Northwood Props. Co. v. Perkins
| Citation | 325 Mich. 419,39 N.W.2d 25 |
| Decision Date | 08 September 1949 |
| Docket Number | Motion No. 91. |
| Parties | NORTHWOOD PROPERTIES CO. v. PERKINS et al. |
| Court | Supreme Court of Michigan |
OPINION TEXT STARTS HERE
Northwood Properties Company sued Owen C. Perkins, City Inspector of the City of Royal Oak and others for writ of mandamus to direct defendants to issue plaintiff a building permit for the erection of multiple dwellings on certain property in an area zoned for single residences.
The Circuit Court for the County of Oakland, Leo J. Brennan, J., issued the writ, and defendants appealed.
The Supreme Court, Dethmers, J., reversed the judgment and queashed the writ holding that an ordinance zoning plaintiff's property only for single residences did not deny plaintiff due process and that an ordinance did not unlawfully delegate legislative power because of provision requiring a three-fourths vote of the legislative body as a prerequisite to adoption of amendments to the ordinance under certain circumstances.
Before the Entire Bench.
H. Eugene Field, Royal Oak, for plaintiff and appellee.
Glenn C. Gillespie, Pontiac, William C. Hudson, Royal Oak, for defendants and appellants.
Defendants appeal from a judgment ordering issuance of a peremptory writ of mandamus directing the defendant city inspector to issue plaintiff a building permit for erection of multiple dwellings on certain property owned by plaintiff in the city of Royal Oak and directing the defendant city, mayor and city commissioners to amend the city's zoning ordinance by changing said property from a residence ‘A’ classification, in which single residences only are permitted, to a residence ‘B’ classification, permitting erection of multiple dwellings thereon.
The trial court's action was predicated on a finding that the provisions of the ordinance classifying plaintiff's property bear no relation to public health, safety or general welfare, are unreasonable and therefore deprive plaintiff of property without due process of law in violation of the 14th amendment to the Constitution of the United States and Mich.Const.1908, art. 2, § 16, citing Senefsky v. Huntington Woods, 307 Mich. 728, 12 N.W.2d 387, 149 A.L.R. 1433, and City of Pleasant Ridge v. Cooper, 267 Mich. 603, 255 N.W. 371. The court appears to have been moved largely by consideration of the fact that it did not appear in the proceedings of the city commission in connection with the adoption of the ordinance that ‘any discussion or consideration was given to the public health, safety, public morals or public welfare’, further that defendants did not prove any relation between those ‘factors' and the said ‘classification’, and finally that the testimony of certain city officials indicated that in certain respects, but not necessarily in all, public health and safety would be as adequately served in a multiple dwelling as in a single residence area.
Testimony for the defense established that the property in question fronts on Vinsetta Blvd., one of the best streets in Royal Oak, wide and divided by a beautiful, well-kept parkway, and that the area is one of the choicest and nicest residential districts in the city; that lots in the area are all restricted to single residences; that no violations of the zoning ordinances or restrictions have occurred and that all dwellings built in the area are single residences. In our view plaintiff did not establish by competent evidence that the ordinance's classification of plaintiff's property is unreasonable or bears no relation to public health, safety or the general welfare.
In the court's opinion in Euclid, Ohio v. Ambler Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R. 1016, involving the validity of provisions of a city zoning ordinance excluding apartment houses from residential districts, may be found a cataloguing and consideration of the respects in which such ordinance provisions bear a relationship to public health, safety, morals or general welfare. Citing that case as authority, this court in Austin v. Older, 283 Mich. 667, 278 N.W. 727, 731, said:
‘The improvement of residential districts by the exclusion of nonconforming businesses has a reasonable relationship to the public health, welfare and safety.’
The burden was not on the defendants to establish the relationship, but upon the plaintiff to show the lack of it. Austin v. Older, supra; People v....
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