326 Mich. 126 | Mich. | 1949
Plaintiffs in this case and others as intervening plaintiffs, being some 22 property owners in the area affected, joined in a bill of complaint praying for an injunction restraining defendants DeVries from erecting two 6-story apartment buildings at the locations contemplated, which are within the area zoned as A-l residential by the zoning ordinance of the city of Grand Rapids. The relief sought was decreed. Fred and Anna DeVries, herein referred to as defendants, have appealed. The decree also enjoined defendant Ralph E. Seeger, Grand Rapids building inspector, from issuing a building permit to defendants DeVries.
The first of these 2 structures, designed to contain 120 apartments, was to be located on the rear portions of 3 properties, 2 of which were owned by defendants and the third by defendants and another party. Two of these properties are bounded on the north by Fountain street and have a total frontage
College avenue is the next street east of the above described property. In June, 1948, defendants acquired property located on the easterly side of College avenue, designated as 20 College avenue, N.E. This property consists of a large and substantial dwelling house with the usual appurtenances. The lot has a frontage of 315 feet on College avenue and a depth of 150 feet. It is on this property that defendants also propose to erect a building consisting of 100 apartments.
The area surrounding defendants’ properties predominately consists of old-time large residences, some of which have been converted into multiple apartments. The zoning ordinance restricts residential construction in this A-l residential area to’ “private (one-family) and two-family dwellings.”
Because they did not conform to the zoning ordinance, neither of these proposed apartment buildings could be erected by defendants except there was first obtained from the board of zoning appeals of Grand Rapids a so-called authorized variance from the provisions of the zoning ordinance. The ordinance was originally passed in 1923, but the pertinent part of the ordinance, section 16-E, was amended October 18, 1948. Section 16-E, as amended reads:
“The board of zoning appeals shall fix a reasonable time for the hearing of the appeal and give due notice thereof to the parties and decide the same within a reasonable time. Upon the hearing, any party may appear in person or by agent or by attorney. Such board of appeals shall hear and decide appeals from and review any order, requirement, or decision or determination made by the building inspector. The board of appeals may reverse or affirm, in whole or in part, or may modify the order, requirement, decision or determination appealed from and shall make such order, requirement, decision or determination as in its opinion ought to be made in the premises, and to that end shall have all the powers of the building inspector. Where there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of this ordi*131 nance, the hoard of appeals shall have power in passing upon appeals to vary or modify any of the rules, regulations or provisions of this ordinance relating to the construction, structural changes in, equipment or alteration of buildings or structures, so that the spirit of the ordinance shall be observed, public safety secured and substantial justice done. The decision of such board shall not become final until the expiration of 5 days from the date of entry of such order unless the board shall find the immediate effect of such order is necessary for the preservation of property or personal rights and shall so certify on the record. In order to preserve the spirit of this ordinance, the board of appeals shall not vary or modify any of the provisions of the ordinance with respect to use unless it shall find that all of the following conditions exist:
“1. That the land in question cannot yield a reasonable return if used only for a purpose allowed in that zone;
“2. That the plight of the owner is due to unique circumstances and not to the general conditions in the neighborhood;
“3. That the use to be authorized by the variance will not alter the essential character of the locality. The existing housing shortage is hereby declared to constitute an emergency, and during its continuance . said board of zoning appeals may take the same into consideration, together with all other elements herein specified in order to provide homes and shelter for the public, in an attempt to alleviate the results of such emergency. A specific finding of such emergency shall be made in each case where this element is considered. This emergency is deemed temporary and shall not continue in effect longer than 3 years from the effective date of this ordinance (October 18, 1948).”
In the instant case defendants did not make application to the building inspector, as is required by the-ordinance, for ¿..building, permit to erect either
After hearing the parties pro and con, the appeal board passed a resolution permitting defendants to erect each of these 2 apartment buildings. The only reason embodied in the resolution for so doing reads:
“Due to the present housing emergency, the fact that the veterans need a place to live which will be within their income, and that they will be given first preference, and also that off-street parking will be provided, therefore be it” (resolved that permission to erect the 2 apartment buildings be granted).
As first above noted this appeal by defendants . DeVries is from the trial court’s decree enjoining them from erecting the proposed apartment buildings. Appellants’ first contention is as follows:
“The lower court was without power to review the decision of the board of zoning appeals, or to set it aside in collateral proceedings in the absence of a showing of fraud or bad faith.”
"While it has been held in some of our earlier decisions that determinations. of’ zoning appeal boards were final on issues of fact or discretionary matters (see Beardsley v. Evangelical Lutheran Bethlehem Church, 261 Mich 458; Central High School Athletic Ass’n v. City of Grand Rapids, 274
Nor do we agree with appellants that the instant case is a collateral attack on the holding or determination of the board of appeals. Instead the real parties in interest who were before the board of appeals are now parties to the instant case seeking relief which was not sought in and could not have been granted in the proceedings before the board of appeals. The board of appeals is not a necessary party to the instant case. The parties in actual interest are before the Court; and the method of review to which plaintiffs have resorted is permissible.
Appellants’ remaining contentions are stated in their brief as follows:
“The appellees failed to sustain their burden of proof, and the lower court erred in admitting and considering in evidence the unofficial and incomplete transcript of unsworn testimony taken before the board of zoning appeals.
“The appellants adduced proof before the board of zoning appeals sufficient to satisfy the requirements of the zoning statute and ordinance for the granting of use variances.”
Accepting appellants’ proposition that in the instant injunction case the burden is on plaintiffs, in determining whether that burden was sustained there must be kept in mind what were the controlling issues. If defendants had constructed these apartment buildings without having obtained a valid variance, each building would have been “a nuisance per se,” and the statute provides:
*135 “The court shall order such nuisance abated and the owner and or agent in charge of such building or land shall be adjudged guilty of maintaining a nuisance per se." CL 1948, § 125.587 (Stat Ann 1949 Rev § 5.2937).
If the variance allowed by the appeal board was granted in violation of the provisions of the ordinance (which issue we will shortly consider) it would be ineffective and each of these apartment buildings if constructed as proposed would constitute a nuisance per se which under the statute could be abated by timely proceedings.
So a material and, we think, controlling issue in the instant case is this: Was the variance allowed by the appeal board granted in violation of the zoning ordinance; and it is as to this issue that plaintiffs had the burden of proof in the instant case. For reasons about to be noted we think plaintiffs did establish their right to the relief granted.
In support of their contention plaintiffs at the hearing of this case proved in detail the proceedings which were had before the appeal board. As a part of their proofs, plaintiffs, over defendants’ objection, introduced the transcript of “testimony” or statements of parties before the appeal board. The “testimony” or statements were taken by a court reporter who for this purpose was employed by plaintiffs’ attorney. The reporter, as a witness in the instant case, testified as to the record he had made. Its acccuracy is not challenged. But it was objected to as “pure hearsay” and for the further reasons that it did not include the testimony of one witness who testified after the reporter was compelled to leave the hearing, and that the witnesses whose statements were transcribed were still available and could have been produced at the trial, of the instant case. We think the trial court’s ruling
So we come to the controlling issue as to whether plaintiffs herein by the record made in the trial court established their contention that in granting- the variance the appeal board acted in violation of the ordinance. If so, the appeal board’s grant of this variance was ineffective and plaintiffs are entitled to the injunctive relief prayed. “The action of legal officers is binding- only when they act within the scope
By the express terms of the ordinance, herein-before quoted, the power of the appeal board to grant a variance is restricted in the following particulars :
“In order to preserve the spirit of this ordinance, the board of appeals shall not vary or modify any of the provisions of the ordinance with respect to use unless it shall find that all of the following conditions exist:
“1. That the land in question cannot yield a reasonable return if used only for a purpose allowed in that zone;
“2. That the plight of the owner is due to unique circumstances and not to the general conditions in the neighborhood;
“3. That the use to be authorized by the variance will not alter the essential character of the locality.”
While, as above noted, the appeal board did find there was a “present housing emergency” there was no finding, nor was there testimony or a showing before the appeal board in support of or to justify a finding, that “the land in question cannot yield a reasonable return” if its use is confined to “a purpose allowed in that zone;” or that “the plight” of defendants, if any, “is due to unique circumstances and not to the general conditions in the neighborhood.” The record does not disclose defendants’ income on the basis of investment from the 21 or 22 apartments they already have on the properties fronting on Fountain and Fulton streets. The same may be said of the College avenue property. We have not herein-before made note of the 15-room old-time dwelling, seemingly in a run-down condition, located on the easterly portion of the Fountain street property. At the hearing before the board of appeals Mr. De-
Our review of the record satisfies us that the only reasonable conclusion sustained by the record made before the appeal board is that the use defendants propose to make of their property under the variance discloses that such use would “alter the essential character of the locality” rather than being one which “will not alter the essential character of the locality.” So far as disclosed by the record there are no other apartment buildings of the character defendants propose to construct in that area, although some of the large dwellings have been converted into multiple apartments, which is permitted by the 1948 amendment, provided there is “no major structural change in the exterior.” It is a fair inference that when this recent amendment was adopted consideration was given as to how far there should be departure from the previous restrictions of one or 2-family dwellings in this locality; and instead of amending the ordinance so it would be per
“There shall be no major structural change in the exterior of the structure other than required or desirable for ingress and egress to each apartment or dwelling unit to be created.”
It seems clear that the provision last above quoted was aimed at preserving in this zoned area the exterior appearance of the dwellings therein, and that this restriction by necessary implication forbids construction of large apartment buildings 6 stories high such as defendants propose to erect.
The only conclusion justified by the record before us is that the appeal board in granting this variance to defendants acted in. violation of the express terms of the ordinance, that the grant was ineffective, and that plaintiffs are entitled to the relief decreed in the trial court. The decree there entered is affirmed, with costs to appellees.