Ed Zaagman, Inc. v. City of Kentwood

277 N.W.2d 475 | Mich. | 1979

406 Mich. 137 (1979) 277 N.W.2d 475

ED ZAAGMAN, INC.
v.
CITY OF KENTWOOD TURKISH
v.
CITY OF WARREN

Docket Nos. 57225, 57342. (Calendar Nos. 6, 7).

Supreme Court of Michigan.

Argued October 5, 1976. Decided March 27, 1979.

Varnum, Riddering, Wierengo & Christenson (by Jon F. DeWitt and Jeffrey L. Schad) for plaintiff Zaagman.

Bodman, Longley, Bogle, Armstrong & Dahling (by Michael B. Lewiston) for plaintiffs Turkish.

Rhoades, McKee & Boer for defendant City of Kentwood.

W. Thomas Marrocco, Jr., City Attorney, and John J. Murray, Chief Assistant City Attorney, for defendant City of Warren.

Amici Curiae:

Bauckham, Reed, Lang & Schaefer for Michigan Townships Association.

Clan Crawford, Jr., and Louis C. Andrews, Jr., for Michigan Municipal League; Sherwin M. Birnkrant, Director of Law, City of Pontiac; Adele P. Laporte, Assistant City Attorney, City of Ann Arbor; Harris, Lax, Goldman & Gregg; and Robert Reese, Corporation Counsel, City of Romulus, for State Bar of Michigan in support of existing legislative rezoning practice.

Avern Cohn, William B. Dunn, and Norman Hyman for State Bar of Michigan in support of the concurring opinion in Kropf v Sterling Heights, 391 Mich. 139 (1974).

WILLIAMS, J. (for affirmance).

Turkish v City of Warren

This zoning case causes us to revisit Kropf,^[1]Sabo,^[2] and Kirk.^[3] We hold that the majority rule enunciated in both Kropf and Kirk as well as the minority opinion of Justice WILLIAMS in Sabo remain the law in Michigan today insofar as the appropriate standard for determining the validity of zoning ordinances is concerned. Accordingly, we affirm the Court of Appeals ruling of unconstitutionality, but remand this matter to the Warren City Council acting as zoning authority for further action consistent with this opinion.

I. THE APPROPRIATE STANDARD

The appropriate standard for determining the constitutional validity of municipal zoning determinations was succinctly set forth in Kirk as follows:

"The principles and tests to use to determine whether the present zoning of plaintiffs' property is valid was detailed in Kropf.

"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, 158.

"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, quoting from Brae Burn, Inc v Bloomfield Hills, 350 Mich. 425; 86 NW2d 166 (1957).

"2. `[I]t is the burden of the party attacking to prove affirmatively that the ordinance is an arbitrary and 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, 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.

"4. `This Court, however, is inclined to give considerable weight to the findings of the trial judge in equity cases.' 391 Mich. 139, 163, quoting Christine Building Co v City of Troy, 367 Mich. 508, 518; 116 NW2d 816 (1962)." 398 Mich. 429, 439-440.

See Sabo v Monroe Twp, 394 Mich. 531, 542; 232 NW2d 584 (1975). (Separate opinion of WILLIAMS, J., for reversal of the trial court.)

II. FACTS

This is an unusual zoning case involving what the defendant's Director of Planning has described as "a problem piece" of property. Plaintiffs allege that, because of two factors, the cost of developing their property under the challenged R-1-C single-family zoning ordinance would equal plaintiffs' potential sales return, thereby rendering the disputed zoning designation unconstitutionally confiscatory as applied to their parcel. Throughout both their pleadings and proofs, plaintiffs have urged that their parcel be judicially reclassified to permit the construction of multiple family dwellings,^[4] an R-3 use.^[5]

The first of two factors identified by plaintiffs in support of their position concerns the allegation that, despite plaintiffs' efforts to persuade the city to develop the abutting area with a uniform road system, defendant has consistently permitted the platting of surrounding land in such a manner as to render plaintiffs' property landlocked and roadless. The second factor put forward by plaintiffs concerns the further allegation that, due to the extreme narrowness of plaintiffs' parcel, in order to develop their land in accordance with the disputed R-1-C zoning scheme plaintiffs would have to construct a road servicing only one rather than two rows of homes. Under this circumstance, homes constructed on plaintiffs' property would necessarily face the backs of already existing residences, an obviously undesirable arrangement.

The trial court held that in view of these circumstances the city's zoning designation was "unreasonable, arbitrary and confiscatory" and therefore constitutionally invalid. That court specifically declined to consider the case as coming "within the purview of a preferred use doctrine", Bristow v Woodhaven, 35 Mich. App. 205; 192 NW2d 322 (1971), and relied on this Court's ruling in Bassey v Huntington Woods, 344 Mich. 701, 704-705; 74 NW2d 897 (1956), that: "[A]n ordinance that prevents the property owner from making any beneficial use of his property is both unreasonable and confiscatory". In its order of judgment the trial court granted the definitive relief sought in plaintiffs' complaint, stating:

"2. Defendant City of Warren, its agents, officers, employees, attorneys and all persons acting in concert with it, are hereby enjoined from interfering with plaintiffs' use of the property in accordance with defendant's R-3 zoning classification."

The Court of Appeals affirmed the trial judge's finding of confiscation as supportable by the record, citing Smith v Wood Creek Farms, 371 Mich. 127; 123 NW2d 210 (1963). That Court, however, simultaneously offered the following gratuitous remark:

"We would prefer to reverse without prejudice to an application to the legislative body of defendant seeking an administrative hearing with regard to the reasonableness of plaintiffs' proposed [R-3, multiple-family dwelling] use." 61 Mich. App. 435, 440; 232 NW2d 732 (1975).

III. APPLICATION OF THE APPROPRIATE STANDARD ON De Novo REVIEW TO THE FACTS

Applying those rules enumerated in Part I discussing Kirk, supra, it is clear that this matter is particularly governed by rule 3 of Kropf, i.e., "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". It is, of course, plaintiffs' duty "to prove affirmatively that the ordinance is an arbitrary and unreasonable restriction upon the owner's use of his property" (Kropf, rule 2), as the "ordinance comes to us clothed with every presumption of validity" (Kropf, rule 1).

Applying these three rules to the totality of circumstances adduced at trial, our review of the record supports the finding that defendant's platting of surrounding land has landlocked plaintiffs' parcel to the extent that all reasonable uses are precluded under the R-1-C zoning designation; plaintiffs have affirmatively proven that their development costs under the disputed R-1-C ordinance would be roughly equivalent to any potential sales returns on the developed property, thereby rendering the classification scheme unreasonable and void. Therefore, reviewing the record de novo, yet affording "considerable weight to the findings of the trial judge in equity" (Kropf, rule 4), we uphold the rulings of unconstitutionality made by both the trial court and Court of Appeals. As applied to plaintiffs' property, defendant's R-1-C zoning classification is adjudged "unreasonable, arbitrary and confiscatory", thereby rendering the disputed R-1-C zoning designation constitutionally invalid and void.

IV. EFFECT OF CONSTITUTIONAL INVALIDITY

Having found defendant's R-1-C single family zoning ordinance void, the following issues require our attention: (1) what effect is to be accorded our de novo finding of unconstitutionality?; and (2) through what procedure is this effect to be determined?

More specifically, the first question to be resolved is whether, considering both plaintiffs' asserted interest in constructing multiple-family dwellings on their parcel — a permitted R-3 use — and the trial court's order generally enjoining defendant "from interfering with plaintiffs' use of the property in accordance with defendant's R-3 zoning classification", plaintiffs may construct any structure deemed permissible within the R-3 classification or only that specific use prescribed at trial. For example, may plaintiffs construct: multiple-family units (as indicated in their pleadings); garden apartments; a two-and-one-half story apartment house; a storage building; a church, etc.? The second question requiring resolution is whether this determination is to be made by the trial court alone, an appropriate administrative entity as has been suggested by Justice LEVIN, the trial court supplemented by public testimony, or this Court alone?

In resolving these questions, after careful consideration we reject the approach suggested by both Justice LEVIN and the Court of Appeals below urging remand exclusively to an appropriate administrative body for a full trial-type administrative, quasi-judicial determination of the use to be made by an aggrieved landowner subsequent to a judicial declaration of unconstitutionality. In contrast, we rule that subsequent to a judicial declaration of invalidity the matter should be remanded to the appropriate municipal zoning authority to present, for the chancellor's consideration within 60 days of this Court's or the appropriate reviewing court's order of unconstitutionality, an adopted amendatory ordinance comporting with the dictates of equity as well as the requirements of constitutional reasonableness as applied to plaintiffs' parcel; upon the presentation of such amendatory ordinance, the chancellor shall proceed as detailed infra, Part V.

A. The Administrative or Quasi-Judicial Approach

While in the instant case a unanimous Court of Appeals felt "bound by existing precedent", 61 Mich. App. 435, 438, to uphold the chancellor's finding of invalidity and order of general injunctive relief, that Court expatiated on Justice LEVIN'S administrative approach to the review of zoning determinations set forth in Kropf, supra, 164 et seq. In obiter dictum, the Court of Appeals remarked:

"We would prefer to reverse without prejudice to an application to the legislative body of defendant seeking an administrative hearing with regard to the reasonableness of plaintiffs' proposed use." 61 Mich. App. 435, 440.

We note that the position urged by the Court of Appeals in the instant case has twice been rejected by a majority of this Court: in Kirk, supra, and Kropf, supra.

Although similar, Justice LEVIN'S opinion in this case adopts a somewhat modified version of the administrative approach urged by the Court of Appeals. Accordingly, having found defendant's R-1-C ordinance unconstitutionally confiscatory, Justice LEVIN is not disposed to affirm the trial court's order permitting construction "in accordance with defendant's R-3 zoning classification". Rather, the Justice would direct that the matter be remanded exclusively to the appropriate administrative body to conduct a full trial-type administrative hearing and to render a decision supported by substantial evidence on the record developed at that hearing; such decisional authority, absent subsequent appeal, is wholly ceded to the administrative body without the necessity of the chancellor's review and approval.

Contrary to the dictates of the traditional legislative approach, the LEVIN opinion offers plaintiffs the option of either (1) first seeking a court ruling on unconstitutionality followed by remand for an administrative hearing and determination unaided by impartial judicial scrutiny and equitable consideration with respect to a plaintiff's proposed use, or (2) first challenging a zoning classification in an administrative proceeding — whether the subject ordinance has been judicially determined constitutional or not — in the hope that such body will in effect grant a variance. In either case, the opinion continues, the administrative hearing is subject to judicial review, albeit not de novo as is presently the established law in this state.

We disagree with both options. The first option impermissibly invades this Court's powers of de novo review and places a successful litigant in the precarious position of seeking to establish its proposed use before an adversely interested litigant (in this case the city) without the benefit of subsequent judicial consideration unless an appeal is effected on the ground that such decision is not supported by substantial evidence on the record. The second option impermissibly encroaches upon the presumption of legislative validity as well as time-honored notions of separation of powers.

My Brother LEVIN firmly believes that such a system of administrative ad hoc zoning ordinance amendment procedures will promote the public welfare as well as relieve the burden on the courts. His opinion indicates that he is not alone in that laudable belief.

We are of the opinion, however, that such a system as proposed by Justice LEVIN which permits every constitutionally valid zoning ordinance to be challenged by an affected property owner can only invite countless challenges, many of which must proceed to the courts for a dispositive adjudication. The net result of such a quasi-judicial scheme would most assuredly increase rather than relieve the burden on the courts; the burden on zoning bodies would likewise be unquestionably magnified.

Further, and perhaps more significant, the authority of a zoning body's legislative action would likely be debased concomitantly to the extent that every affected property owner could challenge that authority, not on the basis of the value of the constitutionally valid zoning classification to the general public, but on the basis of that zoning determination's value to the individual property owner regardless of the general welfare. Such consequence would undoubtedly destroy both the necessity and desirability of representative legislative action as well as reduce land use determination to a type of "what's-in-it-for-me" or spot zoning scheme generally eschewed as not in the public interest.

For the above reasons, we reject both options of Justice LEVIN'S administrative approach to the review and challenge of zoning determinations. At the same time, however, we find certain components of that approach instructive insofar as they could be applied on remand to defendant city council aided by the chancellor to determine the reasonableness of a landowner's proposed use in accordance with the dictates of equity. We generally accept the following statement of Justice LEVIN in Part IV D of his opinion as apposite in this regard:

"The judicial determination that the ordinance as applied to the Turkish parcel is unconstitutional should not mean that the Turkishes are necessarily entitled to use the property for multiple-family residences. The surrounding owners have an interest in how the Turkish property is developed, as does the city in providing for orderly development, consistent with its master plan, with adequate services and protection of aesthetic and environmental values. Accordingly, although the Turkishes' proposed use may appear to a court to be `reasonable', there may be other feasible means of developing single-family homes on the parcel if the city permits variances regarding street width and lot size or under other circumstances. The parcel might also be used, consistent with the present zoning, for schools, religious institutions, or some other use. Although uses consistent with present zoning may not be feasible, it may be that some use other than multiple residences is feasible and more compatible with competing interests."

B. The Legislative Approach

While we are not persuaded to adopt Justice LEVIN'S administrative approach to the review of zoning determinations, questions remain regarding the effect to be accorded an ordinance's judicially declared invalidity as well as the appropriate judicial procedure to be undertaken in determining and ordering such effect.

In resolving these questions, the line of cases discussed infra provides this Court with five alternative methods of judicial action subsequent to a judicial finding of constitutional invalidity:

(1) leave the subject parcel unzoned until either a use is instituted by plaintiff or the parcel is rezoned, Daraban v Redford Twp, 383 Mich. 497; 176 NW2d 598 (1970) (dissenting opinion);

(2) enjoin defendant from enforcing a zoning classification other than that classification urged by plaintiff and determined appropriate by the court, Long v Highland Park, 329 Mich. 146; 45 NW2d 10 (1950) and its progeny, infra;

(3) enjoin defendant from such interference and affirmatively order the institution of plaintiff's proposed specific use on the parcel, Daraban (majority), infra;

(4) enjoin defendant from enforcing the unconstitutional classification but remand the matter to the appropriate municipal zoning authority to present for the chancellor's consideration within 60 days of this Court's or the appropriate reviewing court's order of unconstitutionality, an adopted amendatory ordinance comporting with the dictates of equity as well as the requirements of constitutional reasonableness as applied to an aggrieved landowner's parcel, see Dequindre Development Co v Warren Charter Twp, 359 Mich. 634; 103 NW2d 600 (1960) (separate opinion of Justice BLACK), infra; or,

(5) remand, per the LEVIN opinion, exclusively for an administrative hearing to determine an appropriate use of plaintiff's parcel, discussed supra.

We find alternative (1) unacceptable for the reason that merely rendering the parcel unzoned leaves it potentially vulnerable to any uses including those neither urged by plaintiff nor compatible with the orderly development of the community. Alternative (2) may be too expansive in scope insofar as it permits a landowner to develop its property within the general zoning classification approved by the court whether or not such use would be equitable. Alternative (3) is unacceptable for the reason that it may be too restrictive in its implicit rejection of other uses to which plaintiffs' land might more equitably be put. Finally, Justice LEVIN'S recommended position, (5), is not adopted for reasons heretofore discussed.

We adopt alternative (4) and hold that, subsequent to a judicial finding of zoning classification invalidity, enforcement of the disputed ordinance should be enjoined and the matter remanded to defendant city council to present, for the chancellor's consideration within 60 days of this Court's or the appropriate reviewing court's order of unconstitutionality, an adopted amendatory ordinance comporting with the dictates of equity as well as the requirements of constitutional reasonableness as applied to an aggrieved landowner's parcel.

Specifically, upon the expiration of or within this 60-day period, the chancellor shall enter one of the following orders:

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

(ii) If, after remand to defendant city council, defendant submits an amendatory ordinance unacceptable to plaintiff 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 defendant city council, defendant submits an amendatory ordinance unacceptable to plaintiff and plaintiff submits 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 plaintiff's proposed "midsatisfactory use".

(iv) If, after remand to defendant city council, neither plaintiff nor defendant 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 plaintiff and defendant 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 plaintiff's parcel.

(v) If, after remand to defendant city council, defendant does not submit an adopted amendatory ordinance to the chancellor for consideration within 60 days of this Court's or the appropriate reviewing court's order of unconstitutionality, we direct the chancellor 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 plaintiff's parcel.

Of course, if either party is dissatisfied with the chancellor's order, an appeal is permitted from that order under normal procedures of de novo review.

This ruling is to be accorded limited retroactive effect as to all actions hereinafter commenced as well as all actions heretofore commenced and now pending in either the trial or appellate courts.

The alternatives set forth above are discussed below.

Alternative 1: Declaration of Invalidity Under Both the Brae Burn Rule as Well as the Daraban Dissent Rendering the Parcel Unzoned

The dissenting opinion in Daraban v Redford Twp, 383 Mich. 497, 501; 176 NW2d 598 (1970), argued that this Court was without the requisite constitutional power to affirmatively do more than declare a disputed land use classification invalid. The trial court having declared the Daraban zoning restriction void, the dissent reasoned, this Court was incompetent either: (i) to enjoin a defendant municipality from zoning the subject parcel in a manner different from that sought by plaintiff; or, (ii) to order the institution of plaintiff's proposed use as either prayed in plaintiff's complaint or argued before the lower judicial tribunal as to that now unzoned parcel.

In effect, the dissent in Daraban would have rendered the subject parcel unzoned, an interim determination awaiting either a legislative rezoning or the institution of some use of the parcel by the previously aggrieved landowner. Although a technically logical position, we are of the opinion that restricting the Court's declaratory powers in such an absolute manner may operate to produce a result neither generally prayed nor argued for by an aggrieved landowner and potentially incompatible with the orderly development of the general community or abutting parcels of property.^[6] We therefore reject this alternative form of judicial action rendering the property unzoned as impractical and inequitable.

Alternative 2: Issuance of General Injunctive Relief

Sensitive to the potential dangers posed by leaving land unzoned, the judiciary of this state has, at minimum, uniformly granted aggrieved landowners injunctive relief generally restraining a defendant municipality from rezoning the subject parcel in a manner different from that classification sought by plaintiff.

Three cases decided by this Court are particularly illustrative of this proposition. In each of these cases, this Court sustained the chancellor's decree to the extent that the decree: (i) found the disputed classification unconstitutional; (ii) enjoined defendant from enforcing the invalid restriction; (iii) permitted plaintiff to proceed under the classification urged by plaintiff; but, (iv) did not consider or order the propriety of the aggrieved landowner's proposed specific use.

In Long v Highland Park, 329 Mich. 146; 45 NW2d 10 (1950), plaintiffs sought to institute an unspecified business use within the general B-2 business classification on a tract of land designated R-1 and, therefore, zoned for nonbusiness uses. The trial court declared defendant's disputed R-1 zoning ordinance (nonbusiness purposes) invalid as applied to plaintiff's land and issued an injunction restraining defendant from attempting to enforce the restrictions. The trial court further ordered that plaintiffs be permitted to use the subject parcel "for any of the purposes allowed by the ordinance under classification B-2, for business purposes". This Court unanimously affirmed. Neither the trial court nor this Court, however, ordered or passed on the reasonableness of plaintiff's proposed particular use.

Second, in the case of Industrial Land Co v Birmingham, 346 Mich. 667; 78 NW2d 656 (1956), a unanimous Supreme Court upheld a circuit court ruling of zoning classification unconstitutionality as well as the chancellor's order that "the use of this property for business purposes, as provided in section 1001 of ordinance No 221, as amended, is a reasonable use. * * * [P]laintiffs are also entitled to an injunction restraining the original defendants from prohibiting plaintiffs' use of the premises for those [business] uses permitted by section 1001 of the ordinance, and from interfering with such uses". 346 Mich. 667, 672. Attacking the trial judge's injunctive order finding defendant's single-family zoning ordinance unconstitutional, defendant claimed that "the court cannot, by injunctive relief, proceed to rezone plaintiffs' property, as that is a legislative act and a function of the city commission of Birmingham, and that by doing so, would be zoning by judicial determination". 346 Mich. 667, 671. This claim was summarily rejected by the Supreme Court on the basis of Long, supra. As in Long, this Court did not specify the precise use to which plaintiff could put its lands beyond permitting those general uses allowed under the zoning classification adjudged valid.^[7]

Lastly, in Roll v City of Troy, 370 Mich. 94; 120 NW2d 804 (1963), plaintiffs sought to develop their parcel into 15,000-square-foot lots; that parcel was zoned to permit lots no smaller than 30,000 square feet in area. This Court upheld the chancellor's order declaring defendant's 30,000-square-foot minimum lot size restriction unconstitutionally confiscatory as applied to plaintiffs' property, restraining defendant from enforcing that restriction on plaintiffs' land, and permitting plaintiffs to develop their land in accordance with the general single-family zoning classification. This Court, however, vitiated the lower court's order to the extent that the chancellor had authorized plaintiffs "to use the said property for a residential subdivision in accordance with the proposed plat attached to plaintiffs' bill of complaint [establishing the minimum lot size at 15,000 square feet]". 370 Mich. 94, 96, 99. Thus, while upholding the lower court's decree that defendant could not constitutionally restrict plaintiffs' residential lot size to the disputed number of minimum square feet, the Court affirmed its earlier posture that the trial court could not affirmatively sanction a specific proposed use. Said a majority of six Justices:

"This Court agreed with the trial judge in Christine, 515, 516, that he had no legal duty, right, or obligation to undertake to pass upon the reasonableness of proposed zoning that is not yet the subject of an ordinance. Recognizing that zoning is a legislative function we affirm the principle that courts cannot write zoning laws. The trial court's decree is modified by striking therefrom that portion authorizing and empowering plaintiffs to use the property as proposed in the plat. In all other respects the decree is affirmed." 370 Mich. 94, 99.

The state of the law in 1963, therefore, appeared clearly settled that neither this Court nor the lower courts of this state could affirmatively order the institution of a specifically proposed use as reasonable subsequent to a finding of classification invalidity.^[8] Rather, this Court felt itself constrained to merely enjoin defendant from imposing a zoning classification other than that generally decreed permissible by the lower tribunal.^[9]

We are of the opinion that this alternative form of relief may be too expansive in scope insofar as it sanctions an aggrieved landowner's development of its parcel in any manner enumerated under the general zoning classification whether or not such potential uses would be inequitable or deleterious to the surrounding community or abutting landowners. Since overall equitable considerations are ignored, we reject this alternative.

Alternative 3: Issuance of Injunctive Relief as Well as Order Affirmatively Sanctioning Plaintiff's Specifically Proposed Use: The Daraban Rule

In 1970, however, this Court expressly expanded the declaratory powers of the judiciary in reviewing zoning determinations beyond the options of either rendering the land unrestricted or merely enjoining the enforcement of a zoning classification as applied to a plaintiff's subject parcel different from that decreed by the court. Indeed, the majority in Daraban, supra, sanctioned an order not only enjoining defendant's interference with plaintiff's requested general use but also affirmatively permitting the specific use proposed by plaintiff.

In Daraban the trial judge decreed:

"It is further ordered and adjudged that the defendants, * * * be further permanently enjoined from interfering with plaintiff's erection of apartment dwellings on the property in question in accordance with plaintiff's exhibit number 4, referred to in the court's opinion on page 9, and in accordance with the R-3 zoning classification of the township of Redford." 383 Mich. 497, 500. (Emphasis added.)

On appeal, 15 Mich. App. 132; 166 NW2d 295 (1968), defendant alleged that the chancellor's use-specific injunction constituted a judicial invasion of the legislative power. Judge PRATT, writing for Presiding Judge HOLBROOK and then-Judge, now-Justice LEVIN, affirmed the trial court's definitive decree of injunctive relief as supportable by 15 years of precedent.

On subsequent appeal this Court affirmed the trial court's order permitting the institution of plaintiff's proposed specific use.

It is clear from the majority's 1970 opinion in Daraban that a court may order that definitive relief requested by plaintiff in its pleadings or argued before the Court. Contrary to the position urged by the Daraban dissent, a court may order the institution of not only the general land use classification urged by the landowner but also a specific use prayed for.^[10]

Compared to alternatives (1) and (2), we find that this alternative may be too restrictive in scope. The Daraban approach is rejected for the reason that it expressly dismisses consideration of any other uses to which the parcel may equitably be put beyond that specific use urged by plaintiff.

Alternative 4: The Position Urged by Justice BLACK in Dequindre: Balancing the Equities on Remand

Midway between the positions espoused by the Daraban dissent, rendering the parcel unzoned, and the Daraban majority, ordering a particular use proposed by an aggrieved landowner, lies the "balancing of the competing equities" position promulgated by Justice BLACK in his separate opinion for affirmance on condition found in Dequindre Development Co v Warren Charter Twp, 359 Mich. 634; 103 NW2d 600 (1960).

In Dequindre, plaintiff sought to construct a trailer coach park on a parcel of land zoned for single-family residential uses. The chancellor declared defendant's disputed ordinance confiscatory and ordered defendant to "permit the plaintiff to build and develop said property as a trailer park". 359 Mich. 634, 637.

On appeal, four Justices directed summary affirmance of the chancellor's order, three Justices urged reversal on the ground that plaintiff had merely presented a debatable question which the Court was not empowered to disturb, and Justice BLACK urged affirmance on condition. The trial court's decree affirmatively permitting the use of the subject parcel for trailer park purposes was summarily upheld.

In his separate opinion for affirmance on condition, Justice BLACK reacted to what he perceived to be the harsh result sanctioned by the majority of either invalidating "defendants' too-restrictive ordinance", thereby implicitly rendering the subject parcel unzoned, or granting "plaintiff's prayer for specific relief" as was done in the lower court's order permitting plaintiff's proposed specific use as a trailer park. Rejecting the appropriateness of forcing the Court into the "inexorable choice" of granting either one land use extreme or the other, the Justice opined that a more equitable "midsatisfactory" use of the subject parcel could perhaps be better arrived at by remanding the matter to the chancellor via the appropriate municipal zoning body for further proceedings. We quote at length Justice BLACK'S remarks in this regard:

"An over-concentration of trailer coach living undoubtedly creates problems of municipal concern such as the superintendent has described. The appealing need for solutional aid stares at us from the appendix, yet the usual extremes of affirmance or reversal appear as marking all limits of the judicial function. But do they? Looking upward and outward at the great horizons of equity, and recalling that the shape of decretal relief should as a rule be formed by the chancellor according to germane conditions and equities as same may be shown to exist at the time of final decree (Herpolsheimer v A B Herpolsheimer Realty Co, 344 Mich. 657 [75 NW2d 333 (1956)]; Carlson v Williams, 348 Mich. 165 [82 NW2d 483 (1957)]), it would seem that there need be no inexorable choice, now at least, between plaintiff's prayer for specific relief and defendants' too-restrictive ordinance. Why cannot plaintiff and the defendant city consider, together, some possibly midsatisfactory use such as light manufacturing, or retailing, or neighborhood-acceptable commercial endeavor? Why must the permitted use be a this-or-that showdown between temporary life in mobile coaches — or nothing? Does not equity have a duty here, the public interest being at prominent stake? Why not give the parties a chance to answer these questions, in the court below, prior to entry of final decree?

"I would remand by special order (see Court Rule No 72, § 1 [1945]) authorizing the city to present, for judicial consideration below if it will, an amendatory ordinance which in so many words relieves plaintiff's tract from the present R-1 designation and provides some less restrictive designation conforming — as the city may be advised — with the requirements of constitutional reasonableness; such amendatory ordinance to be adopted and submitted to the successor chancellor within 60 days from the date of such order. The order should provide that, if the city elects not to amend and submit as authorized, due report of that fact shall thereupon be made to this Court by the successor chancellor, whereupon our decree of affirmance will enter. It should also provide, for the event of amendment and submission so authorized, that further disagreement of the parties, if any, should be reported by the chancellor to this Court with accompanying certified record of such additional proceedings as may be ordered and supervised by him." 359 Mich. 634, 642-643.^[11]

We find most instructive Justice BLACK'S championship of the need to balance competing equitable considerations upon remand to the appropriate municipal zoning body for timely presentation of an adopted amendatory ordinance to the chancellor for a determination of the "midsatisfactory" use to be accorded the subject parcel. It is manifest to this Court that the inevitable tension between landowners and municipal zoning authorities subsequent to a judicial finding of classification invalidity can perhaps best be resolved only through a consideration and balancing of the competing equities revolving about the particular use to be made of a plaintiff's parcel at both the legislative and judicial levels.

V. CONCLUSION: REMAND TO THE CHANCELLOR FOR A DETERMINATION OF THE MOST EQUITABLE USE TO BE MADE OF PLAINTIFFS' PARCEL WITHIN THE R-3 ZONING CLASSIFICATION

In resolving the questions of (i) what effect is to be accorded an ordinance's judicially declared invalidity, and (ii) what judicial procedure is to be undertaken in fashioning such effect, the line of cases discussed above provide us with the following alternatives:

(1) render the subject parcel unzoned until either a use is instituted or the parcel is rezoned, Daraban (dissent), supra;

(2) enjoin defendant from enforcing a land use restriction more restrictive than that determined appropriate by the court, Long and its progeny, supra;

(3) enjoin defendant from such interference and affirmatively order the institution of plaintiff's proposed specific use on the parcel, Daraban (majority), supra;

(4) enjoin defendant from enforcing the unconstitutional classification but remand the matter to the appropriate municipal zoning authority to present, for the chancellor's consideration within 60 days of this Court's or the appropriate reviewing court's order of unconstitutionality, an adopted amendatory ordinance comporting with the dictates of equity as well as the requirements of constitutional reasonableness as applied to an aggrieved landowner's parcel, see Dequindre (separate opinion of Justice BLACK), supra; or,

(5) remand, per the LEVIN opinion, exclusively for an administrative hearing to determine an appropriate use of plaintiff's parcel.

Considering these alternatives, we find (1) unacceptable for the reasons stated supra, that such action would potentially render the parcel subject to uses neither argued for by plaintiff nor consistent with the orderly development of the community and abutting lands. We similarly find that alternative (2) may be too expansive in scope and therefore undesirable insofar as it sanctions development of the subject parcel in any manner enumerated under the ordered general zoning classification whether or not such use would be deleterious to the surrounding community. Alternative (3) is likewise rejected for the reason that it may be too restrictive in scope in its dismissal of other perhaps more equitable uses to which the parcel could theoretically be put but for the plaintiff's prayer for a proposed specific use. Finally, Justice LEVIN'S recommended position, (5), is contrary to the general posture assumed by a majority of this Court in the area of land use classification review for the reasons stated supra.

Therefore, rejecting alternatives (1), (2), (3) and (5), we find that alternative (4) embodies the current thinking of this Court in recognition of the inherent equitable nature of zoning classifications, challenges thereto, and the institution of uses on particular parcels of land which exist, not in a vacuum, but within a dynamic community. Such a "balancing of the competing equities" approach adopted by this Court today ensures the orderly and equitable development of the communities of our state; it similarly provides affected parties with a competent, disinterested, and reflective forum for the resolution of land use grievances guided by notions of equity while concurrently affording the legislative branch of our state government necessary deference.

For the reasons set forth in this opinion, we affirm the trial court's finding of unconstitutionality.

Further, we order that this matter be remanded to defendant city council to present, for the chancellor's consideration within 60 days of this order, an adopted amendatory ordinance comporting with the dictates of equity as well as the requirements of constitutional reasonableness as applied to plaintiffs' parcel.

Upon the expiration of or within this 60 day period, the chancellor shall enter one of the following orders:

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

(ii) If, after remand to defendant city council, defendant 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 defendant city council, defendant 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 remand to defendant city council, neither plaintiffs nor defendant 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 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 defendant city council, defendant does not submit an adopted amendatory ordinance to the chancellor for consideration within 60 days of this Court's order, we direct the chancellor 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.

Of course, if either party is dissatisfied with the chancellor's order, an appeal is permitted from that order under normal procedures of de novo review. We note that this ruling is to be accorded limited retroactive effect as to all actions hereafter commenced as well as all actions heretofore commenced and now pending in either the trial or appellate courts.

Affirmed in part, modified in part, and remanded. No costs, a public question being involved.

Zaagman v City of Kentwood

Little need be remarked about this case. We affirm the Court of Appeals finding of constitutionality on the ground that plaintiff has failed to meet its burden to affirmatively prove that either defendant's ordinance is arbitrary and unreasonable or that no reasonable governmental interest is advanced by the present zoning classification. Kirk, supra; Kropf, supra. Plaintiff has not made out a case for either a denial of substantive due process or denial of equal protection.

Affirmed. Costs awarded to defendant.

COLEMAN, C.J., and FITZGERALD and RYAN, JJ., concurred with WILLIAMS, J.

BLAIR MOODY, JR., J., took no part in the decision of this case.

LEVIN, J. (for affirmance and remand).

We all agree, in Turkish, that the owners succeeded in proving that their undeveloped land could not feasibly be developed for the permitted use, and that the cause should be remanded to the city for further proceedings. We do not agree with the post-remand procedures prescribed in the opinion of the Court.

In Zaagman, the owners failed to prove the unconstitutionality of the zoning of their undeveloped land.

I

In Kropf v Sterling Heights,^[1] concurring with the majority, I expressed the view that the action of a local authority in changing or denying a change in zoning "on individual grounds is administrative, not legislative", and that "the reasonableness of the proposed use" was "the standard in fact generally followed by a local legislative body when granting or refusing a change [emphasis supplied]", and that since the question was "quasi-judicial and affect[s] private rights" the merits were, under this state's constitution, subject to judicial review to determine whether the grant or denial was "supported by competent, material and substantial evidence on the whole record".^[2]

Seven months later, in West v Portage,^[3] this Court held that an amendment to a city's zoning ordinance was not subject to referendum. I wrote the lead opinion, which received three signatures; our conclusion was based on the view that an amendment such as there presented was "an administrative, not a legislative, act". A fourth Justice concurred in the result.

A year later, in Sabo v Monroe Twp,^[4] this Court affirmed decisions of the Court of Appeals in three cases, Sabo, Smookler,^[5] and Nickola.^[6] The Justices who signed the lead opinion in West also signed my opinion in Sabo which, through the happenstance that only five Justices were participating, became the opinion of the Court.

In Sabo, Smookler and Nickola the Court of Appeals agreed with the plaintiffs that they should be allowed to use land zoned for other uses to construct mobile home parks. Four of the five Justices participating voted to affirm the Court of Appeals. In a separate opinion for affirmance Justice WILLIAMS said that the zoning was confiscatory as applied to Sabo's land because it could not be feasibly used as zoned, and that exclusionary zoning had been proven in Smookler because no specific land in the township had been zoned for mobile home parks and in Nickola because mobile homes had been excluded from all but one-tenth of one percent of the township. The majority stated that it did not agree with Justice WILLIAMS "that on proof that a community has excluded a legitimate use, here mobile home parks, it necessarily becomes obliged to grant a request for rezoning to permit that use. The land sought to be rezoned may not be suitable for development for the excluded use".^[7]

While the majority, adverting to the concept expressed in my concurring opinion in Kropf, said that "[e]ven if present zoning is not unreasonable or confiscatory, a proposed use should be permitted if reasonable under all the circumstances [emphasis supplied]", and "[w]e would require that the proofs now adduced in circuit court be presented administratively and restrict judicial review to whether the record evidence supports the administrative finding on the issue whether the proposed use is reasonable [emphasis supplied]", we said that had not been the applicable rule of law: "However, it is the present practice to present the proofs in circuit court and for a reviewing court to make its own independent examination and analysis of the record. Kropf v Sterling Heights, supra (majority opinion)".^[8]

We then noted that the Court of Appeals, upon examination of the record, had decided the proposed uses should be allowed and the record established they were reasonable. On that ground we joined with Justice WILLIAMS in affirming the Court of Appeals:

"In each of these cases the Court of Appeals held that the proposed use should be allowed. The record in each establishes that the proposed use (which happens to be a partially or totally excluded use) is reasonable. On that ground we join in affirming the decision of the Court of Appeals."^[9]

Thus, while we could not join with Justice WILLIAMS either in concluding that the Sabo zoning was not feasible^[10] or that mobile home park use should be authorized merely because exclusionary zoning had been proven, we joined with him in affirming the decisions of the Court of Appeals because, in apparent observance of the operative standards set forth in the majority opinion in Kropf (which we said "should" be changed and which we "would" change), it had made its own independent examination and analysis of the record and determined that the proposed uses should be allowed and because it appeared to us that the record further established that the lands were suitable for development for the excluded use. The partially or totally excluded uses, mobile home parks, would be compatible with nearby uses and would not impair community development and were thus reasonable.

Before Sabo was decided, the Court of Appeals had decided Werkhoven v Grandville,^[11]Turkish v City of Warren,^[12] and Ed Zaagman, Inc v Kentwood.^[13] A few weeks later, we remanded Werkhoven to the Court of Appeals. Although the remand was not for reconsideration in light of the opinion of the Court but, rather, for reconsideration "in light of the opinions of the Justices [emphasis supplied]" in Sabo, Smookler and Nickola, the Werkhoven order^[14] was read by some as indicating that the substantive standard which the Sabo majority said "should" be adopted and the procedure it said it "would" require had become the law. We granted leave to appeal in Turkish and Zaagman.

In Turkish the Court of Appeals had concluded that single-family residential development was not feasible and hence the zoning was confiscatory and affirmed the trial court's grant of injunctive relief. It stated, however, that it would prefer to withhold injunctive relief and remand for further proceedings because, although plaintiffs' proposed use for multiple-family dwellings appeared reasonable, the record was insufficient to enable the court to determine whether the city's action in denying the request for rezoning was supported and suggested adoption by this Court of the administrative/legislative analysis. In Zaagman the Court of Appeals, on the authority of Kropf, reversed a grant of injunctive relief which would have permitted development of a mobile home park on land zoned for other residential uses.

Shortly after Turkish and Zaagman were argued Kirk v Tyrone Twp^[15] stated that Sabo had adopted the concurring opinion in Kropf and then proceeded to overrule it, and reiterated adherence to the principles stated in Kropf. Today the Court reaffirms its adherence to those principles.

It is perhaps understatement to say that the Court does not embrace the view espoused by me in the concurring opinion in Kropf.

The crux of the argument for regarding a change in zoning on individualized grounds as administrative is that the state cannot constitutionally make an individualized decision, "quasi-judicial and affect[ing] private rights", that is not subject to judicial review on the merits. Const 1963, art 6, § 28. Kropf was not a direct appeal from a denial of a zoning change, but rather, as here, an action challenging the constitutionality of the zoning. The issue whether a local legislative body is acting in an administrative capacity and must observe procedures appropriate to individualized decision-making when considering such a zoning change can be duly presented and decided only in a case where such a zoning change, granted or denied, is challenged on direct appeal on the ground that it was not "supported by competent, material and substantial evidence on the whole record". Const 1963, art 6, § 28.

II

The focus in the opinion of the Court and this opinion on the question whether zoning changes are necessarily legislative or can be administrative in nature may tend to obscure what is at issue and is decided in the instant cases and the substantial agreement of the members of the Court on what is being decided in Turkish.

While we continue to disagree on whether individualized zoning changes are administrative and thus subject to constitutional limitations regarding the procedures by which such decisions may be made and requirements of judicial review on the merits, we all agree in Turkish that

— the owners proved that their undeveloped land could not feasibly be developed for the permitted use.

— existing procedures, following a judicial determination of unconstitutionality, should be modified to provide the city an opportunity to show that the land should not be used as the owner proposes. Although the existing zoning is unconstitutional as applied, it does not follow the land may be used as the owner wishes.

— if there is more than one feasible use for the land, the city's choice should generally prevail.

— the question of alternative feasible uses and the impact of the owner's and city's proposed uses on surrounding uses and future community development should be the subject of an evidentiary hearing, and decision should be based on the record made at that hearing.

— the decision is subject to judicial review on the merits.

Our disagreement concerns whether the hearing should be conducted by the local legislative body (or an agency or officer designated by it) or by the circuit court, the articulation of the standard for decision and the scope of judicial review.

We would require that the hearing be conducted by or for the local legislative body. Its choice should not be made before the record is developed. Its choice is likely to be more intelligent and responsible if made after presentation of all the evidence. A circuit judge may wonder whether the city would have made a different choice if it had had the benefit of the evidence later presented to him.

While many communities do not have experience in conducting administrative hearings in zoning matters, recent amendments to the city and village, township and county enabling acts^[16] require all communities exercising zoning power to provide, on applications for special land uses and planned unit developments, for public hearings, standards for decision, procedures and a statement of the basis of decision. As a result, most communities are now required to develop a hearing capacity.

The Court states that the standard for decision is whether the city's alternative use or uses comports "with the dictates of equity as well as the requirements of constitutional reasonableness as applied to an aggrieved landowner's parcel". We would judge the city's alternative use or uses by the same standard applied in deciding whether the existing zoning is valid — reasonableness as applied to the property. Hence, if there is more than one feasible use, the city's choice, unless unreasonable as applied, should govern.

Nor do we think that the scope of judicial review should include "a balancing of equitable considerations". Even if there is a preference for judicial fact finding, the judge's role should be confined to a determination whether the city's alternative proposed use or uses are unreasonable as applied to the property.

III

The Court's apparent conclusion that a zoning case sounds in equity is an offshoot of the procedural posture of many zoning challenges on constitutional grounds. While some property owners have sought mandamus, certiorari, superintending control or a declaratory judgment, the practice has evolved of filing a bill of complaint seeking injunctive relief against enforcement of the zoning ordinance. Because equitable relief was sought, the case was on the equity side of the court. Thus, in Hitchman v Oakland Twp,^[17] the Court said that an action to enjoin the enforcement of a zoning ordinance was a "suit in equity". When that Court turned "to a consideration of the proofs submitted by the parties", it said that "[t]his being an equity case, we hear it de novo. [Citation omitted.] While we give due consideration to the findings of the trial judge, nonetheless it is our duty to weigh the evidence and reach an independent conclusion".

The Court today expands this procedural concept into a substantive standard which clothes the circuit judge, dubbed "chancellor", with the power to reject the community's choice "through a balancing of equitable considerations". Although this Court withholds the equitable relief sought, remanding the case to the city for further proceedings, and equitable relief may never be granted, it nevertheless evokes the equitable nature of the relief sought as justifying the substantive standard and procedures prescribed by it.

All that has been decided at this juncture is that the Turkish land cannot feasibly be used as zoned; a declaratory judgment to that effect could properly enter. The subsequent judicial role should be limited to a determination whether the record shows that the city has provided the owners with a feasible alternative use that is not unreasonable as applied. The city's decision in that regard, if adequately supported by the record, should govern. If it appears that there is foot-dragging or that the city is acting in bad faith, the court then can be asked to act. I would not anticipate that need or articulate a substantive standard or establish procedures on an assumption that the city will not act responsibly.

It is also noteworthy that the reviewing standard, even in equity cases, is no longer described as "de novo". GCR 1963, 517, states that "[i]n all actions tried upon the facts without a jury * * * [f]indings of fact shall not be set aside unless clearly erroneous". Further, GCR 1963, 11, provides that "[t]hese rules govern the practice in the circuit courts * * * in actions of a civil nature whether heretofore cognizable as actions at law or in equity". It has been said that the clearly erroneous standard is the standard applied in equity before the distinction between law and equity actions was abolished.^[18] In Tuttle v Dep't of State Highways,^[19] we adopted the following formulation of the clearly erroneous standard: "`[A] finding is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" The clearly erroneous/de novo standard thus relates to appellate review of a judge's findings of fact. It is not a substantive legal standard against which the facts so found are to be judged, nor does it change the scope or nature of the judicial function or of judicial review.

IV

In Turkish, the owners of 4.83 undeveloped acres contend that the City of Warren's zoning ordinance is invalid as applied because it is not economically feasible to develop the parcel as zoned and the present zoning is therefore confiscatory and constitutionally invalid.

The land, with a house on it, was purchased for $17,000 in 1956 by the Turkishes as a home for his parents. Nearly all the surrounding land was then undeveloped farm land except for a single family subdivision immediately to the south.

By 1966 nearly all the surrounding land had been developed as single-family residences with the exception of some land to the north. That year the owners of parcels to the north sought to plat and develop their property. Turkish's parents still lived on the property and he declined to join in the development.

In 1968, the owners to the north petitioned to have their zoning changed to permit multiple dwellings. Turkish objected because the petition did not include plans for unified development with his land; he feared that his property would be "landlocked". He had previously discussed this potential situation with the city planner. The petition was withdrawn.

The following year, the city council approved the plat of a subdivision immediately north of the Turkish parcel. Turkish challenged the council's action in circuit court on the ground that he had not received adequate notice of the council's hearing and had previously been assured by the city planner that the surrounding property would not be platted without a unified road system. The court dismissed the action and no appeal was taken.

The Turkishes then sought to change the zoning of their parcel from single-family residential to multiple-family residential (R-3). The city council denied the zoning change.

The Turkishes commenced the instant action. The circuit court held that because development costs would be equal to or greater than the price at which the developed parcel could be sold, the zoning was confiscatory and unconstitutional as applied to the Turkish parcel. The court enjoined the city from "interfering with plaintiffs' use of the property in accordance with R-3 zoning". The Court of Appeals affirmed.

A

The legislative power to regulate the use of land, although the regulation may have an adverse affect on value, is well established.^[20]

It is claimed that the zoning as applied violates substantive due process because the sum of the land value, cost of development and a reasonable return exceeded the price at which the developed land could be marketed.

The United States Supreme Court has said that the Federal constitutional proscription against "taking" without compensation may include governmental action that diminishes the value of property even if there is no physical appropriation.^[21] The Court has further said that "while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking".^[22]

An owner of land is not entitled to a maximum return on his investment or to the "highest and best" use of his land. This Court has nevertheless held that "an ordinance that prevents the property owner from making any beneficial use of his property is both unreasonable and confiscatory. * * * The use imposed by the ordinance must be feasible use".^[23]

B

The Turkishes introduced evidence tending to show that if they developed their narrow parcel (1300' X 160') for single-family houses as required by the zoning ordinance and in accordance with set-back, street-width and lot-size requirements, they could only plat one street with one row of 19 lots.

In a letter to the City Attorney, the City Engineer estimated the costs of developing the parcel as zoned to be $103,000. The Turkishes' expert witness testified that the development cost would be between $135,000 and $136,000 or approximately $7,100 per lot.

The principal disputed issue at trial was the price at which lots could be sold. The city's expert testified that the present market value of the parcel when developed would be between $6,600 and $7,200 per lot. The Turkishes' expert said the value would be less than $8,000.

It therefore appears, as the circuit court found, that the parcel cannot be used as zoned because the cost of developing it for single-family housing, without allowing for a reasonable return and the undeveloped land value, is nearly equal to its value as developed, making development as zoned unfeasible. No owner would develop his property unless the value as developed substantially exceeds the cost of developing it and the basic speculative land value.

Although the judge found that the parcel had a market value of approximately $35,000, that does not mean that the parcel as zoned can be feasibly used, but may simply reflect the value of the property if rezoned less the cost and risk of obtaining rezoning.

Although "the ordinance comes to us clothed with every presumption of validity", plaintiffs sustained their burden, under Kropf,^[24] as reaffirmed in Kirk,^[25] of proving that the zoning is confiscatory as applied to their parcel: "[I]f the ordinance is enforced the consequent restrictions on [their] property preclude its use for any purposes to which it is reasonably adapted."

C

The city contends that the Turkishes are not entitled to a zoning change because they had an opportunity to develop their land, but decided not to do so at the time.

Viewed historically, the equities and lost opportunities run in both directions. It is quite possible that had the Turkishes and the city approached the development of the parcel and the surrounding land differently the Turkishes would not now own an undeveloped parcel. Notwithstanding what occurred in the past, the proofs showed that the zoning as applied to the parcel precludes development of the permitted single-family residence use. Whether in hindsight the Turkishes should have developed their parcel earlier, and even if they purchased the parcel knowing that as zoned it could not be used,^[26] the ordinance now precludes any feasible use of the property.

D

The judicial determination that the ordinance as applied to the Turkish parcel is unconstitutional should not mean that the Turkishes are necessarily entitled to use the property for multiple-family residences. The surrounding owners have an interest in how the Turkish property is developed, as does the city in providing for orderly development, consistent with its master plan, with adequate services and protection of aesthetic and environmental values. Accordingly, although the Turkishes' proposed use may appear to a court to be "reasonable", there may be other feasible means of developing single-family homes on the parcel if the city permits variances regarding street width and lot size or under other circumstances. The parcel might also be used, consistent with the present zoning, for schools, religious institutions, or some other use. Although uses consistent with present zoning may not be feasible, it may be that some use other than multiple residences is feasible and more compatible with competing interests.

The question of how best to accommodate the interests of the Turkishes, the neighboring owners, and the city should be decided by the local zoning authority and not by a court, although subject to judicial review.

V

The nature of proceedings before a local zoning authority has divided this Court,^[27] and has been given considerable attention by commentators.^[28]

The traditional approach has been to regard all zoning changes as legislative because they are made by local legislative bodies, generally by way of amendment of the existing zoning ordinance. The ordinance and any changes made in it are given a presumption of validity and an approval or refusal to approve a zoning change is reviewable by a court only to determine whether the zoning is confiscatory, denied substantive due process by not furthering a legitimate governmental interest or denied equal protection by excluding all or nearly all of a particular use.^[29]

A different approach was suggested by a few courts during the 1950's and 1960's with respect to referendum provisions,^[30] given impetus by a law review comment,^[31] and now has been adopted in several jurisdictions,^[32] endorsed by the ABA Advisory Commission on Housing and Urban Growth^[33] and substantially adopted in the Model Land Development Code.^[34] It is embodied in recommendations for revisions of Michigan's zoning enabling acts^[35] and was recently enacted with respect to applications for special land uses and planned unit developments.^[36] That approach is premised on a perceived difference in the nature of the determination made by a local legislative body when it considers zoning changes pertaining to individual parcels of land:

"Generally, when a municipal legislative body enacts a comprehensive plan and zoning code it acts in a policy making capacity. But in amending a zoning code, or reclassifying land thereunder, the same body, in effect, makes an adjudication between the rights sought by the proponents and those claimed by the opponents of the zoning change. The parties whose interests are affected are readily identifiable. Although important questions of public policy may permeate a zoning amendment, the decision has a far greater impact on one group of citizens than on the public generally."^[37]

Just as the procedures followed by this Court, by courts in general, and by administrative bodies, vary depending on whether the court or agency is prescribing broad, prospective legislative-type rules or, in contrast, is adjudicating an individual case (whether civil or criminal), the procedures in zoning should be consonant with the nature of the function: where the function is adjudicative, concerning peculiarly the rights or property of a particular individual, the procedure should be such that the decision is based on pertinent evidence, to which interested parties have an opportunity to respond, and it should be supported by an explanation of the reasons for decision.

Where a zoning change involves the interests of a discrete and limited number of property owners,^[38] notice and hearing are required to give those whose interests are directly at stake an opportunity to present facts supporting those interests and reasons a particular parcel should or should not be rezoned.^[39] The local zoning authority should be limited to a consideration of the record to assure that there has been an opportunity to respond and to avoid the appearance of unfairness which arises from ex parte communications. A record (which need not be a verbatim transcript but simply a summary of the facts and arguments presented, or a tape recording, and a file containing all written documents) should be kept so that the local zoning body can base its decision on the record, and so that, upon review by a court, it can base its decision on the same record. Findings of fact and reasons for decision (which need not be formalized, legalistic documents) serve similar purposes.

Perhaps the most controversial aspect of the administrative analysis in Michigan has been the substantive standard of review suggested in the concurring opinion in Kropf and the majority opinion in Sabo. The proposition there offered was that "[e]ven if present zoning is not unreasonable or confiscatory, a proposed use should be permitted if reasonable under all the circumstances. Kropf v Sterling Heights, 391 Mich. 139, 164; 215 NW2d 179 (1974) (concurring opinion)".^[40]

We agree that the "reasonableness of the proposed use" standard lends itself to the substitution of a judicial judgment for that of the local legislative body, and that the scope of judicial review should be confined to determining whether (1) the decision of the local legislative zoning body conforms to the substantive standard for passing on exceptions or zoning changes articulated and applied by the local legislative body; (2) the decision of the local legislative zoning body is "supported by competent, material and substantial evidence on the whole record";^[41] (3) the procedures followed adequately protect the rights of those concerned;^[42] (4) the decision was consistent with constitutional requirements of substantive due process and equal protection and with any master plan.^[43]

VI

In Zaagman, Ed Zaagman, Inc, the owner of a 17-acre undeveloped parcel of land in Kentwood, with a population of 25,300, sought to invalidate the city's zoning ordinance as applied and to have the parcel rezoned to permit use as a 97-site mobile home park.^[44]

The parcel is zoned R-3, permitting development of one- and two-family homes and, under certain circumstances, planned garden apartments.

In 1973 the landowner asked the city to rezone the property. The request was referred to the city planning commission, which, acting on a consultant's conclusion that a mobile home park would be undesirable because of traffic congestion, crowding of schools and other effects of asserted higher density, denied the request. The city refused rezoning.

This action was then commenced in circuit court seeking an injunction against enforcement of the ordinance with respect to the parcel and an order approving construction of a mobile home park.

Kentwood has four parcels zoned R-5, permitting mobile home park use. Three are fully developed, with a total of 673 mobile home pads, almost all of which were occupied. The fourth park was new, having 196 pads, 29 of which were vacant.

Existing mobile home parks covered 116 acres. There were about 870 mobile home sites, 5,220 single-family residences, 98 duplexes and almost 2,000 apartment units, with 700 additional units then under construction.

There were approximately 9,000 acres of vacant land in Kentwood zoned as follows: 1,000 agricultural; 1,600 single family; 4,300 in two kinds of zones permitting single- and double-family homes and garden apartments; 300 planned development; 300 commercial; and 1,500 industrial.

The Kentwood Land Use System Plan of 1973 called for 94 acres to be used for mobile home parks, 30 acres of which were not then zoned for mobile home park development.^[45]

The relief requested was granted by the circuit court, a short time before Kropf was decided.^[46] The Court of Appeals reversed on the authority of Kropf.

The landowner's proofs tended to show that the parcel was well-suited for use as a mobile home park. Zoning is not, however, unreasonable or unconstitutional simply because it does permit a use for which the land is suited.

The landowner also argued that the zoning is invalid because the ordinance in effect excludes^[47] mobile home development from the city as a whole.^[48]

While local units of government may, pursuant to the police power granted by the Legislature, regulate land use, they may not preclude all growth nor may they entirely exclude a particular kind of residential development. Zoning and other land use regulations may properly be designed to facilitate planned growth, and development to protect the public health and safety, permit governmental services to keep pace with development and to retain some of the aesthetic and environmental values which might otherwise be lost. Put simply, "[z]oning is a means by which a governmental body can plan for the future — it may not be used as a means to deny the future".^[49]

Where a unit of government in effect singles out for exclusion one or more forms of land use, either directly or indirectly (by, for example, permitting uses which few of the persons seeking to use the land can afford), a question may arise whether a legitimate governmental interest is being advanced.

There were no undeveloped R-5 zones in the city. In the four developed R-5 zones there were approximately 870 sites, with about 30 vacant. Less than 1% of the acreage in the city was devoted to mobile home park use. The percentage of mobile home units to total dwelling units was substantially less than in some nearby communities.

The mayor testified, however, that the ordinance was being revised to provide for a "fairly substantial mobile home area in an entirely different section of the city". Such an area is shown on the city's general development plan.

Justice WILLIAMS has written:

"While mobile home parks are not a guaranteed constitutional use, they are necessary to the essential human problem of low-cost shelter. Legislatively and judicially, as a lawful land use, they deserve protection from discrimination by exclusionary zoning."^[50]

Given fundamental demographic changes, particularly in the availability and affordability of single-family homes, mobile homes may have become the only feasible means for persons of modest means to own and live in a single-family residence.^[51] Today's mobile home parks differ from yesterday's trailer camps. In addition to paved streets, sidewalks, central recreational facilities and other conveniences of modern suburban living, the homes may be larger and better constructed and designed than some conventionally constructed single-family homes.^[52]

Yet there has been a persistent reluctance on the part of some municipalities to permit the development of mobile home parks, sometimes because of a legitimate concern regarding overpopulation or the adequacy of services, sometimes because of concern for aesthetics, and sometimes because of an unexpressed desire to exclude the kind of persons thought to reside in them.

We are not, however, faced with a prohibition of a "`constitutionally' recognized use" giving rise to a "prima facie case placing a heavy burden on the municipality to justify the local legislation".^[53] Nor, unlike Nickola,^[54] is there a suggestion that the city has refused all new applications for mobile home use, making the prospect of future mobile home park development elsewhere in the city illusory.

Absent any showing that there is a pattern of refusals of applications where property is suited for mobile home use, or any indication that the planning commission or city commission does not consider each application on its merits and acts in accordance with an unspoken plan to deny such applications, the ordinance is not exclusionary, and the failure to permit a parcel to be used for mobile homes, although well suited for that purpose, does not justify a conclusion that the ordinance as applied to that parcel is unconstitutional.

KAVANAGH, J., concurred with LEVIN, J.

NOTES

[1] Kropf v Sterling Heights, 391 Mich. 139; 215 NW2d 179 (1974).

[2] Sabo v Monroe Twp, 394 Mich. 531; 232 NW2d 584 (1975).

[3] Kirk v Tyrone Twp, 398 Mich. 429; 247 NW2d 848 (1976).

[4] Plaintiffs' complaint, in pertinent part, reads as follows:

"(b) That plaintiffs be permitted to commence construction in accordance with defendant's R-3 zoning ordinance.

"(c) That plaintiffs have such further and other relief as may be just and equitable under the circumstances."

At no point in either their pleadings or testimony at trial have plaintiffs requested the judicial declaration of a proposed use other than the construction and development of multiple-family dwellings, one of many enumerated R-3 uses.

In its answer to plaintiffs' complaint, defendant merely prays that the complaint be dismissed and that costs as well as attorneys' fees be awarded. Defendant has consistently averred that the parcel in question is solely amenable to an R-1-C single-family residential use; defendant nowhere indicates that an R-3 use other than that requested by plaintiffs would be satisfactory.

[5] Warren Zoning Ordinance 30, art X, §§ 10.01 et seq., delineates the particular uses and specifications to which property zoned R-3 may be put. Section 10.01 entitled "Uses Permitted" provides as follows:

"In all R-3 districts no building or land, except as otherwise provided in this ordinance, shall be erected or used except for one or more of the following specified uses:

"(a) All uses permitted and as regulated in R-2 districts.

"(b) Multiple-family dwellings and efficiency apartments.

"(c) Boarding, rooming and lodging houses or tourist homes.

"(d) Private garages or community garages, either separated or in connected groups, having common and unpierced dividing walls between contiguous private garages. Maximum area per car to be stored in such garages shall not exceed two hundred-fifty (250) square feet."

Warren Zoning Ordinance 30, art IX, §§ 9.01 et seq., details the uses and specifications permitted under the R-2 two-family residential district classification referred to in § 10.01, supra. Section 9.01 provides as follows:

"In all R-2 residential districts, no building or land, except as otherwise provided in this ordinance, shall be erected or used except for one or more of the following specified uses:

"(a) All uses permitted and as regulated in R-1-C districts.

"(b) Two-family dwellings.

"(c) Private museums, on approval of the Planning Commission.

"(d) Building and uses customarily incidental to the above permitted uses shall include not more than one (1) private garage which shall provide parking space for not more than two (2) motor vehicles per living unit, not more than one of which may be a commercial vehicle which shall not exceed three-quarter (3/4) ton capacity and shall be kept housed within a garage when not in use, provided said commercial vehicle is owned and operated by a member of the family who resides in said living unit. Maximum area per car to be stored in such garages shall not exceed two hundred fifty (250) square feet.

"(e) A residence may be used for a home occupation, provided it complies with § 2.29 of this ordinance, after approval has been granted by the Board of Appeals.

"(f) Hospitals, except animal hospitals and hospitals or sanitariums for contagious, mental or drug or liquor addict cases, and institutions of a philanthropic and charitable nature, after approval has been granted by the Planning Commission.

"(g) The storage or parking of trucks, truck tractors and truck trailers of over three-quarter (3/4) ton capacity, automobile trailers or the storage, parking or use of coaches, bus or streetcar bodies, or similar dwellings, tourist cabins, or tents shall not be allowed or considered a legal accessory use in an R-2 district. This shall not prohibit the storage of one unoccupied house trailer or watercraft, which is the property of the occupant, provided, however, that such house trailer or watercraft shall be parked in the rear yard at least ten (10) feet away from any dwelling and any property line."

Warren Zoning Ordinance 30, art VII, §§ 7.01 et seq., captioned "R-1-C One Family Residential District" provides in § 7.01 for all uses permitted under the R-1-B designation, Warren Zoning Ordinance 30, art VI, §§ 6.01 et seq., which in turn refers to all uses permitted under R-1-A. Warren Zoning Ordinance 30, art V, §§ 5.01 et seq., details the uses permitted under the R-1-A one-family residential district classification. Those uses are defined in § 5.01 as follows:

"In all R-1-A districts, no building or land, except as otherwise provided in this ordinance, shall be erected or used except for one or more of the following specified uses:

"(a) One-family dwellings.

"(b) Farms on those parcels of land separately owned outside the boundaries of proprietary or supervisor's plats, having an area of not less than three (3) acres, all subject to city and county health and sanitation ordinances.

"(c) Churches, public schools, public libraries, private educational institutions, when approved by the City of Warren Planning Commission.

"(d) Municipal owned and operated parks and playgrounds, available for use by the residents of the City of Warren, after approval by the Planning Commission.

"(e) Church or public building bulletin boards, not exceeding ten (10) square feet in area, and temporary signs not exceeding six (6) square feet in area appertaining to the lease, hire or sale of a building or premises, which sign shall be removed as soon as the premises are leased, hired or sold. Provided, further, that not more than one (1) temporary non-illuminated subdivision sign pertaining to the sale or rental of premises being developed on which it is maintained, and having an area of not more than three hundred (300) square feet nor more than ten (10) square feet for each lot within the subdivision of less than thirty (30) lots. Said sign shall not exceed twelve (12) feet in height above ground and shall be removed upon completion and occupation of buildings.

"(f) Community buildings, country clubs, fraternal lodges, or similar civic or social clubs (but not a residential club, or a club operated as a commercial enterprise), after approval by the Planning Commission.

"(g) The use of open land for privately owned and operated parks, picnic groves, golf courses, or similar facilities for outdoor exercises and recreation, which may or may not be operated for profit, provided such use does not impair the natural appearances of such land or tend to produce noise or annoyance to surrounding properties, shall be permitted only after approval by the Planning Commission.

"(h) Publicly owned buildings, transformer stations and substations, without service yards, after the approval of the City of Warren Planning Commission as being in harmony with the structures in the area, not injurious to the surrounding neighborhood and in accord with the spirit and purpose of this ordinance.

"(i) Temporary buildings for uses incidental to construction work, which buildings shall be removed upon completion or abandonment of the construction work.

"(j) The use of a parcel, lot or lots for the carrying on of gardening activities or the production of agricultural products through the direct tilling of the soil, together with facilities for the sale of the products thus produced thereon shall be permitted, provided that said facilities for the sale of any such products shall be located on the premises not nearer than thirty (30) feet from the front lot line.

"(k) Accessory buildings or uses customarily incident to any of the above permitted uses, when located on the same or adjoining lot and not involving any business, profession, trade or occupation. One (1) private garage for each residential lot in which there is housed not more than three (3) vehicles, not more than one (1) of which may be a commercial vehicle, shall be considered a legal accessory use, provided, however, any such commercial vehicle shall not exceed three-quarter (3/4) ton capacity, and shall be kept housed within a garage when not in use; and provided, further, that no moving vans shall be housed in private garages. All garages and/or accessory buildings shall contain not more than seven hundred (700) square feet of floor area.

"(l) The storage or parking or use of moving vans, automobile trailers, trailer coaches, bus or streetcar bodies, or similar dwellings, tourist cabins or tents, shall not be allowed or considered a legal accessory use in an R-1-A district, except that a temporary permit may be issued for the parking in the rear yard of one (1) house trailer, for not more than thirty (30) days within any calendar year, when occupants of such house trailer are provided with the sanitary facilities used by the household on whose lot they are occupying and only when such trailer occupants are visiting relatives and non-paying guests. This shall not prohibit the storage of one (1) unoccupied house trailer or small utility trailer, or a single watercraft in the rear yard no larger than one which may be transported with trailer by a passenger motor vehicle, and which is the property of the occupant on said lot, provided such trailer or watercraft is parked at least ten (10) feet from any dwelling or property line."

It is apparent from this zoning scheme that a plethora of uses are permitted under the R-3 zoning designation, including but not limited to the specific multiple-family dwelling use proposed by plaintiffs herein.

[6] See 4 Anderson, American Law of Zoning (2d ed), § 28.10, p 378.

Other courts have similarly found that leaving property unzoned is unacceptable. The Illinois Court of Appeals in Harshman v De Kalb, 64 Ill App 2d 347, 352-353; 212 NE2d 146 (1965), stated the following in this regard:

"The practical effect of declaring an existing zoning ordinance null and void in regard to a particular piece of property is to leave that piece of property in a condition which, for lack of a better description, has been called unzoned. To avoid the obvious dilemma of such a situation, recent cases have held that the court may frame its order in reference to a specific proposal before it and find that the contemplated use would be a reasonable one. Sinclair Pipe Line v Village of Richton Park, 19 Ill 2d 370; 167 NE2d 406 [1960]; Franklin v Village of Franklin Park, 19 Ill 2d 381; 167 NE2d 195 [1960].

"The aim of these decisions is to avoid the possibility of a re-zoning of the property to some other undesirable classification and, thus, invite further litigation, and to prevent any exploitation by the owner of the fact that his property is, at least temporarily, unzoned. To those ends, the wisdom of these decisions seems clear."

[7] In Daraban, supra, Justice T.G. KAVANAGH in his dissenting opinion noted the following cases in support of the Long proposition which he unsuccessfully sought to overturn:

"The cases of Long v Highland Park, 329 Mich. 146 [45 NW2d 10] (1950); Redford Moving & Storage Co v Detroit, 336 Mich. 702 [58 NW2d 812] (1953); Industrial Land Co v Birmingham, 346 Mich. 667 [78 NW2d 656] (1956); Dequindre Development Co v Warren Charter Twp, 359 Mich. 634 [103 NW2d 600] (1960), have apparently come to stand as authority for the issuance of injunctions which can restrain municipalities from zoning the property involved in a manner different from that sought by the plaintiff." 383 Mich. 497, 506.

[8] See 4 Anderson, American Law of Zoning (2d ed), § 28.10, p 379, and cases cited therein.

[9] See Dade County v Moore, 266 So 2d 389 (Fla App, 1972); Clearwater v College Properties, Inc, 239 So 2d 515 (Fla App, 1970); Hudson v Buena Vista Twp Zoning Board, 6 Mich. App. 625; 150 NW2d 167 (1967).

[10] Other jurisdictions have sanctioned orders permitting the institution of an aggrieved landowner's proposed specific use subsequent to a finding of classification invalidity and supportable by evidence as to reasonableness of that specific use. We find the following cases persuasive:

In Fiore v Highland Park, 76 Ill App 2d 62; 221 NE2d 323 (1966), plaintiff sought to develop multiple-family dwellings on its parcel zoned for office and research use; plaintiff presented specific proofs at trial as to the nature of the apartment complex they intended to construct on the subject parcel. The trial court declared the disputed ordinance invalid and ordered defendant to permit plaintiff to develop its parcel for multiple-family dwellings under the general zoning classification permitting such use. On appeal, the Illinois Court upheld the finding of unconstitutionality, but reversed the chancellor's order as too broad insofar as it did not address itself to the reasonableness of the "specific use contemplated by the owner". 76 Ill App 2d 62, 76. The Court offered the following guidelines for the chancellor to consider on remand in framing its decree with respect to plaintiff's proposed specific use alone:

"The most that a court may do after declaring an existing zoning ordinance void as applied to certain property is to find that the specific use contemplated by the owner is reasonable and may be permitted.

"Under such circumstances, the court may frame its decree in the light of the evidence before it with reference to the specific proposed use; and may decree such contemplated use to be a reasonable one. Such decree neither impinges upon the legislative function, nor in effect leaves the property unzoned, with its potential problem of further litigation due to further rezoning by the municipality; and it limits plaintiffs' use of the land to that contemplated and indicated by the record. Sinclair Pipe Line v Richton Park, supra, 379; 167 NE2d 406; Harshman v De Kalb, supra.

"In the case at bar, the plaintiffs presented evidence as to the nature of the apartment complex they intended to construct on these premises. The decree of the trial court should be framed with reference to the evidence of this intended use and permit such use only, rather than any permitted under the applicable multiple-family zoning restriction. If the court finds that such evidence is not sufficient to enable it to intelligently frame its decree, it should hear additional evidence pertinent to such use." 76 Ill App 2d 62, 76.

The Illinois Court of Appeals in La Salle National Bank v Chicago, 130 Ill App 2d 457; 264 NE2d 799 (1970), was faced with a situation similar to that presented in Fiore. In La Salle, plaintiffs sought to construct "three detached structures containing a total of twenty-two units" on property zoned for single-family residential dwellings. The trial court held the disputed classification invalid and entered an order permitting plaintiffs to construct a "multiple-family apartment project subject * * * to the R-3 General Residence District provisions of the Chicago Zoning Ordinance". On appeal, the Court affirmed the chancellor's finding of unconstitutionality but reversed and remanded the lower court's order which directed the construction of multiple-family dwellings, a use different from that specifically proposed by plaintiffs (i.e., three detached structures containing 22 units). On remand, the chancellor was restricted to a determination of the reasonableness of plaintiffs' specifically averred definitive relief. Said the opinion's author:

"The issue here is how a decree in a zoning case is to be framed. * * * Since the practical effect of declaring an existing zoning ordinance void in regard to a particular piece of property is to leave that piece of property in an unzoned condition, the court may frame its order in reference to a specific proposal before it and find that the contemplated use would be a reasonable one. Harshman v De Kalb, 64 Ill App 2d 347; 212 NE2d 146 (1965). Sinclair Pipe Line v Village of Richton Park, 19 Ill 2d 370; 167 NE2d 406 (1960). However, the court must exercise this authority with extreme care to avoid any encroachment into the legislative function of zoning. Harshman v De Kalb, supra. The most that a court may do after declaring an existing zoning ordinance void as applied to certain property is to find from clear evidence before it that the specific use contemplated by the owner is reasonable and may be permitted. Fiore v Highland Park, 76 Ill App 2d 62, 76; 221 NE2d 323 (1966). Consequently, the decree of the trial court should be framed with reference to the evidence of the intended use and permit such use only, rather than being framed with reference to a multiple family zoning classification. Fiore v Highland Park, supra." 130 Ill App 2d 457, 460-461.

Dixon v Kane County, 77 Ill App 2d 338; 222 NE2d 354 (1966), presented a separate panel of Illinois appellate justices with an aggrieved landowner's attempt to construct a gas service station (a B-1 business use) on property zoned for single-family residential and agricultural uses. That panel reversed the chancellor's order upholding the validity of the disputed classification and remanded the matter for entry of an order authorizing the use of plaintiff's parcel for gasoline service station purposes "since the plaintiff did present evidence concerning [that] proposed use of the property and since this appears to be a reasonable use * * * in accordance with the evidence". 77 Ill App 2d 338, 343. Again citing Fiore, supra, the Court stated the following general proposition:

"If no specific use is proposed, the most the court can do is invalidate the zoning. If a specific use is proposed, the court, after invalidating the zoning, may authorize the proposed use if that is reasonable under the circumstances of the case." Id., 342.

Further, in Harshman v De Kalb, 64 Ill App 2d 347; 212 NE2d 146 (1965), the Illinois appellate panel upheld the chancellor's declaration of classification invalidity but reversed and remanded to develop a record, and finding thereon, as to a specific use to be made by plaintiff of its property, which specific intentions had not been averred at trial. Citing a statement of the Illinois Supreme Court in Reeve v Village of Glenview, 29 Ill 2d 611, 615-617; 195 NE2d 188, 191 (1963), the Harshman Court forwarded the proposition that a court may not order relief in the absence of clear evidence of the reasonableness of a specific use contemplated by plaintiff. Once presented with a proposed specific use, therefore, the chancellor was empowered to determine its reasonableness and frame a decree accordingly. Regarding the requirement of reasonableness, the panel cautioned:

"It is also apparent that the courts must exercise this authority with extreme care to avoid any encroachment into the legislative function of zoning. It is imperative that there be clear evidence before the court of the specific use to which the owner intends to develop his property and the order framed in reference to it, Sinclair Pipe Line v Village of Richton Park [19 Ill 2d 370; 167 NE2d 406 (1960)]." Harshman v De Kalb, 64 Ill App 2d 347, 353; 212 NE2d 146, 149 (1965).

See, generally, Flair Corp v Brecksville, 49 Ohio App 2d 77; 3 Ohio Op 3d 146; 359 NE2d 459 (1976) (remand to determine specific use[s] to which plaintiff land could reasonably be put); Ellick v Board of Supervisors, 17 Pa Commonwealth Ct 404; 333 A2d 239 (1975) (remand pursuant to statutory authority to determine the reasonableness of plaintiff's proposed specific use).

[11] This Court in Frendo v Southfield Twp, 349 Mich. 693; 85 NW2d 130 (1957), also recognized the need when fashioning zoning relief to "balance the conflicting equities and try to reach a fair working result consistent with the dilemma before us". 349 Mich. 693, 698. In this regard, the Court stated:

"Few decisions in any such zoning cases fail to harm and displease someone; our job is try to balance the conflicting equities and try to reach a fair working result consistent with the dilemma before us. We grant, then, that any relief given here to the plaintiffs will to some extent harm home owners in the vicinity. Yet a denial of relief will most certainly affect the plaintiffs; they will be left to pay taxes on lots which we believe the proofs plainly show are entirely unusable for the purposes to which by this ordinance they are restricted." Id.

The Frendo Court, however, was not disposed to direct remand for a determination of the "midsatisfactory" use to be accorded the subject parcel as was Justice BLACK in Dequindre, supra. Rather, having found the disputed single-family zoning classification unconstitutional, the Court ordered that the defendant permit a use of the parcel consistent with the general commercial use classification prayed by plaintiff.

[1] Kropf v Sterling Heights, 391 Mich. 139, 164; 215 NW2d 179 (1974).

[2] Const 1963, art 6, § 28.

[3] West v Portage, 392 Mich. 458; 221 NW2d 303; 72 ALR3d 1016 (1974).

[4] Sabo v Monroe Twp, 394 Mich. 531; 232 NW2d 584 (1975), aff'g 46 Mich. App. 344; 208 NW2d 57 (1973).

[5] Smookler v Wheatfield Twp, 394 Mich. 574; 232 NW2d 616 (1975), aff'g 46 Mich. App. 162; 207 NW2d 464 (1973).

[6] Nickola v Grand Blanc Twp, 394 Mich. 589; 232 NW2d 604 (1975), aff'g 47 Mich. App. 684; 209 NW2d 803 (1973).

[7] Sabo v Monroe Twp, supra, pp 535-536.

[8] Id., pp 536-537.

[9] Id., p 537.

[10] See Sabo v Monroe Twp, supra, p 536, fn 5.

[11] Werkhoven v Grandville, 61 Mich. App. 200; 232 NW2d 356 (1975).

[12] Turkish v City of Warren, 61 Mich. App. 435; 232 NW2d 732 (1975).

[13] Ed Zaagman, Inc v Kentwood, 61 Mich. App. 693; 233 NW2d 146 (1975).

[14] 395 Mich. 753; 232 NW2d 671 (1975).

[15] Kirk v Tyrone Twp, 398 Mich. 429; 247 NW2d 848 (1976).

[16] 1978 PA 637, 1978 PA 638 and 1978 PA 640; MCL 125.286b et seq., 125.584a et seq., 125.216b et seq.; MSA 5.2963(16b) et seq., 5.2934(1) et seq., 5.2961(16b) et seq., amending the township, city and village and county zoning enabling acts.

[17] Hitchman v Oakland Twp, 329 Mich. 331, 333, 335-336; 45 NW2d 306 (1951).

[18] "Rule 517 prescribes a single standard of review for court findings in all actions, legal or equitable, tried without a jury. The standard is essentially that of the former equity practice. The standard is that findings of fact shall not be set aside unless `clearly erroneous.'

"Formerly in chancery cases, although it was commonly said that issues of fact were tried de novo on appeal or that the Supreme Court must weigh the evidence and reach an independent conclusion on review of the facts, this did not mean that the findings of the trial judge were entitled to no consideration. * * * The Supreme Court was most reluctant to disturb the findings of a trial judge based on credibility, since the trial judge, as the trier of facts, had the advantage of observing the witnesses.

* * *

"Thus it is clear that Rule 517 accurately restates former practice in the review of chancery cases in Michigan, although the language itself is borrowed from Federal Rule 52." 2 Honigman & Hawkins Michigan Court Rules Annotated (2d ed), pp 596-597.

[19] Tuttle v Dep't of State Highways, 397 Mich. 44, 46; 243 NW2d 244 (1976).

[20] See Austin v Older, 283 Mich. 667, 676-677; 278 N.W. 727 (1938); Village of Euclid v Ambler Realty Co, 272 U.S. 365; 47 S. Ct. 114; 71 L. Ed. 303; 54 A.L.R. 1016 (1926).

[21] See United States v Kansas City Life Ins Co, 339 U.S. 799, 810; 70 S. Ct. 885; 94 L. Ed. 1277 (1950); cf. San Diego County v Miller, 13 Cal 3d 684, 691; 119 Cal Rptr 491, 495; 532 P2d 139 (1975); Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 Harv L Rev 1165, 1190-1193 (1967).

[22] Pennsylvania Coal Co v Mahon, 260 U.S. 393, 415; 43 S. Ct. 158; 67 L. Ed. 322 (1922).

[23] See Bassey v Huntington Woods, 344 Mich. 701, 704-705; 74 NW2d 897 (1956).

Similarly, see Smith v Village of Wood Creek Farms, 371 Mich. 127, 136; 123 NW2d 210 (1963); Frendo v Southfield Twp, 349 Mich. 693; 85 NW2d 130 (1957); Nectow v City of Cambridge, 277 U.S. 183; 48 S. Ct. 447; 72 L. Ed. 842 (1928).

[24] Kropf v Sterling Heights, supra, pp 162-163.

[25] Kirk v Tyrone Twp, supra, pp 439-440.

[26] See Kropf v Sterling Heights, supra, p 152.

[27] See Sabo v Monroe Twp, supra; West v Portage, supra; Kropf v Sterling Heights, supra; Kirk v Tyrone Twp, supra.

[28] See Cunningham, Rezoning by Amendment as an Administrative or Quasi-Judicial Act: The "New Look" in Michigan Zoning, 73 Mich. L Rev 1341 (1975); Lax, 1974 Annual Survey of Michigan Law, Local Government, 21 Wayne L Rev 577 (1975); Cohn & Polito, Administrative Zoning Change: Give it a Chance, 54 Mich St B J 956 (Dec, 1975); Ternan, Michigan Zoning: A Need for Clarity and Stability, 55 Mich St B J 33 (Jan, 1976); Crawford, Administrative Zoning Change — Prospects and Problems, 54 Mich St B J 854 (Nov, 1975); Anthony, Rezoning Procedure: A Dramatic Change, 54 Mich St B J 855 (Nov, 1975).

See, also, ABA Advisory Commission on Housing & Urban Growth, Housing For All Under Law (Fishman, ed. Cambridge, Mass: Ballinger Publishing Co, 1978), pp 268 et seq.; Developments in the Law — Zoning, 91 Harv L Rev 1427, 1508 (1978); Levy, Judicial Review of Zoning Cases — New Rules?, 6 Tulsa L J 1 (1969); Booth, A Realistic Reexamination of Rezoning Procedure: The Complementary Requirements of Due Process and Judicial Review, 10 Ga L Rev 753 (1976); Sullivan, Araby Revised: The Evolving Concept of Procedural Due Process Before Land Use Regulatory Bodies, 15 Santa Clara Lawyer 50 (1974); Freilich, Editors Comments — Fasano v Board of County Commissioners of Washington County: Is Rezoning an Administrative or Legislative Function?, 6 Urban Lawyer vii (1974); Comment Developments in the Search for Workable Standards of Judicial Review of Piecemeal Rezoning, 24 Catholic U L Rev 294 (1975).

[29] One observer characterizes the traditional approach as empowering local legislative bodies

"to change the zoning classification of land at will or to refuse to change it, regardless of what record is made in the proceedings before them, so long as they do not place the land in a zoning category which does not permit reasonable use and enjoyment thereof." Crawford, supra, p 854.

[30] See Bird v Sorenson, 16 Utah 2d 1; 394 P2d 808 (1964); Donovan v Clark, 222 F Supp 632, 634 (D DC, 1963); Morton v Mayor & Council of Clark Twp, 102 NJ Super 84; 245 A2d 377 (1968); Minneapolis-Honeywell Regulator Co v Nadasdy, 247 Minn 159; 76 NW2d 670 (1956); Kelley v John, 162 Neb 319, 323-325; 75 NW2d 713 (1956); Golden v Overland Park, ___ Kans ___; 584 P2d 130 (1978).

The Oklahoma Supreme Court adopted the quasi-judicial approach in Sand Springs v Colliver, 434 P2d 186 (Okla, 1967), but overruled that decision in O'Rourke v Tulsa, 457 P2d 782 (Okla, 1969). See Levy, supra, p 19.

[31] Comment, Zoning Amendments — The Product of Judicial or Quasi-Judicial Action, 33 Ohio St L J 130 (1972).

[32] See Fasano v Washington County Board of Commissioners, 264 Or 574; 507 P2d 23 (1973); Fleming v Tacoma, 81 Wash 2d 292, 298-300; 502 P2d 327; 330-331 (1972); Snyder v Lakewood, 189 Colo 421; 542 P2d 371 (1975); Lowe v Missoula, 165 Mont. 38, 45-47; 525 P2d 551, 554 (1974); Forman v Eagle Thrifty Drugs & Markets, Inc, 89 Nev 533, 536-537; 516 P2d 1234, 1236 (1973).

See, also, Ward v Skokie, 26 Ill 2d 415, 423-424; 186 NE2d 529, 533 (1962) (concurring opinion); City of Eastlake v Forest City Enterprises, Inc, 426 U.S. 668, 685, fns 6, 7; 96 S. Ct. 2358; 49 L. Ed. 2d 132 (1976) (Stevens, J., dissenting).

[33] The American Bar Association Advisory Commission on Housing & Urban Growth adopted a number of policy statements "which summarize the major themes and findings of its report", including the following:

"1. A primary concern in facilitating rational and equitable urban growth is the extent to which the traditional system of land-use controls has evolved into a highly discretionary process. While this development has its salutary aspects, particularly in permitting local government to respond to the increased complexities of land-use decision-making, it has also strained the fairness and rationality of the regulatory system.

"Because of the issues involved in reconciling discretionary action with procedural fairness, Chapter 4 in part concerns the legal distinction between `legislative' and `administrative' or `quasi-judicial' actions. The discussion of these labels, however, should not be emphasized to the point of distraction from the underlying concepts. The issue is one of procedural fairness and predictability that is adaptable to local conditions and capabilities. The use of terms such as cross-examination, fair and impartial tribunal, and the like, need not be interpreted in the same sense as they might be in an attempt to reform the judicial process.

"2. A government body, in granting or denying development permission for a specific parcel of land at the request of a particular party, is engaged in an adjudicatory process. As such, the essentials of procedural due process normally expected of administrative bodies — adequate notice, an opportunity to be heard, a fair and impartial tribunal, and findings based on an adequate record — must be met. Furthermore, such local actions, when reviewed by the courts, need not be accorded the traditional presumption of legislative validity.

"Traditionally, courts have viewed all amendments to a zoning ordinance as legislative acts, because they are granted by the local legislature. Consequently, such actions have been accorded a presumption of legislative validity. Under this presumption, challenges to the validity of a local action have been required to demonstrate that the decision is arbitrary, capricious, and unreasonable, and that it has no relation to the public health, safety, and welfare — an extremely onerous burden. The Advisory Commission recognizes that the local legislature, in enacting or amending a zoning ordinance applicable to all or a substantial part of a political jurisdiction, is acting in a different role from the one it assumes when making a decision on requests by parties or individuals for particular changes from the general scheme. The latter role is more akin to that of settling disputes, and therefore, to promote greater fairness and avoid the risk of arbitrariness, should be afforded greater due process standards. This approach does not affect text amendments applying to classes of land use or a collection of parcels within an area, comprehensive or planning area rezonings, and adoption of the comprehensive plan (in whole or by area); such actions should retain their `legislative' characterization and be subject to the traditional standards of judicial review. The legislative characterization may continue to be appropriate for individual requests for development permission that have a substantial or disproportionate impact on the community, regardless of the size of the parcel or parcels at issue.

"3. State zoning enabling legislation should be amended so as to specify the requirements for administrative review of individual requests for zoning changes or development permission. Such legislation should be responsive to the varying financial capabilities and development activity existing in political jurisdictions of differing sizes, which would affect their ability to implement a sophisticated administrative process. (Small communities, for example, may lack the financial resources or a sufficient level of development activity to justify the changes necessary for such an approach.)

"While the shift in attitude toward local land-use actions affecting specific parcels has been initiated largely by the judiciary, more flexible reform in this area could be brought about through legislative change. (See, e.g., the ALI Model Land Development Code.)

"4. To assure a fair and impartial tribunal for `quasi-judicial' actions, enabling legislation and local rules should be amended to limit prehearing or ex parte contacts between the parties to the action and the public officials involved, or to require that such contacts (excepting routine informational discussions with professional staff members) be on the record. This approach reduces the amount of lobbying or informal advocacy that often precedes the formal hearing and casts a shadow over the fairness of the entire proceeding.

"5. Judicial review of the grant or denial of individual requests for development permission should proceed on the record established in the hearing below in accordance with general principles of administrative law or as prescribed by statute, unless determined otherwise by the court. This approach seeks to avoid de novo review in such cases. Accordingly, the record established at the hearing would be called up and examined for errors without the court substituting its judgment for that of the lower body. The court could remand the case to the administrative body for a new hearing, additional findings, or other actions in accordance with traditional judicial functions in administrative law. The efforts of the courts would thereby be focused on the record and findings made below, and the importance of fair and rational local government action would be emphasized.

"6. The implementation of the procedural changes suggested in this chapter may impose additional administrative burdens on the plan commission, board of appeals, and legislative body. To lessen these administrative burdens, while at the same time assuring a more efficient and professional process, local governments should consider the creation of a hearing examiner system. The hearing examiner would hear and decide cases, subject to appeal to the local governing body, in conventional discretionary matters such as requests for variances, special permits, and subdivision plats. With regard to individual requests for rezonings of specific parcels, they too should be heard by the hearing examiner, with a complete record made of the proceedings. The hearing examiner's recommendations would then be submitted to the governing body, which would make the final decision on the basis of the record established before the examiner.

"The hearing examiner provides a mechanism for diverting administrative burdens and leaving the public official with time for the more important tasks of planning, policy formulation, and making final decisions on the record made before the hearing examiner. It must be recognized that instituting a hearing examiner system will involve public costs and probably would be best justified in areas undergoing substantial development activity."

See Housing For All Under Law, supra, pp viii, 319-322.

[34] "(1) Notwithstanding the provisions of § 2-311, the local governing body may authorize development by a special amendment only if the procedures of this Section are followed. A special amendment is an amendment

"(a) which results in a change limited in effect to a single parcel or to several parcels under related ownership; or

"(b) which changes regulations applicable to an area of [50] acres or less; or

"(c) which permits development specified in a previously adopted ordinance as permissible upon stated criteria after approval by the local governing body.

"(2) Prior to the adoption of a special amendment, the Land Development Agency shall hold a hearing in accordance with § 2-304 and make findings and recommendations on the issues presented in regard to the proposed amendment. A special amendment may be adopted only if

"(a) development at the proposed location is essential or especially appropriate in view of the available alternatives within or without the jurisdiction; or

"(b) the development is development of regional benefit under § 7-301(4); or

"(c) the development could have been granted a special development permit under Part 2 of this Article or under Article 7, whether or not the development ordinance before the amendment authorized the Land Development Agency to grant a permit on that basis; or

"(d) there was a mistake in the original ordinance in regard to the property.

"(3) Upon receipt of the findings and recommendations of the Agency, the governing body may, with or without an additional hearing, adopt the proposed amendment, or modify the proposed amendment and adopt it as modified. A local governing body may adopt a special amendment only if it finds that the amendment would satisfy the requirements of subsection (2). Any additional hearing by the governing body shall be conducted in accordance with § 2-305.

"(4) The decision of the governing body to adopt a special amendment shall be supported by findings and conclusions based upon the record as if a special development permit had been granted. In any judicial proceeding thereon, the findings and conclusions shall be those of the agency under subsection (2) unless the governing body, on the basis of the same record or a record prepared before it, makes other findings and conclusions." ALI, Model Land Development Code, § 2-312, pp 108-111 (emphasis supplied).

The Notes to § 2-312 explain that

"The Land Development Agency must hold a hearing and make specific findings and recommendations on the issues presented in regard to any special amendment. This hearing must be conducted as an administrative hearing under § 2-304, not as a legislative-type hearing under § 2-305. (Compare § 2-311[3].) In order to justify the grant of a special amendment it must be `supported by findings and conclusions based upon the record as if a special development permit had been granted.'"

See, generally, Peterson, Flexibility in Rezoning and Related Governmental Land Use Decisions, 36 Ohio St L J 499 (1975).

[35] See Office of Land Use, Zoning Advisory Committee, Michigan Department of Natural Resources, Michigan's Zoning Enabling Acts — Recommendations for Revision, pp 48-50, 65-68. See, also, Appendix A, Jan, 1977 Revision.

[36] See fn 16, supra.

[37] Fleming v Tacoma, supra, p 299.

[38] A change to permit development of a major shopping center, because of its long-term impact on the local government's resources available for capital improvements, its potential for influencing patterns of growth and its impact on a large number of landowners, may require a procedure that is an amalgam of administrative and legislative principles. Crawford, supra, p 856. Cf. Developments in the Law — Zoning, 91 Harv L Rev 1427, 1511 (1978).

[39] It has been said:

"The judicial deference to `legislative' action by an administrative agency is based upon the concept that the agency is applying expertise in making a decision tantamount to either an expression of legislative policy or an exercise of legislative judgment based upon more or less general information relating to the area of its expertise. Thus the characteristics to be expected from a `legislative' action are: (1) a broad base of general, non-quantifiable information; (2) the broad, non-particularized impact of an announcement of legislative policy; and (3) the exercise of broad discretion to select a policy to implement the objectives with which the administrative body is charged.

* * *

"In the administrative setting an adjudicative action is based upon the facts of the particular case, facts which are capable of proof by judicial methods, and is generally limited in its immediate effect to particular individuals. It may or may not also involve an initial decision as to a general policy to be followed in similar cases. Similarly, it may or may not ultimately depend upon agency discretion rather than application of precise predetermined standards. The importance of the particular facts of the case and of the nature of those facts compels a much greater procedural standard to insure that individuals directly affected are given a fair opportunity not only to be heard but to prove their version of the particular facts as well." Booth, supra, pp 768-769.

It has also been said:

"It is an established constitutional principle that procedural due process attaches only to administrative or adjudicatory action by the state, and not to legislative action.

* * *

"Two separate inquiries are necessary if administrative decisions are to be differentiated from legislative decisions in a manner that is responsive in all cases to the due process interests in efficiency, representation, and dignity. The first inquiry concerns the type of underlying facts on which the decision is based. This examination provides a reasonably clear and feasible means for distinguishing policy decisions from specific applications of the policy. The second inquiry considers whether the government action results in a differentiable impact on specifiable individuals, thus making allowance for the fact that new policies may be articulated through specific decisions of limited applicability.

* * *

"Identifying actions that are administrative by the nature of the underlying facts and the particularity of the impact comports with the functional analysis of procedural due process.

* * *

"Amendments to general plans have not been dealt with uniformly by the courts. Some jurisdictions have held that because the adoption of the original plan is a legislative act, an amendment to it must also be characterized as legislative. But many zoning amendments fit the characteristics of administrative action. A zoning amendment generally proposes reclassification of a specific parcel of land, and involves an inquiry into the desirability of a particular land use. The inquiry will therefore frequently turn on facts concerning a specific situation and will have a differentiated impact on particular individuals, thus fulfilling both criteria for an administrative action. Some amendments to general plans, however, are properly classified as legislative, particularly where they are the result of a change in a basic policy decision underlying the formulation of the original plan. For example, a decision whether or not to amend a plan to permit multiunit residential housing in a small, rural community will likely turn on a policy debate over whether the town is now willing to accept the consequences of growth and urbanization. Assuming that the decision does not produce a differentiated impact, that certain people or neighborhoods are not forced to bear the entire cost of the amendment, implementation of the amendment need not be accompanied by procedural safeguards." Developments in the Law — Zoning, supra, pp 1508-1513.

[40] Sabo v Monroe Twp, supra, pp 536-537.

[41] Const 1963, art 6, § 28.

[42] See Davis, Administrative Law Treatise (1976 Supp), § 7.00, p 242. It has been said that local units of government will be unable to follow such procedures because of the prohibitive costs and their lack of experience in conducting hearings, and that the procedures are inconsistent with participatory democracy. In response it must be conceded that there may be increased costs, but the experience in Oregon, for example, suggests that local units of government respond in a variety of innovative ways, avoiding the major expenses of verbatim transcripts and formal cross-examination, yet nevertheless following procedures assuring impartiality and fairness. See Platt, Oregon v Michigan, Newsletter, Real Property Law Section, St Bar of Mich (No 10, Dec, 1975). Formal trials are not required; procedures not much different from those prevailing in many communities are what is called for. To the extent informal citizen-legislator communication is decreased the process will be more precise, fair and protective of the rights of individuals. It is again pertinent that the Legislature has recently required administrative hearings on applications for special land uses and planned unit developments. See fn 16, supra.

[43] In Sabo v Monroe Twp, supra, pp 538-541, the Court was divided on the meaning of the statutory requirement, found in the zoning enabling acts, that zoning be in accordance with a "comprehensive plan". The majority (three justices) held that "plan" did not mean "master plan", but simply required that zoning be comprehensive, uniform and broad in scope. See Mandelker, The Role of the Local Comprehensive Plan in Land Use Regulation, 74 Mich. L Rev 899, 902 (1976). See, also, authorities cited id., p 904, fn 21. While it is desirable that master plans be adopted, since thereby planning will be facilitated and unnecessary discretion of local zoning bodies in considering rezoning proposals will be circumscribed, the failure to adopt a master plan does not invalidate an otherwise valid zoning regulation.

[44] There was some mention at trial of the non-feasibility of developing the property as zoned. Plaintiff's proofs at trial consisted of the testimony of two experts and of its owner Edward Zaagman.

The experts' testimony on this aspect was scanty: one expert said that he questioned "with the industrial on the north and the industrial on the east, whether the land would be — you would be able to get an economic return on the land to justify it [single-family development], but obviously that is my opinion". The second expert testified that a mobile home park would be the most suitable use for the parcel and that although it would be physically possible to develop the parcel in many ways, its highest and best use would be as a mobile home park.

Zaagman testified that after analyzing the costs of developing the parcel as zoned, he concluded that he could not economically build single-family homes, duplexes or garden apartments. He explained that since there was a relatively high demand for the few available mobile home sites in the area and since the industrial and mobile home parks that surrounded the parcel made it relatively undesirable for single-family use, the parcel was best suited for mobile homes.

Although the city did not dispute that the parcel was unsuitable for development as zoned, all statements on behalf of plaintiff regarding feasibility were in the form of conclusory opinions, unsupported by a factual predicate. Unlike the proofs in Turkish, here there was no effort to quantitatively support the claim that the ordinance was confiscatory because the sum of the costs of development, the basic speculative land value and a reasonable return would exceed the anticipated return.

[45] The 94 acres apparently does not include land currently used for mobile homes since 116 acres are already developed as mobile home parks.

[46] After the city filed a claim of appeal the judge, in an addendum to his bench-dictated opinion which was revised and filed after entry of the judgment and Kropf was decided, stated:

"After the above opinion had been edited and transcribed for filing, it was brought to this court's attention that on February 19, 1974, the Michigan Supreme Court reversed Kropf v Sterling Heights, 41 Mich. App. 21 [199 NW2d 567] (1972), by an opinion overruling the so-called `preferred use' doctrine of Bristow v City of Woodhaven, 35 Mich. App. 205 [192 NW2d 322] (1971), and subsequent cases. This development may have a profound effect on the legal framework within which the subject case was decided and is brought to the attention of the parties in the event that they wish to consider post-trial proceedings."

No such proceedings were pursued.

[47] See, generally, Rubinowitz, Exclusionary Zoning: A Wrong in Search of a Remedy, 6 J of L Reform 625 (1973); Note, The Inadequacy of Judicial Remedies in Cases of Exclusionary Zoning, 74 Mich. L Rev 760 (1976); Note, Equal Protection and Exclusionary Zoning, 60 Va L Rev 163 (1974); Kaye, The Validity of Zoning an Entire Municipality Exclusively Residential, 7 Urban L Ann 304 (1974); Comment, Removing the Bar of Exclusionary Zoning to a Decent Home, 32 Ohio St L J 373 (1971); Bigham & Bostick, Exclusionary Zoning Practices: An Examination of the Current Controversy, 25 Vanderbilt L Rev 1111 (1972); Zumbrun & Hookano, No-Growth and Related Land-Use Legal Problems: An Overview, 9 Urban Lawyer 122, 132, 143-156 (1977); Note, The Equal Protection Clause and Exclusionary Zoning After Valtierra and Dandridge, 81 Yale L J 61 (1971); Note, Exclusionary Zoning and Equal Protection, 84 Harv L Rev 1645 (1971); Lyon, Exclusionary Zoning From a Regional Perspective, 5 Urban L Ann 239 (1972); Hirshon, The Interrelationship Between Exclusionary Zoning and Exclusionary Subdivision Control, 5 J of L Reform 351 (1972); Branfman, Cohen & Trubek, Measuring the Invisible Wall: Land Use Controls and Residential Patterns of the Poor, 82 Yale L J 483 (1973); Symposium, Exclusionary Zoning, 22 Syracuse L Rev 465 (1971); Note, The Use of Zoning Laws to Prevent Poor People From Moving to Suburbia, 16 Howard L J 351 (1971); Note, The Constitutionality of Local Zoning, 79 Yale L J 896 (1970).

[48] See Flippen, Constitutionality of Zoning Ordinances Which Exclude Mobile Homes, 12 Am Bus L J 15 (1974); Note, Housing — Mobile Homes — Some Legal Questions, 75 W Va L Rev 382 (1973); Sunde, The Presumption of Validity of Mobile Homes as a Preferred Use, 7 Urban L Ann 296 (1974); Moore, The Mobile Home and the Law, 6 Akron L Rev 1 (1973); Van Iden, Zoning Restrictions Applied to Mobile Homes, 20 Cleveland St L Rev 196 (1971).

See, also, Southern Burlington County NAACP v Mount Laurel Twp, 67 NJ 151; 336 A2d 713 (1975); United Farmworkers of Florida Housing Project, Inc v Delray Beach, 493 F2d 799 (CA 5, 1974); Metropolitan Housing Development Corp v Village of Arlington Heights, 517 F2d 409 (CA 7, 1975), but cf. San Antonio Independent School Dist v Rodriguez, 411 U.S. 1, 28, 29; 93 S. Ct. 1278; 36 L. Ed. 2d 16 (1973).

[49] National Land & Investment Co v Easttown Twp Board of Adjustment, 419 Pa 504, 527-528; 215 A2d 597 (1965). Similarly, see Golden v Planning Board of Ramapo, 30 NY2d 359, 379; 285 NE2d 291; 334 NYS2d 138 (1972).

See, also, Dequindre Development Co v Warren Charter Twp, 359 Mich. 634, 640; 103 NW2d 600 (1960); Nickola v Grand Blanc Twp, supra, p 608; Kirk v Tyrone Twp, supra.

[50] Nickola v Grand Blanc Twp, supra, p 608.

[51] See Babcock & Bosselman, Exclusionary Zoning: Land Use Regulation and Housing in the 1970's (NY: Praeger Publishers, Inc., 1973), pp 8-9.

[52] See Neithercut, The Mobile Home: Problems With its Recognition as a Valid Housing Source, Newsletter, Real Property Section, St Bar of Mich (No 10, Dec, 1975), p 15.

The author notes that in December, 1975 there were more than five million mobile homes and that "[o]ne-half of all housing starts are now mobile homes and 95% of all homes built for less than $15,000 are mobile homes. * * * Eighty percent of mobile homes are in mobile home parks. * * * One thousand new parks a year are opened which offer over 100 unit sites."

"Mobile homes are built more like houses than mobile vehicles. * * * They are fully insulated and wired[,] with adequate plumbing also. * * * The largest mobile homes are 14 feet wide by 75 feet long which equals or surpasses the 900 square feet size of the average new single family [home] insured by the FHA.

"While mobile homes were originally for transient purposes, today about 60% of all mobile home owners never move their home. The MHMA [Mobile Home Manufacturers' Association] reports that the average stay in one location by mobile home owners is 58 months, which is approximately the same residency duration as in conventional housing. About 70% of the mobile homes used since WW II have been used as permanent dwellings." Id., p 25.

[53] Kropf v Sterling Heights, supra, p 155. See, also, Gust v Canton Twp, 342 Mich. 436; 70 NW2d 772 (1955).

[54] Nickola v Grand Blanc Twp, supra, pp 612-613.