Kropf v. City of Sterling Heights

• Citation: 391 Mich. 139,215 N.W.2d 179
• Decision Date: 15 February 1974
• Docket Number: J,No. 10,10
• Parties: William E. KROPF and Sanford Meyer, Plaintiffs and Appellees, v. The CITY OF STERLING HEIGHTS, a Municipal Corporation, Defendant and Appellant. une Term 1973. 391 Mich. 139, 215 N.W.2d 179
• Court: Supreme Court of Michigan

Page 179

215 N.W.2d 179

William E. KROPF and Sanford Meyer, Plaintiffs and Appellees, v. The CITY OF STERLING HEIGHTS, a Municipal Corporation,

Defendant and Appellant.

No. 10, June Term 1973.

391 Mich. 139, 215 N.W.2d 179

Supreme Court of Michigan.

Feb. 15, 1974.

Michael H. Feiler, Detroit, Michael D. Schwartz, Sterling Heights, for plaintiffs-appellees.

O'Reilly & Cornell by Paul J. O'Reilly, Mount Clemens, for defendant-appellant City of Sterling Heights.

Mich. Assn. of Municipal Attys., amicus curiae.

Before the Entire Bench.

T. M. KAVANAGH, Chief Justice.

Defendant-appellant city appeals by leave granted by this Court from a decision of the Court of Appeals reversing the trial court's finding that defendant city's ordinance is constitutional.

Plaintiff builder-developers are the owners of a 10 acre parcel of land situated within Sterling Heights, Macomb County, Michigan. The parcel is irregularly shaped and surrounded by low marsh lands on the western side. The southern portion of the parcel lies within a flood plain and is traversed by a gas main. On the eastern side of the parcel, there is a large vacant area being used as a garage or depot for the Sterling Heights Department of Public Works. Trucks and other equipment are stored and garaged on the adjacent area by the Department of Public Works.

Bordering on the south side is a large area used as a junk yard partially filled with trash and various species of vermin. Farther to the southeast, Sterling Heights operates a sewage treatment plant. To the north of the property is Clinton River Road and at the northern end of the property between it and the city property are 5 residential lots. The land across Clinton River Road is used for single-family residences and the property in question is zoned for single-family use.

Plaintiffs filed a petition with the local zoning board seeking to have the property rezoned from single family zoning to permit multiple dwellings to be constructed on the site. Failing in this endeavor, the plaintiffs then brought suit in the circuit court seeking to have the ordinance in question ¹ declared unconstitutional as applied to their property. They asserted that said ordinance was unreasonable, unconstitutional, and confiscatory as it applied to their property. They asserted that their parcel could not be developed as single-family residential due to its peculiar topography, irregular shape, proximity to noxious and deleterious uses on nearby properties, and by virtue of the swamps and various easements traversing the subject parcel.

After hearing testimony of many experts for both sides, the circuit judge made, among others, the following findings of fact:

'1. That the plaintiffs purchased the property in 1968 on land contract with full knowledge of its irregular shape, the swampy and low areas located thereon, the extension of the Department's D.P.W. Yard and Sewage Treatment Plant in close proximity thereto and the area used as a 'dump' lying southerly thereof.

'2. That the plaintiffs made no effort to check out the suitability or feasibility of the use of the property for residential lots prior to their purchase thereof and that they have made no effort whatsoever to utilize the property for residential purposes since its purchase. The court further finds as a matter of fact that at the time of the purchase the plaintiffs were familiar with the zoning then on the property (the same as it is now) and with the master plan with the City of Sterling Heights.

'4. That the property, if used for single family residential purposes, may be developed into between 19 and 22 building lots depending on whether or not the 10,000 square foot requirement is enacted by the city or whether the city is willing to allow the area to be developed into lots of 7200 square feet. Further, that even if the 10,000 foot requirement is enacted upon by the Defendant, the property may still be economically used for residential purposes.

'7. That the Sewage Treatment Plant is a temporary problem and thus presents no permanent detriment to the use of this property for residential purposes, it being undisputed that present plans call for its being phased out by July, 1971, and therefore, it is indisputable that by the time this property could be used for building purposes (after the installation of all required improvements) the sewage plant will no longer be there.

'13. That the master plan of the City of Sterling Heights does have a reasonable relationship to the health, safety and welfare and morals of the City's citizens, it having been duly adopted after the necessary planning and consultation, not only with experts in the field, but also with the people of the city at the required public hearings.

'14. That is beyond argument that to permit multiple zoning all along Clinton River Road would require a change in the master thoroughfare plan, it being beyond argument that the greater the density, the more traffic in an area and that the greater density created by numerous multiple developments would be beyond the capacity of a street with an 86 foot right of way.

'15. That the subject property can be developed for single family residential purposes and that it will be salable when used for such purposes.

'16. That the property would be salable at a higher price if used for multiples again is beyond argument. The Court further finds as a matter of fact that this same argument may be used with regard to almost every piece of property located in any area of Macomb County experiencing the same kind of growth as the City of Sterling Heights, and is therefore not of sufficient weight in this case to invalidate the Defendant's Zoning Ordinance.

'17. The Court was not impressed by the Plaintiffs' witnesses and would call attention to the fact that their testimony was either based upon a lack of foundation facts (in the case of Mr. D'Loski no knowledge of purchase prices or availability of utilities or cost of installation or improvements and in the case of Mr. Lehner, complete lack of knowledge of the cost of the raw land, or was elicited from witnesses who were obviously somewhat prejudiced (in the case of Mr. Karam, being the owner of adjacent lots which he testified he was seeking to also have re-zoned from the single family residence classification).'

In accord with these factual findings, the Court then ruled as follows:

'Applying these facts to the legal principles hereinbefore set forth, it becomes readily apparent that the Plaintiffs have failed to sustain the burden which they must carry in order to establish their cause of action. The Court does, therefore, find that it cannot on the basis of these proofs, be said that the Defendant's Zoning Ordinance is unreasonable, arbitrary or capricious as applied to the property in question. It therefore follows that their Bill of Complaint should be dismissed, with prejudice.' (Emphasis added)

On appeal, the Court of Appeals, 41 Mich.App. 21, 199 N.W.2d 567, Judge Brennan dissenting, in overruling the lower court entertained two issues:

1. That the trial court allowed a municipality to justify its zoning based upon future, as opposed to present, conditions, and

2. That the trial court was unduly swayed by the fact that plaintiffs knew of the zoning restrictions at the time they purchased the property.

In a well written opinion, Judge Bronson correctly decided the first issue it entertained, stating:

'Defendant asserts that these nearby inconsistent uses are only temporary, that the sewage plant will be closed on completion of a new sanitary sewer system and that the City of Sterling Heights is in the process of seeking an alternate site for its department of public works garage. From these contentions we believe the crucial issue in this case is pointedly raised: whether a city may restrict the use of property based upon circumstances which it believes will occur in the future but have not yet occurred at the time of trial of the ordinance.

'The rule of law governing such problems is well settled: zoning, to be valid, must be reasonable, and its reasonableness must be measured by present conditions. The rule was expressly stated in Gust v. Township of Canton, 342 Mich. 436, 442, 70 N.W.2d 772, 774 (1955):

"The test of validity is not whether the prohibition may at some time in the future bear a real and substantial relationship to the public health, safety, morals or general welfare, but whether it does so now.'

'This rule has been likewise stated in Comer v. Dearborn, 342 Mich. 471, 70 N.W.2d 813 (1955); West Bloomfield Twp. v. Chapman, 351 Mich. 606, 88 N.W.2d 377 (1958); Roll v. City of Troy, 370 Mich. 94, 120 N.W.2d 804 (1963); and Biske v. City of Troy, 381 Mich. 611, 166 N.W.2d 453 (1969). In Biske v. City of Troy, Supra, the defendant municipality argued that its restrictive ordinance should be measured in light of the development expected to occur in the future rather than by existing circumstances by which the ordinance failed to demonstrate any relationship to public health, safety, welfare or morals. The Court, in setting forth the present conditions rule, stated:

"Meanwhile the hapless property owner waits, pays taxes and hopes that either the anticipated development will come shortly or that the zoning authority will release to some extent its griphold of his property right.' 381 Mich. 617, 166 N.W.2d 457.

'While the rule is clear we cannot believe that this Court is required to close its eyes to developments or improvements within the municipality which are imminent or a factual certainty. The measure of such consideration must be the certainty or speculative nature of the 'future conditions' which the municipality asserts will render its ordinance reasonable and proper. Furthermore, we must be sensitive to the harm which might befall the community in the future if the use proposed by the property owner is permitted because circumstances do not yet justify the...