Trojan v. Taylor Tp., 75

• Decision Date: 12 June 1958
• Docket Number: No. 75,75
• Citation: 352 Mich. 636,91 N.W.2d 9
• Parties: John TROJAN, Plaintiff and Appellee, v. TOWNSHIP OF TAYLOR, a Michigan municipal corporation, Alexander Papp, Supervisor, and Ray Koths, Building Inspector, Defendants and Appellants.
• Court: Michigan Supreme Court

Page 9

91 N.W.2d 9

352 Mich. 636

John TROJAN, Plaintiff and Appellee, v. TOWNSHIP OF TAYLOR, a Michigan municipal corporation Alexander Papp, Supervisor, and Ray Koths Building Inspector, Defendants and Appellants.

No. 75.

Supreme Court of Michigan.

June 12, 1958.

William D. Ford, Taylor Tp. Atty., Taylor Center, for defendants and appellants, Richard G. Eubank, Detroit, of counsel.

John J. Fish, Dearborn, for plaintiff and appellee.

Before the Entire Bench.

KELLY, Justice.

Defendants appeal from an order of the Wayne circuit court granting a writ of mandamus compelling defendant township to issue a building permit for the construction of 2 trailer park service buildings.

The parties to this mandamus proceeding were parties to a mandamus proceeding in the spring of 1956. Under date of March 15, 1956, the Hon. George Edwards, now a Justice of this Court and at that time a Wayne county circuit judge, issued a writ of mandamus requiring defendants to forthwith issue a certificate of compliance to plaintiff permitting the construction of a trailer park. The order also provided that:

'It is further ordered that the entry of an order for the issuance of a building permit for the erection and construction of the service buildings, in accordance with said plans, be and is hereby reserved until the further order of the court.'

The main question presented in this appeal is whether applicant (plaintiff) could seek a writ of mandamus from the Wayne county circuit court without having first appealed to the township zoning board of appeals.

The Hon. Victor J. Baum, circuit judge of Wayne county, who heard the mandamus action, answered this question in his opinion as follows:

'There is a second general defense set forth by the defendant in this case, and that is that the plaintiff failed to appeal the decision of the township building inspector to the board of appeals on zoning.

'There is a general rule that persons seeking authority from a governmental unit must exhaust their remedies within such governmental unit before seeking relief in court. To this rule requiring the plaintiff to exhaust his administrative remedies, there are a number of exceptions, one clear exception is that the law will not require a citizen to undertake a vain and useless act. The law does not require useless expenditures of effort. Where it is clear that resort to the administrative body is but a formal step on the way to the court house, the law will not require such a step to be taken.

'In this case the facts clearly disclosed an attitude on the part of the board of zoning appeals to exclude trailer camps from the township.

'The court finds that such an attitude existed before and after the decision made earlier in a companion case by the then Circuit Judge George Edwards. * * *

'The court finds an intention on the part of the board of zoning appeals to exclude from the township all trailer camps, unless such camps comply with a newly enacted zoning ordinance, number 38.

'The court finds as an inference from the evidence presented, that the zoning board is willing to sanction trailer camps which come within the exception, namely, those which comply with the ordinance above cited, upon the belief that this ordinance would, in fact, prohibit trailer camps entirely. With this attitude on the part of the board of appeals on zoning, being so clearly manifest, it would have been a vain and useless act for the plaintiff to have sought redress before that board. This being the case, his (plaintiff's) failure to seek relief from the board of zoning appeals is excused.'

Michael Hungo was building inspector for 8 years for defendant township, and was building inspector when plaintiff filed his application for the building permit. Hungo had resigned previous to the hearing in question before Judge Baum. He testified:

'Q. (By Mr. Fish): Did you ever tell Mr. Trojan that he would be wasting his time if he went before the board of zoning appeals? A. I told Mr. Trojan I definitely know he would be denied, that the zoning board of appeals would not render a decision on it, above my decision.

'Q. They would not override you? A. That is right. * * *

'Q. Was there anything in the...