*1 1971] v. Warren v. CITY
GORDON OF WARREN & PLANNING RENEWAL URBAN COMMISSION op
Opinion the Court Judgment Judgment 1. —Consent —Mutual Mistake —Modifica- tion. judgment, subject A consent judgments, like all contracts and is power modify of the courts to and vacate order to correct a mistake. — Impos- — — 2. of Contracts Construction Contracts Mistake sibility Presumptions. — agreement impossible performance An of- because facts exist- ing parties at the it time was entered into which the were ignorant may regard be avoided without to who furnished the information, agreement erroneous if upon based supposed possibility performance, though person even pleading discovering the mistake had the means of it or diligence might care and it, presumed have it avoided since parties contract with reference the existence of a state things making performance possible. Mistake—Underlying Assumptions. 3. Contracts — mistake, misrepresentation, impos- doctrines innocent sibility, consideration, no-meeting-of-the-minds failure of [8, [10] [11,12] [13,15] [14] ;3] '1, 2] 5, 7] 4] 6] 58 Am 17 Am Jur Am Jur Am Jur 4 Am 58 Am 58 Am 46 Am Jur Am Jur Am 46 46 Jur Am Jur Am Jur, Zoning Jur 2d, Jur, Zoning Jur, Zoning References 2d, 2d, 2d, 2d, Appeal Jur 2d, Judgments Eminent Domain Eminent Domain 2d, Judgments Contracts Contracts §§ 2d, 2d, Judgments Judgments § § § 2. for Points and Error 178. 178. § § 86, §§ et 1080. §§ § § 688, seq. §§ 87, 71. 150, 717. in Headnotes 143, 397-399, 690, 153. 1088. 717. 404. aspects essentially jural principle, are of the same fundamental ordinarily agreed that the to a contract have not falsity underlying take the risk the undoubted as- *2 sumptions upon the contract is based. Judgment Judgment 4. —Vacation —Mutual Mistake. agreement plaintiff embodying A the builders and city planning multiple dwellings defendant commissionto build located as shown on a revised site was on founded mutual judgment, mistake the and entitled to relief from the plaintiffs agreed buildings where locate two outside to the boundary widening existing lines of proposed a of an road plan, as shown the but the because of site a plaintiff’s consultant, erroneously appear it mistake of made greater a there was of land for amount available both the really the and widened road than avail- was able, though by even the was caused a mistake consultant hired by plaintiffs eventually by recognized plaintiffs’ and was one of employees charge construction, who was in but no one was significance aware of the until time mistake some after begun construction and both were under the mis- impression taken that the two would and could be built outside the boundaries of widened road. Municipal Corporations Planning 5. — Commission —Master Plan —Statutes. municipal general A planning power commissionhas no under the concerning creation, powers, duties, prevent statute its and to nonpublie construction uses of inconsistent with plans their (MCLA seq.). master 125.31 et § Municipal Corporations Planning — — — 6. Commission Powers Statutes. conferring upon Statute planning powers commission such may necessary functions, be to enable it fulfill its to to promote municipal planning, carry statutory pur- or to out the poses, properly roving cannot read as a to be commission do whatever the commission in public thinks is in the interest regard land, to any by the use of without review even city’s legislative body specific as to the commission’s exercises broadly-worded of that authority (MCLA 125.41). Municipal Corporations Statutes—Zoning Enabling 7. Act— — Home Bule Act —Constitutional Law. zoning enabling act home rule act were intended not legislature upon to authority require confer cities the Warren land be set aside roads and private streets because
property, except extraordinary circumstances, cannot appropriated compensation without police power. under the — n Municipal Corporations Zoning — — 8. Police Power Constitu- tional Law. require constitutionally property The state owner to indefinitely payment using enjoy- refrain and without from ing property police power, legis- his name of lature, adopted zoning enabling legislation, when it did not governmental police authorize power local units use the require authority the reservation of public that a might day some wish to condemn. Zoning Ordinances—Municipal Corporations Building — Set- — Compensation. backs —Constitutional Law — zoning A prohibiting erection or ordinance construction eity’s building or structure within the area of defendant thoroughfare plan
master requiring all setbacks to be way proposed right measured established *3 plan possible master for future construction be uncon- effect, required because, plaintiff stitutional it landowners portion public to dedicate a substantial their to of purposes any provision compensation. without for by Holbrook,
Dissent J. Judgment Judgment.
10. —Consent judgment embodying agreement
A plaintiff order the builders of city planning and plain- as to commission location defendant of building judgment on a site was a consent tiffs’ parties proffered signature where the it to the court the court had it entered record. of Judgment Judgment 11. —Consent —'Mistake—Substance. building erroneously
A a plan, mistake in revised site which existing right way contained an additional 69 in the of abutting a road site the was not a mistake substance of of plaintiff inasmuch prevented by as builders not were the error carrying judgment incorporating out a the site revised from plan requiring apartment them to construct their a specified existing edge number the west of feet from of right way, everyone edge where knew west was where the of located bceause it could be seen. Judgment Judgment —Modification—Mistake. 12. —Consent setting justify a aside mistake, to A in order reformation judg- go judgment, the substanee must a consent agreement upon it was based. which ment Judgment Judgment Enforcement—Appeal 13. —Consent — Error. parties’ judgment the terms
A which in effect enforced original binding upon parties as judgment as consent was not consequently could judgment, the consent position as appeal attack it on it in the same because stood original plaintiffs’ appeal judgment consent so from far it was concerned. Appeal 14. and Error —Issues. city planning had commission The issue whether defendant developing their legal right plaintiff prevent builders from right way highway proposed was land within a future Appeals court, and the Court decided the trial therefore original judgment was a should not consider it where the plaintiffs con- judgment, consent which the breach of subject proceedings which stituted the matter from appeal was taken. Judgment Judgment —Consent —Enforcement—Discretion. ordering judge properly discretion in exercised his The trial partially-constructed plaintiff two builders to remove road-widening project where the path building contrary location was to a revised planning incor- commission had and defendant porated order into consent and the removal y simp1 original judgment. an enforcement of
Appeal from
Sub-
Macomb, Walter P.
J.
Cynar,
8, 1970,
mitted Division 2
at
January
Lansing.
(Docket
8372.)
12, 1971.
No.
Decided
Leave
January
Complaint by for mandamus Harold Gordon and Louis P. Plan- against of Warren Begin City ning Urban Renewal Commission to compel approval of low-rise multiple dwelling plan. Con- injunction sent judgment entered. Complaint City of Warren and Urban Renewal Planning Planning v. Warren Gordon Opinion op the Court Harold H. and Louis against Commission remove compel plaintiffs P. Begin and to further way prevent from highway right granted. Plaintiffs Injunction ap- construction. Reversed. peal. Rogensues, for Harold Gordon.
Roy W. for Louis P. McAlpine, Begin. Kenneth R. Cardamone, Emil and John J. City E. Attorney, for the Murray, Attorney, City Assistant City Warren.
Before: P. Holbrook J., Levin, Bronson, JJ.
Levin, P. J. The owned a acre plaintiffs 15-1/2 which desired low-rise upon they to construct multiple submitted a site dwellings. They the defendant Urban City Warren Renewal Commission and, when that failed body to approve commenced this action. At the plan, conclusion aof trial indicated hearing judge that he would probably grant relief, but suggested to relocate parties attempt some of the proposed outside the path a proposed of Mound widening Road, which abuts the easterly of the site. boundary
The parties entered into an agreement, was embodied in a judgment, to relocate two of the proposed buildings outside the path of Mound widening Road.
Due to a mistake consultant em- planning ployed by it appeared that there were 69 more feet in the existing than there right-of-way actually is; since the 69 feet 69 addi- exist, does not *5 29 op Opinion the Court will have to be taken from the site if
tional feet ultimately Road is widened. Mound plaintiffs would not have entered into the buildings agreement unless all the could be con- buildings question and the structed, two could not be constructed on the site outside of the right-of-way required and the setback therefrom enough without the feet because there land upon west the setback line which to construct them. agreement
We conclude that the was based on a agreement mutual mistake and set aside the judgment, adjudicate rights parties agreement judgment. as if there had been no
L Mound Road is now 204 feet wide. The state highway department plans has to widen it plans imple- feet but when or whether those will be they mented is uncertain. If are, the entire feet plaintiffs’ will be taken on the west side, side, of the (cid:127) plaintiffs’ property. road as it crosses Under the originally plaintiffs, submitted build- ings path 1, 2, 3 and 6 would be located in proposed widened road. judge’s suggestion
Pursuant to met buildings it was decided that all four could not city-ordinance- relocated west of the 40-foot required setback from the widened road but that buildings, two 3 and 6, could be relocated west of a line 240 existing boundary from the west Mound Road—200 right-of-way feet for new feet for thereupon agreed setback. It was buildings and 2, the two closest to Mound Road, would be built as shown on the site plan originally submitted but that 3 and v. Warren op Opinion the Court A 240-foot line. west of the be relocated 6 would was and a drawn site providing revised construct entered revised site with the in accordance plan. *6 begun was discovered and then it was
Construction being built east 6 were in fact 3 and that plan the submitted line.1 The site the 240-foot of plaintiffs center line the rechecked. It shows was line of and the east section Section Mound Road line of Mound In the center fact, 52to be coincident. line. east section Road is 69 feet west the plain person charge the The construction coincide, did not aware that the two lines tiffs, while Paced with the of the settlement. was not aware ambiguity implicit in the fact that the property 171 feet west line was showed that the east and the east the center line of Mound Road of both construction sites line, he located the actual section line than the in relation to the east section rather construct the build line, i.e., center he decided to ings the center of Mound Road 69 feet closer to no closer which, however, was than shown on the plan.3 on to the east section line than shown sought injunction restraining The defendant an plaintiffs continuing from with construction they partially-completed requiring remove the that judge buildings. hearing a After testimonial (which buildings 1 2 ruled that it was contem- plated agreement under the reached 1 (for The east as constructed were feet lines building 3) (for building 6) present west and 195 feet west of the being Buildings 1 constructed line of Mound Road. and were also closer, closer, present line of Mound Road than west parties expected. 2 3 5. Plaintiffs’ It is located Section entirely because, so is understandable that he would decide feet, buildings at all. without And it 3 and could not be built they apparent contemplated it would be was built. Opinion op the Court Mound Road is be condemned if
would have to provided widened) could remain agreement to be located 6, which under the were removed. the 240-foot were first line, west judge plaintiffs appeal claiming that judgment originally he should have modified the it on mutual mistake, entered because was based legal right no and because the defendant had prevent locating with- structures expansion in the area of the of Mound plaintiffs alternatively Road. The contend that judge, proper in the his should discretion, exercise of require partially have refused removal of completed buildings 3 judgment
areWe satisfied that the based mutual mistake, and that should be re- question lieved of the and the of the de- right prohibit fendant’s the construction of build- ings path proposed widening within the *7 Mound Road decided on its On merits. the merits pre- we conclude that the is not authorized to though vent the construction of these even their construction will to add the cost of condemn- ing upon they the land if are constructed the required widening land is for of the Mound Road. Accordingly, ques there is no need to reach the judge tion whether the should, as a matter of discre partially have tion, refused to order the of removal constructed 3 6.4 do we see Nor 4 Township (1965), 135, Malcolm v. 375 Mich Cf. of Pittsfield Township Farmington (1965), 540, v. 536, Scott 374 Mich where of Michigan Supreme the obliged judge Court declared a is circuit injunction to issue an requiring abatement a as nuisance of a use invalid a zoning under if ordinance “the entire circum- stances, together, present viewed compelling why equity reasons should plaintiff’s Township refuse Malcolm request injunction,” for v. Pittsfield supra, 148; p see, also, separate Mr. Justice Black’s con- curring opinion in that ease. Bingham City Additionally, see (1968), v. Flint 14 Mich 377, 385; compare 42 Am 2d, 58, p Jur Injunctions, 801, concern- § 317 v. Warren op Opinion the Court contend whether, defendants to decide need originally judgment judge entered found, judgment. consent a
II. judgment awas consent if the Even adjudicatory as well as is contractual and, therefore, *5 judgments,7 is contracts6 and it, like all in nature,* modify subject power of the courts mistake. to correct a vacate order may sufficient to constitute such as “A mistake modifying, vacating judg opening, cause ment, judgment * * * prevails of a case rule * * * by been held which has consent, subject real indicate the so as to to modification authority parties. There is also intention for the proposition of one of mistake that a against a consent relief to afford is sufficient pp § Judgments, judgment.” 717, Am 2d, 46 Jur 870, 871.8 impossible agreement,
It is also established that an
performance
existing
at the time
because
facts
ig-
parties were
it was
into of which the
entered
agreement
if
was based
norant,
upon
be avoided
performance
supposed possibility with-
regard informa-
out
who furnished
erroneous
pleading
though
person
rais-
tion and even
ing
comparative
injury in
application
cases
the doctrine
mandatory injunction
sought.
where
1082,
140, 141;
Callaghan’s
2d, Judgments,
pp
Am
See 47
Jur
§
Michigan
Practice,
Pleading and
45.03.
§
seq.
2d, Contracts,
143, et
See
Am Jur
17
46 Am
§
717,
seq.
2d,
p 870,
et
Judgments,
See
See, also,
Jur
256;
247,
(1906),
Hews
Vincent v.
v. Hews
Mich
(1887),
(1887),
(8
704);
Matthews
RI
Brick
Brick
A
v.
Saginaw
230; Horning
Judge
(1910),
Circuit
161 Mich
*8
414;
(1954),
679, 681;
CJS, Judg
Sauer v. Rhoades
Mich
49
338
ments,
330(b),
p 602. A
for mistake
settlement was set aside
§
Rassey
349;
Farhat
(1940),
although
v.
295 Mich
the settlement
surely
respon
order,
that case was
in a
court’s
not embodied
court
sibility
joined in
to correct a
it has
mistake cannot be less where
the mistake.
App 309
318
29 Mich
Opinion op the Court
care
the
of
it or
discovering
take had
means
presumed
it.
“It
diligence might have avoided
reference to the existence
parties contract with
of
of things making performance possible.”
a state
2d, Contracts,
Am
491.9
144, p
17
Jnr
on the site
cen
If, mistakenly
plan,
shown
line of
ter line Monnd Road
the east section
of
Section 5
coincided,
existing right-of-way
then
i.e.,
would
171
69 feet wider than
wide,
be
feet
102
feet
devoted to the west lane Mound
presently
Road.
131
assumption, only
On
additional
feet
200
required
would be
feet for
widen
provide
if
fact, only
Mound Road. And
that were the
ing
131
plaintiffs’
have
property
feet
would
to be
condemned and the 240-foot line
(the line
west of the west line of
Mound
present
Road)
would
only
feet10 west of the east property
project.
line of the
those
parties
were
thought
They
facts;
facts.
were not the
in fact the 240-
foot
line was 240 feet —not 171 feet —west of the
east
line.
380; McKay
Gibson Pelkie (1877),
v.
Mich
(1891),
v. Coleman
60; Kroninger
478, 481,
(1962),
482;
Mich
v. Anast
Mich
Savings
193;
State
Bank
(1901),
Ann Arbor v. Buhl
129 Mich
(1900),
209;
Eberle
v.
205,
v. Heaton
124 Mich
Richardson Lumber Co.
Hoey
Voting
(1922),
648-650;
643,
Abbott
Machine Co.
City
Rapids
v.
Eaton
(1911),
appears
Ford (1923), Mich 442. 10This 171-foot dimension is the sum of the 40-foot setback and i.e., the 131 assumption required hypothesis, additional feet in that based on the than the present right-of-way is 69 feet wider 102 feet in use for the west lane. *9 319 v. Warren op Opinion the Couet they thought had 69 feet more Thus the project two of within the interior of the buildings to locate they had. The defendant than fact expectation buildings 3 contends that its that line would be built west protected. the 240-foot should plaintiffs contend, The that however, agreed they only 3 and west of to build they thought the 240-foot line because that the 240- only property foot line was feet west of the east line. entirely
It is true that the defendant was not of the aware mistake as to the location the center line of Mound Road. It is also true one that plaintiffs’ personnel construction was aware of that undisputed planning fact. It also is that con employed sultant made the mistake assuming that the center line of Mound Road the east section line of Section 5 coincided and showing caused the site to be drawn this to be the case.11 plaintiffs’ per-
But, while one of the construction sonnel knew that the center line of Mound Road was 69 feet west of the east line, section it is not claimed significance that the of this fact in relation agreement anyone including plain- was known to testimony and exhibits into introduced evidence tend to originally established, show how the mistake line of Mound Road As occurred. center (then wide) 66 feet coincided with the east line present of Section 5. When Mound Road was widened to its 204 feet the entire additional 138 feet was taken from the west side of Mound Road, side; not 69 feet from each thus the center line of old Mound westerly present Road was moved 69 feet to its location. Accord- ingly, while the east line section 171 feet from the west line of (the Mound property line) present Road east center line of only Mound Road is feet east of the east line. The planning engaged by consultant plaintiSs was unaware that entire required widening additional 138 feet that of Mound Road; mistakenly Road was assumed that 69 take the west side Mound he assump- taken was from each side and tion drew showing the site the center line of Road Mound originally i.e., remained located, where it was coincident with the east line of Section 5. op Opinion the Court employees the mistake was until their or
tiffs begun. construction time after discovered some agreed when the is not claimed It anyone they else knew relocate that their expectations expectations and the *10 fulfilled. not both be could defendant Indisputably entered into the defendants the buildings 3 and 6 agreement relocation for the having purpose located west of them the with indisputable, equally how line. It is 240-foot the plaintiffs would not have entered into ever, the that buildings agreement built, and 6 could unless the buildings not be built west of the 3 and could and true 69 feet the there
240-foot line because without upon enough 240-foot line of the not land west is them.12 construct upon agreement mistake the mutual based The was relocated outside and could be widening proposed path of Mound the of the 200-foot from the widened road. 40-foot Road and the setback III. judgment agreement or entered based
Where an remedy depend appropriate will mistake, on a the Here on circumstances of the case.13 the facts and disposition appropriate the sound and think that we is to set aside agreement the and to 12Judge opinion, in writes that “the error his Holbrook, carrying prevent plaintiffs in manner from vital nor did'it plan”. However, under the trial terms of the revised site out only plaintiffs construct two of the four last order court’s thereby prevented manifestly are dispute; in constructing contemplated under the revised all the plan. rescission; in remedy appropriate In some cases the will be setting restitution; aside of the still others avoidance and others contract Jur judgment. generally, 46 Am or cited fn See cases 793, 842, 789, Judgments, 690, p 788, pp 949-951, 2d, § § §§ p CJS, 301-303, 307, p 953; pp 554-556, Judgments, § §§ 330, pp 599-604. § Warren Opinion op the Court they analyze rights parties ifas had not Accordingly, been made and entered. we now ad- question city dress ourselves whether the had require right to to set back 40 feet expanded from the Mound Road. zoning
The relies on 4.36 of its ordinance: Building Major “4.36 Setbacks Streets Highways “(a) building No or structure shall be erected city’s within the down constructed area set plan. thoroughfare master “(b) required, All where setbacks, shall be proposed right-of-way measured from the estab- city’s thoroughfare plan.” lished master agreement seem to be in planning adopt defendant commission did in fact thoroughfare plan showing master that Mound Road was or would be 300 or 350 feet wide. The defend- ant contends this was sufficient notice that *11 Mound Road henceforth would be 150 at least feet accordingly, wide on each ing that, side and no build- lawfully could be constructed east a 190 of line (150 feet for Mound Road and 40-foot set back Road) from Mound west of center line of Mound If Road. this then true, is and around 6, controversy litigation which of most in this has they centered, could remain because are located over of feet west the center line Mound Road. easterly boundary However, 2, and only of which is 142 feet west of the center line improperly of Mound Road would be located. plaintiffs challenge The 4.36 ordinance on the ground unconstitutionally deprives plain- that it portion tiffs of all use of a their without payment compensation ground of fair on also legislature that the state has not authorized cities require property owners to locate new structures op Opinion the Court with, yet contemplated but future, reference to highways. streets and established, not question the state to the whether We turn first legislature a cities to establish such has authorized requirement. have referred us to three 222; No and PA 381; 1943, PA No PA acts, 1925, No 1931, super-and inter-county 381 concerns
PA No pro- highways. that act 4 of Section limited-access inter-county high- an establishment of vides for the recording way plan it after has been for its city approved by governing each bodies of village has recorded After been affected. conformity accepted plat no be built on the with the “no structure shall except proposed highway within the lines land permit granted by inter-county commission” on inter-county plan. prepares highway It which is that Mound Road has been estab- not contended provisions of with the Act 381. lished accordance planning commissions, PA 1943,No authorizes plan, certify plats adoption of a master after the portions body precise legislative thereof regulate buildings lines. This and to act within such provides planning after commission adopted certify plan may has a master it legislative municipality body “detailed and precised showing plats, [sic] each the exact location future or more outside lines places avenues, or new, streets, extended widened public parks, play ways, or other or of or more grounds public grounds or other extensions there adopted plan”.14 shown such master *12 provides legislative body
The act further that the city may adopt precise plat of the such a certified by planning to it commission notice after 14MCLA (Stat 125.51 Ann [1]). 1969 Rev 5.3007 § § 1971] Warren Opinion op the Court proposed precise
owners the land affected plat,15 legislative body and that the of the provide by permit ordinance that “no shall be issued building part and no for, or structure or thereof shall any be erected on land located within the any future outside lines of or new, extended widened place public way, any street, avenue, other or of park, playground public grounds or other or exten any adopted sion thereof shown on such certified and plat.”16
During argument oral in our Court the defendant required conceded that it could not show that the given notice to owners had been and, thus, rely it could not 222 in Act this case. concerning turn PA
We now to No 285,17 powers planning creation, duties of commis any municipality adopt sions. This act authorizes * ** “municipal plan and create ordinance planning powers commission with the and duties provides herein set forth.”18 The act that the com adopt shall mission make and a master for the physical development municipality, including, of the among things, general other “the location, character subways, bridges, and extent of streets, viaducts, # * waterways, plains flood *; also the removal, widening, narrowing, vacating, relocation, abandon change ment, going of use or extension of the fore * * * ways, grounds, open spaces ”.19 It provided “plan is further that the shall be made with general purpose guiding accomplishing adjusted, develop a coordinated, and harmonious municipality ment and its environs which present in will, accordance with and future needs, MCLA MCLA MCLA MCLA 125.32 MCLA 125.54 § § §125.31 § 125.36 125.52 (Stat (Stat Ann (Stat (Stat (Stat Ann Ann 1969 Rev Ann 1969 Rev Ann 1969 1969 Rev 1969 Rev Rev § § § § § 5.2992). 5.3007[4]). 5.2996). 5.2991). 5.3007[2]). *13 309 324 29 op Opinion the Couet safety, promote order, conven morals, health, best ience, general as prosperity, welfare, as well and economy develop process efficiency in the adequate pro things, including, among other ment; vision for traffic”.20 given
Planning however, not, are commissions prevent power or general construction in Act plans as Acts with their inconsistent uses prohibitions previously The discrete discussed. applicable provided on the facts Act are not of this case: multiple dwellings con- and under constructed
The public are not struction subject to the are not and, therefore, the jurisdiction § under commission’s regarding authority provided §in The proper arrangement of in relation to other merely part streets existing planned of the or streets “governing regulations of land”. the subdivision plaintiffs, land, acres of the owners of 15-1/2 plan; they made not no did attempt submit a subdivision They bring plat. them- to record a did provisions §§13 concern- selves within regulation ing and the subdivision of land arrangement of streets. §
It is true that'under
11 the commission has “such
powers may
necessary
it
fulfill its
as
be
to enable
planning,
carry
promote municipal
out
or
functions,
purposes
provision
of this
cannot
act”. That
properly
roving
be read
do what
as
commission to
public
ever
thinks is in the
interest in
commission
regard
use
will
without,
observed,
of land
it
any
city’s
body
legislative
review even
specific
broadly-worded
the
hority.21
exercises
such
aut
5.2997).
(Stat
20MCLA 325.37
Ann 3969 Rev §
§
(MCLA
Section 9
125.39
Ann 1969 Rev
§ 5.2999]
[Stat
Warren
Opinion op the Court
enabling
relevant
Also
is tlie city and village zoning
and the home rule act.23 The zoning
act
provides
act
enabling
the legislative body of
cities
“regulate and
determine the area of the
yards, courts, and other
open
for such
spaces,
purposes divide
into
village
districts”.24
*14
Section 4-i of the home rule act
the
provides
charter of a city may provide for the regulation by
ordinance of, among other
things, “required open
spaces for light and ventilation of
buildings”.
such
In Ridgefield Land Co. v. City
Detroit
(1928),
Avenue 473): (pp plat.25 472, The Court observed compel trying to a dedication. is not “here the prop- compel plaintiff to its subdivide It cannot erty any part streets. It it to dedicate for impose any reasonable condition however, can, complied subdivision with before the must be accepted theory, least, the owner In at for record. voluntarily dedicates sufficient land aof subdivision advantage privilege in return for the for streets of plat having so, Unless he does his recorded. right gives law to have recorded. In Ross him no it said: Goodfellow, 1, 10, it is DC “ owner has ‘It must be remembered that each right lay off his land manner undoubted that he pleases, it all. He can- or not to subdivide at not be made public. dedicate streets and avenues to the public necessity parts If demands of his highways, only by lands it can be taken condem- payment nation and of its value. But he has no cor- responding right plat so to have his of subdivision *15 ” (Emphasis sup- made admitted to the records.’ plied.) persuaded legislature
We are in that the did not adopted zoning enabling tend when it act in pertinent provision and the in home in rule act upon require authority 1929 to confer cities the Zoning that land be set aside for roads and streets. regulation “yards, of the area of courts and other open spaces” expressly pro is, the home rule act largely provide adequate light vides, intended to for and ventilation between structures. also It serves safety, protection traffic fire and aesthetic interests. justified Zoning police power,26 is under the but, ex cept extraordinary present in circumstances, not in City Corpus Christi Similarly, v. Unitarian Church see Corpus Christi (Tex 1968), App, Civ SW2d 923. Zoning, Jur, 18, pp 950, Am Warren Opinion op the Court private property appropriated case, this cannot he compensation police power.27 without under the conceptual requiring The difference between a yard (which light for setback and air the State need for) pay requiring land be aside set public (which, put a use it to readily use, before can be for) pay may the State must not he ex- plicable. perfectly is, It nevertheless, clear that there is difference, a a constitutional difference, be- telling property provide tween owner he must space building neighbor between his his and that of telling possible him to set aside land for future condemnation. taking property payment
Just as the without except extraordinary cannot, circumstances, be justified police power, as an exercise of the so too police power, the State not, the name of the require property indefinitely owner to refrain payment using enjoying prope without his rty.28 Michigan legislature did not, when it adopted zoning legislation, enabling ignore this con limitation; stitutional it did not local authorize units government police power require to use the public the might authority reservation of that a day some wish to condemn.
IY. enabling legislation Our decision that there no authorizing require the defendant that land be set aside for future roads and streets makes un- necessary posed decision on the constitutional issue legislature of whether the can au- government thorize local units to block the use *16 27 16 2d, See Am Jur Law, 368, 369, pp 698-700, Constitutional §§ 301, pp 590-594. § Highway See Arkansas State (1931), Commission Anderson (43 Ark 763 356). SW2d App op Opinion the Court contemplated at some future that is land when it public purposes. may for he land condemned time legislature that view inclined to the areWe authority carefully drawn under such confer legislation e.g., providing legislation, such adopted particular be ex land cannot restriction of property cept upon owners,29 affected notice to due compensation deprivation of use, assurances for the question in fact be land will whether the that the are resolved its condemnation condemned and actual imposi period of time after the within a reasonable tion of the restriction.30 city, on the defendant
The restriction relied safeguards § 4.36, none of the ordinance contains might necessary to its think be sustain we' city’s thoroughfare constitutionality. The master plaintiffs’ accompanying restriction adopted without use of can be their any predecessor-owner. notice or ques- There no for resolution is time limit condemned; will fact tion whether the land up, plaintiffs’ property indefinitely perhaps tied Davis, Treatise, 7.04, pp But Administrative 420- see Law § 422. 30 See, High generally, Planning Freeway: Interim Controls way Programs, (1964), p L J 439. Duke see, generally, 2d, As to Am “inverse condemnation” Jur Domain, 478, p Eminent 411. Hilltop Properties, (1965), Inc. v. State Cf. of California App (43 Rptr 605), Cal 2d 349 which held inverse condemna Cal shown, recovery damages promis tion was not but on a allowed sory estoppel theory. City (1949), Also Grand Trunk W. R. 326 Mich Co. v. Detroit 387; Associates, Carl M. Roads Commission Freeman Inc. v. State City (1969), (250 250); (1954), 252 Md 319 Henle v. Euclid A2d holding zoning power (125 355), 97 Ohio NE2d may not be used reduce the cost of condemnation. opinion After but it was released this was filed before published. Reporter See publication, pertinent annotation was Validity “Freezing” or Anno: Ordinances Eminent Domain: Prospective Improving, Preventing Statutes Condemnee Property, 36 ALR3d Changing, Otherwise the Condition His *17 v. Warren by Dissent J. Holbrook, for compensa- without perpetually, any provision tion. in requires defendant’s ordinance effect
dedication by portion a substantial property their without public purposes for if a provision compensation; when and condemn- gets ever around to ing authority condemning compensation land it could well be paying very considerably depreciated a basis from what land is presently might worth —it even then be con- tended without embarrassment the plaintiffs’ that inability, the restriction, because to use the land for any constructive purpose should affect amount payable by the condemning authority.
Reversed; injunction is dissolved. Costs to plaintiffs. J., concurred.
Bronson, J. (dissenting). After a careful read- Holbrook, ing majority opinion cause be- this lieving that result is based upon the considera- tion issues not decided by the trial court, and upon the improper determination consent contained a mutual mistake that was vital out of its terms carrying this plaintiffs, writer constrained to respectfully dissent. Plaintiffs are owners of land in the City War- ren, zoned for multiple-family dwellings since 1967. In July, 1968, plaintiffs submitted for approval site the construction of some 34 low-rise apartment buildings on this defendant, n City of Warren Planning and Urban Renewal Com- mission. In November, 1968, plaintiffs filed a com- plaint for writ of superintending control Macomb County Court, Circuit alleging that defendant was wrongfully withholding approval plan. their App J. Holbrook, Dissent and the defend- court, was held hy
A hearing were situated that four of the ant asserted State Road; Michigan too close to Mound to build an ex- proposed had Highway Department Road and that this over Mound pressway into the City had been incorporated expressway Further, plan. master thoroughfare Warren’s *18 require would an additional improvement this Road, side Mound on the west right-of-way feet of be com- was scheduled to and improvement this to objected The defendant menced in 1971 or 1972. plaintiffs that would part action on the for the cost require city the to condemnation pay land The in to the itself. buildings these addition purpose a week for the adjourned matter was for their differ- settling the and parties getting together the ences. At end of the the week, plaintiffs the court for sig- defendant a proffered nature. to judgment gave plaintiffs right This in accord- build their low-rise apartment January ance with revised site dated plaintiffs’ two of the place It to permitted feet, within the but the other two build- were to be would not need ings placed they so that to be condemned when Mound improvement Road became necessary. to build and proceeded immediately discovered that the setback lines inspectors
for 1, 2, 3 and 6 were in accord with the revised site filed plan, thereupon defendant a for petition judgment, by the enforcement of the An injunction. order show cause directed to plaintiffs was issued. filed a petition Plaintiffs hearing A modify clarify judgment. lengthy in was held considering petitions parties, and at the conclusion trial decided thereof, judge the matters before him in written thorough opin- a Planning v. Warren by Dissent J. Holbrook, opinion the learned trial judge’s ion. Because of what our deci- with this writer’s ideas consonant be, in case should and because it also deter- sion this mines all issues of it is as fact, adopted correctly herein follows: repeated of this as part opinion of super- for writ complaint filed a “The plaintiffs land were they contending control intending in the City of a land parcel contract vendees to con- proposing land were Warren, they on which did sub- and that they low-rise apartments, struct 26,1968, the defendant on July mit of Warren however, City approval; refused to such give Renewal Commission and Urban on order to show cause took approval. The hearing court. The place 13,1969, open plain- on January who testified that Schmeiser, tiffs called Jerome R. and the the site as submitted plan, plaintiffs, department, submitted drawing, highway indicate that 200 feet of presently drawn, right-of- 200 foot way would be needed addition to the in existence for the construc- right-of-way Road; tion of a on Mound super-expressway *19 for acquisition timetable of the foot right-of-way in sometime 1972. The begin testimony is clear that the 200 foot would ac- right-of-way quired off the west side of the Mound Road present 200 foot right-of-way. right-of- that Assuming of the way acquired project, was across the front four buildings plaintiffs’ as under the site would plan be within this proposed right-of-way, each units and each unit cost- building having eight ing, exclusive of land costs, approximately $12,000 to $14,000. The record was inquiry reflects that made into possibility the four front relocating in order to reduce further condemnation A question costs. relocating arose whether or not four units would be in the ordinance violation of insofar as it related in mind density. Keeping this was a matter of an equity the nature
Dissent by Holbbook, J. parties have the made to proceeding, was an effort through negotiation; problem attempt to resolve hearing adjourned for one week to allow attempting opportunity to work an indicated Otherwise, this court out solution. request granted. petitioners’ would be signed January what is this court 20, 1969, “On proper judgment In title effect, order. entitled judgment, court since this should have been consent way or ruled on its in no formulated the signing judgment, prior this saw, contents or ever the so-called revised site January plan 9,1969, dated incorporated part judgment. This which is judgment plain- typed stationery order was on approved by tiff counsel and submitted and counsel plaintiffs for both and defendants. September 26,1969, “On the defendant filed a com- plaint injunctive relief and an order to show why buildings cause should not be removed from the proposed right-of-way. complaint, The sworn signed by Schmeiser, Jerome R. Director of Plan- ning alleges Commission, Urban Renewal January plaintiffs 20,1969, this court allowed the multifamily project to build their in accordance with plaintiff’s January revised site dated The defendant that under the revised recites plaintiffs apart- of 1/9/69, were to build two containing eight apartment ment each units, a total of 211feet from the centerline of Mound building Road to the front line, and that the second apartment [sic] tier or was to be built existing right-of-way. Mound Road feet Further, violated the order fail- court ing along to build the brick wall Beebe Street allowing project an entrance to said off Beebe Street. It was contended that to allow the to con- complete apart- tinue to ment the construction of the said buildings, large money expend- sums of will be *20 widening ed buildings to condemn said when the Mound Road occurs. No answer has been filed to 333 v. Warren Dissent J. Holbrook, and complaint.1 Testimony arguments this sworn cause the with the order to show and conjunction to order was clarify modify judgment petition con hearing over a number of days, being heard cluded on October Friday, 10,1969.
“Plaintiffs called Jerome Schmeiser to the stand a stop and his indicated that order has testimony been four front placed construction of the build- because all four were construct- ings being The front of ed within right-of-way. and were within 1 2 numbered 40 feet of the Mound Road center Mound right-of-way feet from num- Road. front of bered and 6 on the north were from 184'4" Mound Road right-of-way and on the south 195'4" the Mound Road right-of-way. While acknowl- from that edging approved site does plan 1/9/69 have a line running north and south dividing Mound Road to 102 feet right-of-way the west of this line feet to the of this line, east there is also this so-called writing along centerline which reads, ‘east line of 5’. Section This witness acknowl- that edged recently it was he only learned that the east line of Section so-called centerline of Mound Road are not identical as indicated on the said and that the east line of Section actually the east of the centerline of the Mound Road All it right-of-way. same, this witness’s position that the ‘east line of marking Section 5’ on this site had no significance inso- far as what was agreed both final by entry resolution order to- gether with the incorporated site plan. It was this witness’s position all parties agreed through judgment of the front of apartments 1/13/69 and would be built a distance of feet the centerline of Mound Road and the front of 1 “Plaintiffs’ complaint answer to preliminary defendant’s in- * * * junctive relief directly judge was handed and not submitted filing directly.” to the clerk for *21 29 by Dissent J. Holbrook, apartments south tier and would he at least of westerly edge the most the Mound from feet right-of-way. Road 1 relates to the minutes of
“Plaintiffs’ Exhibit Planning January of the Urban 6,1969, Warren Renewal Begin apartment development dicates that Director Schmeiser was which time the Gordon- Commission at discussed. It in- attempting plan buildings buildings work four out some where the front project be fit in with the other could so there be a would 300-foot setback Mound Road. Plaintiffs’ Exhibit 2 relates to the Warren Planning of meeting and Urban Renewal Commission January meeting 13, 1969, which was concerned plan apartments with the revised site for the said presentations lengthy by and after discussions and Murray, various commission Alpine Mr. Mr. Mc- members, approve Schmeiser, and Mr. a motion to plan passed. revised site was made and The com- approved plan mission tions outline dition that two the revised site with condi-
by the director and with an added con- buildings right-of-way right-of-way in the M-53 be moved to the west outside of right- and the other two to remain in the of-way drawings planning with submitted to the com- might mission for future reference. It be noted that among corporate surety other conditions recited, posted by bond the of $50,000 amount was to be plaintiffs. Plaintiffs’ Exhibit 6 is a letter Gordon-Begin Company relating plan to the site approved Planning and conditions and Urban January Renewal Commission on 13,1969, which let- signed by ter Jerome R. Schmeiser. No.
“Sentence recites that the two right-of-way in the M-53 be moved to the west out- right-of-way side and the other two right-of-way. to remain in the argument regarding “There has been much centerline as indicated in the revised of 1/9/69 and the east line of Section 5 as indicated on the v. Warren Dissent J. Holbrook, This court one being as not and the same. same perhaps that while either fact, as a matter finds, proceeding in this Mr. Schmeiser counsel that the east line have been aware Section was the east centerline Road, Mound question is no there did have such knowledge. landscape Geake, Mr. Donald architect city planner, up apart- and ment who drew the layouts McPharlin, knew this to be so. Patrick charge person plaintiffs’ construction, *22 this An knew site to be so. examination revised of photographs 1/9/69, and various of bring average person exhibits, would to at least question regarding away the distance the the from buildings edge 1 2 and to the west front of of right-of-way. Mound Road “Plaintiffs’ 11 Exhibit is a series of building per- mits relating apartment to this housing project. This court cannot find that there was any unrea- sonable delay part city inspectors based on the dates of inspection noted on the build- permit that ing would convince this court that per- sons in the Division of and Building Safety Engi- should neering have earlier initiated a order stop of the construction of 2, 3 buildings 1, and 6. As a matter fact, of by not 1 only checking buildings 2 and 3 and 6 personally but also from the examination of the photographs plaintiffs’ Exhibit 3, there is an indication that all was used haste to commence the construction of the said buildings 3 1, 2, and 6.
“Defendants subpoenaed Donald Clayton Geake, a landscape architect and certified city planner, who together with his associates prepared for the plaintiffs various proposed apartment layouts and site plans. He was instructed plaintiff by Begin, prior to January 9, 1969, to meet with Jerome Schmeiser of the planning commission, and was told that certain had changes come about, that there was additional widening to take effect and by J. Holbrook, Dissent Schmeiser, Mr. with meet out, go was to he
that Mr. and whatever him with peace his strike would plaintiffs np with, come [sic] Schmeiser it. with conform including weighing proofs the tes- all “After rules, timony Geake, this court witness of apartment 3 that fact, matter of right-of-way outside to be constructed were The or whatever. state lines, whether facts apartment established front west the most to be at least and were westerly feet right-of-way edge with Road Mound being distance edge additional an right-of-way westerly Road the Mound most Mound Road. the center this time to dis- could he served at “No purpose made counsel which have been efforts cuss the argue plaintiffs attempting for the judgment January 1969, consent on entered judgment. other than a consent was implore be- come to their aid should equity 2 are more than cause apartment torn down to order them percent completed will tell Time hardship. financial would cause whether dis- will willing themselves *23 on the side of is not equity. Equity only pense on a been entered Had a plaintiffs. the court favorable final this by determination have well been very defendant plaintiffs, may the type to some entitled, prior entry judgment, to be the post- of which would equitable relief, least of the condition surety of a bond as a corporate ing and Planning the Warren plan approval by site 1969. January 13, Urban Renewal Commission on the right the defendant would have Certainly, if decision had been procedure follow the appeal favorable. However, after
“This is a most difficult decision. deliberation, a and the follow- study deal great In addition to all the ing applicable is ordered. Warren by J. Dissent Holbrook, ordinances which shall codes and continue pertinent the are to a apply, plaintiffs post corporate surety in the amount of the $50,000 assuring bond will he developed accordance with plan, elevations submitted approved plaintiffs and this determination. are Further, take steps buildings immediate to remove 6. After with the rul- plaintiffs comply above ings, proceed to construct complete 2.” (Emphasis supplied.) The “judgment order” was construed properly by the trial court to he consent under judgment, facts in this case.
“A judgment consent of parties judg- ment the provisions and terms of which are set- tled and agreed to to the action in which it is entered, and which is entered of record * * * by the consent and sanction court; of the .” 49 CJS, Judgments, p
The trial also judge correctly determined that error on the revised site plan placed the east line of 5 in Section position same as the center line of Mound Road rather correctly than placing it 69 feet east of the center line of Road, Mound not a mistake of substance. error was not vital nor did init prevent manner from out the terms of carrying the revised site plan. The revised site plan called for to be constructed 109 the west of the edge Mound Road existing right-of-way; 3 and 6 were to be constructed and 264 feet re- spectively, from the west of Mound Road edge right-of-way. knew where the Everyone edge west right-of-way Mound Road was located. It was there to he seen and mistaken. it could not be Contrary to the terms the revised site plan, *24 App by Holbrook, J. Dissent 2 142 and west of
plaintiffs placed and and right-of-way Mound Road from the respectively 195 feet placed were right-of- of the Mound Road existing western edge on, i.e., plaintiffs rely The mistake way. side line on site east the revised placing of Road 5 and center line Mound of Section in was a material mistake position same not in relying upon and did not justify their knew agents it. The 69 feet east of the center of 5 was east side Section justify in to mistake, of Mound Road. A order line of a judg- a aside or reformation consent setting judgment must ment, go to the substance it was based. Stevenson upon agreement Aalto perfectly v. It is clear (1952), Mich 582. boundary Section the location the east on the agreed-upon which was marked erroneously real sub- tangential revised site was plan, The substance of plan. stance the revised site with the revised agreement comply order apartment buildings was to locate the Road right-of-way. relation the Mound no or importance boundaries of Section were of Harris at importance. most See secondary Axline 323 Mich (1949), & Practice, 42, p
In Michigan
Appeal,
Law
is
part
538 it
stated in
follows:
entered
consent
“Generally,
judgment
there-
not be
of on
complained
appeal by
dis-
to, and an
from
will be
appeal
such
on the
missed
motion.
entered
judgment,
Such
agreement in the ab-
parties,
binding,
sence
a claim
the judgment
that consent
mistake,
not
or
voluntarily
given,
resulted
fraud
misrepresentation,
judgment may
appeal.”
attacked on
*25
Warren
by
Dissent
J.
Holbrook,
judgment
In the instant case, the last
did in ef
provide
carrying
fect
for the
out of the
of
terms
original
judgment
consent
and it
therefore
position
original
stands
the same
as the
consent
judgment
appeal
as far as this
is concerned. Dora
(1958),
v. Lesinski
City
(1959),
Port Huron
This writer has noted that the writer of the ma- jority opinion many figures has made reference to determining in large that there was a mutual mistake. A figures
number of reference does cause one to he confused but fails when it comes to convinc- ing. plaintiffs placed apartment If had right-of-way and 6 at least 240 feet from the of plan required, Mound Road as the revised site difficulty encountered in this cause would never judge have occurred. The trial in his deliberate and very correctly careful manner stated the facts in opinion fully justifies his his determination of the matter. by plaintiffs
The issue raised to the effect legal right prevent defendant did not have the to developing pro- their land within a posed right-of-way, properly future is before original judgment being this Court. The a consent judgment, inappropriate it is for this Court to consider this issue. The issue was not decided the court below. This Court should only consider consequences plaintiffs’ breach consent judgment subject since such breach constituted the proceedings appeal matter of the from which this is taken. by plaintiffs poses
The other issue raised question of whether the trial court’s order was a proper judicial exercise of discretion. The J. Holbrook, Dissent plain- that two
agreed consent in the path in the to be located were tiffs’ freeway of this area. Due two outside future plaintiffs’ revised site follow the failure to within the were located all four right-of-way. freeway The trial court felt their careless- own the costs should bear permitted retain the two ness but should judgment permitted buildings which consent simply question. place It was in the area them a agree- original carrying out the terms *26 judgment. incorporated consent in the ment as judgment of herein stated For reasons affirmed with costs should be the trial court defendant.