Parties: INDEPENDENCE TOWNSHIP, a municipal corporation, Plaintiff-Appellee, v. Gary M. SKIBOWSKI, d/b/a Michigan Rental Services, Inc., a Michigan corporation, Defendant-Appellant. 136 Mich.App. 178, 355 N.W.2d 903
• Court: Court of Appeal of Michigan — District of US

Page 903

355 N.W.2d 903

INDEPENDENCE TOWNSHIP, a municipal corporation Plaintiff-Appellee, v. Gary M. SKIBOWSKI, d/b/a Michigan Rental Services, Inc., a Michigan corporation, Defendant-Appellant.

Docket No. 76577.

136 Mich.App. 178, 355 N.W.2d 903

Court of Appeals of Michigan.

Submitted June 12, 1984.

Decided July 9, 1984.

Released for Publication Oct. 19, 1984.

[136 MICHAPP 179] Campbell & Fisher by Gerald A. Fisher, Ortonville, for plaintiff-appellee.

Parenti & Treinen, P.C. by Robert L. Bunting, Lake Orion, for defendant-appellant.

[136 MICHAPP 180] Before V.J. BRENNAN, P.J., and CYNAR and OPPLIGER, ^* JJ.

PER CURIAM.

Defendant appeals as of right from a judgment enjoining and restraining defendant from utilizing his property for mixing and/or processing concrete and from selling or offering to sell concrete which has been mixed or processed on his property.

Defendant, Gary Skibowski, doing business as Michigan Rental Services (subsequently incorporated as Michigan Rental Services, Inc., a Michigan corporation), owns and operates an equipment retail and rental shop located on Dixie Highway in Independence Township, Oakland County. Defendant rents and sells various equipment, including trailers, air compressors, lawn care products, building materials and construction tools. Defendant's property is situated in a highway commercial district (C-3). In 1981, defendant brought onto his property a concrete processor with a maximum capacity of one yard. Defendant also placed a temporary sign advertising the availability of mixed concrete batch in front of his property.

On May 18, 1981, the Independence Township Ordinance Officer wrote defendant a letter stating that any concrete batch production on the premises required a heavy industrial zoning (MH) and requested defendant to cease production. On June 22, 1981, another letter was sent to defendant, enclosing the Independence Township zoning ordinance requiring heavy industrial zoning for concrete mixing plants. The letter stated that in the building department's opinion, mixing concrete at defendant's C-3 zoned location was a violation of the zoning ordinance. Defendant was offered the [136 MICHAPP 181] alternatives of challenging the department's opinion or, if defendant agreed with the opinion, seeking a variance with the Zoning Board of Appeals.

In September, 1981, plaintiff brought a misdemeanor action seeking relief for defendant's continued ordinance violation in the 52d District Court. During the pendency of that cause, defendant applied to the Township Zoning Board of Appeals for a variance to allow concrete mixing in a C-3 zoned area. On April 21, 1982, defendant's variance request was denied by the Zoning Board of Appeals. Defendant did not appeal or pursue the denial. Plaintiff then dismissed the misdemeanor action, and on August 19, 1983, commenced this circuit court action seeking injunctive relief prohibiting the manufacture of concrete on defendant's property. Plaintiff also sought, and the circuit court issued, an order to show cause why temporary injunctive relief should not be issued during the pendency of the action.

An evidentiary hearing on the court's order to show cause was held on October 24, 1983, before the Oakland County Circuit Court. The witnesses testifying for the plaintiff at the hearing were Kenneth Delbridge (Direct of the Independence Township Department of Building and Planning) and Richard Carlysle (Independence Township Planner).

Defendant testified that he owned Michigan Rental Services, Inc., and brought a concrete mixer with a one-yard capacity onto his property. The concrete mixing business is seasonal and cannot be performed in wintertime. The concrete mixing is a major aspect of defendant's business, and he turned to it to subsidize his business during the recession. Other rental companies in the area offer the same service, and defendant felt the need [136 MICHAPP 182] to compete against these other companies. Defendant was told to apply for a variance by the Zoning Officer and was told that they were leniently granted. Defendant did not feel that his operation was in violation of the zoning ordinance.

Kenneth Delbridge testified that he was Director of Building and Planning for Independence Township. In 1979, defendant requested and received a variance to store and display things outdoors in connection with his rental business. Although the variance was granted, the business across the street from defendant's objected to the variance because of traffic problems along Dixie Highway. The zoning ordinance has always been strongly enforced along the Dixie Highway corridor where defendant's property is located. Defendant was given an appearance ticket in September, 1981, in an effort to enforce the zoning ordinance. The ticket was not an effective means of enforcing the ordinance, and, therefore, this case was started. Others have also applied for a variance to make concrete on the Dixie Highway corridor. Their requests were also denied. On cross-examination, Delbridge testified that another person who was denied a variance also objected to defendant's request. That person owned a concrete mixing plant down the street from defendant's property in Waterford Township. Delbridge recognized that defendant's mixing facility only operates from spring to November, and that he only supplies homeowners with concrete for small projects. Delbridge was concerned about traffic problems, although he was not able to say that preventing the concrete mixing and sales would reduce traffic problems in the area. There were no standards available to distinguish a one-yard mixing operation from a much larger mixing operation.

[136 MICHAPP 183] Richard Carlysle testified that he is a licensed professional community planner and is the planner for Independence Township and other communities. The trial court qualified the witness as an expert witness. The C-3 commercial zone where defendant's property is located contains no industry and, due to traffic considerations, all industry in the township is located near Interstate 75. Concrete mixing operations are not a commercial use. To remove the concrete from defendant's property, the homeowner hauls a small trailer, also rented from defendant, filled with the concrete. In Carlysle's opinion, defendant's concrete operation was harmful because of possible environmental effects due to dust, spillage and runoff. Further dangers stemmed from inexperienced drivers attempting to drive from defendant's property with a trailer full of concrete onto the busy highway. On cross-examination, Carlysle stated that he was not aware of any complaints regarding spillage or dust from defendant's operation, nor had a study of trailer traffic been performed. A C-3 zoned business is...