Indian Village Manor Co. v. City of Detroit

• Decision Date: 24 January 1967
• Docket Number: No. 1,No. 939,939,1
• Citation: 5 Mich.App. 679,147 N.W.2d 731
• Parties: INDIAN VILLAGE MANOR COMPANY, a Michigan corporation, Plaintiff and Appellant, v. CITY OF DETROIT, a municipal corporation, Oscar L. Mroseske, Secretary of Board of Zoning Appeals of the City of Detroit, and United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), Defendants and Appellees. Cal
• Court: Court of Appeal of Michigan — District of US

Page 731

147 N.W.2d 731

5 Mich.App. 679

INDIAN VILLAGE MANOR COMPANY, a Michigan corporation, Plaintiff and Appellant, v. CITY OF DETROIT, a municipal corporation, Oscar L. Mroseske,

Secretary of Board of Zoning Appeals of the City of Detroit,

and United Automobile, Aerospace and Agricultural Implement

Workers of America (UAW), Defendants and Appellees.

Cal. No. 939.

Court of Appeals of Michigan, Division No. 1.

Jan. 24, 1967.

Rehearing Denied March 14, 1967.

Harold M. Shapero, Detroit, for appellant.

John F. Hathaway, Asst. Corp. Counsel, Detroit, for City and Mroseske.

John A. Fillion, Detroit, for International Union UAW.

Before LESINSKI, C.J., and GILLIS and HOLBROOK, JJ.

HOLBROOK, Judge.

This case involves the granting by the Detroit board of zoning appeals of a variance from the city zoning ordinance prohibiting the construction of a sign at 7950 E. Jefferson avenue. The appellee union had been granted prior variances by the Detroit board in 1949 and 1956, permitting the construction of office buildings of various heights, an auditorium, and the joining of the buildings at 8000 E. Jefferson avenue. The area is a RMU district zone reserved primarily for multiple residences of unlimited height and various other uses such as buildings for public utilities, parking lots and offices for doctors and dentists. The appellees' buildings are known as the 'UAW Solidarity House' and serve as the union's international headquarters.

The UAW international headquarters receive many visitors from all over the world. For this reason the union felt it was necessary to have a prominent identifying sign clearly visible to Jefferson avenue traffic as a convenience to its visitors who are not familiar with the city of Detroit. The sign existing on the building itself was thought inadequate due to a dense row of large elm trees located approximately 10 feet back of the lot line and about 20 feet apart, obstructing the view from Jefferson avenue. Upon the union's petition, the Detroit board of zoning appeals on October 17, 1963, granted a variance from the zoning ordinance, permitting the union to erect a 10 4 13 illuminated sign. This sign was to be placed on appellees' property in front of the row of elms bordering the lot line along Jefferson avenue but would overhang at least a part of the public sidewalk at an overall height of 27 . When a sign is placed so as to encroach on public property, permission of the Detroit city council must also be obtained.

The appellant argued before the appeals board that the sign was detrimental to its ownership interests in an apartment building several hundred yards along Jefferson avenue from the appellees' sign and within the same RMU district. After the variance was granted, appellant petitioned the circuit court for an order of superintending control, which was denied May 19, 1965, after a full hearing and review of the record made before the Detroit board of zoning appeals.

Appeal is now made to this Court asking for reversal of the circuit court and entry of judgment denying appellees' union's variance application before the board of zoning appeal.

All the parties before both the board of zoning appeal and the circuit court assumed that § 7.2 of the Detroit zoning ordinance dealing with signs in RM districts applies to the case at hand. This assumption was made no doubt, because of references made in § 8 RM4 districts to RM districts and in § 9 RMU districts to RM4 districts. Regardless of whether § 7.2 is applicable, in any event § 9 is applicable and we find in § 9.5 there is a requirement calling for a front yard of not less than 20 feet in depth. Also there is a general provision concerning yard encroachments found in § 4.6 of the ordinance that provides 'every part of any required yard shall be open and unobstructed by any structure, from the ground to the sky, * * *.' Section 2.32 defines a 'structure' as 'any production or piece of work artificially built up or composed of parts joined together in some definite manner; any construction.'

The sign complained of here, since it is in the front yard is at least at variance with sections 9.5 [5 Mich.App. 684] and 4.6 and possibly 7.2 of the ordinance. The only question presented by this appeal is whether the Detroit board of zoning appeals had the authority under the facts to grant such a variance. If so, the circuit court properly denied the order of superintending control. The issue is thus reduced to a proper interpretation of § 20.7 of the zoning ordinance (permitted by C.L.S. 1961, § 125.585 (Stat.Ann.1958 Rev. § 5.2935)) which reads as follows:

'Where owing to special conditions a literal enforcement of the provisions of this ordinance will result in unnecessary hardship or involve practical difficulties, the board shall have power upon appeal in specific cases to authorize such variation or modification...