Paye v. City of Grosse Pointe

• Decision Date: 02 March 1937
• Docket Number: Motion No. 247.
• Citation: 271 N.W. 826,279 Mich. 254
• Parties: PAYE et al. v. CITY OF GROSSE POINTE et al.
• Court: Michigan Supreme Court

279 Mich. 254

271 N.W. 826

PAYE et al.

v.CITY OF GROSSE POINTE et al.

Motion No. 247.

Supreme Court of Michigan.

March 2, 1937.

Petition by Lillie Paye and others for a writ of mandamus against the City of Grosse Pointe and others, to compel the issuance of a building permit. From an order denying the petition, petitioners appeal by permission.

Order vacated and cause remanded, with directions.

Appeal from Circuit Court, Wayne County; Henry G. Nicol, Judge.

Argued before the Entire Bench.

Frederick Goodell, of Detroit, for appellants.

Albert E. Meder, of Detroit (Beaumont, Smith & Harris, of Detroit, of counsel), for appellees.

BUSHNELL, Justice.

Leave was granted to appeal from an order of the Wayne circuit court denying appellants' petition for writ of mandamus to direct defendants to issue a building permit.

Decision in this case depends upon the meaning of the words ‘structurally altered or enlarged’ as embodied in the text of paragraph (A) of section III of the zoning ordinance of the City of Grosse Pointe, adopted October 28, 1927. The paragraph in question reads as follows:

‘Except as hereinafter provided, no building or premises or part thereof shall be used, altered, constructed or reconstructed except in conformity with the provisions of this ordinance which apply to the district in which it is located. However, any lawful non-conforming use existing at the time of passage of this ordinance may be continued provided that the building or premises involved shall neither be structurally altered or enlarged unless such altered or enlarged part shall conform to the provisions of this ordinance for the district in which it is located. No non-conforming use if discontinued for more than one year or changed to a use permitted in the district in which it is located shall be resumed or changed back to a non-conforming use.’

Plaintiffs are the owners of premises located at 16903-15 East Jefferson avenue, which at the date of the adoption of the ordinance and for a long time prior thereto was used by them for business purposes. The westerly two-story building is of brick and frame construction and the connecting easterly one-story building is of brick. There is a store on the ground floor of each building and the two stores have been made into one by the removal of a plastered wall, access from the street being had through three doorways. The two buildings have the usual store fronts with glass display windows. Plaintiffs desire to remove the old fronts and install a modern plate glass front across the two buildings with access into the present store through a center door.

The words in question are not defined in the ordinance, nor has our attention been directed to any opinion of this court containing a definition of the disputed term other than that contained in the recent cases of Healy v. Toles, 266 Mich. 584, 254 N.W. 213, 214, 92 A.L.R. 749, and C. K. Eddy & Sons v. Tierney, 276 Mich. 333, 267 N.W. 852, 855. In the former, we held under the rule ejusdem generis that the word ‘structure’ in the mechanics' lien statute (3 C.L.1929, § 13101) was ‘meant to include only objects similar in character to a house,’ etc., and that canals do not fall within this category. In the latter, a zoning ordinance matter, we held that the word ‘structure’ standing in its context has a broader meaning and ‘is any production or piece of work artificially built up or composed of parts joined together in some definite manner; any construction.’

Appellees' argument amounts to the claim that a structural alteration is any change whatever in the appearance of a building either interior or exterior. Appellant contends that the term ‘structurally altered or enlarged’ does not include replacing old store fronts with a new one.

2 Am. Jurisprudence p. 596, says: ‘In the ordinary acceptation of the word, an ‘alteration’ is a change of a thing from one form or state to another, that is, making a thing different from what it was, but without destroying its identity.'

‘Structural alteration’ is said by 60 C.J. 665 to be ‘such alteration as would change the physical structure of a building.’

Discussing the word ‘alteration,’ 3 C.J. § 899, says: ‘It has been said that the word is one that can never acquire by judicial decision a fixed or definite meaning, because it connotes change from, and is always relative to, some former state or condition, which is itself capable of unlimited variety, and that its meaning in a particular case is subject to the usual interpretative influences of subject, context, associated words, and to the former conditions to which it relates. * * * As applied to buildings, a change or substitution in a substantial particular of one part of a building for a building different in that particular; a change or changes within the superficial limits of an existing structure; an installation that becomes an integral part of the building and changes its structural...