Osius v. City of St. Clair Shores, 36

• Court: Supreme Court of Michigan
• Citation: 344 Mich. 693,58 A.L.R.2d 1079,75 N.W.2d 25
• Docket Number: No. 36,36
• Parties: , 58 A.L.R.2d 1079 Theodore OSIUS, Margaret Osius and Frank Lindemann, Plaintiffs-Appellees and Cross-Appellants, v. CITY OF ST. CLAIR SHORES, a Michigan Municipal Corporation; Lloyd Lolmaugh, as Building Inspector in and for the City of St. Clair Shores, Defendants-Appellants and Cross-Appellees.
• Decision Date: 01 March 1956

Page 25

75 N.W.2d 25

344 Mich. 693, 58 A.L.R.2d 1079

Theodore OSIUS, Margaret Osius and Frank Lindemann, Plaintiffs-Appellees and Cross-Appellants, v. CITY OF ST. CLAIR SHORES, a Michigan Municipal Corporation;

Lloyd Lolmaugh, as Building Inspector in and for

the City of St. Clair Shores,

Defendants-Appellants and

Cross-Appellees.

No. 36.

Supreme Court of Michigan.

March 1, 1956.

Robert E. Childs, Detroit, for plaintiffs, appellees and cross-appellants.

John H. Yoe, Detroit, for defendants, appellants and cross-appellees.

Before the Entire Bench.

SMITH, Justice.

This is a zoning case. The plaintiffs are the owners of property in the City of St. Clair Shores. They wished to obtain permission to build a gasoline service station thereon. The project seemed to them not unreasonable. They owned the land. It was on a State highway, at the corner of East Jefferson avenue and Doremus street. Business establishments were located nearby. In fact it was zoned as business 'B' and in a business 'B' area the zoning ordinance provides that service atations are permitted. How, then, does the case come to us?

It comes to us because plaintiffs were denied permission to so use their property. The attentive may have observed a contradiction in what we have said. Gasoline service stations, we noted, are permitted in a business 'B' district, yet we pointed out that in plaintiffs' case permission was denied. The controversy arises at this point. It is important (since it involves an alleged arbitrary assumption over the use a freeman makes of his property) and we will trace it in some detail.

Under our housing and zoning laws, Cl.1948, § 125.401 et seq., Stat.Ann.1949 Rev. § 5.771 et seq., as amended, a city council is given the power to enact a comprehensive zoning ordinance. In addition, by the terms of section 5 of the act, C.L.S.1954, § 125.585, Stat.Ann.1953 Cum.Supp. § 5.2935, the city is permitted to have a zoning board of appeals (for purposes later to be described) to consist either of appointed members, or the legislative body of the city or village itself. In the case before us the city council, pursuant to the act, acted as the board. In such capacity, as the trial court's opinion carefully points out, 'It is elementary that, although made up of members of the legislative body of the City of St. Clair Shores, the zoning board of appeals functions as a separate entity keeping minutes and records of its meetings as such.' So acting it sits as a board, not as the city council, and as such board it lacks the power to enact ordinances and adopt resolutions for the government of the city, these powers being lodged in the council by section 3.2 of chapter 3, 'Plan of Government' of the city charter of St. Clair Shores.

This is not to say, however, that it is without power. As the city's zoning board of appeals it exercises both appellate and original jurisdiction. (§ 3.) We are concerned, in this case, only with the latter, since we do not have an appeal from an administrative determination by a city official. None was made. Nor do we have a petition to 'vary or modify' rules and regulations in a case 'where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter' of an ordinance. What we do have is an application by the plaintiffs, under the ordinance, for a certificate of compliance and a building permit. This was submitted to the zoning board of appeals. The board's jurisdiction to act upon plaintiffs' certificate arises from the fourth sentence of paragraph (a) of section 5 of the act, C.L.S.1954, § 125.585, Stat.Ann.1953 Cum.Supp. § 5.2935, providing as follows:

'They [zoning board of appeals] shall also hear and decide all matters referred to them or upon which they are required to pass under any ordinance of the legislative body adopted pursuant to this act.'

Since the board's jurisdiction to act upon plaintiffs' certificate arises from the above-quoted provision, permitting it to exercise certain original jurisdiction, the term 'appeals' board, as applied to these proceedings, is obviously a misnomer. As the trial court put the matter:

'The provisions of the Zoning Ordinance with reference to service stations in Business B district is rather unique inasmuch as it permits no administrative officer to pass upon their use in such district. Service stations and their establishment in this zone are left entirely to the Zoning Board of Appeals for approval. It is quite plain that original plenary jurisdiction over service stations in Business B district is thus given to the Zoning Board of Appeals. That section of our statutes which most nearly defines the power of the Zoning Board of Appeals to act in the premises is MSA § 5.2935(a), the applicable portion of which is as follows:

'The Zoning Board of Appeals shall also herein decide all matter referred to them or upon which they are required to pass under any ordinance of the legislative body adopted pursuant to the provisions of this act."

With respect to such application, the city's planning commission (in the space provided for its 'Comments') had expressed no opposition and it may be assumed that they had no objections thereto. A public hearing was held on the application. Opposition was expressed at the meeting. It was pointed out by one objector that the area had been improved; that lights and sewer had been put in and the road improved. 'It is a better residential area than it ever was. To put in a gas station would undo everything that has been done. It is a very good residential area now.' The petition was denied, unanimously. Plaintiffs thereafter filed their bill of complaint for declaratory judgment and for injunctive relief. The trial court's decree in favor of plaintiffs ensued and appeal was taken to this Court.

Thus our problem. It does not cover a wide field. The plaintiffs complain primarily that the zoning board of appeals is exercising, by delegation, a legislative function, which they condemn as unconstitutional, and that this delegated legislative function is exercised without guide or standard. They point to section VI-B of the zoning ordinance (which allows service stations in a business 'B' district 'only when permitted by the board of appeals as specified in section 10, paragraph 10 hereof') and, in turn, to section 10 thereof. The latter section, entitled 'Board of Appeals,' permits the board to vary or modify the application of the regulations, 'in harmony with their general purpose or intent,' following which it is provided that no service stations may be permitted in business 'B' districts 'except after an advertised public hearing.'

There is no doubt that a legislative body may not delegate to another its lawmaking powers. It must promulgate, not abdicate. This...