James S. Holden Co. v. Connor

• Decision Date: 04 April 1932
• Docket Number: Motion No. 227.
• Citation: 241 N.W. 915,257 Mich. 580
• Parties: JAMES S. HOLDEN CO. v. CONNOR et al.
• Court: Michigan Supreme Court

257 Mich. 580

241 N.W. 915

JAMES S. HOLDEN CO.

v.CONNOR et al.

Motion No. 227.

Supreme Court of Michigan.

April 4, 1932.

Appeal from Circuit Court, Wayne County; Ormond F. Hunt, Judge.

Action by the James S. Holden Company against Richard P. Connor and Fred J. Baker, Building Commissioners for the Village of Grosse Pointe, and another. From judgment for defendants, plaintiff appeals.

Reversed, and writ of mandamus issued.

Argued before the Entire Bench.

CLARK, C. J., and McDONALD and SHARPE, JJ., dissenting. Wurzer & Wurzer, of Detroit (Louis C. Wurzer, of Detroit, of counsel), for appellant.

Albert E. Meder, Village Atty., of Detroit (Beaumont, Smith & Harris, of Detroit, of counsel), for appellees.

CLARK, C. J. (dissenting).

Plaintiff has appealed from judgment in mandamus to compel defendants, the village of Grosse Pointe and its building commissioners and clerk, to issue a building permit, refused under a zoning ordinance.

The question is whether the section of the ordinance may be sustained as a valid exercise of police power under the enabling act, section 2634, Comp. Laws 1929.

On the shore of Lake St. Clair, and in close proximity to Detroit, are a number of municipalities, among them defendant village, all residential in character. The defendant village contains 686 acres and has a population of nearly 5,000. It is bounded on the north by Mack avenue, an important highway leading out of Detroit; on the east by Fisher road; on the south by Lake St. Clair; and on the west by Cadieux road. Its most southerly cross-street is Jefferson avenue, also an important highway leading out of Detroit. It has five other streets crossing east and west, the most important being Kercheval, which, leading out of Detroit, crosses the village of Grosse Pointe Park, and the defendant village, and to the village of Grosse Pointe Farms. It is a main highway of Detroit and of the villages. The defendant village has several north and south streets, the first east of Cadieux being Notre Dame, and the second being St. Clair, which is the chief north and south street being 100 feet wide and extending between Jefferson avenue and Mack avenue.

Under the ordinance there are five zones. Three are resident which take nearly the whole area of the village. There is a small, narrow commercial zone along Mack avenue. The remaining zone is ‘Local Business District,’ which comprises a narrow strip on each side of Kercheval near two and one-half blocks in length beginning at Cadieux. There is also a small business district in the southeastern part of the village. Within the local business zone are a few corner lots as to which the ordinance provides: ‘On a corner lot there shall be a side yard along the side street lot line in all cases where such line is substantially the continuation, without intervening streets, of the street lot line of lots in an adjoining residence district, or of adjoining lots in a local business district on which a front yard is required herein. The width of such side yard shall be not less than ten feet, except that where the width of a corner lot of record at the time of passage of this ordinance is less than fifty feet, the width of the required side yard on that lot may be reduced to one-fifth of the width of such lot.’

The controversy is of the side yard set back.

Plaintiff owns a lot on the southeast corner of the intersection of Kercheval and St. Clair. It has 60 feet frontage on Kercheval. Plaintiff desires to occupy it fully with a store building. The village requires, under the ordinance as here applied, a side yard or setback 10 feet wide along St. Clair. On the northwest corner of the intersection a building has been erected having a 10-foot setback along St. Clair. The ordinance does not apply to the southeast corner of the intersection of Cadieux and Kercheval, nor to the southwest corner of Notre Dame and Kercheval, for, immediately back of the business district south of Kercheval, and between Notre Dame and Cadieux, there is an ‘intervening’ street, one block in length, called Kercheval place.

The ordinance is not now applicable to the northeast and southeast corners of the intersection of Kercheval and Notre Dame as such corners were fully occupied by buildings when the ordinance was passed. The ordinance by its terms will become there effective in case of new buildings on such corners. The ordinance has present application, as we read the record, to seven of the twelve corner lots in the local business district.

Kercheval has heavy traffic, including motorbusses. There are traffic lights at its intersections with St. Clair, Notre Dame, and Cadieux, and officers are kept on duty in that district. It is the chief business district of the village and of large adjoining territory. The site of the public school is just north of Kercheval between Cadieux and Notre Dame. The Community Building is just north of Kercheval near St. Clair. St. Clair is not yet paved to its full width, the pavement now being 30 feet wide.

The ordinance requires, in the residence district adjoining the property in question, a front building line or setback of 20 feet. Dwellings were erected on St. Clair before the zoning ordinance, and those south of the plaintiff's property and on that street have a mean or average setback of a little more than 10 feet. The mean setback along the street is 10 feet or more.

The evidence is that the open spaces make for better light and air, and that such a setback as required of plaintiff makes less obstruction to view at the intersections and makes for public safety in public use of the streets.

Appellant argues that the setback is unnecessary as the pavement on St. Clair is now only 30 feet wide. But it must be remembered that zoning is rooted in a plan not for to-day but for the to-morrow. It looks to the day when St. Clair will be fully paved. It is said in Pritz v. Messer et al., 112 Ohio St. 628, 149 N. E. 30, 35: ‘This problem must be viewed from the standpoint of coming generations. Regarded from the limited outlook of the immediate present, it is easy to claim with some degree of cogency that there is no relation between these measures and the public health, safety, or morals. Taking a long view into the future, however, and looking back into the past, to remind ourselves what detriment the unrestricted congestion in city life, both of traffic and housing, has already done the public welfare, we do see a real relation between the substantial material welfare of the community and this effort of the city to plan its physical life.’

It is urged that these zoning restrictions are for purely aesthetic reasons-beauty, symmetry, order. The law, in its present state, is that such restrictions are not sustained on purely aesthetic grounds. Indeed, in some cases, it has been said, where the restrictions were sustained on orthodox grounds-public health, morals, and safety-that the fact that they also result in indicental aesthetic benefit will not invalidate the zoning law or ordinance, as though the zoning were handicapped by resulting aesthetic benefits. In this regard, a quotation from American Bar Ass'n Journal, August, 1922, p. 470, appears in General Outdoor Adv. Co. v. City of Indianapolis (Ind. Sup.) 172 N. E. 309, 312, 72 A. L. R. 453: ‘The law * * * in recent years, is, * * * coming to take beauty into account as worthy of consideration. * * * It is now universally conceded that beauty may constitute an element in the public welfare which will justify the power of condemnation. * * * When we come to * * * the recognition of beauty as an element to justify the exercise of the police power * * * the courts have not been willing to acknowledge beauty as a justification, but without admitting it they are more and more giving weight to the consideration of fitness and propriety in a man's use of his own.’

On this record the exercise of police power is sustained on consideration of public safety and public health without attaching weight to the fortunate circumstance that aesthetic benefit also results. Euclid v. Ambler Realty Co., 272 U. S. 365, 47 S. Ct. 114, 71 L. Ed. 303, 54 A. L. R. 1016.

Discrimination is urged as between owners of corner lots and owners of inside lots, but reasons, as regards public travel on the streets, for side setback on side street on corner lot can have no application to inside lots.

Unfair discrimination is urged in respect of mean setback in fixing unequal distances from the street for erection of buildings of the same character under like circumstances. We have called attention to the fact that the setback required of plaintiff is less than the mean setback of houses on the street and is fixed at the minimum of 10 feet. The contention is answered by Gorieb v. Fox, 274 U. S. 603, 47 S. Ct. 675, 676, 71 L. Ed. 1228, 53 A. L. R. 1210, where the setback line was fixed as that occupied by 60 per cent. of the existing houses in the block. This mean line in the case was 42 feet back from the street. The petitioner was given a line 34 2/3 feet back from the street line. In affirming the decision of the Supreme Court of Virginia, Gorieb v. Fox, 145 Va. 554, 134 S. E. 914, sustaining the ordinance, the court said:

‘It is said, first, that the standard furnished is so vague and uncertain as in reality to be no standard at all, since the houses, or 60 per cent. of them, in any block, may stand at a variety of distances from the street, in which event it cannot be determined from the ordinance whether 60 per cent. of the houses nearest to the street, or 60 per cent. of those farthest from the street, or some other method of calculation, is to govern. But in the present case this contention may be put aside, since (a) the permit was granted and the building line fixed under the proviso which reserved to the council in appropriate cases authority to fix the building line without reference to this limitation; and (b) as to the existing houses in the...