Long v. City of Highland Park, 61

• Decision Date: 05 December 1950
• Docket Number: No. 61,61
• Citation: 329 Mich. 146,45 N.W.2d 10
• Parties: LONG et al. v. CITY OF HIGHLAND APARK.
• Court: Michigan Supreme Court

Page 10

45 N.W.2d 10

329 Mich. 146

LONG et al. v. CITY OF HIGHLAND APARK.

No. 61.

Supreme Court of Michigan.

Dec. 5, 1950.

Earl B. Young, City Atty., Highland Park, Mich., John N. Canavan, Asst. City Atty., Highland Park, Ellmann & Ellmann, Detroit, for defendant-appellant.

Voorhies, Long, Ryan & McNair, Detroit, for plaintiffs and appellees.

Before the Entire Bench.

BOYLES, Chief Justice.

Plaintiffs are owners of a certain lot located on the southeast corner of the intersection of Woodward and Colorado avenues in the city of Highland Park, Wayne county. A zoning ordinance of said city classified said property in zone 'R1,' restricting its use to a 1-family dwelling, or a church, public building or comparable use, proscribing its use for business purposes. Plaintiffs filed this bill of complaint in the Wayne county circuit court in chancery for a decree declaring said ordinance unconstitutional and void as to its classification of plaintiffs' property in zone 'R1,' and to enjoin the city from attempting to enforce such restrictions. Plaintiffs had decree in the circuit court in conformity with the prayer of the bill and the defendant appeals. Two questions are urged for reversal.

1. Appellant claims that equity does not have jurisdiction where the plaintiffs had not exhausted their remedy under the provisions of the zoning ordinance by applying for a building permit, seeking relief from the board of zoning appeals, the zoning commission, and the common council of the city. There is no merit in the claim. Plaintiffs do not here seek, nor have they asked the city for a building permit, to erect a building for any particular use. The municipal authorities referred to do not have the power to declare the ordinance unconstitutional and void as applied to plaintiffs' property and they could not grant the relief here sought. An attempt by them to do so, which in effect would result in a violation of the ordinance, would have been ineffective.

'A zoning appeal board's grant of a variance in violation of zoning ordinance is ineffective and entitles affected property owners to injunctive relief.

'The action of legal officers is binding only when they act within the scope of their authority.' Jones v. DeVries (syllabi), 326 Mich. 126, 40 N.W.2d 317.

'The reasonableness of the exercise of police power under a municipal zoning ordinance is always subject to judicial review.' Senefsky v. City of Huntington Woods (syllabus), 307 Mich. 728, 12 N.W.2d 387, 149 A.L.R. 1433.

2. Is the ordinance unreasonable and unconstitutional as applied to said property? It is a corner lot with 160 feet fronting on Woodward avenue at the Colorado street intersection. It was originally acquired in 1919 by John S. Gray's Sons, a Michigan corporation, plaintiffs' predecessor from whom plaintiffs obtained title. At that time it was burdened by restrictive covenants imposed by the subdividers, permitting only the erection of a single-dwelling-house and the necessary outbuildings on said lot. That restriction by its terms expired January 1, 1947. The zoning ordinance, enacted in 1942, substantially continues the restriction, with certain additional permissible uses which do not control decision.

Woodward avenue is a main business thoroughfare running northerly from the Detroit river through Detroit and Highland Park. Through Highland Park it has heavy vehicular traffic of all types, much of it commercial, with attendant noise, confusion, and traffic complications. Property bordering Woodward avenue through Highland Park is predominantly devoted to nonresidential uses. The record shows that on the west side of Woodward avenue through Highland Park there is no structure being used for single-residence purposes. On the contrary, the properties on the west side of Woodward avenue across the street from plaintiffs' property in the next block north are in use for a used-car lot, automobile sales, cafeteria, cabinet shop, market, and other business. On the east side, on which side plaintiffs' property is located, on the frontage on Woodward avenue in the block immediately north of plaintiffs' property is the office building of the Automobile Club of Michigan (AAA), classified by the ordinance as 'RM' which permits use, among many others, for offices, hotels, rooming houses, private clubs, community garages, hospitals, et cetera. The block south of plaintiffs' property is occupied by a library building fronting on Woodward avenue. The next block south is a park, and the second block south is also classified in 'RM' zone. The 'R1' zoning restriction, in Highland Park, on the east side of Woodward avenue included only 5 1/2 blocks, south of which the frontage on Woodward avenue is zoned for business purposes. Also, one half of the third block south of plaintiffs' property is zoned 'RM,' the same as in the block previously referred to, occupied by the 'AAA.' We find no evidence of any single-residence being built or used, in the area restricted as 'R1' in said 5 1/2 blocks on the east side of Woodward avenue. The record shows that the streets in Highland Park mainly used for residence purposes run east and west, and that the properties in Highland Park on the streets east of Woodward avenue and east of plaintiffs' property are mainly used for residences. The 5 1/2-block restricted area on Woodward has now been shortened to 4 blocks by the elimination of the northerly block and half the southerly block. Plaintiffs' property, fronting 160 feet on Woodward avenue, is a vacant lot, in said 4-block area. The city owns frontage on Woodward adjacent to plaintiffs' property on the south. For some time the city or the...