Klyman v. City of Troy, Docket No. 11531

• Decision Date: 27 April 1972
• Docket Number: Docket No. 11531,No. 2,2
• Citation: 40 Mich.App. 273,198 N.W.2d 822
• Parties: Max KLYMAN et al., Plaintiffs-Appellees, v. CITY OF TROY and Building Inspector of the City of Troy, Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 822

198 N.W.2d 822

40 Mich.App. 273

Max KLYMAN et al., Plaintiffs-Appellees, v. CITY OF TROY and Building Inspector of the City of Troy Defendants-Appellants.

Docket No. 11531.

Court of Appeals of Michigan, Division No. 2.

April 27, 1972.

Released for Publication July 3, 1972.

Stanley E. Burke, Burke & Sawyer, Troy, for defendants-appellants.

Norman Hyman, Honigman, Miller, Schwartz & Cohn, Detroit, for plaintiffs-appellees.

Before HOLBROOK P.J., and T. M. BURNS and DANHOF, JJ.

DANHOF, Judge.

The plaintiffs brought this action seeking a writ of mandamus compelling the defendants to issue a building permit so that a service station could be constructed. Plaintiffs' property is located in an area zoned B--1. Prior to 1966 service stations were permitted in areas zoned B--1. On July 25, 1966, the City of Troy attempted to amend its zoning ordinance to exclude service stations from B--1 districts. On September 23, 1970, the trial court granted the plaintiffs a partial summary judgment holding that the amendment was invalid because of defects in the manner in which it was adopted. One admitted defect being the failure of the city to publish notice of the public hearing on the amendment 15 days before the hearing. The city admits that only 12-days notice was given.

On September 11, 1970, the city enacted an amendment to the zoning ordinance which barred service stations from areas zoned B--1. The language of the amendment is identical with that of the amendment which was held invalid. After the motion for summary judgment had been granted the defendants moved to amend their pleadings to assert the new amendment as a defense. The trial court denied the motion and the defendants have appealed on leave granted. We reverse.

On September 23, the trial court also signed an injunction which reads:

'Defendants, and all of their officials and officers, and all persons acting by them and for them, are enjoined until further order of this court from invoking or seeking to invoke as a defense in this cause or from amending their answer in this cause to allege as a defense any legislative enactments of the City of Troy enacted after July 27, 1970.'

After signing the injunction the court stated:

'This will not preclude the defendant from moving to amend his Answer.'

It appears that the injunction is merely surplusage and, therefore, it does not affect anyone's substantive rights. However, in view of the disposition we are making of this case we exercise our power under GCR 1963, 820.1 and hereby vacate the injunction. This will avoid any confusion as to its effect.

This case presents the question of what effect is to be given to an amendment of a zoning ordinance which is enacted during the pendency of litigation. This is the question which we found unnecessary to pass upon in Shell Oil Company v. City of Livonia, 30 Mich.App. 454, 186 N.W.2d 783 (1971), where we held that a zoning ordinance that was enacted during the pendency of a suit to be arbitrary and unreasonable.

The general rule is that the law to be applied is that which was in effect at the time of decision. Thus, if a zoning ordinance has been amended to forbid a given use a court will give effect to the amendment even when the land owner had previously had an absolute right to put his land to the now forbidden use. City of Lansing v. Dawley, 247 Mich. 394, 225 N.W. 500 (1929). The rule is, of course, subject to the exception that a vested property interest acquired before the enactment of the ordinance may not be destroyed.

The case of Willingham v. City of Dearborn, 359 Mich. 7, 101 N.W.2d 294 (1960), points out another exception to the rule. In Willingham, the city denied plaintiff a building permit even though the zoning ordinance did not forbid the construction proposed by the plaintiff. The plaintiff then brought an action for mandamus. The defendant answered and a pretrial conference was held. On the day set for a hearing on the merits the defendant sought leave to amend its pleadings to raise a defense based on a new ordinance. The trial court refused to allow the amendment and the Supreme Court affirmed.

The later case, Franchise Realty Interstate Corporation v. City of Detroit, 368 Mich. 276, 118 N.W.2d 258 (1962), involves similar facts. ¹ However, the trial court allowed amendment of the pleadings. At p. 279, 118 N.W.2d at p. 259, the Supreme Court distinguished Willingham, supra, in the following manner:

'This case is a substantial duplicate of Willingham v. City of Dearborn, 359 Mich. 7, 101 N.W.2d 294 (1960). There is a decisive difference, however. In Willingham the discretion of the trial judge was inclined against permission to amend Tarde the pretrial statement, also the defendant city's answers, so as to include a defense manufactured by amendment of the city's zoning ordinance after the property owner's petition for mandamus had been filed. Here, the answering and replicating pleadings were duly amended so as to bring squarely before the court a like defense which, at the time of filing of plaintiff's petition for mandamus, was non-existent. Further, in the present case, the subsequently prepared and unamended pretrial statement recites unqualified satisfaction--all around--with such amended pleadings.

'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, 247 Mich. 394, 225 N.W. 500 (1929). The City of Lansing Case holds that, even after issuance of permit, construction in pursuance of such permit is enjoinable when, prior to construction or fairly indicative commencement of construction, an ordinance is enacted which validity bars what was lawfully authorized by the permit.'

Willingham and Franchise Realty make it clear that the question of allowing the city to amend its pleadings is discretionary. In determining what factors are to be considered in the exercise of this discretion we turn to Willingham. In Willingham the plaintiff had an unquestionable right to the issuance of a building permit. The city had made no attempts to forbid the type of construction he proposed. When the city finally enacted an ordinance it did so for the purpose of manufacturing a defense in the plaintiff's suit. Moreover, the defendant waited until the last possible moment to interpose this defense. The action was commenced on January 31, 1958, and the defense was not raised until the day set for a hearing on the merits, July 24, 1958. The Supreme Court also stressed the fact that the issue was raised long after the conclusion of the pretrial conference.

In this case the defendants stand on firmer ground. The ordinance was not enacted simply to manufacture a defense. In this regard we note that the amended ordinance is not a simple rezoning of the plaintiffs' property but is an ordinance of wide applicability. The city has long pursued a policy of excluding service stations from land zoned B--1. ² In 1966 the city had attempted to amend its ordinance to exclude service stations. While the ordinance was subsequently held invalid the attempt constitutes a distinction between this case and Willingham, supra, where there was not even a colorable argument to justify the city's rejection of a permit. This case does not contain the element of delay found in Willingham. The first time at which the validity of the original amendment to the ordinance was called into question was when the plaintiffs filed their motion for summary judgment on July 22, 1970. The ordinance was amended on September 11, 1970. In this case no pretrial conference had been conducted at the time when the motion to amend the pleadings was made. It is true, as the plaintiffs point out, that the motion to amend the pleadings was not filed until after the motion for summary judgment had been granted. However, it appears from the record that the reason for the delay was that the trial court had ordered the defendants not to attempt to amend their pleadings until the motion for summary judgment had been disposed of. ³

The elements of delay and bad faith, present in Willingham, are not present here. GCR 1963, 118.1 provides that leave to amend pleadings shall be freely granted when justice requires. If amendment is not allowed it may be possible to destroy a comprehensive zoning plan because an ordinance, valid on its face, is set aside years after its adoption, because of some hidden defect. We cannot overlook the possible detriment to nearby landowners. When a city acts promptly and in apparent good faith, amendment of the pleadings is in the interest of justice and should be allowed.

Reversed and remanded.

HOLBROOK, Presiding Judge (for affirmance).

On March 11, 1970, plaintiffs filed a complaint ¹ for a writ of mandamus compelling the defendants to issue a building permit in order to build a service station on land zoned B--1 in the City of Troy.

Prior to 1966, service stations were a permitted use in areas zoned B--1. On July 25, 1966, the City of Troy enacted the Ninth Amendment to their zoning ordinance which prohibited service stations in B--1 areas. However, there were defects in the manner in which this amendment was adopted.

The plaintiffs moved for summary judgment to have the Ninth Amendment declared invalid on July 22, 1970. Because of delays, occasioned by the defendants and the trial court itself, hearing on the motion was not conducted until September 23, 1970. The trial court declared the Ninth Amendment invalid at that time.

On September 11, 1970, the defendants had enacted a new amendatory ordinance to replace the Ninth Amendment. The defendants moved for leave to amend their answer to include this amendatory ordinance as a defense on October 28, 1970. The trial judge, in the exercise of his discretion, denied the motion to amend. Defendants appeal on leave granted.

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