Keating Intern. Corp. v. Orion County

• Decision Date: 18 December 1975
• Docket Number: J,No. 4,4
• Citation: 395 Mich. 539,236 N.W.2d 409
• Parties: KEATING INTERNATIONAL CORP., a Delaware Corporation, et al., Plaintiffs-Appellees, v. TOWNSHIP OF ORION, a Michigan Municipal Corporation, et al., Defendants-Appellants. an. Term. 395 Mich. 539, 236 N.W.2d 409
• Court: Michigan Supreme Court

Page 409

236 N.W.2d 409

395 Mich. 539 KEATING INTERNATIONAL CORP., a Delaware

Corporation, et al., Plaintiffs-Appellees, v. TOWNSHIP OF ORION, a Michigan Municipal Corporation, et al.,

Defendants-Appellants.

No. 4, Jan. Term.

395 Mich. 539, 236 N.W.2d 409

Supreme Court of Michigan.

Dec. 18, 1975.

Aikens, Hudson, Munde & Ohlgren, P.C., by Ray Munder Troy, for plaintiffs-appellees; Brennan & Bibeau, P.C., by Joseph T. Brennan, Farmington Hills, of counsel.

Hartman, Beier, Howeett, McConnell & Googasian by George A. Googasian, Bloomfield Hills, for defendants-appellants.

FITZGERALD, Justice.

This case involves a controversy between contiguous landowners who seek to develop a multiple residential use and a township planning commission which opposes such development.

The three plaintiffs each own a parcel of land in Orion Township, Oakland County, zoned multiple residential. On June 2, 1971, each filed a site plan for multiple development with the Orion Township Planning Commission. These plans were reviewed on June 16, 1971, by the commission and found to require further work regarding traffic patterns. The plans were considered again on July 21, 1971, and referred back to the developers and individual planners requiring them to provide an easement of right-of-way in order to accommodate traffic from the units to be built on the three parcels subject to the township approval. A special meeting was held for the Keatington Home Owners Association during which the members voiced their objections ¹ to the proposed condominium construction.

These objections were again raised at the commission meeting conducted August 4, 1971, which resulted in the tabling of the three site plans for further study of the location and design of driveways providing ingress and egress from the sites, traffic circulation features, safety, and the harmonious relationship between the site development and the adjacent neighborhood. Several additional meetings were conducted during which numerous objections to the proposed development were raised. The site plans were modified in each instance to overcome the objections and three plans were ultimately consolidated. These plans were again tabled on April 5, 1972, for the following reasons:

1. Site plan area must have a continuous green belt.

2. Two streets must be designated stub streets with breakaways for emergency use only.

3. Wall must be constructed around the beach area.

4. Insufficient time to study additional recreational areas indicated on site plan No. 8.

5. No report received from the engineering firm studying the question of proper acreage involved in this multiple site. The site plan was again modified to overcome the objections, but the planning commission, on April 19, voted to postpone further action until after a meeting of the township board scheduled for May 2, 1972. The subject to be discussed was the rezoning of the three parcels from multiple to single-family residential.

Plaintiffs commenced an action for an order of superintending control on April 28, 1972, seeking a writ of mandamus to compel approval of the site plan, money damages, and an order to show cause why the requested writ should not be issued. Five days later, on May, 3, the planning commission, during a regularly scheduled meeting, was informed by its professional consultant that plaintiffs' modification of the site plan satisfied four of the five objections raised earlier, leaving only the matter of designated areas for recreation to the planning commission. However, the commission rejected plaintiffs' site plan and arranged for a public hearing on the proposed rezoning from multiple to single-family residential on May 31. ² On June 20, 1972, at a third public hearing, plaintiffs' property was rezoned single-family residential.

In response to plaintiffs' action, defendants filed a return to the order to show cause on May 12. Plaintiffs then filed an amended complaint requesting that defendants be permanently enjoined from interfering with he designated use assigned to the parcels zoned multiple residential. Defendants responded with a motion for summary judgment seeking dismissal 'on the grounds that the only evidence before them was that issuance of site plan approval would not assure safety and convenience of both vehicular and pedestrian traffic both within the site and in relation to access streets'. This motion was denied. The trial court declined to enjoin defendants from rezoning, but did rule that evidence of such rezoning would be inadmissible at trial. The issue was restricted solely to the validity of defendants' denial of site plan approval. Following defendants' answer to plaintiffs' amended and supplemental complaint, both parties filed and were denied motions for summary judgment.

At the conclusion of trial, the court issued an order in the nature of mandamus compelling approval of the site plan. The court found that plaintiffs had 'complied with all the requirements of the statutes and ordinances, including the various and sundry special requirements imposed by the defendant Planning Commission.' The commission's denial of the site plan was found to exceed their constitutional and statutory powers, was abusive of discretion, and was not based upon material, relevant, and substantial evidence.

The Court of Appeals, 51 Mich.App. 122, 214 N.W.2d 551, affirmed the issuance of an order of superintending control on the basis that the zoning ordinance was invalidated because the property in question was not 'conspicuously posted * * * stating the time, place, date, and purpose of the hearing' in compliance with M.C.L.A. § 125.284; M.S.A. § 5.2963(14). The Court agreed with the commission that it was error to exclude the amended ordinance from the case, but considered the commission's rejection of the site plan as not based upon competent, material, and substantial evidence.

We make no judgment as to the correctness of the decisional basis stated by the Court of Appeals. The validity or invalidity of the zoning ordinance amendment Defendants object to the trial court's determination prior to trial and prior to pleading' that a zoning ordinance amendment, the validity of which remains unchallenged, would be inadmissible at trial on the equitable grounds of 'simple fairness'. They reconcile two apparently discordant results in Willingham v. Dearborn, 359 Mich. 7, 101 N.W.2d 294 (1960) and Franchise Realty Interstate Corp. v. Detroit, 368 Mich. 276, 118 N.W.2d 258 (1962), by Focusing upon whether the amendment was properly pleaded and in effect at the time of trial. A distinction is drawn between the proper exercise of judicial discretion in permitting pleadings to be amended and the arbitrary decision to exclude from evidence prior to trial a properly amended ordinance. Plaintiffs disagree, arguing that equitable principles require that the trial court be permitted to exercise discretion as to the admissibility of a manufactured defense subsequent to plaintiffs' petition for mandamus. Rejecting slavish adherence to City of Lansing v. Dawley, 247 Mich. 394, 225 N.W. 500 (1929), plaintiffs contend that present day requirements of effort and funds prior to and concomitant with site plan approval and building construction render anachronistic the 'vested right' test set forth in Dawley which determines whether an amended ordinance can divest the right of a landowner to develop his properly.

as determined by the proofs submitted in the separate record need not be decided since we base our decision upon the proper exercise of the trial court's discretion in refusing to admit at trial an amended zoning ordinance where the prior site plan rejection was not based upon competent, material, and substantial evidence.

In our view, it was not error for the trial court to exclude the amended ordinance from this case. The Court, in Willingham, supra, excluded from consideration defendant's pleadings and a pretrial statement which reflected an amended zoning ordinance imposing set-back requirements which was non-existent at the pretrial conference. The basis for this ruling was that 'injustice to plaintiff might have resulted from any such last-minute order providing a defense which did not exist when the petition was filed'. 359 Mich. 7, 10, 101 N.W.2d 294, 296 (1960).

In Franchise, supra, decided almost three years later, plaintiff applied for a permit suthorizing construction of a 'driven-in' restaurant on a parcel then permitting such construction. Approximately one month later, plaintiff was advised by the city's building department that no permit would be issued due to the filing of a petition to rezone the land. Approximately seven weeks later, plaintiff filed a petition for mandamus compelling issuance of the permit. One week later, the hearing on an order to show cause was adjourned as a result of a prior public hearing which amended the ordinance prohibiting plaintiff's intended use of such parcel. Defendants amended their answer to include the amendatory ordinance as a defense. Plaintiff's petition was dismissed at trial because the amended pleadings were presented prior to the pretrial stage and with the unqualified satisfaction of all parties.

These distinctions, however, did not control the overriding principle that the decision to admit or exclude ordinance amendments during litigation is one which rests entirely within the cound discretion of the trial court. In Franchise, the Court clearly indicated that the lower court could have, in the exercise of its discretion, excluded the amended ordinance:

'The circuit court might well--of discretion and upon authority of Willingham--have done here what the same court did in Willingham. It did not do so, however, and so the presented questions are controlled by City of Lansing v. Dawley, * * *.' ³

The discussion in Franchise following the above-quoted passage indicates that mandamus The order of the trial court is affirmed. No...