Jones v. De Vries
| Decision Date | 07 December 1949 |
| Docket Number | No. 41.,41. |
| Citation | 40 N.W.2d 317,326 Mich. 126 |
| Parties | JONES et al. v. DE VRIES et al. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Action by Charles Russell Jones and others against Fred DeVries and Anna DeVries and Ralph E. Seeger, as Building Inspector of the City of Grand Rapids, a municipal corporation, to enjoin defendants DeVries from erecting two apartment buildings at locations within residential area.
The Superior Court of Grand Rapids, in Chancery, Thaddeus B. Taylor, J., entered a decree restraining defendants DeVries from erecting the apartment buildings and enjoined defendant Seeger, Grand Rapids Building Inspector, from issuing a building permit to defendants DeVries and the defendants appealed.
The Supreme Court, North, J., held that the plaintiffs were entitled to the relief granted and affirmed the decree.Warner, Norcross & Judd, Grand Rapids (George S. Norcross and Harold S. Sawyer, Jr., Grand Rapids, of counsel), for defendants and appellants.
Allaben, Wiarda, Hayes & Hewitt, Grand Rapids (F. Roland Allaben and Kenneth T. Hayes, Grand Rapids, of counsel), for plaintiffs and appellees.
Before the Entire Court.
Plaintiffs in this case and others as intervening plaintiffs, being some 22 property owners in the area affected, joined in a bill of complaint praying for an injunction restraining defendants DeVries from erecting two six story apartment buildings at the locations contemplated, which are within the area zoned as A 1 Residential by the zoning ordinance of the city of Grand Rapids. The relief sought was decreed. Fred and Anna DeVries, herein referred to as defendants, have appealed. The decree also enjoined defendant Ralph E. Seeger, Grand Rapids building inspector, from issuing a building permit to defendants DeVries.
The first of these two structures, designed to contain 120 apartments, was to be located on the rear portions of three properties, two of which were owned by defendants and the third by defendants and another party. Two of these properties are bounded on the north by Fountain street and have a total frontage thereon of 216 feet. The third parcel is bounded by East Fulton street on the south and has a frontage on that street of 147 feet. At the rear these parcels to some extent adjoin; and the proposed apartment building was to be located in part on the rear of the two parcels fronting on Fountain street and in part on the rear of the Fulton street property. Under previous permits defendant Fred DeVries converted a large dwelling located on the northwest portion of the property fronting on Fountain street into a nine or ten apartment building; and on the southeast portion of the parcel fronting on Fulton street he had likewise converted a former dwelling and appurtenant garage into twelve apartments. The easterly portion of the parcel fronting on Fountain street which joins the lot fronting on Fulton street was purchased by defendants and another shortly before or since January 1, 1949. Until the recent purchase of the easterly portion of the property fronting on Fountain street, defendants' properties-one fronting on Fountain street and the other on Fulton street, were not contiguous at the rear.
College avenue is the next street east of the above described property. In June, 1948, defendants acquired property located on the easterly side of College avenue, designated as 20 College Avenue, N.E. This property consists of a large and substantial dwelling house with the usual appurtenances. The lot has a frontage of 315 feet on College avenue and a depth of 150 feet. It is on this property that defendants also propose to erect a building consisting of 100 apartments.
The area surrounding defendants' properties predominately consists of old time large residences, some of which have been converted into multiple apartments. The zoning ordinance restricts residential construction in this A 1 residential area to ‘private (one family) and two-family dwellings.’ However the ordinance also provides ‘the additional right to convert existing dwellings into dwellings of more than one family is hereby granted, Provided, that such conversion shall comply with all the conditions herein specified in the sub-paragraphs (following).’ Among the conditions the following is embodied in sub-paragraph (4): ‘There shall be no major structural change in the exterior of the structure other than required or desirable for ingress and egress to each apartment or dwelling unit to be created.’
Because they did not conform to the zoning ordinance, neither of these proposed apartment buildings could be erected by defendants except there was first obtained from the board of zoning appeals of Grand Rapids a so-called authorized variance from the provisions of the zoning ordinance. The ordinance was originally passed in 1923, but the pertinent part of the ordinance, section 16-E, was amended October 18, 1948. Section 16-E as amended reads:
‘The Board of Zoning Appeals shall fix a reasonable time for the hearing of the appeal and give due notice thereof to the parties and decide the same within a reasonable time. Upon the hearing, any party may appear in person or by agent or by attorney. Such Board of Appeals shall hear and decide appeals from and review any order, requirement, or decision or determination made by the Building Inspector. The Board of Appeals may reverse or affirm, in whole or in part, or may modify the order, requirement, decision or determination appealed from and shall make such order, requirement, decision or determination as in its opinion ought to be made in the premises, and to that end shall have all the powers of the Building Inspector. Where there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of this ordinance, the Board of Appeals shall have power in passing upon appeals to vary or modify any of the rules, regulations or provisions of this ordinance relating to the construction, structural changes in, equipment or alteration of buildings or structures, so that the spirit of the ordinance shall be observed, public safety secured and substantial justice done. The decision of such board shall not become final until the expiration of five days from the date of entry of such order unless the Board shall find the immediate effect of such order is necessary for the preservation of property or personal rights and shall so certify on the record. In order to preserve the spirit of this ordinance, the Board of Appeals shall not vary or modify any of the provisions of the ordinance with respect to use unless it shall find that all of the following conditions exist:
‘1. That the land in question cannot yield a reasonable return if used only for a purpose allowed in that zone;
‘2. That the plight of the owner is due to unique circumstances and not to the general conditions in the neighborhood;
In the instant case defendants did not make application to the building inspector, as is required by the ordinance, for a building permit to erect either of these apartments, but, as noted by the trial judge, it was to be assumed that the building inspector would have denied such a request for a building permit, and hence instead of taking that procedure and a subsequent appeal to the board of zoning appeals, it was considered permissible in the instant case that the original petition for a permitted variance be made to the appeal board. None-the-less reference is made to this proceeding as an appeal. For purposes of decision herein we attach no importance to the irregular procedure.
After hearing the parties pro and con, the appeal board passed a resolution permitting defendants to erect each of these two apartment buildings. The only reason embodied in the resolution for so doing reads: ‘Due to the present housing emergency, the fact that the veterans need a place to live which will be within their income, and that they will be given first preference, and also that off-street parking will be provided, therefore be it (resolved that permission to erect the two apartment buildings be granted).’
As first above noted this appeal by defendants DeVries is from the trial court's decree enjoining them from erecting the proposed apartment buildings. Appellants' first contention is as follows: ‘The lower court was without power to review the decision of the board of zoning appeals, or to set it aside in collateral proceedings in the absence of a showing of fraud or bad faith.’
While it has been held in some of our earlier decisions that determinations of zoning appeal boards were final on issues of fact or discretionary matters, see Beardsley v. Evangelical Lutheran Bethlehem Church, 261 Mich. 458, 246 N.W. 180; Central High School Athletic Ass'n v. City of Grand Rapids, 274 Mich. 147, 264 N.W. 322;Austin v. Older, 278 Mich. 518, 270 N.W. 771, such decisions were based upon the provision then in the statute which read: ‘The decision of such boards shall be final so far as it involves discretion or the finding of facts.’ C.L.1929, § 2637. But by amendment, P.A.1941, No. 306, the above provision was deleted and in its place the following was substituted: ‘The...
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