Robyns v. City of Dearborn

• Citation: 341 Mich. 495,67 N.W.2d 718
• Decision Date: 29 December 1954
• Docket Number: No. 56,56
• Parties: Frank ROBYNS, Herman Beguhn, Edward A. Keahl, Alda Schultz, George Anderson, Bessie Janganin, Anna Milanovich and Mayme Hull, Plaintiffs and Appellees, v. CITY OF DEARBORN, a Michigan Municipal Corporation, Defendant and Appellant.
• Court: Supreme Court of Michigan

Page 718

67 N.W.2d 718

341 Mich. 495

Frank ROBYNS, Herman Beguhn, Edward A. Keahl, Alda Schultz George Anderson, Bessie Janganin, Anna Milanovich and Mayme Hull, Plaintiffs and Appellees, v. CITY OF DEARBORN, a Michigan Municipal Corporation Defendant and Appellant.

No. 56.

Supreme Court of Michigan.

Dec. 29, 1954.

Dale H. Fillmore, Corporation Counsel, Dearborn, B. Ward Smith, Deputy Corporation Counsel, Frederick G. Weideman and James A. Broderick, Assts. Corporation Counsel, Detroit, for appellant.

John J. Fish, Dearborn, for appellees.

Before the Entire Bench.

DETHMERS, Justice.

Defendant appeals from decree enjoining enforcement of a zoning ordinance against plaintiffs' property because unreasonable and confiscatory as applied thereto.

Each of plaintiffs owns one of eight lots on the south side of Ford Road in the City of Dearborn across from the lots in Dearborn Township involved in Ritenour v. Township of Dearborn, 326 Mich. 242, 40 N.W.2d 137. Seven of the lots have a width of 20 feet and one 24.44 feet, fronting on Ford Road, with depths varying from 100 to 110 feet. Some of plaintiffs purchased their lots prior to, and some after, the adoption of the original ordinance which zoned the lots for Residence C use and some bought after adoption of an amendment changing the zoning to the present Residence A classification. Original building restrictions, since expired, limited use of some of the lots to business purposes and others to business or residential. Lots across the road in the township have been zoned light commercial since our holding in Ritenour and many are so used. Lots on the south side of Ford Road, immediately west of the lots here involved, are zoned Business B and those to the east, running for a considerable distance, are vacant. The ordinance in question provides 'there shall be a minimum of ten feet between residences'.

Plaintiffs prayed that the ordinance be decreed to be unconstitutional and void as applied to their lots, that they be decreed to be business property, that defendant be enjoined from enforcing the ordinance with respect thereto, and that a building permit for nonresidential purposes be required to issue as relates to one of the lots.

Defendant says the bill is multifarious. This it predicates in part on the fact that some plaintiffs acquired lots before, and some after, the ordinance and its subsequent amendment, suggesting that, on the authority of Hammond v. Bloomfield Hills Building Inspector, 331 Mich. 551, 50 N.W.2d 155, the rights of those who purchased before the ordinance differ, for that reason, from those who bought thereafter. Hammond does not so hold. Provisions of a zoning ordinance void as relates to a lot because unreasonable and confiscatory are not made valid with respect thereto by the transfer of title from the owner to another. Faucher v. Grosse Ile Tp. Building Inspector, 321 Mich. 193, 32 N.W.2d 440. C.L.1948, § 608.1, Stat.Ann. § 27.591, permits joining a number of plaintiffs if sufficient grounds appear for uniting the causes of action in order to promote the convenient administration of justice. That is the consideration warranting joinder here, particularly because defendant is not thereby prejudiced. Gilmer v. Miller, 319 Mich. 136, 29 N.W.2d 264. The fact that one plaintiff seeks, in addition to injunctive relief, a provision in the decree requiring issuance to him of a building permit, which might be accomplished by mandamus, does not render the bill multifarious inasmuch as equity, having acquired jurisdiction to restrain defendant as prayed, may retain it to grant complete relief and finally dispose of the controversy even though some of the questions propounded could have been raised and some of the relief sought could have been obtained in a law action. City of Ecorse v. Peoples Community Hospital Authority, 336 Mich. 490, 58 N.W.2d 159.

Defendant contends that plaintiffs had an adequate remedy at law for testing the validity of the ordinance, namely, mandamus to compel issuing of building permits of a character prohibited by the ordinance. As relates to seven of the plaintiffs, it does not appear that they were ready to build or desired such permits. From the pleadings it does appear that defendant was about to institute condemnation proceedings against the lots in question and others for park and green-belt purposes. Defendant may not, through...