143 N.W.2d 618 | Mich. Ct. App. | 1966
ENCHANTING HOMES, INC.
v.
RAPANOS.
RAPANOS
v.
CITY OF MIDLAND.
Michigan Court of Appeals.
*110 Edward G. Durance, for cross-plaintiffs Rapanos.
Joel H. Kahn, for cross-defendant City of Midland.
Leave to appeal denied by Supreme Court November 16, 1966. See 378 Mich 740.
QUINN, J.
City of Midland appeals from a judgment of Midland county circuit court requiring the city to pay to defendants Rapanos one-half the value of land they were required to dedicate for park purposes in Rapanos Park Subdivision No. 3 by judgment in this same action. Defendants Rapanos cross-appeal contending the city should pay them full value for said park land. There has been no appeal from that part of the judgment requiring Rapanos to dedicate the park land.
Two issues are raised by these appeals, namely: are Rapanos brothers entitled to recover from the city, and, if so, in what amount?
In 1956, John A. Rapanos acquired a 90-plus-acre tract of land in Midland. Later and in conjunction with his brothers Nicolaos and George, who comprised a building partnership, he presented a plan for subdividing and developing the tract to the city. *111 At that time, the city had a policy of requiring proprietors of proposed subdivisions to contribute 10% of the land area in the proposed plat or its money equivalent to the city for park purposes as a condition to plat approval by the city.[1] John A. Rapanos knew of this policy and had objected to it, but after negotiations, a 9.1 acre park in the center of the property was agreed to. No plat of the entire area was ever presented for final approval.
John A. Rapanos conveyed the most westerly strip of the tract, comprising about 14 acres, to his brothers, and on their behalf, he presented a plat thereof without a park to the city for approval. After requiring about 10% of the land area of the proposed plat to be dedicated for park purposes, the city approved this plat, and it became known as Rapanos Park No. 1. The park area was along the west line of the plat. Later, a strip adjoining Rapanos Park No. 1 on the east was similarly handled and it became known as Rapanos Park No. 2. The latter had a 95-foot strip along its eastern boundary dedicated for park purposes.
Individual plaintiffs purchased lots in Rapanos Park No. 2 on the representation by the Rapanos that in the development of the remaining land to the east, the balance of a 10-acre park would be provided. This fact is established by the judgment of the court below requiring Rapanos to dedicate land in Rapanos Park No. 3 for park purposes and this part of the judgment has not been appealed.
October 22, 1962, Nicolaos Rapanos sued the city to recover the park land in Rapanos Park No. 2. Many of the present individual plaintiffs intervened to object to loss of the park. August 6, 1964, Rapanos recovered judgment against the city for the *112 value of the park land in Rapanos Park No. 2. This judgment was not appealed.
After unsuccessful negotiations between the Rapanos and the city with respect to a plat for Rapanos Park No. 3, the former submitted for approval a plat for No. 3 which contained no park. When approval was refused, Rapanos sued the city to compel approval. This suit resulted in judgment for Rapanos April 9, 1964, directing the city to approve the plat without a park. Plaintiffs then commenced the present action against Rapanos and the city, and Rapanos filed their cross-complaint against the city.
It is clear from the decisions in Ridgemont and Gordon, supra, that the city cannot do legally what it attempted to do in this case. If Rapanos had complied with city policy and had dedicated the required park land to gain approval of the plat, they could have obtained reconveyance thereof in a suit against the city on the basis of the Ridgemont decision. Here reconveyance was not possible because of the rights of the individual plaintiffs to the park land promised to them when they purchased their lots. And why were they promised park land? Because Rapanos knew they would be required by the city's illegal policy to furnish it. We see no valid reason to distinguish this situation from that in Ridgemont, supra.
The trial court is affirmed with respect to its holding that Rapanos are entitled to recover from the city, but it is reversed with respect to the amount of such recovery, and the cause is remanded to the trial court for entry of judgment in favor of Rapanos and against the city for the full value of the park land in Rapanos Park No. 3. Rapanos may recover their costs.
J.H. GILLIS, P.J., and FITZGERALD, J., concurred.
NOTES
[1] Such practice was held illegal in Ridgemont Development Co. v. City of East Detroit (1960), 358 Mich 387, and in Gordon v. Village of Wayne (1963), 370 Mich 329.
