Krajenke Buick Sales v. Kopkowski

• Decision Date: 08 September 1948
• Citation: Krajenke Buick Sales v. Kopkowski, 322 Mich. 250, 33 N.W.2d 781 (Mich. 1948)
• Parties: KRAJENKE BUICK SALES v. KOPKOWSKI.
• Court: Michigan Supreme Court

322 Mich. 250

33 N.W.2d 781

KRAJENKE BUICK SALES

v.KOPKOWSKI.

Supreme Court of Michigan.

Motion 106.

Sept. 8, 1948.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Wayne County; Joseph A. Moynihan, judge.

Proceeding by the Krajenke Buick Sales, a corporation, against Ignatius M. Kopkowski, as city engineer and superintendent of buildings for the city of Hamtramck, for a writ of mandamus requiring defendant to issue a building permit to plaintiff. From an order granting the writ, defendant appeals.

Affirmed.

Before the Entire Bench.

Stanley J. Draganski and Joseph C. Czarnecki, both of Hamtramck, for appellant.

William Cohen, of Detroit, for appellee.

REID, Justice.

Plaintiff filed its petition for a writ of mandamus in the circuit court for the county of Wayne against the defendant city engineer and superintendent of building for the city of Hamtramck, to require defendant to grant and issue a building permit applied for by plaintiff. From an order granting the writ, defendant appeals.

Plaintiff claims that it submitted its application for building permit in proper form showing estimated cost of construction, with copies of building plans. The building sought to be built is a one-story concrete block and face brick building to be used as an automobile service and storage garage. Defendant claims that the erection of such building would be in violation of ordinance No. 202 of the city of Hamtramck, section 2, subsection (b) of which is as follows:

‘In residential areas and excluding business streets, all structures, whether frame, fireproof or otherwise shall conform to the established front building line of existing adjacent structures on same side of street or avenue, providing that the provisions of the foregoing subsection shall not be deemed to apply to structures already in existence on any corner lot.’

Defendant claims that the ordinance in question is a building code and not a zoning ordinance. However, in defendant's brief defendant speaks of the ordinance in the following language:

‘The ordinance in question defines certain streets as business streets and all other streets are designated as residential streets where the structures must conform to existing building lines. Mitchell street, on which the plaintiff's property is located and on which the construction of a garage is contemplated, is also designated as [a] residential street.’

Defendant further claims that the above section 2, subsection (b), of the ordinance forbids the construction of the building in question because the established building line on Mitchell street is 14 feet back from the sidewalk.

Defendant claims that the common council of the city of Hamtramck, August 29, 1946, adopted a resolution creating a zoning commission. Defendant further claims the commission was duly appointed, held various meetings, and divided the city into three separate zones, that the common council on recommendation of the zoning commission, adopted a resolution accepting the recommendation of the zoning commission and temporarily adopted a zoning map ‘as a temporary measure by which the building inspector may govern himself in the issuance of building permits until such time as the zoning ordinance is adopted.’

The statutes applicable to this case are as follows:

‘The legislative body of cities and villages may regulate and limit the height and bulk of buildings hereafter erected, and regulate and determine the area of yards, courts, and other open spaces, and for such purposes divide any city or village into districts of such number, shape and area as may be deemed best suited to carry out the purposes of this section. Such regulations shall be uniform for each class of buildings throughout each district, but the regulations in one [1] district may differ from those in other districts. Such regulations shall be made in accordance with a plan designed to lessen congestion on the public...