Mooney v. Village of Orchard Lake

• Decision Date: 16 May 1952
• Docket Number: No. 51,51
• Citation: 333 Mich. 389,53 N.W.2d 308
• Parties: MOONEY et al. v. VILLAGE OF ORCHARD LAKE et al. *
• Court: Michigan Supreme Court

Page 308

53 N.W.2d 308

333 Mich. 389

MOONEY et al. v. VILLAGE OF ORCHARD LAKE et al. ^*

No. 51.

Supreme Court of Michigan.

May 16, 1952.

Butzel, Eaman, Long, Gust & Kennedy, Detroit, Earl L. Phillips, Pontiac, for defendants and appellants.

George A. Cram, Pontiac, Monaghan, Hart & Crawmer, Detroit, for plaintiffs and appellees.

Before the Entire Bench.

DETHMERS, Justice.

Defendants appeal from a decree enjoining them from enforcing a zoning ordinance so as to prevent plaintiffs' erection and maintenance of a church and school on premises owned by them before adoption of the ordinance and situated in a zone thereunder restricted to use for private dwellings only.

The trial court found as a fact, from the evidence in the case, which need not be recounted here, that although the ordinance appeared on its face to allow churches and schools, under special permit only in three zones comprising about ten per cent of the village's area while prohibiting them in the fourth zone containing the balance of the village, nevertheless, when applied to existing facts and circumstances, it served, as a practical matter, to exclude churches and schools from the village. The finding is fairly supported by the record.

As authority for the proposition that churches and schools may not be excluded by ordinance from residential districts or zones plaintiffs rely on City of Sherman v. Simms, 143 Tex. 115, 183 S.W.2d 415; Ellsworth v. Gercke, 62 Ariz. 198, 156 P.2d 242; Roman Catholic Archbishop v. Baker, 140 Or. 600, 15 P.2d 391; State ex rel. Synod of Ohio of United Lutheran Church of America v. Joseph, 139 Ohio St. 229, 39 N.E.2d 515, 138 A.L.R. 1274; State ex rel. Roman Catholic Bishop v. Hill, 59 Nev. 231, 90 P.2d 217; North Shore Unitarian Society, Inc. v. Village of Plandome, Sup., 109 N.Y.S.2d 803; State ex rel. Tampa, Fla. Co. of Jehovah's Witnesses v. City of Tampa, Fla., 48 So.2d 78; Western Theological Seminary v. City of Evanston, 325 Ill. 511, 156 N.E. 778. Defendants undertake, with varying degrees of success, to demonstrate the inapplicability of those cases to the case at bar. In turn, their chief reliance is placed upon Corporation of Presiding Bishop v. City of Porterville, 90 Cal.App.2d 656, 203 P.2d 823, 825, appeal dismissed for want of federal question, 338 U.S. 805, 70 S.Ct. 78, 94 L.Ed. 487, rehearing denied 338 U.S. 939, 70 S.Ct. 342, 94 L.Ed. 579. There the ordinance divided the city of Porterville into four zones, in two of which residences only were permitted. The significant factor distinguishing that case from this is that the California court found that 'there is nothing in the record before us to indicate that the church building could not be erected if located in the area zoned for that purpose.' We are not insensitive to the persuasiveness of some of the reasoning in that case to the effect that churches may as lawfully be excluded as may multiple dwellings from single family residential areas. That, however, is not the question before us. On the basis of the record at bar the question to be determined is whether churches and schools may, in effect, be excluded by ordinance from the entire village.

The right to full and free use and enjoyment of one's property in a manner and for such purpose as the owner may choose, so long as it be not for the maintenance of a nuisance injurious to others, is one of which he may not be deprived by government without due process of law nor may his property be taken by government without just compensation. U.S.Const. Amends. 5 and 14; Mich.Const. 1908, art. 2, § 16, and art. 13, § 1. The owner's right to use is, however, subject to reasonable regulation, restriction and control by the state in the legitimate exercise of its police powers. The test of legitimacy is the existence of a real and substantial relationship between the exercise of those powers in a particular manner in a given case and public health, safety, morals or the general welfare. Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303; Austin v. Older, 283 Mich. 667, 278 N.W. 727; Northwood Properties Co. v. Royal Oak City Inspector, 325 Mich. 419, 39 N.W.2d 25.

The use of premises for church or school purposes does not amount to a nuisance. Smith v. First United Presbyterian Church, 333 Mich. 1, 52 N.W.2d 568. Does exclusion of church and school from the entire village bear a real and substantial relationship to public health, safety, morals or the general welfare and thus constitue a reasonable and legitimate exercise of the police power? Defendants say that a presumption prevails in favor of the reasonableness and validity of the ordinance unless the contrary is shown by competent evidence or appears on the face of the enactment and that the durden rests on plaintiffs to...