Palmer v. Superior Tp.

• Decision Date: 25 April 1975
• Docket Number: Docket No. 20033,No. 2,2
• Citation: 60 Mich.App. 664,233 N.W.2d 14
• Parties: Theron K. PALMER and Marian F. Palmer, his wife, Plaintiffs- Appellants, v. TOWNSHIP OF SUPERIOR, a Municipal Corporation, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 14

233 N.W.2d 14

60 Mich.App. 664

Theron K. PALMER and Marian F. Palmer, his wife, Plaintiffs- Appellants, v. TOWNSHIP OF SUPERIOR, a Municipal Corporation, Defendant-Appellee.

Docket No. 20033.

Court of Appeals of Michigan, Division No. 2.

April 25, 1975.

Released for Publication July 24, 1975.

Dale D. Libby, Dearborn, for plaintiffs-appellants.

Hamilton & McDonald by Vanzetti M. Hamilton, Ypsilanti, for defendant-appellee.

Before QUINN, P.J., and BASHARA and KAUFMAN, JJ.

KAUFMAN, Judge.

Plaintiffs appeal from an April 3, 1974 judgment by the Washtenaw County Circuit Court which denied their request for a declaratory judgment. Plaintiffs had asked the trial court to declare defendant's zoning ordinance unconstitutional insofar as it prohibits plaintiffs' property from use as a trailer park and to declare article X--D of the ordinance void for conflicting with the Mobile Home Park Act of 1959.

Plaintiffs own 160 acres of land, situated along Geddes Road and Ridge Road in Superior Township. Plaintiffs' land, and, according to their estimate, 80% Of all the land in Superior Township, is zoned AG--1, agricultural. Property zoned AG--1 classification is limited to farms, country estates and similar agricultural enterprises. Also, one-family detached dwellings other than farm buildings may be constructed provided the land area is at least one acre, and its width is at least 165 feet. Plaintiffs cited 'extensive residential use' of land in AG--1 districts.

In April of 1971, plaintiffs contracted to sell 153 of their 160 acres (Parcel A) for $384,510 subject to the condition that the land could be used for mobile homes. Plaintiffs also planned to develop the remaining seven acres (Parcel B) as a shopping center for the trailer park. At about the same time, plaintiffs filed an application with defendant's planning commission to rezone parcel A from an AG--1, agricultural, district to MH--1, mobile home, and parcel B from an AG--1 to CM--1, commercial, district. The planning commission denied plaintiffs' application. After a public hearing, the township board affirmed the denial, and plaintiffs filed the instant suit.

At trial, plaintiffs testified that they had farmed the subject land since 1947. They claimed that, because of increased taxes and expenses, the farm had operated 'in the red' for the past two years and that it was no longer economically feasible to use the land as a farm. Before putting the property on the market, plaintiffs employed an urban planner and land use specialist, Malcom Waring, to do a feasibility study on types of land use. Under defendant's master plan, the land was eventually to be zoned for industry. Mr. Waring, however, ruled out using the property for industrial purposes because of the lack of railroad facilities and of roads suitable for heavy trucks. David Jokinen, another city planner and real estate expert called as a trial witness by plaintiffs, felt that using it for residential subdivision would be infeasible because such a subdivision would require large lots whose cost would severely limit the potential market, given the unavailability of financing and expense of platting. According to Mr. Waring and to David Jokinen, the property was best suited for mobile homes, a use for which a large demand exists.

Mr. Jokinen testified at trial that the property was currently assessed at $93,000, or 50% Of its present worth, $186,000. He stated that, for speculative purposes, its highest value would be $300,000. He estimated that, if zoned to allow mobile homes, the land would be worth $1,000,000. He opined that automobile traffic generated by the trailer park would not overtax the existing roads. Jokinen detailed the tests which had been made on plaintiffs' land to determine the availability of water and sewage facilities. He stated that water was available through wells and that on-site sewage treatment could be built by the trailer park and would be much cheaper than tapping into the town's facilities.

Defendant's witnesses expanded upon the reasons which the township board gave in rejecting plaintiffs' request for rezoning:

'1. Sewage disposal at the present time is uncertain.

2. The public road system is inadequate for the added traffic.

3. The density of dwellings, in terms of design standards, is unnecessarily great for this area.

4. Storm drainage is not designed adequately.

5. Not compatible with the (m)aster (p)lan.

6. Impact on the already over-crowded Willow Run School system.

7. Accessibility and adequacy of the parks and size of the parks for the density of the area is inadequate.

8. This development is poorly designed from an aesthetic standpoint.'

Defendant stressed the fact that plaintiffs' proposed use was incompatible with the township master plan. Plaintiffs' land was seen as a future 'buffer area' between incompatible industrial and residential areas. The master plan was created to assure orderly development of the area. Further, defendant noted, the town had rezoned to allow trailer parks in two other areas where it was consistent with the master plan.

On appeal, plaintiffs make the same two claims that they raised at trial. First, they claim that defendant's zoning ordinance is invalid as applied to their land because it 'does not bear a real and substantial relationship to the public health, safety, morals or general welfare' and because the effect of the ordinance is confiscatory.

In denying this claim, the trial court stated its findings as:

'(1) The ordinance prohibits the most profitable use of the plaintiffs' property, but the loss is not so significant as to become confiscatory.

'(2) The ordinance bears a reasonable relationship to the public health, safety and welfare, and the relationship is substantial enough to outweigh any presumption of unreasonableness created by the financial loss.'

The trial court detailed its justification for its first finding:

'The purchase price stated in the plaintiffs' conditional sale contract is $384,510. In contrast, the plaintiffs' witnesses testified that the market value of the property as farmland is $186,000--apparently obtained by doubling the current property tax valuation. However, the same witness testified that the value to a purchaser speculating on long-term development patterns would exceed $300,000, so it appears that the 'decline' in value caused by the Township's refusal to rezone is, at most, the difference between $384,000 and $300,000. While this difference is significant, it is well established that a zoning ordinance is not unreasonable simply because it prohibits the Most profitable use. Albert v. Kalamazoo Twp., 37 Mich.App. 212 (215) (194 N.W.2d 425) (1971); White Lake Twp. v. Amos, 371 Mich. 693 (124 N.W.2d 803) (1963).' (Emphasis in original.)

The court cited several justifications for its holding that defendant's ordinance met the 'reasonable relationship' standard. First, mobile homes:

'create a demand for municipal services that is disproportionate to their contribution to property tax revenues. * * * The imbalance which would be created by the plaintiffs' development is further demonstrated by the fact that construction of the 939 proposed sites would represent a 75% Increase in the number of available spaces, not just in Superior Township, but in all of Washtenaw County.'

In addition, the court noted the 'inadequacy of the township's present fire protection arrangements, which are in part borrowed from a neighboring municipality' and sewage treatment facilities which would be inadequate to serve the increased population. Finally:

'(t)he area of the proposed development is also susceptible to flooding at various times of the year. A map of the proposed physical layout shows a diagonal swath cutting through the park labeled as a 'recreation area'. This strip, which constitutes a significant portion of the total proposed recreation area, is actually a drainage ditch.'

In zoning cases, this Court reviews De novo the record on appeal. Biske v. Troy, 381 Mich. 611, 166 N.W.2d 453 (1969); Wilkins v. Village of Birch Run, 48 Mich.App. 57, 209 N.W.2d 863 (1973). Considerable weight is given to the findings of the trial judge, Christine Building Co. v. Troy, 367 Mich. 508, 116 N.W.2d 816 (1962); El'Chonen v. Van Buren Township, 56 Mich.App. 1, 223 N.W.2d 335 (1974).

Initially, we must determine the standard of review that has been mandated by the Supreme Court. Our confusion stems from a reading of the two most recent Supreme Court cases in point, Kropf v. Sterling Heights, 391 Mich. 139, 215 N.W.2d 179 (1974), and West v. Portage, 392 Mich. 458, 221 N.W.2d 303 (1974). In Kropf, supra, the Supreme Court overruled a line of cases in which this Court had held that certain uses, including mobile homes, were 'favored uses'. In these cases, where a municipality sought to exclude a favored use, the burden of proof shifted to the municipality to show that the exclusion was not arbitrary, capricious or unreasonable. See, E.g., Bristow v. Woodhaven, 35 Mich.App. 205, 192 N.W.2d 322 (1971), Lv. den., 386 Mich. 764 (1971); Simmons v. Royal Oak, 38 Mich.App. 496, 196 N.W.2d 811 (1972), Lv. den., 387 Mich. 794 (1972). ¹ Kropf rejected the 'favored or preferred use' concept and the attendant shifting of burden of proof. 391 Mich. 139, 156, 215 N.W.2d 179, 186 (1974).

In Kropf, four Justices, through Chief Justice T. M. Kavanagh, reaffirmed the standards set forth in a number of earlier cases, notably Brae Burn, Inc. v. Bloomfield Hills, 350 Mich. 425, 430--432, 86 N.W.2d 166 (1957), and Northwood Properties Co. v. Royal Oak City Inspector, 325 Mich. 419, 422--423, 39 N.W.2d 25 (1949). ² Those cases viewed zoning as a local legislative determination which courts could not upset in the absence of significant evidence of unreasonableness. The Kropf majority stressed that a zoning ordinance is clothed with a presumption of validity and that plaintiffs bore the burden of proof in...