People v. Yeo

• Citation: 302 N.W.2d 883,103 Mich.App. 418
• Decision Date: 03 February 1981
• Docket Number: Docket No. 46631
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Florence M. YEO, Defendant-Appellant. 103 Mich.App. 418, 302 N.W.2d 883
• Court: Court of Appeal of Michigan — District of US

Page 883

302 N.W.2d 883

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Florence M. YEO, Defendant-Appellant.

Docket No. 46631.

103 Mich.App. 418, 302 N.W.2d 883

Court of Appeals of Michigan.

Feb. 3, 1981.

Released for Publication March 23, 1981.

[103 MICHAPP 420] Richard P. McClure, Belleville, David C. Sloan, Warren, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., E. Reilly Wilson, III, Appellate Chief Pros. Atty., Bernard P. McClorey, Assoc. Township Atty., for plaintiff-appellee.

Before DANHOF, C. J., and KELLY and SULLIVAN, ^* JJ.

KELLY, Judge.

Defendant, Florence M. Yeo, by leave granted, appeals a decision of the Wayne County Circuit Court which affirmed her district court conviction for violating Redford Township Ordinance No. 150, § 3-301. On November 13, 1978, the district court found that defendant had kept 11 dogs in and around her home for a period exceeding six months in violation of the following provision:

"No person shall establish a dog kennel in this township without first obtaining a kennel license, such license to be issued for a term commencing on the date of issuance and terminating on June 1st thereafter. All persons owning, possessing, harboring or keeping on their premises three or more dogs, six months old or older, shall be presumed to have established a dog kennel. No such dog kennel shall be established in any R-1 or R-2 residential district or any R-1-F residential farm district, as prescribed by the zoning ordinance of this township."

Defendant was subsequently sentenced to one [103 MICHAPP 421] year's probation and was assessed court costs amounting to $80.

Defendant first argues as error the district court's refusal to dismiss the charge upon motion and allegation that the ordinance constitutes an arbitrary and unreasonable use of the township's police power by imposing a regulation on property use not related to the public health, safety, morals or general welfare. This specific claim, relating to ordinances restricting the ownership or possession of dogs, is one of first impression in this state.

The full and free use and enjoyment of one's property is a right which may not be restricted by government without due process of law. A property owner's right to such unrestricted use is, however, subject to reasonable regulation by the State in the legitimate exercise of its police powers. Roman Catholic Archbishop of Detroit v. Village of Orchard Lake, 333 Mich. 389, 392, 53 N.W.2d 308 (1952). And to determine the validity of a particular government proscription, a test measuring "the existence of a real and substantial relationship" between the exercise of the police powers and the public health, safety, morals and general welfare will be applied. Grocers Dairy Co. v. Dep't of Agriculture Director, 377 Mich. 71, 138 N.W.2d 767 (1966), quoting Roman Catholic Archbishop of Detroit, supra. See also Florentine Restorante, Inc. v. City of Grandville, 88 Mich.App. 614, 278 N.W.2d 694 (1979). Finally, we note the oft-applied rule that legislative enactments are cloaked with a presumption of constitutionality absent a contrary showing by competent evidence or facial invalidity. Portage Twp. v. Full Salvation Union, 318 Mich. 693, 29 N.W.2d 297 (1947); Silva v. Ada Twp., 99 Mich.App. 601, 298 N.W.2d 838 (1980).

In Bugai v. Rickert, 258 Mich. 416, 242 N.W. 774 [103 MICHAPP 422] (1932), the Supreme Court recognized "an imperfect or qualified" property interest in dogs, but also held that such property interests may be subjected to more restrictive police regulations by the state without depriving the owners of their constitutional rights. Bugai v. Rickert, supra, 417, 242 N.W. 774, citing Nicchia v. New York, 254 U.S. 228, 41 S.Ct. 103, 65 L.Ed. 235 (1920). The Bugai court further clarified the scope of the Legislature's power to regulate the canine by quoting 3 C.J. Animals § 4, p. 18:

"Whether the property in dogs is regarded as qualified or absolute, they are subject to the police power of the state, and may be destroyed or otherwise dealt with, as in the judgment of the legislature is necessary for the protection of its citizens."

See also Simpson v. City of Los Angeles, 40 Cal.2d 271, 253 P.2d 464 (1953).

In State v. Mueller, 220 Wis. 435, 440-441, 265 N.W. 103 (1936), the Wisconsin Supreme Court addressed an ordinance similar in intent to the Redford ordinance herein. The Court's discussion of the extent of the state's police power in this area is probative:

"* * * (I)t is generally recognized that: 'The police power of the state has been used to regulate and control property in dogs to a greater extent than property in any other class of domestic animals. It is a peculiar kind of property. Such animals increase rapidly; they are usually of but little expense to their owners when allowed to run at large; and in a domestic state they retain to a considerable degree their wild, mischievous, and ferocious natures.' * * *.

"It has become the established rule in regard to regulations restricting the number of dogs, as well as the number of other domestic animals, that may be [103 MICHAPP 423] kept in a residential district defined therein, so as to prevent such keeping in undue proximity to neighboring residences, that: 'In furtherance of public health, security, and comfort of its inhabitants municipal corporations may regulate the keeping of animals within the corporate limits, or within designated districts of the corporation. * * * (T)he keeping of animals * * * within the designated districts thereof, may be prohibited when such keeping affects or disturbs the public health, public peace, public safety, or public decency; but only when it does so. In regulating the keeping of animals a municipal corporation may limit the number of particular animals that may be kept within the municipal limits or within designated districts thereof.' " (Emphasis added.)

See also State v. Beckert, 137 N.J.L. 562, 61 A.2d 213 (1948), upholding against constitutional attack an ordinance prohibiting the ownership of "more than three dogs of licensing age" within a designated area.

We find the authorities cited above soundly reasoned regarding the validity of these restrictive ordinances. ¹ Plaintiff correctly notes the importance[103 MICHAPP 424] of the regulation herein to preserve for area residents the sanitary and peaceful enjoyment of their property, as well as assuring humane treatment for the animals covered. Defendant's argument that conscientious dog owners would not pose such problems to a residential community does not meet this conclusion. The township's limited incursion on defendant's already qualified property right does not appear unreasonable, in light of the potential detriment to the public health, safety and general welfare resulting from an overabundance of dogs in certain residential areas.

Defendant next alleges that the prosecution should have been barred from charging defendant for violating the ordinance, due to its failure to commence criminal proceedings within the two-year statute of limitations prescribed in M.C.L. § 66.6; M.S.A. § 5.1276. ² Defendant admits a continuing violation extending over 18 years prior to the instant complaint, but argues that by virtue of this extended period a variance of the zoning ordinance by prescription was acquired.

As the reviewing circuit court properly noted in its opinion, there is no support in the law for acquisition of a variance by prescription. The general rule is that the zoning authority will not be [103 MICHAPP 425] estopped from enforcing its zoning ordinances absent exceptional circumstances. Twp. of Pittsfield v. Malcolm, 375 Mich. 135, 146, 134 N.W.2d 166 (1965)....