Portage Twp. v. Full Salvation Union

• Decision Date: 13 October 1947
• Docket Number: No. 17.,17.
• Citation: 29 N.W.2d 297,318 Mich. 693
• Parties: PORTAGE TOWNSHIP v. FULL SALVATION UNION et al.
• Court: Michigan Supreme Court

318 Mich. 693

29 N.W.2d 297

PORTAGE TOWNSHIP

v.FULL SALVATION UNION et al.

No. 17.

Supreme Court of Michigan.

Oct. 13, 1947.

Appeal. from Circuit Court, Kalamazoo County, in Chancery; George V. Weimer, Judge.

Suit by Portage Township, Kalamazoo County, Michigan, a municipal corporation organized and existing under and by virtue of the laws of the State of Michigan, against Full Salvation Union, a Michigan corporation, and another, to enjoin the use of the premises owned by named defendant in violation of township zoning ordinance. From a decree in favor of plaintiff, defendants appeal.

Decree affirmed.

Before the Entire Bench.

Homer Arnett, of Kalamazoo, for appellants.

Paul M. Tedrow and Clair S. Beebe, both of Kalamazoo, for appellee.

CARR, Chief Justice.

Plaintiff in this case brought suit for injunction on June 22, 1944, seeking to restrain the use of certain premises in violation of the township zoning ordinance. The defendant Full Salvation Union, an ecclesiastical corporation formed under the laws of the State of Michigan, is the owner of the premises in question, and defendant Andrews is in charge thereof as the agent of the corporate defendant. Defendants, by answer to the bill of complaint, raised issues involving the interpretation of the ordinance, its validity as construed by the officers of the township, the right of the plaintiff to seek equitable relief, and other matters not of controlling importance. Following trial in circuit court, a decree was entered for plaintiff in accordance with the prayer of the bill of complaint, and defendants have appealed.

The ordinance in question went into effect on January 16, 1942. It was adopted pursuant to the provisions of Act No. 302, Pub.Acts 1937, as amended by Act No. 69, Pub.Acts 1939, Comp.Laws Supp. 1940, § 2651-11 et seq., Stat.Ann.1942 Cum.Supp. §§ 5.2962(1)-5.2962(12). Said act was repealed by Act No. 184, Pub.Acts 1943, Comp.Laws Supp.1945, § 2651-71 et seq., Stat.Ann.1946 Cum.Supp. §§ 5.2963(1)-5.2963(31). By specific provision of section 26 of the repealing act, however, ordinances previously adopted by townships under the act of 1937 remained in full force and effect subject to the adoption of a new ordinance relating to the subject matter.

The general purpose of the act under which plaintiff's zoning ordinance was adopted was indicated by the title which read as follows: ‘An act to provide for the establishment in certain organized townships of districts or zones lying wholly outside of the corporate limits of cities and villages, within which districts or zones the use of land, natural resources and structures, the height, the area, the size and location of buildings may be regulated by ordinance, and within which districts regulations may be established for the light, ventilation, sanitation and protection of such buildings, and within which districts the density of population may be regulated by ordinance; to provide for the administering of this act, and for a planning board; to provide penalties for violation; to provide against conflict with state housing code or other acts, ordinances or regulations; to provide for the collection of building permit fees in benefited districts and of taxes therefor; to provide for petition, public hearing and a referendum by the electors.’

The ordinance in question divides the township into five so-called ‘use districts,’ designated as ‘A’ residence district; ‘B’ residence district; ‘C’ local business district; ‘D’ commercial and industrial district; ‘E’ industrial district. The premises involved in the instant case are located wholly in districts ‘A’ and ‘B’. The ordinance permits buildings in district ‘A’ for private and two-family dwellings, churches, public schools, libraries, and accessory buildings incident to any one of the authorized uses. In district ‘B’ the same uses are expressly authorized as for district ‘A’ and in addition thereto farming and truck gardening, multiple dwellings, hotels, private clubs, fraternities and lodges, boarding houses, hospitals, educational, philanthropic and eleemosynary institutions, nurseries and greenhouses, buildings and uses accessory to those expressly enumerated when located on the same lot and not involving the conduct of a retail business, public garages for storage purposes only, and golf courses. The requirements imposed with reference to light, ventilation, sanitation and protection specify that every dwelling shall have windows so located as to properly light and ventilate all portions of the rooms. Outside toilets are forbidden except for temporary use during construction work on the premises, and each dwelling is required to be provided with ‘running water, adequate inside water closet accommodations, and sewage facilities.’ The ordinance further directs that each dwelling shall be placed upon a substantial foundation of mortar and stone, brick, concrete or other like material, with joists not less than one foot off the ground. The use of tents, house trailers and automobile trailers for dwelling purposes is forbidden, subject to the provision that a trailer may be used for a total period of not more than 14 days in any one year by a single family, when such trailer is located upon premises having running water and sewage facilities.

The ordinance further makes provision for building permits, for fees therefor, and for enforcement of its provisions by the supervisor of the township. A board of appeals is created to function in accordance with the provisions of the enabling act. A penalty by way of fine is provided for any violation of the ordinance, with authority in the court imposing the fine to require imprisonment in the county jail until the same is paid, not exceeding 30 days.

The defendant Full Salvation Union acquired title to a part of the premises in question in November, 1942, pursuant to a land contract executed in May preceding. The balance of the land was purchased in June, 1943. The tract owned by the defendant is approximately 16 2/1 acres in extent. Following the execution of the land contract in May, 1942, the defendant corporation applied for and obtained a building permit for the construction of a tabernacle for religious purposes. A permit was also obtained for a caretaker's residence. These buildings were completed in the summer of 1942 and thereafter a camp meeting was held on the premises for a period of about two weeks. A number of small buildings were erected on the grounds, to be used as temporary dwellings by members of the Full Salvation Union during the meetings. Other small buildings were brought on the premises for the same purpose, and tents and house trialers were also used. During the camp meeting period the corporate defendant provided persons attending with meals. It is claimed that this service was rendered at cost and not for the purpose of making any financial profit. No building permits were obtained for any of the smaller residences. In the summer of 1943 a camp meeting was conducted on the premises for a somewhat longer period than that held during the preceding year. The buildings and tents in question were used for residential purposes and it appears that such use was continued in one or more instances following the termination of the camp meeting. As above noted, the suit for injunctive relief was instituted in June, 1944.

The trial court, after listening to the proofs of the parties, concluded that the defendants had deliberately and persistently violated the township ordinance and had by their acts created a nuisance. Injunctive relief to prevent further violations and a continuation of the nuisance found to exist was granted and defendants were further ordered to remove within 30 days all structures erected in violation of the terms of the ordinance.

It is the claim of the defendants on appeal that the use made of the premises as established by the proofs was not in violation of the terms of the ordinance. Such contention, however, is not tenable. The small buildings, referred to in the record as shacks, constructed on the property or brought there for residential purposes, clearly did not comply with the requirements of the ordinance with reference to construction, sanitation, and required facilities. Such structures cannot be regarded as accessory to any other building lawfully erected on the premises. Obviously, their purpose was to facilitate the carrying on of the camp meeting. The same conclusion follows with reference to the tents which defendants permitted to be erected on the premises and which the record indicates members of the Full Salvation Union were invited to bring with them to the camp meeting. It is obvious also that the camp meeting itself was an unauthorized use of the premises on which it was conducted. In effect, defendants contend that because such meeting was held for religious purposes it should be placed in the same category as churches which, as above noted, the ordinance expressly authorizes. However, the conclusion does not follow that every place in which religious services are conducted is a church. Starks v. Presque Isle Circuit Judge, 173 Mich. 464, 139 N.W. 29, 43 L.R.A.,N.S., 1142, Ann.Cas.1914D, 773. Webster's New International Dictionary, 2d Ed., defines a church as ‘A building set apart for public worship, sep. Christian worship.’ The term was clearly used in the ordinance before us with such meaning in mind. The term ‘camp meeting’ implies a religious gathering for the purpose of conducting a series of religious services, usually in the open air or in a tent, lasting for several days, during which persons attending live in tents or temporary houses. Johnson v. Jones, 86 Vt. 167, 83 A. 1085;Commonwealth v. Bearse, 132 Mass. 542, 42 Am.Rep. 450. The term necessarily implies that part or all of those attending the meeting shall ‘camp,’ in the ordinary meaning of that word. Defendants' meetings were conducted in this manner, many of those...