Jamens v. Shelby Tp.

• Decision Date: 26 June 1972
• Docket Number: No. 2,Docket No. 11309,2
• Citation: 200 N.W.2d 479,41 Mich.App. 461
• Parties: William J. JAMENS et al., Plaintiffs-Appellants, v. TOWNSHIP OF SHELBY, a Michigan municipal corporation, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 479

200 N.W.2d 479

41 Mich.App. 461

William J. JAMENS et al., Plaintiffs-Appellants, v. TOWNSHIP OF SHELBY, a Michigan municipal corporation Defendant-Appellee.

Docket No. 11309.

Court of Appeals of Michigan, Division No. 2.

June 26, 1972.

Released for Publication Sept. 15, 1972.

Kenneth N. Sanborn, Sanborn & Liedel, Mt. Clemens, for plaintiffs-appellants.

Roy W. Rogensues, Rogensues & Ricard, Fraser, for defendant-appellee.

Before DANHOF, P.J., and BRONSON and TARGONSKI, ^* JJ.

TARGONSKI, Judge.

Plaintiffs are the land contract purchasers of an 18.631-acre parcel of land in the defendant Township. The land is zoned single family residential under the defendant's zoning Ordinance No. 1. Defendant also has in existence Ordinance No. 35 regulating the removal of earth and materials from land and Ordinance No. 34 regulating the filling of land.

On March 12, 1969, plaintiff William H. Jamens filed an application to rezone the subject land to a Q--D (Quarry District) from the present R--1--C (One Family Residential District). A public hearing was held before the defendant's Planning Commission on April 7, 1969, which body at the meeting recommended that the application to rezone be denied. The defendant's Township Board then considered the application at its meeting held on April 15, 1969, at which they also voted to deny rezoning of this land.

Plaintiffs, concurrently with filing the application for rezoning, also attempted to file an application for earth removal and an application for landfill with defendant's Clerk; however, they were returned pending rezoning.

Upon denial of the application for rezoning, the present action was initiated on March 19, 1970. In plaintiffs' Complaint, they requested that the defendant's zoning Ordinance No. 1, as amended, which zoned plaintiffs' property R--1--C, be declared unconstitutional and that the defendant be permanently enjoined and restrained by injunctive order from enforcing Ordinance No. 1 against plaintiffs' land, and that a Writ of Mandamus be issued commanding the defendant to issue the permits for earth removal and landfill under its Ordinances No. 34 and No. 35.

A nonjury trial was held in the Macomb County Circuit Court on February 10, 1971. At the conclusion of plaintiffs' proofs, upon defendant's motion, a judgment of no cause of action was entered in favor of defendant on February 22, 1971, in conformity with the court's findings of fact and conclusions of law duly entered on the record. No motion for a new trial was filed. Plaintiffs now appeal as of right citing five instances of error. Our analysis follows.

I. DID THE TRIAL COURT COMMIT ERROR IN GRANTING DEFENDANT'S TECHNICALLY INCORRECT MOTION FOR 'ACCELERATED JUDGMENT' AT THE CONCLUSION OF PLAINTIFFS' PROOFS?

At the conclusion of plaintiffs' proofs, defense counsel made a motion for 'accelerated judgment' which was granted by the court. Plaintiffs contend that a motion for accelerated judgment, GCR 1963, 116, was not the proper motion to be made at the conclusion of plaintiffs' case; and that the proper motion should have been a motion to dismiss pursuant to GCR 1963, 504.2. Defendant concedes the validity of this contention but contends that defense counsel intends, in moving for an accelerated judgment, to properly make a motion to dismiss instead. Defense counsel made a statement at the time the motion in question was presented. That statement, indicative of his intention, is as follows:

'* * * I think we are entitled to have the Court's judgment of dismissal of his complaint, and judgment of no cause for action entered.'

We agree with the plaintiff that a motion to dismiss is a defendant's proper motion when a plaintiff has completed the presentation of his evidence to the court in a nonjury trial, since such a motion may be made without waiving his right to offer evidence in case the motion is denied. Irwin v. Via, 2 Mich.App. 375, 139 N.W.2d 893 (1966). Nevertheless, that the motion in question here should properly be deemed a motion to dismiss is supported by Dauer's Estate v. Zabel, 19 Mich.App. 198, 172 N.W.2d 701 (1969); McCarron v. Upper Peninsula Hauling Association, 13 Mich.App. 168, 169, 163 N.W.2d 805 (1968); Irwin v. Via, Supra. In McCarron, the Court stated:

'At the close of plaintiffs' proofs in this nonjury negligence action, the trial judge granted defendants motions for directed verdict on the basis no negligence had been shown. Properly, these should have been motions to dismiss under GCR 1963, 504.2, and we so treat them.'

Thus, we hold, a motion for 'accelerated judgment', like a motion for a directed verdict, will be considered a motion to dismiss where such a motion is proper in a nonjury action.

II. DID THE TRIAL COURT ERR IN NOT VIEWING THE PARCEL OF LAND IN QUESTION, HAVING BEEN REQUESTED TO DO SO BY THE PLAINTIFF AT THE TRIAL?

At the conclusion of plaintiffs' case, plaintiffs requested that the court view the land in question. The Court elected not to do so. It is the claim of plaintiffs that such omission was, in this case, prejudicial to plaintiffs and an abuse of discretion.

We are unable to locate Michigan case law dealing with this issue. However, GCR 1963, 513 provides in part:

'Upon application of either party or upon its own initiative, the court may order an officer to conduct the jury as a whole to view any property or place where a material fact occurred.'

In the author's comments regarding the foregoing in 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed.), pp. 498--499, it is stated, again in part:

'The language of Rule 513, authorizing the court to order a jury view, is permissive and not mandatory.

'The new rules say nothing about the trial judge taking a view of a thing or a place involved in a case which is being tried without a jury. In an action tried by the court without a jury, it was held proper for the trial judge to view the scene of an accident involved in the case for the purpose of clarifying his understanding of undisputed facts. Toussaint v. Conta, 1940, 292 Mich. 366, 290 N.W. 830. And it has been held proper for the trial judge to visit an incompetent during the trial of a suit by his guardian to set aside an exchange of conveyances of real estate. Mettetal v. Hall, 1939, 288 Mich. 200, 284 N.W. 698. There seems no basis to doubt that in matters tried without a jury, the trial court May exercise its Inherent discretionary power to view a thing or place with at least as wide a latitude as is available for view by the jury.' (Emphasis Added)

Abuse of discretion has been defined as follows in People v. Sawicki, 4 Mich.App. 467, 473, 145 N.W.2d 236, 239 (1966), quoting from Spalding v. Spalding, 355 Mich. 382, 384--385, 94 N.W.2d 810 (1959):

"The term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations. In order to have an 'abuse' in reaching such determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but definance thereof, not the exercise of reason but rather of passion or bias."

A sufficient showing of abuse of discretion, in the trial court's failure to view the property in question, has not been made by plaintiffs herein. The necessity for viewing the property was for the trial court to determine and we will not disturb that decision.

III. DID THE TRIAL COURT ERR IN DISMISSING THE CASE AT THE CONCLUSION OF PLAINTIFFS' PROOFS ON THE GROUND THAT THE PROOFS PRESENTED WERE INSUFFICIENT TO INVOKE THE RELIEF REQUESTED?

The trial court, in accord with the mandate of GCR 1963, 504.2, made findings pursuant to GCR 1963, 517. ¹ Plaintiffs contend that the findings of the court were clearly erroneous, based upon the evidence presented.

Plaintiffs' proofs, regarding the suitability of the land as residential property, consisted solely of the testimony of plaintiff Roman Halanski, owner and operator of a sanitary landfill, and experienced in the building industry. It was his testimony that there exists on the 18 1/2-acre parcel of land in question an approximate 5-acre excavation 25 feet in depth; that several gravel pits are located in the area; that a trap shooting range is located approximately one-half mile west of the property in question; that a militarypersonnel head-quarters is also located to the west; and that a Nike missile base adjoins the property on the south and purportedly renders the property in question subject to a 'masking easement' with air rights granted the government over this property. Mr. Halanski further testified that it was not feasible to make use of the property for residential purposes, as zoned, due to the location of the property and its lack of water and sanitary systems. Rather he believed the property's value lay in the sizeable quantity of fill sand, of a type used for highway beds, which might be excavated therefrom for use in highway construction. Mr. Halanski, also admitted that the land was not purchased toward residential use, as zoned, but in anticipation that it could be rezoned for quarry and landfill use.

Additional proofs submitted by plaintiffs consisted of the testimony of Arthur Hill, which concerned itself chiefly with the filing by plaintiffs of the applications in question and with the nature of, and purported nuisance created by, the nearby trap shooting range; that of plaintiffs' witness Gerald Mitchell, a civil engineer, which dealt with the proposed plans in regard to the quarrying and landfill operations on plaintiffs' land; and that of witness Daniel Fons, president of a landfill company, who testified regarding the work performed by his firm.

The trial court in its findings, stated in part:

'I think counsel is quite right that we do have to start off with the presumption of the validity of the ordinance, so the burden is on the plaintiff to...