Lanphear v. Antwerp Tp., Van Buren County

• Decision Date: 29 November 1973
• Docket Number: No. 3,Docket No. 15682,3
• Citation: 50 Mich.App. 641,214 N.W.2d 66
• Parties: Carol LANPHEAR et al., Plaintiffs-Appellants, v. The TOWNSHIP OF ANTWERP, COUNTY OF VAN BUREN, Michigan, et al., Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 66

214 N.W.2d 66

50 Mich.App. 641

Carol LANPHEAR et al., Plaintiffs-Appellants, v. The TOWNSHIP OF ANTWERP, COUNTY OF VAN BUREN, Michigan, et

al., Defendants-Appellees.

Docket No. 15682.

Court of Appeals of Michigan, Division No. 3.

Nov. 29, 1973.

Released for Publication Jan. 21, 1974.

William H. Culver, Morris, Culver & Hunter, Kalamazoo, for plaintiffs-appellants.

Richard K. Burnham, Paw Paw, for defendants-appellees.

Before HOLBROOK, P.J., and BASHARA and O'HARA,* JJ.

HOLBROOK, Presiding Judge.

Plaintiffs, neighboring residents of the defendant Tylers, sought an injunction against the defendant township to prevent it from rezoning the Tyler property so that it could be used as a mobile home park, and sought an injunction to prevent the Tylers or their grantees from placing mobile homes on the Tyler land. The trial judge denied the requested relief and plaintiffs appeal raising essentially six issues.

I

Could the Antwerp Township board validly pass an ordinance zoning the Tyler property when the property was in the unincorporated area of the township and three of the four members of the board present and voting for the zoning change resided in incorporated villages outside the unincorporated areas?

M.C.L.A. § 41.102; M.S.A. § 5.151 gives '(e)ach inhabitant of any township, having the qualifications of an elector, * * * a right to vote on all matters and questions before any township meeting'. A qualified elector need only be a resident of the township for 30 days, and meet other Michigan constitutional requirements to vote. M.C.L.A. § 168.10; M.S.A. § 6.1010; Const. 1963, art. 2, § 1. M.C.L.A. § 41.70; M.S.A. § 5.62 describes the membership of the township board, and provides that the township board shall consist of officers elected Generally from the entire township. M.C.L.A. § 168.342; M.S.A. § 6.1342 states that only qualified electors of the township are eligible to be elected to the township board. On the other hand, the township zoning board, which makes zoning change recommendations to the township board, must take at least two-thirds of its membership from unincorporated areas of the township. M.C.L.A. § 125.274; M.S.A. § 5.2963(4). More importantly, M.C.L.A. § 125.282; M.S.A. § 5.2963(12) provides the inhabitants of unincorporated areas the final say whether to accept or reject a proposed zoning ordinance for unincorporated township lands. ¹

In essence, resident electors of unincorporated portions of the township are secured a powerful voice in the zoning of the areas they live in. Moreover, the township board, which appoints the township zoning board, could conceivably be made up entirely of residents of unincorporated portions of the township, since nothing prevents qualified electors from Any part of the township from running for Any township office. Simply because three of the four members of the township board, which authorized the change of the zoning ordinance in issue here, perchance happened to live in the incorporated areas of the township did not deprive plaintiffs of any of their constitutional or statutory rights.

II

Was the action of the Antwerp Township board invalid because it was not according to a statutory plan, was not in compliance with the township planning act, and was 'spot zoning'?

There are really three parts to this issue. First, the objection is made that the record fails to show any attempt by the township to zone according to a plan as is required by the township rural zoning act, 1943 P.A. 184, specifically M.C.L.A. § 125.273; M.S.A. § 5.2963(3), which reads in pertinent part: 'The provisions of the zoning ordinance Shall be based upon a plan designed to promote the public health, safety, morals and general welfare'. (Emphasis supplied.) The trial judge correctly pointed out that there is no requirement in 1943 P.A. 184 that the 'plan' be written or be anything beyond 'a generalized conception by the members of the board as to how the districts in the township shall be * * * used'. This 'generalized conception' is exhibited in the zoning ordinance itself, since the document zones districts, prescribes variances, land uses, etc., for the entire township, and thus plans the township's future development.

However, plaintiffs do not see the requirement for a 'plan' only in the township rural zoning act (M.C.L.A. § 125.273; M.S.A. § 5.2963(3) quoted above), but also in the township planning act (M.C.L.A. § 125.321 [50 Mich.App. 647] et seq.; M.S.A. § 5.2963(101) et seq.). Thus arises the second part of this issue, I.e., whether the provisions of the township planning act were complied with. Plaintiffs claim in their brief that pursuant to the township planning act the township board on April 14, 1970, created a planning commission and thereafter only it had the power to hold hearings and make zoning change recommendations to the township board, and these recommendations could not be made except on the basis of a written plan prescribed by the township planning act, which plan did not exist at the time of the zoning change in issue here. Even assuming a planning commission had in fact been created on April 14, 1970, M.C.L.A. § 125.331; M.S.A. § 5.2963(111) gives the township board the Option to transfer all powers of the township zoning board to the planning commission. In addition, under this statute the township board must postpone for one year the transfer of the zoning board's powers if the latter is nearing the completion of its zoning plan. Plaintiffs have not shown that the township board has transferred the zoning board's powers, or demonstrated whether the one-year postponement was or was not in effect. This failure of proof precludes a favorable ruling in plaintiffs's behalf on this question.

The third part of the issue is whether the rezoning of the Tyler land constituted 'spot zoning'. The basic reviewing standard is that normally a zoning ordinance comes to this Court clothed with every presumption of validity, and it is the burden of the party attacking the ordinance to prove affirmatively that the ordinance is arbitrary and unreasonable. Midland Twp. v. Rapanos, 41 Mich.App. 75, 199 N.W.2d 548 (1972). 'Spot zoning' has most recently been defined in S.B.S. Builders, Inc. v. Madison Heights, 389 Mich. 323, 327, 206 N.W.2d 437, 438 (1973):

"A zoning ordinance or amendment of the present type creating a small zone of inconsistent use within a larger zone is commonly designated as 'spot zoning'. (Citations omitted.) Such an ordinance is closely scrutinized by a court and sustained only when the facts and circumstances indicate a valid exercise of the zoning power.' Penning v. Owens, 340 Mich. 355 at 367, 65 N.W.2d 831 at 836 (1954).'

While the plaintiffs alleged in their complaint that the rezoning action of the township board was arbitrary and capricious, plaintiffs introduced no real evidence to substantiate this allegation. On the other hand, there was testimony by a member of the township board that except for one 500-foot strip with one mobile home on it, there were no mobile home zones in the unincorporated area of the township. We are unwilling to second guess the township board's legislative determination that allowing a new mobile home park in the unincorporated portion of the township would serve the general welfare of the community, at least not without countervailing evidence of arbitrary action by any of the township legislative bodies.

III

Was the rezoning of the Tyler property invalid because no public hearing was held as provided by the statute?

M.C.L.A. § 125.284; M.S.A. § 5.2963(14) requires that a public hearing, when requested in writing by a property owner, shall be conducted by the township board prior to amendments to the zoning ordinance. This statute was enacted as part of 1943 P.A. 184. Plaintiffs have stipulated on appeal:

'21. That a request for hearing on Ordinance No. 17 was duly served upon the township on or about July 15, 1970 pursuant to 1943 P.A. 184, as appears in the ordinance book.

'22. That a hearing was held in answer to that request Wednesday, August 26, 1970.

'23. That there was no notice of hearing published or posted or served personally or by mailing of any notice of hearing of the meeting of the township board on August 26, 1970 on Ordinance No. 17, except a letter to William H. Culver and a notice published in the Courier Leader August 21, 1970, which said there would be a special meeting of the Antwerp Township board on August 26, 1970, at 8 p.m.'

Plaintiffs cannot stipulate on appeal that a hearing was held and then claim in their appellate brief that a hearing was not held.

Plaintiffs' further objection that inadequate notice was given prior to the township board's public hearing is without merit. Plaintiffs assert that M.C.L.A. § 125.279; M.S.A. § 5.2963(9) requires that notice of the hearing shall be given by two publications in a newspaper of general circulation in the township, but fail to note that this statute applies to hearings held by the township Zoning board, not the township board. 1943 P.A. 184 does not specifically indicate what the notice requirements are for a public hearing held by the township board. Clearly, some notice is required. Lake Twp. v. Sytsma, 21 Mich.App. 210, 175 N.W.2d 337 (1970). However, simply because two notice publications in a local newspaper are required for meetings of the township zoning board does not mean that two notice publications are a constitutional requirement. As long as the notice is reasonably calculated, under all the circumstances, to apprise the interested parties of the pendency of the action and afford them an opportunity to present their objections, constitutional requirements of due process are met. Robinson v. Hanrahan, 409 U.S. 38, 93 S.Ct. 30, 34 L.Ed.2d 47 (1972). While publication might under some circumstances not be sufficient for due process purposes, since here publication was coupled with notice to plaintiffs'...