Joseph v. Grand Blanc Tp.

• Decision Date: 10 January 1967
• Docket Number: No. 2,No. 1659,1659,2
• Citation: 147 N.W.2d 458,5 Mich.App. 566
• Parties: Ronald L. JOSEPH, Plaintiff-Appellant, v. TOWNSHIP OF GRAND BLANC, its agent, W. Kenneth Harris, and William Temple, building inspector, and Laverne H. Murphy, administrator of the estate of John J. Murphy, deceased, Defendants-Appellees. Cal
• Court: Court of Appeal of Michigan — District of US

Page 458

147 N.W.2d 458

5 Mich.App. 566

Ronald L. JOSEPH, Plaintiff-Appellant, v. TOWNSHIP OF GRAND BLANC, its agent, W. Kenneth Harris, and William Temple, building inspector, and Laverne H Murphy, administrator of the estate of John J. Murphy, deceased Defendants-Appellees.

Cal. No. 1659.

Court of Appeals of Michigan, Division No. 2.

Jan. 10, 1967.

Leave to Appeal Denied March 15, 1967.

Ronald L. Joseph, Flint, for appellant.

Lyndon J. Lattie, Flint, for Twp. of Grand Blanc, Harris, and Temple.

Michael W. Evanoff, Flint, for Laverne Murphy and Estate of John J. Murphy.

Before QUINN, P.J., and KAUFMAN ^* and McGREGOR, JJ.

KAUFMAN, Judge.

On April 28, 1965, the Grand Blanc township board, acting at a regular meeting, passed a zoning ordinance which provided that certain property was to be rezoned for commercial building. Plaintiff is a resident of the township of Grand Blanc and was present at the board meeting. At this meeting plaintiff, a qualified elector, attempted to vote on the question of whether or not this zoning ordinance should be passed. The board did not count plaintiff's vote.

Plaintiff brought the present suit, praying that the ordinance be enjoined from taking effect and that it be declared null and void. The trial court held that the plaintiff was not entitled to relief since his proerty was located about I mile from the rezoned property and he did not allege any special damage. The court granted defendants' motion for summary judgment since plaintiff could not maintain the action and was not an aggrieved party.

Plaintiff contends that he had a right to vote ¹ at the board meeting and because this was denied to him the ordinance should be declared null and void. In his brief, plaintiff cites historical authority to show the importance of annual township meetings and the right of each qualified elector of the township to vote at such a meeting. However, plaintiff fails to distinguish between the annual township meeting and the meeting of the township board. In this distinction lies the answer to plaintiff's first contention.

Michigan statutes provide for the formation of townships. All township officers are elected at the first township meeting. ² The township officers and trustees constitute the township board, ³ which is charged with the responsibility of transacting township business at regular board meetings. Citizens of the township have the right to be present and to be heard at the board meeting, but the right to vote at such a meeting is not provided for in the statute. ⁴ The township board may enact ordinances for the purpose of zoning. ⁵ The plaintiff has conceded that such an ordinance authorizing the township board to provide for zoning has been duly enacted by defendant township.

Reference to these statutes shows that plaintiff's contention is without merit. Plaintiff was not attending the annual township meeting but rather he was attending a meeting of the township board. This board is elected by the qualified voters to transact business for the community. It is specifically empowered to pass zoning ordinances.

We hold that plaintiff, while given the right to vote at the annual towhship meeting, did not have the right to vote at the township board meeting.

The plaintiff next contends that the court erred in granting defendants' motion for summary judgment on the basis that plaintiff, not being an abutting property owner, failed to show any special damage.

This Court has recently held in Marcus v. Busch (1965), 1 Mich.App. 134, 136, 134 N.W.2d 498, 499 that '(t)he consensus of authority throughout the country is that to have any status in court to attack the actions of a zoning board of appeals, the party must be an aggrieved party, and said party must be more than a resident of the city.'

In order to maintain this action, plaintiff, a nonabutting property owner, must allege and prove that he has suffered a substantial damage which is not common to other property owners similarly situated. Victoria Corporation v. Atlanta Merchandise Mart, Inc. (1960), 101 Ga.App. 163, 112 S.E.2d 793. See comment in 64 MLR 1070, 1079. In his complaint, plaintiff claims that because of this rezoning, traffic will be increased on the dirt road fronting of his property; because of this, he has suffered economic and esthetic losses. The record further discloses that the question of whether or not plaintiff suffered special damage was before the court for a period in excess of 5 months, during which time special damages could have been alleged.

Other jurisdictions have held that a mere increase in traffic with its incidental inconvenience did not constitute a substantial damage and, therefore, the plaintiff was not considered to be an aggrieved party. ⁶ The reasoning in the cases is that such increase...