S. B. S. Builders, Inc. v. City of Madison Heights

• Decision Date: 21 January 1972
• Docket Number: No. 2,Docket No. 11178,2
• Citation: 38 Mich.App. 1,195 N.W.2d 898
• Parties: S. B. S. BUILDERS, INC., a Michigan corporation, and Seligman & Associates, Inc., a Michigan corporation, Plaintiffs-Appellees, v. CITY OF MADISON HEIGHTS, a municipal corporation, and Martin Payne, Chief Building Inspector for the City of Madison Heights, Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 898

195 N.W.2d 898

38 Mich.App. 1

S. B. S. BUILDERS, INC., a Michigan corporation, and Seligman & Associates, Inc., a Michigan corporation, Plaintiffs-Appellees, v. CITY OF MADISON HEIGHTS, a municipal corporation, and Martin Payne, Chief Building Inspector for the City of Madison Heights, Defendants-Appellants.

Docket No. 11178.

Court of Appeals of Michigan, Division No. 2.

Jan. 21, 1972.

Rehearing Denied March 17, 1972.

Released for Publication April 4, 1972.

Harry H. Young, Kasoff, Young, Gottesman & Kovinsky, Detroit, for defendants-appellants.

Hyman & Rice, Southfield, for plaintiffs-appellees.

Before HOLBROOK, P.J., and J. H. GILLIS and VanVALKENBURG, ^* JJ.

HOLBROOK, Presiding Judge.

This is a zoning case before this Court for the second time. Is S. B. S. Builders, Inc. v. City of Madison Heights, 21 Mich.App. 587, 175 N.W.2d 798 (1970), our Court reversed the judgment of the trial court which held that a zoning ordinance of defendant City, § 10.503(2) ¹ was unconstitutional on its face and remanded the case to the trial court with the direction:

'On remand the plaintiffs must establish that the ordinance has no reasonable relationship to the health, safety, or general welfare of the city's residents, or mandamus may not issue. See Rottman v. Township of Waterford (1968), 13 Mich.App. 271, 164 N.W.2d 409.'

The facts therein stated are incorporated herein and we add all necessary additional facts.

After a two-day hearing before the trial court, a judgment was entered which ruled the ordinance was invalid as applied to plaintiffs' property and a writ of mandamus was issued directing defendants to issue 3 building permits for 3 houses to be erected on plaintiffs' 40-foot lots.

There are 2 issues raised on this appeal which we deal with in order.

I.

Is § 10.503 of the zoning ordinance of the City of Madison Heights unconstitutional on its face?

Plaintiffs' position simply stated is that the ordinance which permits one individual to build on a 40-foot lot (singly owned) while denying the same right to another individual solely because he owns two or more contiguous lots is discriminatory and a clear denial of the equal protection of the laws guaranteed by both the Michigan and U.S. Constitutions.

The defendants assert that § 10.503(2), the exception permitting single ownership lots to be used for the building of a home, is a properly recognized zoning device to prevent confiscation of such property. Robyns v. City of Dearborn, 341 Mich. 495, 67 N.W.2d 718 (1954); Ritenour v. Township of Dearborn, 326 Mich. 242, 40 N.W.2d 137 (1949).

This issue was presented to the trial court but not determined because of its decision on issue II herein.

The fact that the defendants' city council recognized the law applicable to single-owned 40-foot lots and exempted them from the operation of the ordinance is hardly sufficient reason to declare the entire zoning ordinance invalid. Further, the fact that the land was platted in 1923 in 40-foot wide lots and that a major share of the subject subdivision has been built up with homes built on these 40-foot lots does not, Per se, excuse the plaintiffs from complying with the ordinance. Korby v. Township of Redford, 348 Mich. 193, 82 N.W.2d 441 (1957); Hungerford v. Township of Dearborn, 362 Mich. 126, 106 N.W.2d 566 (1960); Padover v. Township of Farmington, 374 Mich. 622, 132 N.W.2d 687 (1965); and Bierce v. Gross, 47 N.J.Super. 148, 135 A.2d 561 (1957).

In 2 Anderson, American Law of Zoning, § 8.49, pp. 53, 54, 56--57 it is stated:

'Before the subdivision of land was subjected to municipal control, a great deal of municipal land had been divided into small lots, many with less than 30 feet of frontage and less than 3,000 square feet of space. When greater frontage and area requirements were superimposed upon this pattern, many owners were left with substandard lots. Strict and literal enforcement of the more stringent regulations would have made such lots useless to their owners and to the community. In addition, the regulations which destroyed the use value of such substandard lots would have been held confiscatory.

'To avoid this result, most ordinances provide some relief for the owner of a substandard lot. * * *

'The common exception of lots which were recorded prior to the effective date of a restrictive ordinance is limited to lots which were in single and separate ownership on that date. Under such a provision, an owner is entitled to an exception only if his lot is isolated. If the owner of such a lot owns another lot adjacent to it, he is not entitled to an exception. Rather, he must combine the two lots to form one which will meet, or more closely approximate, the frontage and area requirements of the ordinance. Where, for example, a landowner held four contiguous lots which each had a frontage of 20 feet, he was regarded as owning 80 feet of frontage and was required to redivide the land consistent with the zoning regulations. This requirement was held reasonable as it permitted him some reasonable use of his land. The same result was reached where the owner of a lot containing 5,000 square feet acquired a contiguous lot of the same size. Under the ordinance he was considered to own a lot of 10,000 square feet.'

In determining whether an ordinance is unconstitutional because violative of the equal protection clauses of the State and Federal Constitutions, we refer to the case of Fox v. Employment Security Commission, 379 Mich. 579, 588--589, 153 N.W.2d 644 (1967), wherein Mr. Justice T. M. Kavanagh states:

'This Court has held numerous times that the Michigan Const.1908, art. 2, § 1, secures the same right of equal protection as does its counterpart in the Constitution of the United States. Gauthier v. Campbell, Wyant & Cannon Foundry Co., 360 Mich. 510, 514, 104 N.W.2d 182 (1960), and cases therein cited. The same provisions in Const.1963, art. 1, §§ 1 and 2, must likewise be held to afford the same rights as the Federal equal protection clause.

'There is no doubt that State legislatures have a broad range of discretion in establishing classifications in the exercise of their powers of regulation. However, the constitutional guarantees of equal protection are interposed against discriminations that are entirely arbitrary. In determining what is within legislative discretion and what is arbitrary, regard must be had for the particular subject of the State legislation. There must be a relation between the classification and the purposes of the act in which it is found. Smith v. Cohoon, Sheriff, 283 U.S. 553, 566, 51 S.Ct. 582, 587, 75 L.Ed. 1264, 1274 (1931); Morey v. Doud, 354 U.S. 457, 465, 77 S.Ct. 1344, 1350, 1 L.Ed.2d 1485, 1491 (1957); Beauty Built Construction Corporation v. City of Warren, 375 Mich. 229, 134 N.W.2d 214 (1965); Palmer Park Theatre Company v. City of Highland Park, 362 Mich. 326, 106 N.W.2d 845 (1961).

'In the case of People v. Chapman, 301 Mich. 584, 4 N.W.2d 18 (1942), a statute of this State was challenged as unconstitutionally denying the defendant therein equal protection of the laws. Justice Starr, writing for the Court, stated (pp. 597--598, 4 N.W.2d p. 24):

"It is well recognized that the legislature may make classifications of persons, provided such classifications are based on substantial distinctions and are in accord with the aims sought to be achieved. (Citing cases.) However, such classification must be neither arbitrary nor capricious, but must rest on reasonable and justifiable foundations. In Haynes v. Lapeer Circuit Judge, Supra, (201 Mich. 138 (1918)) p. 141, of 201 Mich., at page 940 of 166 N.W., the rule is stated:

"'Legislation which, in carrying out a public purpose for the common good, is limited by reasonable and justifiable differentiation to a distinct type of class of persons is not for that reason unconstitutional, because class legislation, if germane to the object of the enactment and made uniform in its operation upon all persons of the class to which it naturally applies; but if it fails to include and affect alike all persons of the same class, and extends immunities or privileges to one portion and denies them to others of like kind, by unreasonable or arbitrary subclassification, it comes within the constitutional prohibition against class legislation."

'See, also, Davidow v. Wadsworth Manufacturing Co., 211 Mich. 90, 97--102, 178 N.W. 776 (1920); Peninsular Stove Co. v. Burton, 220 Mich. 284, 286, 189 N.W. 880 (1922); Smith v. Wayne Probate Judge, 231 Mich. 409, 204 N.W. 140 (1925).'

The relevant enabling statutes granting defendant city the power to enact a zoning ordinance are M.C.L.A. § 125.581 et seq.; M.S.A. § 5.2931 et seq. The subject zoning ordinance of defendant City is in conformance with the stated enabling statute.

To resolve the issue presented, we must determine whether there is a proper relationship between the classification (those owning contiguous 40-foot lots) and the purposes of ordinance § 10.503. The title, intent and preamble to this ordinance read:

'Title

'An ordinance to regulate and restrict the location and use of buildings, structures and land for trade, industry, residence and for public and semipublic or other specified uses; and to regulate and limit the height; and bulk of buildings and other structures; To regulate and to determine the size of yards, courts, and open spaces; to regulate and limit the density of population; and for said purposes to divide the City into districts and establishing the boundaries thereof; providing for changes in the regulations; restrictions and boundaries of such districts; defining certain terms used herein; providing for enforcement; establishing a Board of Appeals; and imposing penalties for the violation of this ordinance.

'Intent

'All land zones are hereby declared to be exclusive and restricted to the designated areas.

'Preamble

'Pursuant to the authority conferred by Public Act No. 207 of the Public...