Schwartz v. City of Flint

• Decision Date: 06 January 1983
• Docket Number: Docket No. 55563
• Citation: 120 Mich.App. 449,329 N.W.2d 26
• Parties: Joseph SCHWARTZ and Lillian Schwartz, Plaintiffs-Appellants, v. The CITY OF FLINT, Defendant-Appellee, and Sherwin Palmer, Shirley Palmer, Leo N. Seide, Charna Seide, Robert D. Van Campen, Theodore Goode, Ida Goode, Julius Binder, Patsy Binder, Martin D. McCullum, Albert Binder, Patricia Binder, Murray A. Rudner, Paul H. Karr, Janice Goldstein, Earl A. Crompton, Marvin F. Vosburg, Marjorie L. Robinson and J.H. Robinson, Intervening Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 26

329 N.W.2d 26

120 Mich.App. 449

Joseph SCHWARTZ and Lillian Schwartz Plaintiffs-Appellants, v. The CITY OF FLINT, Defendant-Appellee and Sherwin Palmer, Shirley Palmer, Leo N. Seide, Charna Seide Robert D. Van Campen, Theodore Goode, Ida Goode, Julius Binder, Patsy Binder, Martin D. McCullum, Albert Binder Patricia Binder, Murray A. Rudner, Paul H. Karr, Janice Goldstein, Earl A. Crompton, Marvin F. Vosburg, Marjorie L. Robinson and J.H. Robinson, Intervening Defendants-Appellees.

Docket No. 55563.

Court of Appeals of Michigan.

Submitted July 13, 1982.

Decided Oct. 18, 1982.

Rehearing Denied Dec. 6, 1982.

Released for Publication Jan. 6, 1983.

[120 MICHAPP 451] Robert E. Childs, Dearborn, for plaintiffs-appellants.

Patrick H. Hynes, Flint, for City of Flint.

Before ALLEN, P.J., and CYNAR and MARTIN, ^* JJ.

AFTER REMAND

ALLEN, Presiding Judge.

In this cause we revisit Schwartz v. Flint, 92 Mich.App. 495, 285 N.W.2d 344 (1979), lv. den. 408 Mich. 905 (1980), one of the longest opinions ever to be released by this Court. ¹ In that case, we struck down as unconstitutional a city ordinance which rezoned plaintiffs' 28-acre parcel of land A-1 single-family residential. The majority opinion held that the restrictions imposed by construction of A-1 zoned homes and the costs for construction precluded the property's use for any purpose for which it was reasonably adapted, and, as such, was an unconstitutional taking of property without just compensation. Schwartz, supra, p. 503, 285 N.W.2d 344. The matter was remanded to the city zoning authority with instructions to present for the chancellor's consideration, within 60 days, an adopted amendatory ordinance.

[120 MICHAPP 452] Specifically, within the 60-day period, the chancellor was ordered to enter one of the following five orders:

"(i) If, after remand to the city council, plaintiffs and defendant city find the city's amendatory ordinance mutually acceptable, the chancellor shall order the implementation of such 'midsatisfactory' amendatory ordinance.

"(ii) If, after remand to the city council, defendant city submits an amendatory ordinance unacceptable to plaintiffs but embodying Justice BLACK'S 'midsatisfactory use' as determined by the chancellor through a balancing of equitable considerations, the chancellor shall order the implementation of such 'midsatisfactory' amendatory ordinance.

"(iii) If, after remand to the city council, defendant city submits an amendatory ordinance unacceptable to plaintiffs and plaintiffs submit a proposed use embodying Justice BLACK'S 'midsatisfactory use' as determined by the chancellor through a balancing of equitable considerations, the chancellor shall order the implementation of plaintiffs' proposed 'midsatisfactory use'.

"(iv) If, after the remand to the city council, neither plaintiffs nor defendant city can agree upon the other's amendatory ordinance or proposed use and the chancellor determines that neither party's proposal embodies Justice BLACK'S 'midsatisfactory use', the chancellor shall order the implementation of a 'midsatisfactory use' after both plaintiffs and defendant city, as well as other affected parties, have had the benefit of a hearing and the submission of proofs to determine the most equitable or 'midsatisfactory use' to be made of plaintiffs' parcel.

"(v) If, after remand to the city council, defendant city does not submit an adopted amendatory ordinance to the chancellor, the chancellor is to conduct a hearing, supplemented by the submission of proofs by all affected parties, to determine and implement the most equitable or 'midsatisfactory use' to be made of plaintiffs' parcel." Schwartz, supra, pp. 540-541, 285 N.W.2d 344.

[120 MICHAPP 453] Within the 60-day period, which expired June 24, 1980, the city was unable to develop an amendatory ordinance. Consequently, the city moved in circuit court to extend the 60-day period so that a proper ordinance could be formulated. Plaintiffs opposed the motion on the dual grounds that the ordinance was unconstitutional in that zoning was a legislative and not a judicial function, and the Court of Appeals rather than the circuit judge was the proper party to extend the 60-day period. Briefs were submitted and oral argument held on the motion on July 14, 1980. On January 19, 1981, plaintiffs' motion was denied and a hearing to be held on option (v) was ordered to commence on July 7, 1981.

On May 26, 1981, the planning commission met and discussed Schwartz v. Flint. A formal vote was taken to recommend to the city council that the Schwartz property be zoned A-2 with a proposed community development project. The city council met on the same night but did not accept the recommendation of the planning commission. Instead, the council passed a more restrictive amendatory ordinance, to become effective June 28, 1981, requiring single-family detached dwellings north of the homes on the north side of Woodslea Drive, and to the rear thereof, or requiring a 100-foot green belt from the rear or north lot line boundaries of the houses facing Woodslea, to the south or rear lot line of any type of multiple dwelling north of the 100-foot green belt. ² The proposed ordinance was not confined to the [120 MICHAPP 454] Schwartz property alone, but affected all vacant property of five acres or more in the City of Flint which was zoned either A-1 or A-2. Nevertheless, it appears that its enactment was in part a belated response to the Court of Appeals order for the enactment of a midsatisfactory use for the Schwartz property.

Hearings were held and testimony taken on option (v) on July 7 and 9, and on September 10 and 15, 1981. At the hearings, plaintiffs introduced their exhibit 1, a map representing plaintiffs' version of a compromise midsatisfactory use. Plaintiffs' original complaint in Schwartz, supra; proposed 258 apartment units. Exhibit 1 reduced that demand to 144 single-family units. Each unit would be a single-family attached townhouse (1,700 square feet, 3 bedrooms, 2 1/2 baths) with an attached garage, selling for approximately $75,000 to $90,000. Seventy feet of open space was proposed between the most southerly townhouse to the most northerly home fronting on Woodslea Drive. Plaintiffs proposed to construct a curved entry in order to direct traffic toward Dort Highway and away from the existing subdivision to the south. Schwartz stated that the units were marketable and would attract "empty nesters", those individuals whose families have grown up and who desire luxury with minimum maintenance. As few families with young children would be attracted to the complex, there would be little adverse effect on the local school systems. Schwartz projected no adverse influence on the property values of surrounding property.

The most valuable portion of the subject property is its southern tier, as it has the highest elevation. It is also the portion generating the most controversy, the intervening property owners [120 MICHAPP 455] insisting that it be zoned A-1 for single-family detached homes. In order to illustrate the economic infeasibility of building single-family detached homes in either A-1 or A-2 zoned areas, Schwartz discussed nearby homes that he had built during the 1960's. Two months before trial, a home at 2666 Pine Tree Drive was sold for $72,000. Schwartz estimated that the house would cost approximately $119,000 to build in 1981. A home on 2617 Greenhill was sold for $90,000. Schwartz opined that the reproduction cost was $131,000. Schwartz stated that he could not build single-family detached homes on the southern tier of the subject property without achieving insolvency. Frank Moss, city assessor, testified that new homes exceeding $50,000 in price were being built and sold in A-1 and A-2 zoned areas. However, he admitted that most of the high price sales were resale of old homes rather than new construction.

Gerald Maes, a land planner and landscape architect, prepared plaintiffs' exhibit 1, entered on September 10, 1981. The proposed 144 two-story, attached townhouses, with attached garages were to be arranged in a series of clusters. Roadways, 30 feet from back curb to back curb, would wind among the clusters. Parking in excess of 2 1/2 cars per unit was planned. There would be approximately 110 feet from the front door of one townhouse to the townhouse directly across the street. Maes found a 100-foot buffer unnecessary, opining that a 35-foot space buffer was adequate. While the buffer zone would contribute open space to both the townhouse and subdivision dwellers, Maes believed that neither party needed such a large open area.

At the conclusion of the last day of testimony on November 15, 1981, Judge McAra issued a verbal [120 MICHAPP 456] opinion from the bench. That opinion was reduced to a written judgment, dated and entered on November 23, 1981. The judgment, with attached map, ³ adopted plaintiffs' exhibit 1 as the midsatisfactory use with some substantial exceptions and modifications as follows:

"1. The 'emergency exit only' at the northwest corner of Greenhill and Woodslea Drive is prohibited;

"2. Plaintiff Schwartz must obtain the right-of-way to Terrace Drive over land zoned A-1, known as the 'Patsy parcel' and not owned by him;

"3. The third, fourth and fifth clusters moving from east to west will be zoned A-2 plus community development projects in the nature of single-family attached townhouse units; (Tier 1)

"4. The land, or first cluster, immediately north of the single-family houses on Woodslea will be A-1 single-family detached dwellings; (See attached map Tier 1 and description)

"5. The second cluster will be zoned as 'duplexes';

"6. The balance of the land (referred to in paragraph 3) shall be developed for townhouses in fee simple, having a square footage in the basement of 25 X 36, making 1700 square feet in the townhouses, with not more than 120 units with a prossibility of adding four more...