Robinson v. City of Bloomfield Hills

• Decision Date: 26 November 1957
• Docket Number: 257,No. 256,256
• Citation: 350 Mich. 425,86 N.W.2d 166
• Parties: Harley J. ROBINSON, Anna P. Robinson and Arthur E. Moore, Plaintiffs-Appellees, v. CITY OF BLOOMFIELD HILLS, a Michigan Municipal Corporation, Elmer Kephart, City Building Inspector and City Manager of the City of Bloomfield Hills, James Beresford, Mayor, C. G. Eden, C. E. Otter, H. J. Klingler and John S. Bugas, City Commissioners of the City of Bloomfield Hills, Defendants-Appellants. BRAE BURN, Inc., a Michigan Corporation, Plaintiff-Appellee, v. CITY OF BLOOMFIELD HILLS, a Michigan Municipal Corporation, Elmer Kephart, City Building Inspector and City Manager of the City of Bloomfield Hills, James Beresford, Mayor, C. G. Eden, C. E. Otter, H. J. Klingler and John S. Bugas, City Commissioners of the City of Bloomfield Hills, Defendants-Appellants. Motion
• Court: Michigan Supreme Court

Page 166

86 N.W.2d 166

350 Mich. 425

Harley J. ROBINSON, Anna P. Robinson and Arthur E. Moore, Plaintiffs-Appellees, v. CITY OF BLOOMFIELD HILLS, a Michigan Municipal Corporation, Elmer Kephart, City Building Inspector and City Manager of

the City of Bloomfield Hills, James Beresford, Mayor, C. G.

Eden, C. E. Otter, H. J. Klingler and John S. Bugas, City

Commissioners of the City of Bloomfield Hills,

Defendants-Appellants.

BRAE BURN, Inc., a Michigan Corporation, Plaintiff-Appellee, v. CITY OF BLOOMFIELD HILLS, a Michigan Municipal Corporation, Elmer Kephart, City Building Inspector and City Manager of

the City of Bloomfield Hills, James Beresford, Mayor, C. G.

Eden, C. E. Otter, H. J. Klingler and John S. Bugas, City

Commissioners of the City of Bloomfield Hills, Defendants-Appellants.

Motion No. 256, 257.

Supreme Court of Michigan.

Nov. 26, 1957.

Walter R. Denison, Birmingham, for plaintiff-appellees. Arthur E. Moore, Royal Oak, of counsel.

Howlett, Hartman & Beier, Pontiac, for defendants and appellants.

Before the Entire Bench.

SMITH, Justice.

Again we review a zoning ordinance. The property involved, located on Woodward avenue, in the city of Bloomfield Hills, is the former Hunter estate property. It is some 40 acres in extent and consists of a main building (of 20 rooms and 8 baths) set back a substantial distance from Woodward avenue, and a number of smaller accessory buildings, all 'typical * * * of a passing era.' It was purchased by Dr. Harley Robinson, one of the plaintiffs herein, in 1951. He desired to use it as a rest home but was informed that the property was zoned for residential use. Consequently, he applied to the city commission, the planning commission, and, finally, to the board of appeals for aid in his desire to use the property he had purchased as a convalescent home. 'And you represented,' he was asked, 'to the members of the city commission and members of the planning commission that you had gotten into this predicament through no fault of your own and it would be a hardship on you if you were not permitted to operate the property as a rest home?' The doctor answered in the affirmative. At any rate, whatever the pleas made, the board of appeals granted him what is described in the record as a 'variance.' It reads as follows:

'Resolved, that on the appeal of Dr. Harley J. Robinson from the decision of the building inspector denying his application for a Certificate of Compliance for the use of the Hunter house on South Woodward avenue as a convalescent home. It is hereby determined that there are practical difficulties and particular and unnecessary hardships in requiring the carrying out the strict letter of the Zoning Ordinance with respect to said building, and further that the variance applied for under the conditions set forth in the application, to-wit: that said institution shall not be qualified as a tax-free organization and that not more than thirty (30) persons will be cared for in said home, will not change the character of the neighborhood involved and will conform to the spirit of the ordinance.

'Wherefore, It is hereby ordered that a special permit be and the same hereby is granted to Dr. Harley J. Robinson for the use of the residential dwelling on South Woodward avenue in the city of Bloomfield Hills known as the Hunter house on the property known as 'Brae Burn,' as a convalescent or rest home as described and applied for in his petition to this Board, on conditions, however, that said home be owned, operated and supervised by the said Dr. Harley J. Robinson individually and personally, upon the further condition that said dwelling house be not enlarged or added to, upon the further condition that not more than thirty persons shall be cared for in said home at any one time and upon the further condition that said home shall not become qualified as a tax-free institution.'

It is pertinent to observe that certain of the restrictive conditions above recited and now attacked seem to have had their origin in a vague 'agreement' between the petitioning doctor and the board. Thus we note in the record:

'Q. At the time the permit was granted, did you not represent you would not require additional facilities?

'The Court: We are talking about in the original instance.

'Q. At the time you had the hearing before the board of appeals and asked for the permit and got it. A. There was some agreement to that effect, yes.'

At any rate, with this variance, granted upon these conditions (which the doctor now claims were 'illegal and void as being entirely beyond the scope and authority of zoning'), he commenced the operation of the rest home upon the property and spent considerable sums in its improvements.

Thereafter Dr. Robinson conveyed to Brae Burn, Inc., a Michigan corporation of which he is one of the shareholders, a rectangular parcel of 14 1/2 acres. This piece comprised the central part of the former Hunter estate property and included the main building heretofore described. In June of 1954 the corporation filed an application to enlarge the rest home (and remodel the barn) in order that additional patients might be accommodated. It was refused. A writ of mandamus was then sought by the corporation to compel the city of Bloomfield Hills, and certain officials thereof, to issue the permit theretofore requested.

There is a second suit before us (both cases were consolidated for trial). In the second suit, which is likewise for a writ of mandamus, Dr. Robinson (with Anna P. Robinson) and his present counsel, Arthur E. Moore, are the plaintiffs. They sought to construct a 3-story office building south of Brae Burn on Woodward avenue. Their application for a building permit was likewise denied upon the ground, in part, that the property was zoned as residential. The trial court, being of the opinion that the limitation on the use of the property was arbitrary, discriminatory, and unconstitutional, ordered that the writs issue in each of the actions. Upon leave granted, the defendant City of Bloomfield Hills took an appeal in the nature of certiorari.

Before getting into the merits of the validity of the zoning scheme itself, we will advert to a preliminary issue, the validity of the particular regulation here involved. It is the contention of appellees that zoning ordinance 69, adopted on July 20, 1954, was adopted illegally for want of a statutory public hearing. C.L.1948, § 125.584, Stat.Ann. § 5.2934. In more detail it is urged that the minutes of the city commission do not show that the public meeting theretofore advertised was in fact held on the date set, namely, June 29, 1954. The minutes of the date of adoption, however, state that a 'public hearing was held at the Bloomfield Hills School on Vaughn road on Tuesday, June 29, 1954.' What actually happened was that the meeting was in fact held, and a record kept, but not in the minute book. We agree with the trial court that the omission, though contrary to good practice, is not fatal. We also agree that there is no showing of invalidating material amendment and that parol and other evidence may be admitted to supplement (although not to contradict) the public record. As we held in Township of North Star v. Cowdry, 212 Mich. 7, 179 N.W. 259, 261:

'It is first urged * * * that * * * the proceedings of the township board cannot rest in parol, and that, except in a direct action to correct the record, the action of the township boards, and other official boards, can be proven only by the record kept by the proper official. Many cases are cited by counsel claimed to be in support of this proposition, * * *.

'While there is language used in some of these decisions which would tend to show that a record cannot be supplemented by parol evidence, an examination of the cases will show that the attempt was made to vary and contradict the record. We recognize the rule to be that the record cannot be contradicted, or impeached by parol testimony. We think the correct rule is well stated in Township of Taymouth v. Koehler, 35 Mich. 22, * * *.

'It is frequently competent to show by parol matters in aid of the record where the same is ambiguous, or where entries have been omitted.'

The ordinance, then, was validly adopted and plaintiffs were subject to it. Plaintiff Robinson, however, seeks to avoid its effect by setting up that the substantial sums expended in the improvement of the premises afford plaintiffs 'the right to continue and carry out the business venture * * * (i. e., that) plaintiffs have a vested right to so use the property.' Apparently the argument is that the variance sought by Dr. Robinson and granted to him in order to help him out of his predicament is now to be used by him as a sword rather than a shield, that he can now operate 'unhampered either by illegal 'variance' conditions or subsequently enacted ordinances.' The city, on the other hand, argues that Dr. Robinson is estopped to attack the variance by reason of the fact that he sought and received substantial benefits from it, citing 11 Am.Jur. 766, 767. We do not find it necessary to decide this point. Regardless of the merits of a technical estoppel it is clear, as the trial court clearly perceived and held, 'that the sums so spent in improvement were for the existing geriatric hospital with notice of the city's claim.' There is no merit in the claim that rights vested under such circumstances. City of Coldwater v. Williams Oil Co., 288 Mich. 140, 284 N.W. 675, has no application to these facts.

We are brought, then, to the merits of the zoning scheme itself. In view of the frequency with which zoning cases are now appearing before this Court, we deem it expedient to point out again, in terms not susceptible of misconstruction, a fundamental principle: this Court does not sit as a super-zoning commission. Our laws have wisely committed to the people of a community themselves the determination of their municipal destiny, the...