The plaintiff archdiocese owns a building in Detroit that was used from 1938 to 1971 as a convent. The building is located in an area zoned R-2 (two-family residences), but its use as a convent was allowed as a nonconforming use after the defendant city adopted its zoning ordinance in 1940. In January, 1971, the archdiocese *165 leased the building to intervening plaintiff, the Michigan Department of Corrections, for use as a rehabilitation center. In June, 1971, the archdiocese applied to the Department of Building and Safety Engineers for permission to use the building as a rehabilitation center housing approximately 30 convicts. The department denied the application because approval of the Board of Zoning Appeals is required under the zoning ordinance whenever a change in nonconforming uses is sought. Additionally, a variance is necessary for the use of property in an R-2 district for a correctional institution.
After a public hearing, the Board of Zoning Appeals denied the archdiocese’s petition to reverse the decision of the Department of Building and Safety Engineers. The archdiocese then filed a complaint for superintending control in Wayne County Circuit Court. The Department of Corrections intervened as plaintiff. The court affirmed the Board of Zoning Appeals’ decision.
This Court granted the Department of Corrections’ delayed application for leave to appeal the decision of the circuit court.
The department’s first argument is that, as a state agency, it is immune from the requirements of Detroit’s zoning ordinances. Detroit counters this argument by asserting that immunity does not extend to the department as lessee.
In many jurisdictions, the notion of governmental immunity from local zoning regulations is well-established. "A public corporation or authority created by the state to carry out a function of the state is not bound by local regulations.” 2 Anderson, American Law of Zoning, § 9.06. See also, 8 McQuillin, Municipal Corporations, § 25.15. There is no clear pronouncement by a Michigan court *166 that governmental agencies are inherently exempt from local zoning ordinances.
In
State Highway Commissioner v Redford Township,
In
Taber v Benton Harbor,
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Strongly suggestive of the idea that governmental agencies cannot disregard local zoning regulations is
Detroit Edison Co v City of Wixom,
Of course, the Legislature in creating the Public Service Commission could have endowed it with the power to contravene local ordinances. A zoning ordinance in conflict with a statute cannot be given effect.
In re Petition of Detroit,
The dispute before us presents a conflict between the Department of Corrections’ statutory authority to supervise the state’s penal institutions, MCLA 791.201 et seq.; MSA 28.2271, et seq., and Detroit’s authority, similarly granted by statute, MCLA 125.581, et seq.; MSA 5.2931 et seq., to regulate the use of land within its boundaries. We take the issue to be not one of absolute governmental im *168 munity but rather of legislative intent governing the exercise of different aspects of the state’s police power.
Unfortunately, the legislation on the authority of the Department of Corrections does not indicate whether or not the department, in fulfilling its assigned duties, is to be subject to local ordinances. Similarly, the statutes under which Detroit has enacted its zoning ordinances do not disclose what effect, if any, a zoning ordinance should have upon the activities of state agencies.
We agree with the department that operation of the corrections system is a matter of state concern, but the Legislature’s action in the area of zoning indicates that municipal land use regulation is also a matter of state concern. The state-wide authority of the department does not, per se, allow it to disregard city ordinances. Both the defendant and the city seek to advance significant interests. Cf. Detroit Edison Co v City of Wixom, supra.
We think that, in the absence of any clear pronouncement that either the involved agency or the zoning ordinance deserves preference, it must be the intent of the Legislature that the agency, whenever it is possible to do so and still reasonably fulfill its duties, should operate in accordance with local zoning regulations. Where the function performed by the agency is deemed so important that local concerns should in no way hinder it, the Legislature can so state.
"Since it is reasonable to presume that the legislature intended a balanced viewpoint to control in cases of conflict, it would seem that an agency’s power to conduct a state function is not a license to disregard local zoning restrictions, but authorization to operate in accordance with them. This construction, when accompanied by the power of the state agency, like any private *169 amendment, accommodates municipal interests without unduly interfering with agency performance of statutory responsibilities. Furthermore, since the legislature has failed to deal explicitly with this area, it seems justifiable to place upon it the burden of reversing a reasonable presumption as to what its intent would be.” Note, 49 Minn L Rev 284, 298 (1964).
The facts of this case do not require us to determine whether the power of eminent domain is inherently superior to the power to zone.
Of course, the power of a municipality to zone is not the power to prohibit. With our emphasis on legislative intent, we could not sanction the use of zoning to exclude an agency the Legislature has created.
Gust v Canton Township,
We, therefore, hold that neither the department nor its lessor can in this instance invoke inherent immunity as a basis for avoiding Detroit’s zoning regulations.
The department’s next contention is that the circuit court erred in concluding that the department’s use of the property as a rehabilitation center was a different nonconforming use from that of a convent and therefore required a variance. Emphasized in this argument is that the structure continues to be used as housing for approximately 30 unrelated individuals.
As this Court has previously stated, "it is the law of Michigan that the continuation of a nonconforming use must be substantially of the same size and same essential nature as the use existing at the time of passage of a valid zoning ordinance”.
White Lake Township v Lustig,
The department’s final argument is that the court erred in upholding the Board of Zoning Appeals’ denial of a variance. Section 62.0403 of the Detroit Zoning Code provides:
"The board may vary the requirements of this ordinance in cases where strict application of the provisions hereof will result in practical difficulty or unnecessary hardship that would deprive the owner of reasonable use of land or building involved. Such variance shall be granted only in cases of property having unique characteristics which prevent reasonable use of the property as zoned.
"A variance shall not be granted unless the board finds, on the basis of substantial evidence, that the property cannot reasonably be used in a manner consistent with the existing zoning, and before the board may exercise its discretion and grant a use variance on the grounds of unnecessary hardship, the record must demonstrate:
"(a) That the property in question cannot be reasonably used only for a purpose permitted in that zone, and
"(b) That the plight of the owner is due to unique circumstances and not to general conditions in the neighborhood, and
"(c) That the use to be authorized by the variance will not alter the essential character of the locality.”
*171
The board’s decision on whether these requirements are met must be supported by competent, material, and substantial evidence on the whole record. Const 1963, art 6, § 28;
Beatrice Block Club Association v Facen,
Affirmed, no costs, a public question being involved.