This case involves a zoning dispute. Defendants Richard and Neva Waldo and Mary Lou and William Kalushka (hereinafter defendants), appeal as of right from an order requiring the removal of a "single-wide” mobile home situated on the Waldos’ land for use by their daughter and son-in-law, the Kalushkas.
The evidence presented at trial revealed that the Waldos resided on two lots in the West Shore Park subdivision in Howard Township. In May, 1982, their daughter, Mary Lou, and her husband were living in a Quonset hut on the lots. Mary Lou suffered from a chronic lung disease requiring the use of special equipment. In order to renovate the hut for the equipment, the Waldos applied for an electrical wiring permit. Upon visiting the hut to investigate the application, Ethan Mittan, the township building inspector and zoning administrator, found the hut uninhabitable. The Waldos subsequently removed the hut._
On September 29, 1982, the Howard Township Board of Trustees filed suit against defendants, seeking enforcement of its ordinances and abatement of the nuisance by an order requiring the removal of the mobile home and a permanent injunction. Defendants responded by challenging the constitutionality of the ordinances and claiming estoppel. Following a bench trial, the trial court granted the relief sought by the board, because the mobile home was a nuisance per se under MCL 125.294; MSA 5.2963(24).
On appeal, defendants challenge the constitutionality of the ordinances and the trial court’s rejection of their estoppel claim. Our review is de novo.
Bierman v Taymouth Twp,
The challenged section of Ordinance No. 88 states:
Section 3.05 Minimum Size of Dwellings.
Every one family dwelling hereafter erected shall have a minimum width throughout the entire length of the dwelling of 24 feet measured between the exterior part of the walls having the greatest length and shall contain not less than 840 sq. ft. of first floor space; every two family dwelling shall have the same width and shall contain not less than 1,680 sq. ft. of first floor space, which space for both dwellings shall be measured around the exterior of said dwelling each exclusive of an attached garage, open porches or other attached structures including breezeways and carports.
Defendants first claim that Ordinance No. 88 is unconstitutional because it operates to exclude all "single-wide” mobile homes outside mobile home parks from residential areas. The principles gow erning our review of the ordinance are set forth in
Kirk v Tyrone Twp,
Ordinance No. 88 applies to all "dwellings,” including both site-built homes and mobile homes outside a mobile home park. Under the ordinance, a dwelling must have a minimum width of 24 feet and first floor space of not less than 840 square feet. Defendants’ mobile home is approximately 12 feet wide with 600 square feet of floor space. Thus,
The circuit court found that Ordinance No. 88 was adopted to insure comparability between mobile homes and site-built housing and that it had a reasonable basis under the township’s police power. We agree and affirm the court’s holding that Ordinance No. 88 is constitutional.
In
Robinson Twp v Knoll,
In
Gackler Land Co, Inc v Yankee Springs Twp,
We initially note that these regulations do not treat mobile homes materially different [sic] than site-built homes. We further find that the requirements, as stated, are either reasonable standards designed to assure favorable comparison of mobilehomes with site-built housing, or constitute a reasonable exercise of police power for the protection of the safety, health, morals, prosperity, comfort, convenience, and welfare of the public or a substantial part of the public. Robinson Twp, supra, 312. [Gackler, supra, p 570.]
In
Pauter v Comstock Twp,
On the authority of Gackler, we affirm. As in Yankee Springs Township, mobile homes are not treated materially differently than site-built' homes in Comstock Township. All dwellings outside mobile home parks must meet the core living space requirement. Contrast Tyrone Twp v Crouch,426 Mich 642 ;397 NW2d 166 (1986). The core living space requirement is designed to assure favorable comparison of mobile homes with site-built homes. In light of the Supreme Court’s decision in Gackler, we cannot conclude that the requirement is unreasonable. [Pauter, supra, p 673.]
In this case, as in
Gackler
and
Pauter,
Ordinance No. 88 does not treat mobile homes materially differently than site-built homes. Further, the record suggests that the ordinance was designed to assure comparability between mobile homes and
Next, defendants argue that Ordinance No. 89 is unconstitutional because it requires the consent of one hundred percent of the property owners situated within five hundred feet of the property before the board can consider the variance application. The challenged section of Ordinance No. 89, § V, states:
B. Mobile homes located outside of licensed mobile home parks as provided herein shall be subject to the following requirements:
2. Issuance of variance: Application for variance to locate outside of a mobile home park must be accompanied by written consent of all adjoining property owners and property owners situated within 500 feet of the property on which the mobile home is to be located, but such approval shall not be necessary and may be waived by the township board where an application for a mobile home outside of a mobile home park is made in the case of the owner or occupant of the property’s home being destroyed by fire. Upon filing of the proper application with the township clerk, the township clerk shall place the application for variance upon the agenda of the next scheduled township board meeting.
Again, the principles governing our review are set forth in Kirk, supra, pp 439-440.
In reviewing Ordinance No. 89, our first inquiry is how to characterize the ordinance. As discussed above, the consent requirement is the prerequisite to bringing the variance application before the board. The board then conducts a public hearing and, after making the requisite findings, may vary the terms of the ordinance. Required findings are:
1. the grant will not be injurious to the public health, safety, and general welfare;
2. the use or value of the land adjacent to the property included in the variance will not be adversely affected;
3. the need for the variance arises from some condition peculiar to the property involved that does not exist on similar property in the same district;
4. the strict application of the terms of this ordinance will constitute an unusual or unnecessary hardship as applied to the property or the, owners and occupants in which the variance is sought;
5. that such variance is necessary for the preservation and enjoyment of substantial property rights possessed by other property in the same vicinity and district but is denied to the property in question because of the uniqueness of the property or because of an unusual and unique situation affecting the owner or occupant of the property. [Ordinance No. 89, § V(A).]
Defendants argue that the above section creates an "exception,” rather than a "variance,” to the zoning. For purposes of this appeal, we find no meaningful distinction. Exceptions, like variances, are only allowed in the particular circumstances specified in the zoning ordinance. 8 McQuillin, Municipal Corporations (3d ed), § 25.165, p 582. The zoning authority’s decision on whether to grant or deny the exception or variance is an administrative function.
Id.,
§ 25.165, p 583. The establishment of rules or standards to guide the zoning authority is essential to preserving the constitutionality of the zoning law.
Id.,
§ 25.161, p 570. This administrative function should be distinguished from the legislative function of zoning itself. See
West v Portage,
"A distinction is made between ordinances or regulations which leave the enactment of the law to individuals and ordinances or regulations prohibitory in character but which permit the prohibition to be modified with the consent of the persons who are to be most affected by such modification.” 43 CJ, p 246.
If such consent is used for no greater purpose than to waive a restriction which the legislative authority itself has created and in which creation it has made provision for waiver, such consent is generally regarded as being within constitutional limitations. City of East Lansing v Smith,277 Mich 495 [269 NW 573 (1936)].
Here, the consent provision does not delegate legislative power to a narrow segment of the community. Rather, it merely requires a waiver as the first step in an administrative procedure authorized by the zoning ordinance. The inclusion of a consent requirement in Ordinance No. 89 is not unlawful.
Our conclusion reached above, however, does not obviate the need for reasonableness. Ordinance No. 89, § V, requires the board to make specific findings, including a finding of hardship. A hardship variance is the recognized means by which the basic constitutional property rights are recon
Lastly, defendants argue that the board should be estopped from enforcing the zoning ordinance. We disagree.
An equitable estoppel arises where
(1) a party by representation, admissions, or silence, intentionally or negligently induces another party to believe facts; (2) the other party justifiably relies and acts on this belief; and (3) the other party will be prejudiced if the first party is permitted to deny the existence of the facts. . . . [Cook v Grand River Hydroelectric Power Co, Inc,131 Mich App 821 , 828;346 NW2d 881 (1984).]
The general rule is that zoning authorities will not be estopped from enforcing their ordinances absent exceptional circumstances.
Pittsfield Twp v Mal
Likewise, in the present case, the defendants allegedly received approval for the mobile home in private conversations with township officials. From our review of the record, as a whole, we are not persuaded that defendants demonstrated the requisite exceptional circumstances to justify an estoppel. Accordingly, we affirm the trial court’s finding that an estoppel was not justified in this case.
Affirmed in part and reversed in part.
Notes
The ordinances in effect when suit was filed were Nos. 17 and 33. Ordinance No. 88 partially amended and repealed No. 17; Ordinance No. 89 amended and repealed No. 33 in its entirety. The applicability of Ordinance Nos. 88 and 89 to this case is not disputed.