Livonia Drive-In Theatre Co. v. City of Livonia, DRIVE-IN

• Decision Date: 29 June 1961
• Docket Number: No. 48,DRIVE-IN,48
• Citation: 363 Mich. 438,109 N.W.2d 837
• Parties: LIVONIATHEATRE CO., a Michigan Corporation, Plaintiff and Appellant, v. CITY OF LIVONIA, a Municipal Corporation, David Meinzinger, Director of Public Works of said City, Donald Wilson, Chief Inspector of the Bureau of Inspection of said City, Marie W. Clark, City Clerk of said City, Robert L. Angevine et al., being all of the members of the Planning Commission of said City., and William W. Brashear, Mayor of said City, Defendants and Appellees.
• Court: Michigan Supreme Court

Page 837

109 N.W.2d 837

363 Mich. 438

LIVONIA DRIVE-IN THEATRE CO., a Michigan Corporation Plaintiff and Appellant, v. CITY OF LIVONIA, a Municipal Corporation, David Meinzinger Director of Public Works of said City, Donald Wilson, Chief Inspector of the Bureau of Inspection of said City, Marie W Clark, City Clerk of said City, Robert L. Angevine et al. being all of the members of the Planning Commission of said City., and William W. Brashear, Mayor of said City, Defendants and Appellees.

No. 48.

Supreme Court of Michigan.

June 29, 1961.

Harold N. Harris, Samuel Shapero, Detroit, for plaintiff-appellant.

Rodney C. Kropf, City Atty., Charles J. Pinto, First Asst. City Atty., Charles A. Forrest, Jr., Asst. City Atty., Livonia, for defendants-appellees, except City Clerk Marie W. Clark.

William S. Munger, Detroit, for defendant-appellee City Clerk Marie W. Clark.

Before the Entire Bench.

CARR, Justice.

This case involves the alleged right of plaintiff to a license to operate a drive-in theatre in defendant city, and to a building permit therefor. Following its incorporation defendant city adopted an ordinance prohibiting the establishment of drive-in theatres within the municipality. In Bzovi v. City of Livonia, 350 Mich. 489, 87 N.W.2d 110, it was held that such prohibitory clause of the ordinance was invalid on the ground that its purpose was to prevent the carrying on of legitimate business enterprises. Thereafter the city through its legislative authority adopted certain ordinance amendments permitting the use of lands within the city, zoned as industrial, for drive-in theatre purposes, the establishing thereof being subject to certain prescribed conditions. Among other provisions was a requirement that the approval of the city planning commission should be obtained, but such provision was subject to the right of the city council to approve an application for the issuance of a drive-in theatre license notwithstanding disapproval thereof by said commission. The controlling ordinance (No. 193) also contemplated favorable action by the city department of health and the Livonia police and fire departments. As a matter of procedure in the instant case the city council, in its consideration of plaintiff's application for a license, also requested approvals from the city traffic commission, the department of public works, the building department, and the Michigan State highway department. Such approvals were given.

Being unsuccessful in its attempts to procure permission to operate the drive-in theatre and a necessary building permit, the plaintiff filed its petition in the circuit court of Wayne county asking for a writ of mandamus to compel the defendant city clerk to issue the license authorizing operation of the drive-in theatre and to compel defendant planning commission to issue the building permit. It was alleged in said petition that prior to the incorporation of plaintiff in November, 1958, application had been made by Raymond Schreiber, now plaintiff's president, for a drive-in theatre license for operation on certain land, approximately 30 acres in extent, on the north side of Plymouth road, between Levan and Newburgh roads, which under the city ordinance was zoned for 'Light Industrial, M-1' uses, expressly including drive-in theatres. Plaintiff alleged that the land referred to was purchased at an agreed price of $180,000 of which amount the sum of $50,400 had been paid at the time of the bringing of the action.

Plaintiff further alleged the expenditure of large sums of money in connection with the preparation of plans and specifications for the construction of the theatre. Thereafter application was made for a building permit and for approval by the common council of the city of an application for a drive-in theatre license. The common council approved the issuance of such license to Raymond Schreiber, but the mayor of the city vetoed the resolution of approval. The council failed to overrule such veto, five votes for such purpose being required.

Following the above mentioned events, as alleged in plaintiff's petition and established by exhibits introduced in the case, Mr. Schreiber assigned to the plaintiff corporation whatever right, title and interest might be vested in him by virtue of the proceedings to obtain the requisite license and permit. It appears, however, that plaintiff did not rely on the approval by the common council but, apparently for the purpose of avoiding any legal question with reference to such assignment, made a new application for a drive-in theatre license on June 4, 1959, paying at the time the sum of $1,200 as a license fee. In such application reliance was had on approvals of municipal authorities obtained by Mr. Schreiber. Following the new application to the city council plaintiff sought the approval of the defendant planning commission, which was refused on the alleged grounds that in its proposed location the land use in question would be injurious to the surrounding neighborhood.

Under date of September 14, 1959, the city council considered the application of plaintiff previously filed on June 4th of said year, and gave approval thereto, authorizing the city clerk to issue the license. The mayor interposed a veto to the resolution and filed with the city council a message setting forth the reasons for his action. Again the council failed to overrule the veto. Thereafter the city clerk declined to issue the license, and plaintiff's application for a building permit was also denied.

On the hearing of the petition for writ of mandamus the matters in controversy were submitted on a stipulation of facts, the greater part of the stipulation being expressly based on exhibits incorporated therein by reference or by being set forth in full, which exhibits are in accord with the averments in plaintiff's petition for the writ insofar as the procedure observed was concerned. Following consideration of the stipulated facts and the arguments of counsel with reference to the legal issues raised, the trial judge concluded, as indicated in the opinion filed by him, that plaintiff was not entitled...