Johnson v. Lyon Tp.

• Decision Date: 26 March 1973
• Docket Number: Docket No. 12412,No. 2,2
• Citation: 45 Mich.App. 491,206 N.W.2d 761
• Parties: Victor JOHNSON et al., Plaintiffs-Appellants, v. TOWNSHIP OF LYON, Michigan, a Michigan municipal corporation, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 761

206 N.W.2d 761

45 Mich.App. 491

Victor JOHNSON et al., Plaintiffs-Appellants, v. TOWNSHIP OF LYON, Michigan, a Michigan municipal corporation, Defendant-Appellee.

Docket No. 12412.

Court of Appeals of Michigan, Division No. 2.

March 26, 1973.

Released for Publication May 11, 1973.

Dale D. Libby, Dearborn, for plaintiffs-appellants.

Hartman, Beier, Howlett, McConnell & Googasian, Bloomfield Hills, for defendant-appellee.

Before LESINSKI, C.J., and J. H. GILLIS and T. M. BURNS, JJ.

J. H. GILLIS, Judge.

The plaintiff couples are equal owners of 122 acres of land in the defendant township. The land is zoned 'AG-agricultural' which permits use for general agricultural purposes and, on sites of one acre or more, single-family residences.

Plaintiffs found it uneconomical to use the property for agricultural purposes. They agreed to sell the property to plaintiff Arney on the condition that the tract be rezoned 'R--3' so that a mobile home park could be erected on the land.

Plaintiffs petitioned to rezone to the desired classification. The petition was denied. Plaintiffs brought suit alleging the present zoning ordinance did not bear a real and substantial relationship to the general welfare of the community. The trial court held the ordinance valid.

On appeal, plaintiffs contend the trial court erred. It is of no small significance to the determination of this appeal that the trial court's opinion in this case predates our decision in Bristow v. Woodhaven, 35 Mich.App. 205, 192 N.W.2d 322 (1971). ¹ We note the following language from the trial court's opinion.

'One who seeks to have an ordinance declared invalid has the burden of affirmatively proving by competent evidence that the ordinance is an arbitrary and unreasonable restriction upon the use of his property.'

As a general rule, that proposition is true. Hammond v. Bloomfield Hills Building Inspector, 331 Mich. 551, 50 N.W.2d 155 (1951); Bassey v. Huntington Woods, 344 Mich. 701, 74 N.W.2d 897 (1956); Patchak v. Lansing Twp., 361 Mich. 489, 105 N.W.2d 406 (1960).

However, Bristow v. Woodhaven, Supra, has since modified the respective burdens of parties engaged in a lawsuit such as this by the introduction of the 'preferred-use doctrine'.

In limited situations, the Burden of going forward with evidence on the issue of the validity of a given zoning ordinance shifts to the governmental unit. As stated in Bristow, supra, 210, 211, 192 N.W.2d 324:

'(W)here it is shown that local zoning exists at odds with the general public welfare rather than in furtherance of it, there can be no presumed validity attaching to that portion of an ordinance which conflicts with public interest. Certain uses of land have come to be recognized as bearing a real, substantial, and beneficial relationship to the public health, safety, and welfare so as to be afforded a preferred or favored status. To restrict such uses appears to conflict with the concept of presumed validity of an ordinance prohibiting such an otherwise legitimate use.

'(T)he proponent of a preferred or protected but prohibited use may establish a Prima facie case thereby casting upon the municipality the burden of going forward to justify its prohibition of a use heretofore recognized as beneficial to the public welfare.'

We consider a party entitled to the benefit of the preferred-use doctrine when it is established that the proposed use of the property has acquired a 'favored' status and, but for restrictive zoning, is appropriate for a given site. Bristow, supra, 212, 192 N.W.2d 322.

Practically speaking, the shifting of the burden of going forward is not only a rule of procedural convenience but is grounded in considerations of fairness to the parties as well. The governmental unit legislating zoning restrictions Should have superior access to facts and justifications for the zoning exclusion. If it fails to produce such justification, it should be held that none, iin fact, exists, thereby allowing the party seeking to rezone to prevail.

We do not mean to limit the governmental unit in the manner or type of proof necessary to satisfy its burden. We think, however, that a prima facie case of unreasonableness should be rebutted by 'clear, positive, and credible * * * evidence' ² that would challenge either the existence of a 'favored' status of the proposed use, the suitability of the site for such a use, the degree of exclusion, or the legal conclusion of invalidity.

In Cohen v. Canton Twp., 38 Mich.App. 680, 197 N.W.2d 101 (1972), ³ several factors were listed upon which the governmental unit may choose to rely for such justification. The use of surrounding areas, traffic patterns, and available water supply and sewage disposal systems certainly are relevant considerations in the reasonableness of a particular exclusion.

The fact that other sites are better suited, in light of those considerations, for the proposed use and are predesignated for the proposed use, pursuant to...