256 N.W.2d 791 | Mich. Ct. App. | 1977
MICHIGAN NATIONAL BANK
v.
WINDSOR CHARTER TOWNSHIP
Michigan Court of Appeals.
Warner, Hart, Morgan & Fuzak (by David A. Williams), for plaintiff.
Church, Wyble, Kritselis & Tesseris (by Thomas H. Hay), for defendant.
Before: D.F. WALSH, P.J., and ALLEN and N.J. KAUFMAN, JJ.
PER CURIAM.
This case reflects the difficulties engendered by the repeated efforts of the Supreme Court to decide on the rules surrounding attacks on zoning ordinances. This state of flux initially *388 developed when the Supreme Court came down with their decision in Sabo v Monroe Twp, 394 Mich. 531; 232 NW2d 584 (1975). In Sabo, Justice LEVIN, with Justices KAVANAGH and FITZGERALD concurring, stated that "the proper test to be applied in the majority of zoning cases should not be the Kropf[1] test of whether or not the present zoning is unreasonable or confiscatory, but instead, should be whether or not the proposed use is reasonable under all the circumstances".[2] [Footnote 1 added.] This rule, however, was short lived, as the Supreme Court in Kirk v Tyrone Twp, 398 Mich. 429; 247 NW2d 848 (1976), returned to the test set forth in Kropf. In the present case, our task is to determine what to do with a case decided while Sabo was controlling.
The trial judge in the instant case did an admirable job of trying to "save" his case from the onslaught of an ever-changing body of appellate law. His opinion is laced throughout with language which, we believe, was intended to be sufficient under either a Kropf or Sabo test. While we commend the trial judge on his efforts, we think it only fair that this case be remanded to the trial court for reconsideration in view of Kirk. This is similar to the position this Court took in zoning cases after Sabo. See e.g. Werkhoven v City of Grandville, 65 Mich. App. 741; 238 NW2d 392 (1975).
While it may be said that a remand is unnecessary because we hear zoning cases de novo,[3] we are of the view that this approach in the instant case is the best one to fully allow the trial judge's opinion to be accorded the great weight which we *389 give it on appeal.[4] Therefore, we order that this case be remanded for additional findings of facts or law, if any, necessitated by the Supreme Court's decision in Kirk, supra.[5] We retain jurisdiction.
NOTES
[1] Kropf v Sterling Heights, 391 Mich. 139; 215 NW2d 179 (1974).
[2] Werkhoven v City of Grandville, 65 Mich. App. 741; 238 NW2d 392 (1975).
[3] Kropf, supra, p 152.
[4] Biske v City of Troy, 381 Mich. 611; 166 NW2d 453 (1969).
[5] We liken this procedure to the one employed where there has been a failure to comply with GCR 1963, 517.1. See Powell v Collias, 59 Mich. App. 709; 229 NW2d 897 (1975).
