Szyszkoski v. City of Lansing, Docket No. 23854

• Decision Date: 28 August 1975
• Docket Number: Docket No. 23854
• Citation: 64 Mich.App. 94,235 N.W.2d 72
• Parties: Stefan SZYSZKOSKI et al., Plaintiffs-Appellees, v. CITY OF LANSING, a Municipal Corporation, Defendant-Appellee, and William J. Warner, Intervening Defendant-Appellant. 64 Mich.App. 94, 235 N.W.2d 72
• Court: Court of Appeal of Michigan — District of US

Page 72

235 N.W.2d 72

Stefan SZYSZKOSKI et al., Plaintiffs-Appellees, v. CITY OF LANSING, a Municipal Corporation Defendant-Appellee and William J. Warner, Intervening Defendant-Appellant.

Docket No. 23854.

64 Mich.App. 94, 235 N.W.2d 72

Court of Appeals of Michigan.

Aug. 28, 1975.

Released for Publication Nov. 17, 1975.

Peter D. Houk, City Atty., for City of Lansing.

[64 MICHAPP 95] Farhat, Burns & Story by Norman C. Farhat, Lansing, for Warner.

Oskar M. Hornbach, Lansing, for plaintiffs-appellees.

Before QUINN, P.J., and T. M. BURNS and ALLEN, JJ.

QUINN, Presiding Judge.

Intervening defendant, hereinafter defendant, appeals from the April 14, 1975 opinion and order of the trial court which held zoning amendment Z--20--73 of the City of Lansing null and void and permanently enjoined its implementation. Defendant city did not participate in the appeal, although originally it was the only defendant in the action. Plaintiffs are residents of the Miller-Marscott area of the city and were among those founding the Miller-Marscott Advisory Committee, hereinafter committee, on January 8, 1973. The committee was formed to promote 'an overall development plan for the entire neighborhood' and to oppose 'rezoning on a piecemeal basis by developers'.

April 9, 1973, defendant petitioned the planning board of the city for the rezoning of his eight-acre parcel from one-family residential to community unit plan. The latter permits higher density concentration and is more profitable to the developer. Defendant's petition proposed 94 units on the eight acres.

Working together, the committee and the planning board drafted a document known as the Miller-Marscott Master Plan. This was adopted by the city council December 10, 1973 as an amendment to the city master plan. On the same date, after a public hearing, the planning board recommended that the council reject defendant's petition because it was not in accord with the master plan which set a maximum of 70 units for the area involved. After a hearing, the council in effect [64 MICHAPP 96] rejected the petition by returning it to the planning board.

Defendant revised his petition by proposing 88 units. After a hearing September 3, 1974, the planning board again recommended rejection, and the council rejected the revised plan November 4, 1974.

November 12, 1974, the council reconsidered the revised petition of defendant and voted approval of 80 units. This action was vetoed by the mayor, but the veto was overridden by the council.

January 28, 1975, plaintiffs filed the present action in the form of a six-count complaint, five of the counts setting forth separate theories of attack on the approval of Z--20--73 by the council. The trial judge found for plaintiffs on the theory advanced in count 2; namely, approval by the council without prior...