Kropf v. City of Sterling Heights, Docket No. 11232

• Decision Date: 25 May 1972
• Docket Number: No. 2,Docket No. 11232,2
• Parties: William E. KROPF and Sanford Meyer, Plaintiffs-Appellants, v. CITY OF STERLING HEIGHTS, a municipal corporation, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 567

199 N.W.2d 567

41 Mich.App. 21

William E. KROPF and Sanford Meyer, Plaintiffs-Appellants, v. CITY OF STERLING HEIGHTS, a municipal corporation, Defendant-Appellee.

Docket No. 11232.

Court of Appeals of Michigan, Division No. 2.

May 25, 1972.

Released for Publication Aug. 11, 1972.

Leave to Appeal Granted Aug. 15, 1972.

Michael D. Schwartz, Sterling Heights, Michael H. Feiler, Detroit (of counsel), for plaintiffs-appellants.

Paul J. O'Reilly, McCallum, O'Reilly & Cornell, Mt. Clemens, for defendant-appellee.

Before BRONSON, P.J., and V. J. BRENNAN and O'HARA, ^* JJ.

BRONSON, Presiding Judge.

Plaintiffs are purchasers of an irregularly shaped parcel of land, some 10 acres in area, located within the City of Sterling Heights. The parcel in question is zoned exclusively for single-family residential dwellings. The present action arises out of plaintiffs' efforts to have the zoning ordinance declared unconstitutional as to their property and to have their property rezoned for multiple residential purposes. Upon trial of this cause, the trial judge found that plaintiffs had failed to demonstrate the non-suitability of their property for single-family use and dismissed their complaint.

Plaintiffs have taken this appeal asserting two bases of error in the trial court's ruling: that the trial court allowed a municipality to justify its zoning based upon future, as opposed to present, conditions, and that the trial court was unduly swayed by the fact that plaintiffs knew of the zoning restrictions at the time they purchased the property.

For the reasons hereinafter set forth, we perceive the trial judge to have misapplied the law governing such determinations and we must reverse the lower court's decision.

The evidence presented at trial was clear and unequivocal. Plaintiffs' parcel is located in close proximity to the sewage treatment plant owned and operated by the defendant. It is likewise in close proximity to the Sterling Heights Department of Public Works Garage. Additionally, the southern portion of the parcel lies within a flood plain area and the southwesterly portion of the property is adjacent to a swamp area which extends into the subject property itself. Trial testimony showed that the sewage treatment plant generally, along with the other problems mentioned, exerts a depressing effect upon the value of this property for single-family residential development. We believe that the crucial testimony in plaintiffs' case was the testimony of defendant's City Planner:

'A. (By Mr. Billette) The detrimental factors here are long range planning with the city have, within, I would say one year, possibly two, maybe three years, could be overcome very well with the development of the surrounding property and this property.

'Q. Sir, what you are telling us now is that in the future this would be desirable, is that correct? Is that a fair statement?

'A. Yes.

'Q. What about today, sir? Is it desirable for single family residential, yes or no?

'A. Today, no.

'The Court: He said, I think, if I remember his testimony correctly, he said at the present time it was not desirable for single family.

'Q. You state that it is not desirable because of the detrimental reasons you mentioned?

'A. That exists today, yes.'

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. at p. 617, 166 N.W.2d at p. 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 prohibition.

As to the speculative nature of the 'future conditions' in this case, we are not unmindful of the city's good faith effort to remove its sewage treatment plant from the property adjoining plaintiffs'. However, this effort is not within the city's own power but rather must await completion of a sewer system which is under construction by another and independent governmental agency. Relocation of the Department of Public Works Garage is entirely indefinite and uncertain. When this cause was tried, no alternate site had even been selected. Based upon such considerations, we are not satisfied that defendant city has demonstrated the certain fact of removing inconsistent nearby uses which apparently, almost without dispute, render its present zoning ordinance unreasonable. While such facts may truly come to pass eventually, we do deem it constitutionally impermissible to cast the onus of the wait on the property owner who, in the meanwhile, cannot develop his property as a place for people to live.

This Court recently made it clear that where multiples are involved, the municipality has the burden of proving the validity of ordinances which seek to exclude them. Simmons v. Royal Oak, 38 Mich.App. 496, 196 N.W.2d 811 (1972). The fact that the zoning for this property was adopted as part of a valid Master Plan is not enough to sustain that burden. While a Master Plan is evidence of reasonableness, it by itself is not conclusive. While we do not impose the burden on defendant retroactively, the record in this case makes it clear that the property in question cannot be developed in strict accord with the Master Plan.

We cannot perceive that any harm will come to the community by allowing plaintiffs' proposed multiple residential development. When questioned as to this point, defendant's City Planner stated:

'Q. (Mr. Schwartz (plaintiffs' counsel), continuing): Is it your opinion, Mr. Billette, that the construction of multiple dwelling on this site would not be detrimental to the promotion of health, welfare and safety of the community then?

'A. I believe that could be.

'Q. It could be?

'The Court: Wait a minute. I do not understand the answer. The question was, 'Do you think that the development of multiple dwelling on this particular property would not be detrimental to the health, safety, welfare of the community?'

'A. The construction would not be detrimental.

'The Court: It would not be detrimental?

'A. Right.'

In light of this Court's holding in Bristow v. Woodhaven, 35 Mich.App. 205, 192 N.W.2d 322 (1971), it would be difficult to assume that such multiple residential development would be 'harmful' to the community.

Indeed, there is no reason to believe that plaintiffs' planned development will not be compatible with planned residential development in the area. We do not accept the myth that multiple dwellings are inherently incompatible with single family residences. Multiples are a legitimate form of housing used by large segments of our population which municipalities must rationally integrate into their planned growth and development. Baker v. Algonac, 39 Mich.App. 526, 198 N.W.2d 13 (1972). It should be made clear that our holding in this case is based solely on the particular situation of the property in question. It should not be taken as an invitation to undermine a community's planned growth through the use of a properly adopted Master Plan. The defendant's ordinance is unconstitutional only in its application to plaintiffs' property.

Plaintiffs also raised the question of whether one who purchases with knowledge of zoning restrictions may nonetheless be heard to challenge the restrictions' constitutionality. That the answer is in the affirmative is well settled. See Sturdy Homes, Inc. v. Redford Township, 30 Mich.App. 53, 186 N.W.2d 43 (1971).

For the reasons herein set forth, the decision of the trial court is reversed and this cause is remanded for entry of an order consistent with this opinion.

V. J. BRENNAN, Judge (dissenting).

The major issue in this case is whether a city may base its zoning on circumstances which it believes will occur in the future. The case thus...