MARCONERI v VILLAGE OF MANCELONA
Docket No. 58488
Court of Appeals of Michigan
Decided March 21, 1983
124 MICH APP 286
Submitted December 8, 1982. Leave to appeal applied for.
An injunction which will be ineffectual should not be granted. The relief requested, that the driveway be 25 feet or less, would not prevent the type of harm or injury plaintiffs allege as an element of their cause of action. In fact, it would increase it.
Affirmed.
BEASLEY, J., dissented. He would hold that the relief should be granted because neither the bank nor the village have a right to violate village ordinances but would give the village an adequate time to properly amend the ordinance.
OPINION OF THE COURT
1. INJUNCTIONS — REMEDIES.
An injunction which will be ineffectual should not be granted.
DISSENT BY BEASLEY, J.
2. INJUNCTIONS — VILLAGES.
Injunction is a proper remedy to enforce compliance with a village ordinance.
Stanley E. Brake, P.C., for plaintiffs.
REFERENCES FOR POINTS IN HEADNOTES
[1] 42 Am Jur 2d, Injunctions § 40.
[2] 42 Am Jur 2d, Injunctions § 189.
Murchie, Calcutt & Sondee (by Jack E. Boynton), for defendant Antrim County State Bank.
Before: R. B. BURNS, P.J., and BEASLEY and M. B. BREIGHNER,* JJ.
R. B. BURNS, P.J. Plaintiffs appeal from a judgment which declined to grant injunctive relief to plaintiffs because they had failed to demonstrate harm. Plaintiffs, owners of property adjacent to defendant bank, sought a temporary restraining order and a permanent injunction enjoining the bank from constructing a driveway for a drive-in window over a sidewalk running in front of their properties. The defendant village approved these plans, even though the proposed plans would require a curb cut of 34 feet. The width of this curb cut violates Chapter 4001-9 of the Mancelona Village Ordinance Code, which provides: “No single curb cut shall exceed twenty-five (25) feet nor be less than ten (10) feet.” The driveway was completed one year before the case went to trial.
Despite their pleadings and claims of unsafe pedestrian conditions due to the length of the curb cut, plaintiffs’ primary complaint seems to be with the increased street traffic due to the bank‘s drive-in window. This window backs up traffic on the street running in front of their businesses, blocking both pedestrian and vehicle ingress and egress to plaintiffs’ business.
Injunctive relief is equitable in nature. In equity cases, this Court‘s review of the record is de novo with due deference being given to the findings of the trial court. This Court will sustain those find
In the present case, requiring the driveway to be 25 feet in width or less will only compound plaintiffs’ problems, not solve them. Should this Court require the bank to decrease the width of their drive, by enjoining the use of the wider drive, it would either decrease the number of windows available or the number of spots available to cars lining up to use these windows. Thus, the ultimate effect of the injunction and subsequent narrowing of the driveway would be to increase the blockage of the street, both in duration and occurrence. The other alternative, requiring the bank to route traffic onto the street, would clearly be hazardous to pedestrian traffic. This solution would create a blind spot because of the corner of the bank which would prevent drivers, as well as pedestrians, from anticipating the presence of danger.
Unquestionably, this Court could require the bank to go through the necessary procedure to obtain a curb-cut permit. Further, it could require that this cut be less than 25 feet in width. By doing this, however, this Court would not prevent that type of danger or harm which plaintiffs are alleging they have suffered. Under these circumstances, an injunction should not be issued. See, e.g., Dutch Cookie Machine Co v Vande Vrede, 289 Mich 272; 286 NW 612 (1939).
Accordingly, the trial court‘s refusal to grant plaintiffs’ injunction is affirmed.
M. B. BREIGHNER, J., concurred.
BEASLEY, J. (dissenting). I respectfully dissent.
The resolution of defendant Village of Mancelona approving defendant bank‘s plans for a 34-foot curb cut violated defendant village‘s ordinance limiting curb cuts, which provides as follows:
“9. Curb cuts. No openings in or through any curb of any street shall be made without first obtaining a written permit from the Superintendent. Curb cuts and sidewalk drive way crossings to provide access to private property shall comply with the following:
“(a) No single curb cut shall exceed twenty-five (25) feet nor be less than ten (10) feet.”
Defendant village did not comply with the amendment procedure provided in its own ordinance. Neither defendant village nor the defendant bank had any right to violate the village ordinances. On the contrary, both are bound to comply with the ordinances, the same as everyone else.1 I do not share the trial court‘s conclusion that somehow subsection 9(d) permits defendant village to ignore 9(a). Subsection 9(d) provides as follows:
“(d) The maximum number of lineal feet of sidewalk drive way crossings permitted on any lot, parcel of land, business or enterprise, shall be forty-five (45%) percent of the total abutting street frontage up to and including two hundred (200) lineal feet of street frontage plus twenty (20%) percent of the lineal feet of street frontage in excess of two hundred (200) feet.”
It may be, as the majority suggests, much ado about nothing to grant the bank special privileges regarding curb cuts, but the fact is that defendant
There was available a simple, straightforward way to amend the ordinance. Defendant village and the defendant bank did not choose to follow it. Under these circumstances, I would vote to grant the request for injunction, to set aside the permission insofar as it violates the ordinances, and to afford defendant village and the defendant bank a brief period to seek the requisite amendment of the ordinance. In the event defendant village does not so amend the ordinance and then permits the curb cut that has been constructed, I would grant plaintiff equitable relief to enforce compliance by the defendant bank with the ordinance.