Lamb v. City of Monroe, 89

• Decision Date: 25 November 1959
• Docket Number: No. 89,89
• Parties: Edward H. LAMB, Plaintiff-Appellant, v. CITY OF MONROE, a Municipal Corporation of the State of Michigan, Defendant-Appellee.
• Court: Michigan Supreme Court

Page 566

99 N.W.2d 566

358 Mich. 136

Edward H. LAMB, Plaintiff-Appellant, v. CITY OF MONROE, a Municipal Corporation of the State of

Michigan, Defendant-Appellee.

No. 89.

Supreme Court of Michigan.

Nov. 25, 1959.

Orion P. Barron, Monroe, for appellant.

Harry A. Lockwood, Monroe, for appellee.

Nathaniel H. Goldstick, Corporation Counsel, John F. Hathaway, Asst. Corporation Counsel, Detroit Carl W. Forsythe, City Atty., Oak Park, Allan G. Hertler, City Atty., Royal Oak, John X. Theiler, City Atty., Bay City, W. Vincent Nash, City Atty., Saginaw, David Morris, City Atty., Kalamazoo, James E. Townsend, City Atty., Holland, for amici curiae.

Before the Entire Bench.

SMITH, Justice.

In one aspect this zoning case is the reverse of that normally coming to us. Usually a 'lower' use seeks to invade the area of a 'higher' use. The filling station sought to be erected in a one-family residential zone is an example. But here the community seeks to exclude residences from one area zoned industrial and commercial.

Most of the facts are stipulated. The problem is primarily legal. The plaintiff is the owner of 124 lots in Harborview subdivision. These lots he purchased from the United States government. They were used during that last war, and through 1953, as a site for multiple housing units. In 1954 these units were removed and the property has not been used since that time. The streets in the subdivision, though without curbs, are in reasonable repair. Water and sewer mains are in place on Detroit avenue and Harbor avenue, but connections to individual lots are not in place. Electric and telephone services are adjacent to the subdivision and a gas main is also in place on Detroit avenue.

The lots in question, it is stipulated:

'* * * are located south of Rose street. The subdivision south of Rose street is bounded on the south by Mason Run, a natural water course traversing a large section of the City of Monroe north fo the River Raisin. Mason Run is also used as a means of disposal for industrial waste by the River Raisin Paper Company and the Consolidated Paper Company both of which have industrial plants immediately west on Mason Run. South of Mason Run and west of the subdivision, the property adjacent to the subdivision is owned by the River Raisin Paper Company upon which is located a paper mill. A large portion of this property is used for the storage of baled paper, a new material for paper production, and also coal which is also a raw material for paper production. The River Raisin Paper Company presently produces paper in this plant. The property directly east of the lost and south of Telb street is owned by the Cowles Chemical Company. This land is presently vacant but they have announced their intention to build a chemical plant on the premises and place the same in production. The balance of the property east of the lots is owned by the France-Stone Company, an industrial concern but their present intentions as to the use of the land is unknown. A small parcel of land on the east side of the subdivision and directly east of Telb street, adjoining Detroit avenue has a quonset steel building on the premises occupied by the Board of Education. This building is being used as a temporary classroom for elementary sixth grade students because of crowded conditions at Christiancy School located on Lincoln avenue, over one mile from the subdivision. The students are transported to and from Christiancy School by bus.

'On Riverview avenue, just north of Maywood avenue and approximately one mile from the subdivision is located Cantrick Junior High School.

* * *

* * *

'The property is within one half mile from the Detroit-Toledo Expressway, a new and modern highway carrying four lanes of traffic, which lies east of the property. This highway connects the metropolitan areas of Wayne county and Toledo, Ohio, it being a limited access highway with access points being provided in two different locations, one within a half mile of the southern boundary of the property and one within a half mile of the northern boundary of the subdivision.

'South of the property, approximately one quarter mile is Elm avenue which traverses the city of Monroe in a general east and west direction north of the River Raisin. At the extreme east end of Elm avenue is the Ford Motor Plant employing on the average in excess of fifteen hundred employees.

'West of the property, approximately one quarter mile is located the Dixie Highway which also forms the northern boundary of the subdivision. This highway connects the City of Monroe with the Detroit Down River Areas such as Trenton, Ecorse, Wyandotte, etc.

'Each of the above described roads is a primary road for the movement of traffic and each is unrestricted for truck use under the City Truck Route Ordinance. Each of the roads is further designated as State Trunk Line Highways with the Expressway also being designated as a Federal Highway.'

We note, also, in surveying the property and the location, that a portion thereof is traversed by a railroad spur track used to supply train service to the Ford Motor Company and also for box-car storage on the property west of the subdivision. There is no area set aside for schools and the present use of a quonset hut to take the overflow from Christiancy School is to be abandoned and, in the future, the hut to be used as a warehouse.

The situation was summarized by the trial chancellor in these terms:

'It is noted by the Court that the proprietors themselves apparently gave up any dream of this area developing into a true residential neighborhood by slashing the plat with an industrial belt, now used for railroad purposes. In addition five lots are occupied by a stamping plant which gives forth 'ground shaking noises and vibrations,' to be heard and felt a distance of at least 150 feet. Other commercial uses are evident. The physical surroundings, particularly of the southern third of the subdivision, portray an industrial complex, present on all sides. Plaintiff's property is surrounded by a paper mill on its west and south, a waste canal on its south, while a chemical plant is to be built on the east.'

The area, the chancellor also observes----

'being surrounded by highways and railroads requires the prospective user to cross highways and railroads, with ever present lack of safety in the most elementary movements. This would apply to adult and child alike. Every movement to an established school or commercial district would be through an industrial area dominated by heavy transportation.

'The area is bounded on the south by a waste canal, on the south and west by paper plants, and on the east by a projected chemical plant, giving rise to the ever present evils of noise, odor and and traffic generated by industry. This constitutes a real, existing, and in no way fanciful problem of health, safety and welfare.'

With respect to the zoning situation the parties have stipulated as follows:

'The City of Monroe has zoned the City into different use categories, presently set up under ordinance number 274. Class A & B zoning is exclusively reserved for residential use. Class C is zoned for commercial use, but residences are not excluded. Class D is an industrial zone for industry of normal types without excluding homes or commercial uses. Class E is reserved for industry and commercial and also for the heaviest and most obnoxious type of industry not permitted in other districts. Previous to the amendments complained of by plaintiff Class E did not bar residential or commercial uses. Previous to the amendments complained of by plaintiff his property was in Class D district. That portion of his porperty south of Telb street is now in Class E. In September, 1957, Ordinance No. 706 was passed restricting Class E to industrial and Commercial use only, with minor exceptions where the use is allied to industrial use. On October 28, 1957, Ordinance No. 709 was passed extending the Class E area through plaintiff's property south of Telb street and also including the River Raisin Paper Company property west thereof and over to the Dixie Highway and north of Elm avenue. Ordinances 706 and 709 were amendments to Ordinance 274, which as stated earlier was originally passed in 1936.'

It was claimed that 76 of plaintiff's 124 lots were affected by the zoning change, and, as to these, plaintiff's bill of complaint prayed that the above-mentioned ordinances 706 and 709 be decreed arbitrary and...