Schwartz v. City of Flint

• Decision Date: 20 September 1979
• Docket Number: Docket No. 78-3141
• Citation: Schwartz v. City of Flint, 285 N.W.2d 344, 92 Mich.App. 495 (Mich. App. 1979)
• Parties: Joseph SCHWARTZ and Lillian Schwartz, Plaintiffs-Appellants, v. The CITY OF FLINT, Defendant-Appellee, and Sherwin Palmer and Shirley Palmer, Leo N. Seide and Charna Seide, Robert D. Van Campen, Theodore Goode and Ida Goode, Julius Binder and Patsy Binder, Martin D. McCullum, Albert Binder and 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. 92 Mich.App. 495, 285 N.W.2d 344
• Court: Court of Appeal of Michigan — District of US

Page 344

285 N.W.2d 344

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

Docket No. 78-3141.

92 Mich.App. 495, 285 N.W.2d 344

Court of Appeals of Michigan.

Sept. 20, 1979.

Released for Publication Nov. 29, 1979.

[92 MICHAPP 498]Robert E. Childs, Dearborn, for plaintiffs-appellants.

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

Charles A. Forrest, Jr., Grand Blanc, for the Palmers.

Before ALLEN, P. J., and T. M. BURNS and HOLBROOK, ^* JJ.

HOLBROOK, Judge.

This appeal of right involves the validity of a zoning ordinance of the defendantCity of Flint.Plaintiffs brought this action in the circuit court for Genesee County, claiming that the ordinance is unreasonable as applied to plaintiffs' subject land.The trial court, after a full trial, upheld the ordinance.

Plaintiffs raise three issues on appeal, two of which (not pertaining to the substance on the merits) are not sustained by the record and need not be discussed.However, as to the third issue, we rule that the plaintiffs have sustained their burden of proof by proving that the zoning ordinance in question is unreasonable as applied to the plaintiffs' land.

A history of this case is helpful in explaining our ruling herein.The plaintiffs purchased the subject 28 acres of land located in the City of Flint in January, 1966, for $60,000.At that time, the property was zoned A-2, single-family homes with a minimum of 5,000 square feet lot size.

Plaintiff, Joseph Schwartz, a longtime licensed residential builder in Michigan, constructed many homes throughout the City of Flint during the period from 1954 to 1971.Included were 29 homes [92 MICHAPP 499] on Woodslea, Pine Tree and Green Hill Roads, which comprise the subdivision to the North of the subject 28 acres.These include the homes of Sherwin Palmer and Leo Seide, two of the intervening defendants(who testified in the case) and plaintiffs' own home at 2643 Pine Tree Drive.

The last two homes which plaintiff built in this subdivision were for Dr. Bowles and for Samuel and Florence Gershenson.While plaintiff made a fair profit on all the homes he built in Flint, he lost money on the Bowles home and on the Gershenson home.He estimated that he lost approximately $9,500 on these two homes.Without a proper market for single-family homes if built on the subject property, plaintiffs requested a rezoning from A-2 to C-1 in January 1967.The application was tabled.Four years later on June 8, 1971, plaintiffs' application was removed from the table, and the request to recommend changing the zoning was denied.Then followed plaintiffs' filing of the instant complaint in October, 1971.

Thereafter, a settlement conference was held, and a consent judgment was entered pursuant thereto on July 19, 1973.Upon motion of defendant city, the judgment was set aside and the individual defendants allowed to intervene.

The Flint City Commission retained a New York organization known as Raymond, Parish and Pine, Inc., urban development consultants of Tarrytown, New York, assisted by Eugene Albert, real estate analyst from Croton-on-Hudson, New York.Their report was filed in final form with the city nearly three years after the instant action had been filed.The city then, on its own initiative, rezoned the property from A-2 to A-1 on November 25, 1974.

On March 4, 1975, the actual trial was commenced.Continuances were had, and the trial was [92 MICHAPP 500] completed on August 3, 1976.The trial took up not more than 9 days of time, some of which were half days.On November 22, 1976, transcripts were filed and final briefs were submitted by May 3, 1977.On June 7, 1978, an opinion was issued by the trial court, followed by judgment in favor of defendants entered June 14, 1978.A motion for new trial was filed June 28, 1978, and was denied on July 10, 1978.This appeal was then timely taken by plaintiffs as of right.

In the most recent case of Ed Zaagman, Inc. v. Kentwood, 406 Mich. 137, 153-154, 277 N.W.2d 475(1979), our Supreme Court, with Mr. Justice Williams speaking for the Court, stated:

"The appropriate standard for determining the constitutional validity of municipal zoning determinations was succinctly set forth in Kirk (V. Tyrone Twp., 398 Mich. 429, 247 N.W.2d 848(1976)) as follows:

" 'The principles and tests to use to determine whether the present zoning of plaintiffs' property is valid was detailed in Kropf (V. Sterling Heights, 391 Mich. 139, 215 N.W.2d 179(1974)).

" 'The important principles require that for an ordinance to be successfully challenged plaintiffs prove:

" ' "(F)irst, that there is no reasonable governmental interest being advanced by the present zoning classification itself * * * or

" ' "(S)econdly, that an ordinance may be unreasonable because of the purely arbitrary, capricious and unfounded exclusion of other types of legitimate land use from the area in question."391 Mich. 139, 159, 215 N.W.2d 179, 186.

" 'The four rules for applying these principles were also outlined in Kropf.They are:

" '1."(T)he ordinance comes to us clothed with every presumption of validity".391 Mich. 139, 162, 215 N.W.2d 179, 189, quoting fromBrae Burn, Inc. v. Bloomfield Hills, 350 Mich. 425, 86 N.W.2d 166(1957).

" '2."(I)t is the burden of the party attacking to prove affirmatively that the ordinance is an arbitrary and [92 MICHAPP 501] unreasonable restriction upon the owner's use of his property * * *.It must appear that the clause attacked is an arbitrary fiat, a whimsical Ipse dixit, and that there is no room for a legitimate difference of opinion concerning its reasonableness."391 Mich. 139, 162, 215 N.W.2d 179, 189, quoting Brae Burn, Inc.

" '3."Michigan has adopted the view that to sustain an attack on a zoning ordinance, an aggrieved property owner must show that if the ordinance is enforced the consequent restrictions on his property preclude its use for any purposes to which it is reasonably adapted."391 Mich. 139, 162-163, 215 N.W.2d 179, 189.

" '4."This Court, however, is inclined to give considerable weight to the findings of the trial judge in equity cases."391 Mich. 139, 163, 215 N.W.2d 179, 189, quotingChristine Building Co. v. City of Troy, 367 Mich. 508, 518, 116 N.W.2d 816(1962).'398 Mich. 429, 439-440, 247 N.W.2d 848, 852-853."

The premise upon which this opinion is written is that, if the ordinance is enforced with the consequent restrictions on plaintiffs' property, the same precludes its use for any purpose to which it is reasonably adapted.We believe that this is true under the facts in this case and has been consistently true from the date of the complaint in 1971 and continuing throughout the proceedings and to the filing of the opinion of the trial court on June 7, 1978.In other words, because of its location and its A-1 zoning, there is no demand for such lots in the city of Flint, and this raw land cannot be developed as required by the ordinance.Of course, nothing is impossible, and there were witnesses who stated that in their opinion the land could be developed under the ordinance.However, there was no offer of evidence that any responsible entity or person would be willing to do so.A principal witness who said the land could be developed for A-1 homes was the intervenorSherwin Palmer.Mr. Palmer was President of a building [92 MICHAPP 502] supply company furnishing materials to 400 builders in the Genesee county area.Mr. Palmer stated that (as of the time of his testimony in July, 1976), he did not know of any homes being built on A-1 zoned property in the City of Flint.At the same hearing, Palmer testified as follows:

"Q (by Mr. Forrest, attorney for the intervenors) Mr. Palmer, in the course of your work as a building in the building business, are you familiar with high quality homes being built outside of the city limits?

"A Yes, sir.

"Q Now, when I speak of high quality homes, I'm speaking of homes in excess of fifty thousand dollars.

"A Yes, sir.

"Q Do you happen to know how many such homes are being built in the county at the present time?

"A I couldn't give you an exact number, but there are, there are quite a few and the trend is upward.

"Q How is the building business right now in terms of high quality homes?

"MR. CHILDS: Where?

"MR. FORREST: In the county.

"A The high quality home trend is more stronger than in the, let's say, moderate to low priced homes.

"Q (By Mr. Forrest, continuing): And how

"A And has been all the way through the down period.

"Q But how has it been in terms of the more expensive homes at the present time?

"A It's strong."

Mr. Seide, the other intervenor who testified, did not testify as to the feasibility of developing the subject land for A-1 homes.He did testify that he had listed his home for sale and it was for sale at that time.

Plaintiffs should not be required to pay taxes on this property, as they have for the past more than [92 MICHAPP 503] 8 years, without any opportunity to use or develop the same.In our opinion the ordinance, in effect, is taking from plaintiffs the use of their property without just compensation, contrary to the Federal and State Constitutions.

It may be that the intervenors would like to see the subject property developed like their property or see it vacant, similar to a park, private or public.It is interesting to note that only two intervenors testified, and one of those testifying said his property was for sale.The intervenors live in an A-2 zoned area which is about a mile from east to west and four blocks from north...