*1 Sterling Heights 139 1974] CITY KROPF v OF STERLING HEIGHTS Court Zoning 1. —Reasonableness—Present Conditions —Future Condi- Courts—Municipal Corporations tions — —Ordinances. valid, reasonable, Zoning, to be must be its reasonableness by present conditions; validity must be measured the test of prohibition may not whether at time some in the future relationship public health, bear real and substantial general welfare, safety, now; morals or but whether it does so required eyes developments court is not to close its improvements municipality within a which imminent or a certainty and the factual measure of such consideration must speculative certainty be the nature of condi- "future municipality tions” which the asserts will render its ordinance furthermore; proper; reasonable and court must he sensitive might community to the harm which befall the in the future if proposed by permitted the use owner is because yet prohibition. justify the circumstances do not Zoning Property 2. —Constitutional Law —Purchaser —Ordi- nances. purchases knowledge One who restrictions [24] [22, [16] [18] [19] [21] [8] [10,17] [20] [15] [2, 4-6, [7] [1, 9,11-13, 26, [14] [3] 58 Am Jur 58 Am 5 Am Jur 58 Am 58 Am 20 Am Jur 27 58 Am 16 Am 16 Am Jur Am Am 25] 2 Am Jur 58 Am Jur, Zoning 58 Am Jur, Zoning Jur, Zoning Jur Jur, Jur Zoning Jur, 2d, Appeal Zoning Jur, 2d, 2d, Equity 2d, 2d, 27] References Zoning 2d, Jur, Zoning Constitutional Law Constitutional Law Courts 58 Am Zoning Administrative §§ § § § § §§ 19. 14, 229. 58. 178 223, §§ §§ Jur, Zoning 39.§ 18. for Points Error 822. 66, 177-267. et § 256. seq. 14 et 80. § Law seq. §§ §§ §§ in Headnotes 225, 10, 210-215, 21, §§ 22. 226. 401. 393. Mich challenge the restrictions’ heard to constitution- nonetheless ality; unconstitutional ordinance does lose an this otherwise simply by itself from attack immunize trans- character and owner another. from one *2 fer Appeal Equity—Chancery 3. Cases —De Novo Review. and Error — appeal Michigan Supreme the on Court reviews de novo record in chancery cases. Zoning Excluded 4. Use —Constitutional —Ordinances—Total Discrimination—Equal Protection. Law — face, which, totally excludes from a An on munici- ordinance its recognized by pality the constitution or other of a use laws strong legitimate Michigan it also carries with a taint of as equal protection a of and denial unlawful discrimination use; hardly pre- such a taint the excluded can be law to general permit- reasonably present use is sumed when community issue in is whether it was ted particular capriciously parcel arbitrarily denied as to a of or land. Zoning Ordinances—Presumptions—Reasonableness—Courts 5. — Evidence—Single Residences. —Constitutional Law — ordinance, validity presumption favor of of an while The reasonableness, may it must stand courts invali- test objections date ordinances unless the constitutional thereto are competent appear face; supported by their evidence or on zoning invalidity appear of a does not the face ordinance merely its of certain for use for from classification single only. residences op Zoning 6. —Burden Proof —Constitutional Law —Ordinances— op Deprivation Property Equal Due Protection — Process — Compensation —Just —Overruled Cases. proof attacking Plaintiffs must bear the burden constitu- ordinance; up present tionality of a it is them proofs showing city by that the defendant sufficient the court rights thus its action violated one of their constitutional city, "unreasonably”; they its show that via acted must process, procedural or due ordinance denied them substantive laws, protection equal deprived their or them of just compensation; the Court of as decisions of without insofar Appeals concept prefer- solely or based on the of "favored are including shifting proof, red use” and attendant of burden of (1971), Woodhaven, City App Bristow v 35 Mich Sterling Heights v Oak, Royal App (1972), they Simmons overruled. Zoning Ordinances—Municipal Corporations 7. — —Due Process. plaintiff-citizen may process by A be denied city substantive due municipality by legislation, the enactment of such a has, ordinance, analysis, which final no reasonable basis very for its existence. Zoning Ordinances—Municipal Corporations 8. — —States—Police Powers. power absolute; city to enact ordinances is not it has given power by Michigan regulate been the State of to zone and police its land use within boundaries so that the inherent powers effectively implemented of the state be more on the local but level the state cannot confer local unit government have; that which it does not for the itself state legislate right in a manner that affects the individual of its citizens, the state must show has sufficient interest in protecting implementing good, police the common via its *3 powers, private give way that such interests must to this higher interest. Zoning 9. —Ordinances—First Amendment —Reasonableness— Presumptions —Burden of Proof. Michigan Supreme requires justify legisla- Court the state to its "compelling” tion state interest when First Amendment rights restricted; being regard ordinances, zoning are it they they presumed asks that be "reasonable” and (US I). plaintiff Const, differently sobe until the shows Am Zoning Single-Family Supreme 10. — Residences — Court —Proofs— Reasonableness.
Michigan Supreme city Court cannot find that a was unreasona- zoning single-family plain- ble in for land residences where the presented proof directly relating tiffs little to the issue of the single-family reasonableness of the residential classification itself, they point sewage do out the adverse influences of a plant particular prop- treatment and the characteristics itself, erty they argument improperly no make that the is land habitation, they acknowledge reserved for human that particular wit, property, characteristics the low areas, swampy any regardless are unsuitable for use what is, fact, zoning proofs they present put the total proposition greater people forward the that a number of should Mich just make it their home rather than
reside on the land few. Zoning Arbitrariness—Capriciousness. 11. — capriciousness part city on the of a To show arbitrariness land, plaintiffs it zoning must show that did not act for rational reasons, grounds any or no such valid that or other reasons respect parcel reasonably of land owned exist with plaintiffs. Zoning Supreme Arbitrariness—Capriciousness—Sin- 12. — Court — gle-Family Residences. Michigan Supreme guess Court to second
It is for the not showing governing in the absence of a bodies local capricious arbitrary body in its uses or exclusion other was single-family residential district. from a Zoning Supreme 13. — Court —Ordinances—Arbitrariness—Unrea- sonableness. Michigan superzoning Supreme not Court does sit as a commission; approve it the Court’s function alleged desirability, or for abuses as to wisdom ordinance box, remedy involving is the ballot not the such factors courts; city he shown that a council arbitrar- unless can acted ily unreasonably, its determination is final and conclusive or adopted. modify the ordinance as no court alter Statutes—Ordinances—Validity. 14. Courts — province pass upon of the courts to While it is within the ordinances, legislate validity may not nor of statutes and courts legislative compel way so bodies to do one undertake another. Zoning 15. —Ordinances—Proofs. ordinance, aggrieved prop- To an attack on a an sustain erty owner must show that if the ordinance enforced preclude any consequent its restrictions on his use adopted. purposes reasonably to which it is *4 Appeal Finding Equity—Supreme of Trial 16. Court — and Error — Judge Witnesses—Credibility. — weight give Michigan Supreme Court inclined considerable primarily findings judge equity cases of the trial position judge to test is in a better because trial credibility by observing them court of the witnesses appellate no hearing testify has them than court which is an findings ordinarily of opportunity; it does not disturb such Sterling Heights case, equity unless, judge trial an after an examination record, it entire reaches the conclusion it would have position result had it arrived at a different been in the of the judge. trial Appeal Equity—Zoning—Single-Family 17. Resi- Error — op Supreme Findings Facts — dences — Court. equity claiming A review of the record in toto an case that a city’s unreasonable, zoning arbitrary capricious ordinance is applied plaintiffs’ property judge, reveals that the circuit fact, acting reasonably aas trier of could have reached conclu- testimony plaintiffs’ sions that witnesses should not be weight afforded as much as that introduced on behalf of the city plaintiffs’ property for, and that was suitable could be for, developed single-family and was salable when used purposes, supported by residential the conclusions are record, Michigan Supreme and the Court would not have reached different conclusion were it the trial court.
Opinion Concurring in Reversal Kavanagh
G.T. Levin, JJ. Zoning Legislative 18. — Action —Constitutional Law —Reasona- bleness. zoning premised assumption Much of the law on the legislative body necessarily repre- decisions of the local legislative premise, require sent action and on that the courts owner dissatisded a use restriction to prove "legislation" generally that the is irrational —the burden imposed Legislature when act an is attacked as unconsti- tutional; approach is sound if maintenance of a use restric- truly legislative action; prop- tion redecís the courts then erly require person attacking prove restriction that no permitted use is reasonable. Zoning 19. —Use Restrictions —Reasonableness—Administrative Law. guideline, where maintenance of a use restriction redecís administrative, action, legislative, ought gener- to be that ally by zoning granting denying followed authorities in applications change for a in a use restriction as affects particular property proposed reasonableness use. —the op Separation 20. Constitutional Law — Powers —Administrative Legislative Body. Law —Local separation powers, The doctrine of a restriction on the exercise *5 Mich major government by branches of state the three one of another, powers belonging does .the not bar exercise of legislative body. power by a local administrative Legislative Hearing—Judicial Law — Action — 21. Constitutional Process. Review —Due authority hearing governmental can without a A act local judicial inquiry to an whether the is review is limited action (and process) denial of due or thus a substantive irrational other constitutional limitation when official ac- violates some legislative. tion is Hearing—Judicial 22. Law — Review —Constitu- Administrative Law —Evidence. tional hearing legislative official of a local a when action There must be grounds body on individual administrative— is based —when review, Michigan Constitution, inquiry under and the on is supported competent, by whether the decision is material and (Const 1963, 6, the whole evidence on record art substantial § 28). Zoning 23. —Administrative Law —Judicial Review —Constitu- tional Law —Reasonableness—Evidence. grant deny change
Determination to or a a local grounds administrative, body legislative on individual not rights legislative; quasi-judicial private it is and affects and is merits, courts; subject by the to direct review the reasona- proposed generally use—the in fact bleness standard legislative body granting refusing a local when followed Constitution, Michigan subject change is, judicial under the — grant review and the on review is whether supported by competent, denial is material substantial 28). (Const 1963, 6, on the art § evidence whole record Zoning Legislative 24. — Action —Judicial Review —Variances— Evidence—Presumptions. Constitutional Law — legislative body adopts Zoning legislative in fact the on when general, individualized, grounds plan general applica- there, stops community to all the in the tion land granted requires necessity variances when constitutional it, grounds there are individual no determinations on subject judicial review accordance with standard prescribed Michigan in the Constitution that decision by competent, supported material evidence and substantial legislative body record the whole and the choices of Sterling Heights (Const presumption constitutionality clothed with 6, § 28). art Zoning Presumptions— —Variances—Administrative Law — 25. *6 Legislative Ordinances—Evidence—Hearing—Ju- Action — dicial Review —Constitutional Law —Reasonableness. zoning general Local that act on authorities individual not grounds, applications grant changes that entertain for and zoning maps, spot zone, approve their and ordinances and- developments, planned exceptions refuse unit make and allow effecting change showing variances a without a necessity, exercising legis constitutional are administrative not power and claim for lative cannot such determinations the constitutionality presumption legislative which shields ac tion; proceedings grounds quasi- the based on individual judicial, authority grant hearing, must local a the determi authority evidence, nations of local must be based on and determination, granting alike, denying subject judicial hearing on the review record made at the in accord prescribed Michigan ance with the standard in the Constitution supported by competent, the decision be material and record; substantial evidence on the whole no constitutional presented, the issue on review is whether the (Const 1963, 6, proposed § 28). use is reasonable art Zoning 26. —Ordinances—Reasonableness—Burden of Proof. seeking change property permitted A by owner a in the use a establishing ordinance has the burden of that the use he proposes property light for his is reasonable in of all may properly required and he circumstances show what build, site, present design he intends Boor and exterior plans. Zoning —Reasonableness—Review—Circuit 27. Court —Court Superintending Rules — Control —Administrative Law— Multiplicity of Actions. person aggrieved by legislative body A a determination of a on an application seeking hearing regard an administrative proposed of a reasonableness use of his a under zoning ordinance could seek review in the circuit court under a providing control, superintending court rule for absent Legislature procedure enactment anof administrative providing agency act for review of local action contested provided agencies; ordinarüy cases like a now for action of state court action be commenced after exhaustion of the remedy; nearby property might administrative owner seek granted against change superintending if relief presently permitted claims that owner also use is actions, unreasonable, multiplicity may, to avoid a he assert 711). (GCR 1963, ground relief for that additional 2, Division Appeals, Court Bron-
Appeal from O’Hara, JJ., J., son, V. J. Brennan P. Macomb, George R. reversing remanding (No. 5, 10 June Deneweth, 1973. June J. Submitted 54,184.) February 1973, No. Decided Term Docket 16, 1974. April Rehearing 1974. denied Mich 21 reversed. App E. Complaint Kropf and Sanford William Sterling against City Heights Meyer determining defendant’s zon- declaratory judgment *7 void, to restrain ing for an enforcement injunction require and issuance of ordinance a a building permit, certificate of compliance agents for to compel mandamus defendant’s to build application to approve plaintiffs’ officials buildings multiple structures consistent dwelling Judgment use. for defendant. Plaintiffs Appeals. appealed to Court of Reversed appeals. remanded. Defendant Reversed. Schwartz, D.
Michael H Feiler and Michael plaintiffs. Cornell,
O’Reilly & for defendant. Munici- Michigan Amicus Association of Curiae: Lax, J. Bur- Joseph Jerold D. E. pal (by Attorneys Alkema, Edwin- tell, F C Gazley, Eugene Frank Peters, Carraher, Tatigian, John J. Allan Harry C Beras, Hertler, Nash, A. Sigmund G. W. Vincent Schnelz). Burke, E. Stanley and Gene Sterling Heights Court Defendant-appellant city T. M. C. J. Kavanagh, granted appeals by by leave this Court from Appeals reversing decision of the Court the trial finding city’s that defendant court’s ordinance constitutional. builder-developers
Plaintiff are the owners aof parcel Sterling ten-acre of land situated within Heights, County, Michigan. parcel Macomb shaped irregularly by and surrounded low marsh portion lands on the western side. The southern parcel plain lies within a flood and is traversed gas parcel, main. On the eastern side of the large being garage there is a vacant area used as a depot Heights Sterling Department for the equipment Public Works. Trucks and other garaged adjacent stored and on the area Department of Public Works.
Bordering large on the south ais area used side, partially junk yard as a filled with trash and species various east, of vermin. Farther to the south- Sterling Heights operates sewage treatment plant. property To the north is Clinton prop- River Road and at the northern end of the erty city property between it and the are five residential Road is used for lots. The land across Clinton River
single-family residences and the single-family is zoned for use. petition Plaintiffs filed a with the local seeking board to have the rezoned from single family zoning permit multiple dwellings Failing to be deavor, constructed the site. in this en- *8 plaintiffs brought the then suit in the seeking circuit court to have the ordinance question1 applied declared as unconstitutional property. They their asserted that said ordinance unreasonable, unconstitutional, was and confisca- 1 amended, as Ordinance Ordinance 131. Mich 139 391 op the Court property. They as to their
tory applied it asserted developed single- not be could parcel that their peculiar due to its family topography, residential to noxious and irregular shape, proximity deleteri- properties, virtue of nearby ous uses on the traversing swamps various easements the sub- ject parcel testimony experts hearing many
After for made, sides, others, judge among the circuit both fact: following findings of the the property purchased "1.. That the Plaintiffs knowledge irregular of its full land contract thereon, low areas located the shape, swampy and the Sewage Department’s D.P.W. Yard and extension of proximity thereto and the close Treatment Plant southerly 'dump’ lying thereof. area used as no effort to check out the made "2. That Plaintiffs property feasibility the use of the suitability purchase prior to thereof and that lots their residential utilize no effort whatsoever they have made purchase. since its purposes property for residential at the a matter of fact that time further finds as Court plaintiffs familiar with the purchase were now) (the it is same as then on the Sterling Heights. plan City with the with the master "4. That property, [*] if used for [*] [*] single family resi- developed into purposes, be between dential 10,000 depending not the building lots on whether or city or requirement is enacted square foot willing city is allow the area be whether Further, square developed of 7200 feet. into lots 10,000 upon by requirement if foot enacted even Defendant, economically may still purposes. used for residential "7. That the Sewage Treatment Plant ¤ [*] [*] is a temporary problem presents permanent no detriment and thus purposes, this property the use of for residential being for its being undisputed present plans call *9 Sterling Heights op Opinion the Court phased therefore, by July, out it indisputa- is property ble that the this time could be used for (after building purposes the installation required of all sewage improvements) plant the longer will no there.
[*] [*] [*] plan "13. That the master of City the of Sterling Heights does have a reasonable relationship health, safety and welfare morals City’s of the citizens, adopted having duly it been after the necessary planning consultation, experts with in the field, people but with city also at required public hearings. "14. it beyond argument That permit that to multi- ple zoning along all Clinton River Road require would change thoroughfare in the plan, master being be- yond argument greater density, the more greater traffic in an area and that density created multiple developments numerous would he beyond of capacity right a street an 86 foot of way. subject "15. That property can be developed for single family purposes residential and that it will be purposes. salable when used for such "16. That higher would be salable at a price again if multiples beyond used for argument. The Court finds as a matter of further fact this argument may same regard be used with to almost piece every in any located area of Macomb County experiencing growth the same kind as the Sterling Heights, City of and is therefore not of suffi- weight cient in this case to invalidate the Defendant’s Zoning Ordinance. impressed by
"17. The Court was not the Plaintiffs’ witnesses and would call attention to the fact that their testimony was either based a lack of foundation (in the knowledge facts case Mr. D’Loski no purchase prices availability utilities or cost or improvements installation and in the of Mr. case Lehner, complete knowledge lack of of the cost of land, raw or was elicited from witnesses who were (in obviously prejudiced somewhat the case of Mr. Karam, being adjacent the owner of lots which he op the Court seeking from to also have re-zoned he was
testified classification).” single family residence findings, factual the court these *10 In accord with follows: ruled as then legal principles "Applying to the hereinbe- these facts readily forth, apparent burden which that it set becomes
fore they the' to sustain Plaintiffs have failed must to establish their cause of action. carry in order therefore, does, it find that cannot on the The Court proofs, be said that Defendant’s of basis these unreasonable, capri- Zoning cious follows with arbitrary Ordinance question. in It therefore applied as dismissed, Complaint Bill of should be that their added.) prejudice.” (Emphasis 41 Appeals, Mich App the Court of appeal, On 567, J. Judge 199 V. dissent- 21; NW2d Brennan court in the lower entertained two ing, overruling issues: municipality
1. That the trial court allowed future, opposed justify its based conditions, and present, unduly swayed by
2. That
the trial court was
that
knew of the
restrictions
plaintiffs
fact
they purchased
property.
at the time
opinion, Judge
In a well written
Bronson
cor-
entertained,
stating:
it
rectly decided the first issue
nearby
asserts
these
inconsistent
"Defendant
sewage plant
temporary, that the
will be
uses
closed
and that the
of
completion
sanitary
system
of
new
sewer
Heights
process
City
Sterling
of
seeking
department
public
alternate site for its
of
an
garage.
these
we
From
contentions
pointedly
believe
works
issue in this case is
raised: whether
crucial
upon circum-
the use of
based
city
stances
have
nance.
restrict
but
occur in the future
which
believes will
time
trial of the ordi-
yet
occurred at the
Sterling
Heights
v
151
1974]
op
the Court
governing
problems
"The
of law
such
rule
is well
valid,
zoning,
reasonable,
must
be
settled:
and its
present
by
must be measured
reasonableness
conditions.
expressly
rule
stated
Township
was
Gust v
Canton,
(1955):
442
NW2d
[70
772]
"
validity
prohibition
'The
is not whether
test
may at
in the future
some time
relationship
bear a real and sub-
health,
public
safety,
stantial
morals
welfare,
general
but whether it does so now.’
"This
has
rule
been likewise stated in Comer v Dear
born,
(1955);
within the which are immi- certainty. nent a factual The measure of such consid- certainty speculative eration must be the nature of 'future municipality the conditions’ which the asserts proper. will render its ordinance reasonable and Fur- thermore, we must be sensitive to the harm which might the community befall in if use the future the proposed permitted the by property owner is because yet justify prohibition.” circumstances do not the
However, Court then went to state: recently "This Court it multi- made clear where Mich op the Court involved, municipality has the burden of pies are proving seek to ordinances which exclude validity Oak, App 496 Royal [196 them. Simmons (1972). zoning for fact this The NW2d 811] plan part of a valid master adopted as property was plan While a that burden. master enough to sustain not is reasonableness, by it itself not conclu- evidence impose the burden on defendant not While we do sive. retroactively, in this case makes clear that record developed cannot strict plan. with the master accord any harm will come perceive that "We cannot plaintiffs’ proposed multiple allowing community added.) (Emphasis development.” residential correctly then stated that Appeals Court of knowledge re- purchases who one challenge be heard strictions nonetheless An constitutionality. otherwise restrictions’ ordinance, agree, we does lose unconstitutional immunize itself from attack this character from one owner simply transfer to another. (1) appeal. Does the are raised on questions
Four
prop-
applies
plaintiffs’
as it
ordinance
relationship
public
present
erty bear
(2)
health,
general welfare?
We
safety, morals and
remaining
questions
into one.
condense the
three
bear the burden
municipality
Does the defendant
of an ordinance which
proving
validity
zoning use
dwellings
from a
multiple
excludes
error
Appeals
did the Court of
commit
district and
interfering
defendant-appellant
from
enjoining
*12
development?
proposed multiple-family
with a
Biske v
novo We review de
appeal.
record
(1969)..
611;
Troy,
Mich
of Plaintiffs for the dwelling property. with purpose of constructing multiple on the residence within described Plaintiff’s "D. Court That after has declared Plaintiffs’ rights with Defendant’s prayed upon proper compliance as herein for and promulgated procedures, should the Defendant, officers, agents, employees, its Boards or approve plans any Commissions refuse to Plaintiffs Plaintiffs for multiple dwelling use, submitted claiming by, through anyone buildings or under
and structures consistent with prayed then those agents or charged officials Defendant who are duty, approve mandated to application Plaintiffs’ buildings to build structures and consistent with multi- ple dwelling use.” that, Appeals The Court of light ruled of the dwellings fact that multiple were a "favored use” proof the burden of rested on prove city such exclusion was not arbitrary, capricious, unreasonable. As this holding may be determina- case, tive of the we now address ourselves to this espoused rule by the Court of Appeals. concept
This
of a
preferred
"favored or
use” and
the attendant
shifting
proof
burden of
when
case,
present
such use is
in a
origins
finds its
City Woodhaven,
205;
Bristow v
App
35 Mich
(1971)
City
of Bloomfield Hills
Mich
[86
*13
139
Mich
391
the Court
of
Smith, writing
the major-
166], where Justice
NW2d
normally a
ordinance:
ity, stated that
"
presumption
every
with
us clothed
of
'comes to
Inspector
Building
[1951],
B. H.
validity,
v
Hammond
155],
it is
the burden of
restriction use of legiti- as a police powers.” exercise of the State’s From this statement the lower Court drew rule, following which it extended to that aforemen- tioned: "Thus, prohibition total a local ordinance of establishment of a 'constitutionally’-recognized use will amount prima placing the local heavy facie case
burden on municipality justify legisla- added.) (Emphasis tion.”
Such rule as stated is
But
not incorrect.
only
limited comparison
between this
statement
quoted
above
holding
reveals that
in the final
Bristow,
supra, the Court of Appeals left out one
word,
very important
face,
"total”. On its
an ordi-
11,
Const
art
1.§
Mich 139
Court
totally
from
nance which
excludes
a municipality
recognized
a use
the constitution
or other laws
legitimate
of this
as
also
state
carries with it a
strong taint of unlawful discrimination
and a de-
nial
equal protection
law
as
the ex-
can
presumed
cluded
Such a taint
hardly
use.
be
present
cases such
that presently before
general
us
permitted
when the
use
reasonably
community
and the
issue is whether
was
arbitrarily
capriciously
denied as to this
particular
parcel
We
of land.
reaffirm our state-
Properties
Royal
in Northwood
Co v
Oak
ment
City Inspector,
419, 422-423;
39 NW2d
(1949):
"The burden was not on the
defendants
establish
relationship,
plaintiff
but
to show the lack
it.
plaintiff
This burden
did not sustain.
[Cases cited.]
While the ordinance must stand the test of reasonable-
*15
ness,
presumption
is in favor of
validity
its
courts
may
invalidate ordinances unless the consti-
objections
supported
tutional
by competent
thereto are
appear
Portage
evidence or
on their
face.
Township v
Union,
Full Salvation
Plaintiffs do not nor do their show, they procedural process by that were denied due manner which the ordinance was enacted. they allege, proofs Nor city show, do nor the policy discriminating against multiple has a equal protection prob- residences and thus raise an lem in this case. Their proofs go do to a substan- process argu- tive due and a Fifth Amendment ment and these we will now handle. plaintiff-citizen may
A
be denied substantive due
process by
city municipality by
the enact-
legislation,
ment of
nance,
this
case a
ordi-
analysis,
has, in
which
the final
no reasona-
very
power
ble basis for its
existence. The
city to enact ordinances is not absolute. It has
given power by
Michigan
been
the State of
to zone
regulate
land use within its boundaries so that
police powers
the inherent
of the state
effectively implemented
more
on the local level.
But the state cannot confer
the local unit of
government
that which it does not have. For the
legislate
state itself to
in a manner that affects right
individual
citizens,
of its
the state must show
protecting
it has a sufficient
interest
*16
implementing
good,
police
the common
via its
powers,
private
give way
that such
interests must
higher
degrees
to this
interest. Different
of state
required by
depending
courts,
interest are
upon
type
private
being
interest which is
In at this "reasonableness” zoning ordinance, for a this Court will bear in challenge process grounds mind that a on due argument; first, contains a two-fold no reasonable there is governmental being interest ad- present zoning vanced itself, classification single family here a secondly, residential classification, or
that an ordinance be unreasonable purely arbitrary, capricious because of the types legitimate unfounded exclusion of other question. Though land use from the area in each arguments process, of those are founded due reality they arguments, in ing requir- are distinct each proofs.
different Applying proofs the instant issue, to the first single family reasonableness of the residential plaintiffs present itself, classification we find that proof directly relating little to this issue. While they point do out the adverse influences of the sewage plant peculiar aforesaid treatment and the they characteristics of the argument itself, make no improperly that the land is reserved for opposed being habitation, human zoned for a They acknowledge commercial or industrial use. peculiar property, characteristics of the swampy wit, any areas, low unsuitable regardless use of what fact, is. In proofs they present put proposi- total forward the greater people tion that a number of should reside on this land and make it their home rather than *17 Sterling Heights 159 op Opinion the Court proofs, being just the Court few. Such cannot city was unreasonable in find that the this single-family for residences. land directly proofs more are related Plaintiffs’ process, aspect attempting of due second show city arbitrarily capriciously and acted in single restricting family use to the land residence excluding including thereby uses, other and ple dwellings. multi- turn to this
We now issue. Supreme Court, The United States Euclid Vil- lage Realty Co, 365; 114; 272 US v Ambler S Ct (1926), adopted by 303; ALR 1016 71 L Ed this Older, 667; Court 727 zoning Austin v 278 NW (1938), why several reasons set forth the local reasonably multiple board could restrict 394-395): dwellings (pp in a residential area apartment houses, particular "With reference to it is development pointed out that the retarded of detached house greatly by coming apartment sections is houses, which has sometimes in destroying resulted private purposes; entire section for sections house in such apartment very often the house is a mere parasite, open spaces residential character of the district. ing advantage constructed order to take of surroundings by and attractive created Moreover, the com- apartment others, by one house is followed interfering by height their and bulk with the free monopolizing rays circulation of air and which otherwise would of the sun homes, fall the smaller bringing, necessary accompaniments, as their disturbing noises incident to increased traffic and busi- ness, occupation, moving and the means of automobiles, streets, parked thus larger portions detracting safety depriving from their chil- privilege quiet open spaces play, dren of the localities, until, enjoyed those more favored — neighborhood finally, the residential character of the desirability place as a and its of detached residences circumstances, destroyed. apart- utterly ment Under these houses, which in would a different environment 391 Mich op the Court highly unobjectionable but entirely desira- being nuisances. ble, very near come summarized, reasons, thus do not demon- "If these policy respects in all or sound strate those restrictions to the wisdom pertinent have indicated which we least, inquiry, sufficiently the reasons are at *18 preclude saying, from as it must be cogent to us said unconstitutional, can be declared the ordinance before clearly arbitrary provisions are and unreason- that such able, public relation to the having no substantial morals, health, general welfare.” safety, showing city that the had presented Proofs were allowing multiple possibility considered the plaintiffs’ on dwellings to be erected for, others, among following the rejected had same River was reasons: That Clinton Road an inade- traffic; to handle the increased quate thoroughfare multiple dwellings that were inconsistent with the plans general for proposed developmental area unique and since land was not for the plaintiffs’ area, rezoning plaintiffs’ property proba- would action on proper- necessitate similar the other bly would be ties and the end result intolerable. main, plaintiffs’ if not re- proofs To these sole the instant land was more valua- sponse, was multiple residences and that ble when used "highest use” of said this would constitute arguments property. may While such be relevant ordinance, in a Fifth Amendment attack on the showing do not rebut of reasonableness they part city, they nor do meet in plaintiffs showing burden have that exclusion arbitrary other uses from this was in Supreme This Court and the Court capricious. Euclid, supra, has set forth several rea- rational other from city may excluding sons a have uses piece presumed It is particular property. reasons, other any acted for such or for city Sterling Heights op the Court reasons, enacting particular valid ordinance. capriciousness show To arbitrariness on the part plaintiffs must city, show that it did act, grounds so no such or that reasonably respect parcel. exist with instant In this plaintiffs not so case have shown.
It not for Court guess this second the local ip governing bodies the absence of a showing that that body arbitrary capricious was in its exclu sion of from other uses a single-family residential Justice Smith district. aptly pointed this out Burn, Inc, Hills, Brae v Bloomfield supra, pp 430- 432. not sit as a superzoning Court does "[T]his commis- wisely people
sion. Our laws have committed to the of a community themselves determination of their mu- nicipal destiny, have carved out degree to which the industrial precedence residential, over the areas pur- each be devoted to commercial *19 suits. With the wisdom or lack of wisdom of the deter- mination community, through people we are not concerned. The of the appropriate legislative their body, courts, growth govern and not the and its its life. Let us proposition clearly may state the as as be: is It not our approve function to dom the ordinance before us to wis- such, alleged or desirability. involving the courts. We For abuses box, remedy factors the the not ballot judgment do not legisla- substitute our for that of the charged body duty tive the Constitution responsibility with the treatise, premises. phrased Willoughby As it in his (2d ed, 1929), 1, of the United States vol 21, p power law-making 32: 'The of a constitutional § legislate being body wisdom or power premises granted, in the the expediency manner in which that judicial properly subject exercised is not criticism similarly or control.’ We held in Tel-Craft 326, Detroit, City Civic Association v 337 331 Mich (1953)]: NW2d 294 [60 " it can 'Unless be shown that the council acted arbitrarily unreasonably, their is final determination Mich 139 391 the Court may modify alter or no court the
and conclusive and
adopted.
ordinance as
"'
province
the
of the courts to
it is within
"While
ordinances,
upon
validity of statutes
pass
the
compel legis-
legislate nor undertake
courts
cases.)
way
(Citing
one
another.
lative bodies to do so
seeking
compel
The court erred in
mayor
defendant
city commission members
to amend the
’
Properties
Royal
Northwood
Co. v
Oak
ordinance.”
419,
[Emphasis
423.
City Inspector, 325 Mich
added.]
"'
council,
power is vested in the
"The ultimate
acting
public
welfare
good
its
questioned
faith in
cannot be
government.”
judicial
branch
Grat-
384)
(73
381,
Conte,
A2d
ton
364 Pa
[1950]’.
necessary corollary of
"It
is a
the above that
every presumption
us clothed with
ordinance comes to
of
Mich 551
Building Inspector,
B. H.
validity,
Hammond v
(1951)],
and it is the
NW2d
burden of
[50
attacking
prove affirmatively
party
arbitrary and unreasonable
ordinance is an
upon
restriction
property.
City
of his
the owner’s use
Janesick v
Detroit,
(1953)].
Turning plaintiffs now to the issue which presented proofs, almost of their we totality whether, situation, plaintiffs’ prop- consider in this *20 has been so as to amount to a erty restricted has property. Michigan confiscation their on a adopted the view that to sustain an attack ordinance, owner aggrieved property an Sterling Heights Kropf v op the Court show that if ordinance is enforced must on his consequent property preclude restrictions to which it is any purposes its use for reasonably Hills, Burn, Inc, supra; adapted. Brae v Bloomfield Farms, v Wood Creek Smith 127; Mich (1963). NW2d proofs issue, present many on this
Plaintiffs
however,
presented
the city,has
equally forceful
rebutting
Expert
evidence
same.
witnesses for both
attempt
testified in an
to aid the
sides
court
in
conclusion.
It
reaching
correct
is true that we
hear these cases de novo. But in cases such as we
us,
presented
have before
the evidence
where
the record
reasonably support
could
either party,
this Court
this writer’s words in Chris-
feels
tine Building
City
Co v
Troy,
508, 518;
(1962)
In the instant case the circuit has judge assisted reaching this Court proper conclusion fact, including, findings in his impression his credibility plaintiffs’ He felt witnesses. testimony their should not be afforded as much weight as that of the city. introduced on behalf he the instant Accordingly, specifically found *21 Mich 139 Levin, by Opinion J. developed for, for, could be suitable was single family resi- used for when salable and was dential reveals purposes. of the record toto A review judge, acting trier of as a the circuit that reasonably have reached these conclu- fact, could supported they by the conclude We sions. from the record conclude We further record. not have reached we would trial court we the were a different conclusion. hereby
Accordingly, affirm the decision of we Appeals judgment of the Court trial court. is reversed judgment of the circuit court is being public involved, no A reinstated. taxed. costs shall be JJ., M. Coleman, Williams,
Swainson, S. Kavanagh, C. J. T. M. concurred with reversal). (concurring Much of J. Levin, assumption zoning premised on law of zoning legislative body local neces- of a decisions represent legislative sarily action. require premise, courts a
On that use restriction dissatisfied with owner "legislation” prove bur- is irrational —the that the Legisla- imposed generally an act of the when den ap- That as unconstitutional. ture is attacked proach of a use restriction is sound if maintenance legislative truly action; the courts reflects attacking require person properly the re- then permitted prove is reasona- that no use striction restric- Where, however, maintenance of a use ble. legislative, action, administrative, not tion reflects ought generally guideline followed to be that appli- denying granting authorities in change as it use restriction for a cations affects particular property reasonableness —the proposed use. Sterling Heights Levin, J. there spectrum For most is a wide properties, uses; potential reasonable choices many therefore, is, It of critical importance varied. inquiry judicial the correct whether review is permitted the reasonableness use under present zoning or reasonableness pro- posed use.
I separation powers, The doctrine of of a restric- tion by on the one of the exercise three major government powers branches of state of belonging another,1 does not bar the exercise of adminis- power legislative trative a local by body.2 1 provides separate govern The Constitution for three branches of ment, providing person exercising powers but in that "[n]o of one powers properly belonging branch shall exercise except to another branch (Const expressly provided 1963, 3, in as this constitution” art 2), persons exercising powers the that § framers indicated the of one provided, may, powers branch to the extent exercise the of another branch. 2 (art 8) 7, provides "[bjoards supervisors The Constitution § that of legislative, shall have [of counties] powers administrative and such other law”; provided by similarly, duties that township "legislative powers trustees of and duties” as shall Constitution confer have and administrative 7, provided by Art law. 18. § While expressly provide Legislature may does or, indeed, powers legislative powers administrative duties legislative city body village, being on the of a or there constitu and a state constitu no prohibition against conferring power tional tion the the such being essentially Legislature, power on restriction of the Legislature powers is free to confer administrative and duties on legislative body village upon legislative city of a or as well as body county township. of a or agencies, officers, or "Certain bodies within the 'adminis- come term agencies’ regard particular trative some extent in functions or particular purposes although purposes they for most are not agencies executive, legislative, judicial administrative but are or officers or bodies. When such bodies or officers act in an administra- capacity they agencies. tive This is ing bodies, suffer the limitations of administrative regard govern- particular powers by in true exercised local comlnissioners, supervisors county such as boards or councils, city village commissioners; powers delegated by Con- gress legislatures cabinet, by to the President or a member of his state and, governor state; permits of the where the law 139 391 Mich
166 Levin, J. legislative or adminis- action is official Whether depends nature of the decision and on trative process by it is reached as well as the which the governmental
authority
that makes the decision.
general grounds,
based
action is
When
legislative.
ordinarily
itWhen
is based
decision
ordinarily
grounds, it is
administrat
on individual
*3
ive.3
reposed by
legislature
this,
powers
courts
to certain duties or
58,
Law,
2d,
pp 856-857.
judges.”
§
Administrative
1 Am Jur
1114;
474, 482;
County, 390
88 S Ct
20 L
Avery
US
v Midland
Cf.
City Charleston,
State,
Klostermeyer
(1968);
v
(1947);
130
45
ex rel
Ed 2d
W Va
10;
490;
ALR 637
Milwaukie Co of
175
SE2d
5;
Mullen,
281;
214 Or
330 P2d
74 ALR2d
v
Jehovah’s Witnesses
(1958).
disposition
govern
principle
most
this and
which should
zoning
ment
States
ministrative —there must inquiry and the Michigan review, on under Constitu "supported by tion, competent, whether decision is and material substantial evidence **4 the whole record.”4
II Nothing specific, general, less is more than the developed of most ordinance communities. passed typical law, While zoning in the form of a represents particularized applica-
ordinance power, reflecting tions of administrative choices period made over an extended of time between particular properties proposed developments and hoc, ad ad hominen. impugn criticism;
We intend no we no motives. purposes persons motives wielding zoning power public authorities are as upon grounds’ necessarily official action is based 'individual but not is, general grounds, when official action is based when the adjudicative they legislative.” facts are Davis not are but when Professor principle applies generally, just writes this in tax Davis, Treatise, 7.04, p cases. Administrative 421.s Law § decisions, findings, rulings any "All final administra orders agency existing law, tive officer or under the or which constitution judicial quasi-judicial private licenses, rights shall affect subject provided by to direct review courts as This law. include, minimum, review shall such determination whether *24 decisions, law; findings, rulings final and orders are authorized and, hearing required, a cases which is the same are whether supported by competent, material and evidence on the substantial 1963, whole art record.” Const 28.§ Mich Levin, Opinion by J. persons spirited and of the authorities those as power. judicial exercise which come, however, to old cast aside The time has slogans communities, For most and catchwords. range planning general- long based on as regard legislative without the individ- ized facts proved dream, a facts be theoretician’s ual has zoning map in a series amend- soon dissolved reflecting, gener- exceptions ments, and variances — grounds— ally, made individual decisions brought by unanticipated and often unfore- about political changes, ecolog- events: social seeable availability necessity, location and of roads ical (especially utilities, facts economic costs financing), governmental needs, construction any, important and, as market and consumer choice. plan
Realty a but how is not what master shows implemented. a it is There few communi- adopted plan steadfastly ties have original zoning enforced the restrictions without significant change. likely They are most small walling bedroom communities off from themselves metropolitan provides rest of the area —which employment, goods and services—or rural commu- subjected yet nities not to the forces and demands plans. required In which have modification most especially larger communities, however, most ones, dozens, and, have been there hundreds changes, map cases, thousands some exceptions granted. and variances change zoning, deciding grant
In whether to legislative body inevitably beyond looks a local permitted presently whether use grounds, merits, reasonable to the the individual applicant’s proposes he claim that the use better, more reasonable use. *25 Sterling Heights v 169 Levin, Opinion by J. legislative body grant When a local decides to a change zoning, in in it has fact determined the grounds. So, merits of the individual too, unless body rejects applications the local change in fact all for a zoning reaching without merits, the application entertaining an when denies after merits, it also in fact decides the of merits the. grounds individual advanced. grounds a
Such
determination on individual
is
legislative.5
"quasi-judicial
administrative, not
It is
5"Zoning
legislative
decisions
either administrative or
depending upon
80 Wash 2d
the
decisions which deal with an
King
act.
County,
nature of the
See
v
Durocher
(1972).
139;
But,
We not do regarding legislate use, land or that land use to presumption legislation with a of consti- is clothed challenge subject only tutionality, if irrational— being property owners entitled to vari- individual they an unconstitutional if can show ances appropriation property. ques- do
of their Nor we Legislature delegate power of the tion the e.g., legislative public officials, bodies, local other legislative authority the tions. Their are likewise clothed to make such determina- plans determinations, ordinances and presumption with a of consti- scope tutionality; judicial review is limited relatively judicial deci- and there should sions few finding zoning unconstitutional. zoning legisla- theory, fact, is
When in as well as adopts general, legislative body tive, not plan general applica- grounds individualized, stops community in tion all land granted only when constitu- there —with variances necessity requires no determi- tional it—there are grounds subject 6, § 28 to art nations on individual legis- zoning judicial review and choices concerning contacts adequate findings at issue—and to a record made Comment, Zoning Amendments —The executed. Action, St L Product (1972).” 33 Ohio J 130-143 of Judicial or Quasi-Judicial Washington County Fasano v Board of Commissioners 23, (1973). 588; 26, 580-581, County, 507 P2d 264 Or Sterling Heights Opinion by Levin, J. body presumption lative are clothed with a constitutionality. zoning
However, local authorities that in fact general grounds, act on individual not on applications grant changes entertain for and maps, spot ap- their zone, ordinances and prove planned developments, and refuse unit make exceptions effecting change and allow variances showing without a of constitutional ne- cessity, exercising legisla- administrative, are power tive, and cannot claim for such determina- presumption legislative tions the which shields action.
Proceedings grounds based on individual quasi-judicial. authority grant The local must hearing. authority The determination of the local must be based on evidence. determination, granting denying subject judicial alike, hearing review on the record made at prescribed accordance with the standard in the constitution. This issue on review is not whether "legislation” constitutional; no constitutional *27 question presented. By is the manner in. which they power delegated (frequently unavoidably) have exercised the zoning
to them under the ena bling zoning changed acts, the authorities have the question permitted by pres from whether the use zoning proposed ent is reasonable to whether the *8 use is reasonable.6 6 existing precedent question judicial Under the on review varies depending change zoning granted on whether a in has been or denied: change granted (or adjoining property When a is and an owner the property) challenges change, question owner of the affected review is whether the the the on newly permitted use, use, proposed the is reasonable; change when a property is denied and the owner of the challenges denial, question affected the on review is whether the present question judicial use is reasonable. Since the review is in every proposed permitted, case whether a use should be it is anoma weighted depending lous for the scales to be on who won or lost below. 391 Mich Levin, J. Ill *****7 overrule Burn.7 need to Brae Brae
There is no legislative the action of a body Burn that assumes reality The necessarily legislative. is modern zoning decisions are zoning is most adminis that However, community adopted for a which trative. general grounds zoning a ordinance on and which granting, history regard does not have a without necessity, changes on to constitutional individual remain, may on review grounds, question Burn, use, present forth in Brae whether set ordinance, is permitted by the use reasonable. would, seeking change A a in property owner all events, the burden establishing continue to have for his proposes the use he is reason- all light may able the circumstances. He to what properly required show he intends site, build, floor present design and exterior grant generally represent As in our or denial both view a adminis- trative, action, legislative, opinion are of the not we every proposed on review should in use is reasonable. case be the same—whether the (Of course, change zoning granted newly permitted when a becomes, sense, "present [proposed] use in a use”. Characteriza- not, however, analysis. adoption tion should correct obscure change change property; does not in fact the use of the until indeed, judicial challenges put until the concluded— use.) newly permitted merely proposed use—it is Burn, Hills, 425, 430-432; Brae Inc v Bloomfield (1957). NW2d 166 as a or not the legislative body charged premises”; In that case this sit Court stated that "does not superzoning commission”; pass upon courts do not the "wisdom ordinance; box, desirability” remedy of a "the is the ballot courts”; judgment not our the in the do substitute that of "[w]e duty responsibility with the " legis power law-making body 'the constitutional of a premises being granted, expediency late in the manner in which that wisdom power properly subject is exercised is not " judicial ”; criticism or control’ it their determination is 'unless can be shown that arbitrarily unreasonably, council acted final " ”; compel legislate and conclusive’ legislative 'courts or undertake to ”; require way bodies to do so one more or another’ "we question. require than a debatable We more than a fair difference fiát, opinion. appear arbitrary It must that the clause attacked is an *28 dixit, ipse legitimate whimsical difference of and that there is for a no room opinion concerning its reasonableness.” Heights Sterling Levin, Opinion by J. to be considered are the the factors Among plans. roads, present and the utilities availability nearby properties. Aesthet- uses impending proposed Is the use harmoni- may be relevant. ics it impinge or would ous, appropriate, compatible, prop- or use of nearby the value on unreasonably development. communal impair sound erties assumption, based on tried This case was on review existing precedent, property permitted plaintiffs’ the use whether It reasonable. zoning is present us, to determine record before on the possible, approximately of this use proposed whether dwellings is reasonable multiple parcel ten-acre residences single-family nearby light of the perti- Drive and other River across Clinton located factors. nent prejudice appli- to an
We would reverse without of the of Ster- legislative body City to the cation hearing seeking an administrative ling Heights proposed regard to the reasonableness such a determination person aggrieved by use. A under GCR in the circuit court could seek review Legislature enactment 7118 absent providing for procedure act of an administrative cases action contested agency review of local agencies.9 provided like now for action of state may superintending provides control that an order Rule superintending implement necessary any used fashion power where supervisory over inferior tribunals of the Court control remedy adequate plain, speedy, is not available another party seeking order. Ordinarily after exhaustion be commenced a court action change deny remedy. If the local authorities of the administrative in similarly, against presently ity sought; superintending could be control a writ of then superintending might relief nearby owner seek change granted. owner also claims If the multiplic- unreasonable, may, permitted to avoid a he use is actions, ground for relief. that additional assert 3.560(103). 24.203; MSA 9 MCLA *29 Mich 139 Opinion by Levin, J.
Postscript: If the Legislature provide were to review of local administrative decisions by a re- board, gional review state then judicial not be available until completion review would Regional review. administrative or state ad- ministrative review would reduce the role of the zoning process courts and would be most welcome. Kavanagh, J., Levin,
T. G. concurred with J. Fitzgerald, J., J. did not W. sit this case.