Redford Moving & Storage Co. v. City of Detroit, 43

• Decision Date: 08 June 1953
• Docket Number: No. 43,43
• Parties: REDFORD MOVING & STORAGE CO. v. CITY OF DETROIT.
• Court: Michigan Supreme Court

Page 812

58 N.W.2d 812

336 Mich. 702

REDFORD MOVING & STORAGE CO. v. CITY OF DETROIT.

No. 43.

Supreme Court of Michigan.

June 8, 1953.

Paul T. Dwyer, Corporation Counsel, Arthur L. Barkey, Asst. Corporation Counsel, Detroit, for appellant.

Wilfrid L. Burke, Detroit, Bernard L. Walsh, Detroit, of counsel, for appellee.

Before the Entire Bench.

CARR, Justice.

During the trial of this case in circuit court the parties entered into a stipulation as to certain material facts that were not in dispute. In December, 1940, the defendant city, by Ordinance No. 171-D, zoned all property within the municipal limits into various classifications. Plaintiff corporation, by assignment, is the owner of a vendee's interest under a land contract for the sale and purchase of certain property described as Lots 98 and 99, Frank Lee's subdivision of the city of Detroit. The lots in question, located on the west side of Lahser Road approximately 135 feet south of McNichols Road, a main traveled thoroughfare, have a total width of 80 feet and a depth of 123.5 feet. Fifteen foot alleys are located on the west and north of said property.

The ordinance referred to zoned plaintiff's lots for use for one-family dwellings and certain other designated noncommercial purposes. Within the immediate vicinity are properties devoted to nonconforming uses. Grand River Avenue is distant a socalled 'long block' from plaintiff's property, lots contiguous thereto being zoned for business purposes. It is agreed that land north of McNichols Road on Lahser is also zoned for commercial and business use. The 10 lots immediately south of lots 98 and 99 are vacant except for two frame dwellings located on the alley at the rear of said lots.

During the period from April, 1940, to August 15, 1942, Frank Pollock, operating under the name of Redford Millwork Company, used the buildings on what is now plaintiff's property for the manufacture of certain building and mill supplies. It is the claim of defendant that such operation was illegal, on the ground that no proper permit under the building code in force prior to the adoption of the present zoning ordinance had been granted. Beginning August 15, 1942, and continuing unitl December 1, 1949, the Tydings Engineering Company owned and occupied the lots in question in carrying on its business as a general heating contractor. It was engaged specifically in the manufacture and assembly of metal ducts for hot air heating. In the course of its operation the Tydings Company used welding equipment, motors, machinery, and other equipment incidental to the carrying on of its business. In is admitted by defendant that such operation constituted a light manufacturing business, as classified by the zoning ordinance and referred to therein as an ML use.

Under date of July 7, 1948, the board of zoning appeals created by the ordinance issued to the Tydings Engineering Company a so-called permanent grant authorizing it to carry on its said business on the property. It is not disputed that the successors in ownership and occupancy to the Tydings Engineering Company are entitled to the benefits granted by said permit, in effect authorizing the use of the property for an ML purpose. Under the provisions of the zoning ordinance all uses permitted in residential, business and commercial properties referred to as R-1, R-2, RM, RM-4, RMU, B-2, B-6 and C-6, are permissible under an ML classification. It is the claim of the defendant city, however, that such inclusion is not applicable to nonconforming uses.

On November 1, 1949, the Tydings Engineering Company conveyed its interest in the property to Charles Ligos, who subsequently conveyed to Ray Bolf. Ligos and Bolf each conducted a general moving and storage business. They successively made applications for permits specifically covering their business to the department of buildings and safety engineering of the city. Said applications were denied, appeals taken to the board of zoning appeals under the ordinance, and hearings held. In each instance the appeal board refused the permit. After acquiring the property from Bolf plaintiff did not petition for a permit to conduct a moving and storage business, but it is conceded that had it done so its application would have been denied. An attempt on plaintiff's part to have the property rezoned was denied by the common council on the recommendation of the city plan commission, such action being taken without notice to plaintiff. A request for a rehearing was also denied. Thereupon plaintiff instituted the present suit in equity seeking injunctive relief to prevent defendant from giving to plaintiff's property a classification less liberal than ML as defined in the ordinance and from limiting or attempting to limit plaintiff's use of the lots for residential purposes only as provided by said ordinance. On behalf of the city answer was filed denying plaintiff's right to the relief sought.

A hearing was had at which both parties offered proofs with reference to the adaptability of plaintiff's lots for various uses. On behalf of plaintiff testimony was introduced tending to show that because of their nature and location the lots were much more suitable for business and commercial purposes than for residences, that the construction of homes thereon was not practicable, and that plaintiff would suffer serious loss if prevented from carrying on its business. Witnesses residing in the vicinity were produced by defendant, and voiced objection to the continuance of plaintiff's operations in the storage and cartage business because of the noise resulting therefrom and the operation of trucks upon the street and alleys contiguous to the property.

The trial judge came to the conclusion that plaintiff was entitled to relief and entered a decree providing therefor. An injunction was issued restraining the city 'from enforcing Ordinance Number 171-D, so-called zoning ordinance of the city of Detroit, as to the property of the plaintiff, Redford Moving & Storage Company, a Michigan corporation, hereinbefore more particularly described, and from taking any action to classify said plaintiff's property in a class less liberal than ML as such classification is presently defined in aforesaid zoning ordinance, permanently.' Defendant has appealed.

It will be noted that the injunctive relief granted by the trial court bars the city from taking steps to restrict plaintiff's use of its property to residential purposes as allowed under the classification R-1, and also from placing such property in a less favorable or more restricted classification than light manufacturing, ML. It is conceded that a zoning ordinance must be reasonable, and its reasonableness is the test of its legality. City of North Muskegon v. Miller, 249 Mich. 52, 57, 227 N.W. 743; Moreland v. Armstrong, 297 Mich. 32, 36, 297 N.W. 60. Each case of this character must be determined upon its own facts. The reasonableness of the exercise of the municipal power involved is always subject to judicial review. Senefsky v. City of Huntington Woods, 307 Mich. 728, 737, 12 N.W.2d 387, 149 A.L.R. 1433. On behalf of appellant it is argued that to restrict plaintiff to the use of the property for permitted residential purposes only would not violate its constitutional rights.

The record in the case fully justifies the conclusion of the trial judge that 'the highest and best use...