*1 1975] Nickola Grand v NICKOLA BLANC GRAND TOWNSHIP (Calendar 23). Argued 7, Docket No. 55088. June No. Decided August 19, 1975. 1963, Nickola, Jr., plaintiffs Evelyn pe- In David and rezoning Township, titioned for of real in Grand Blanc County, park years, Genesee to After mobile-home use. two the plaintiffs denying petition advised was because premises yet sanitary had been not served sewers and Highway Department acquire State had still 1969, expressway right-of-way. April following comple- 1-475 In acquisition system, plaintiffs again tion of both land and sewer petitioned and, for the ordinance amendment after two public hearings, received a favorable recommendation from the Zoning Township Zoning Grand Blanc Board. The Grand Blanc n rejected request. Township Board The Grand Blanc master yet adopted petition land-use not when the rejected. brought against Plaintiffs an action Grand Blanc township’s zoning and others to have the applied plaintiffs’ property declared unconstitutional as and property. allow a mobile-home to be constructed on the Court, Freeman, Jr., The Circuit Genesee Donald R. found presumption did defeat the of reasonableness of township’s Appeals, Quinn, J., ordinance. Court of P. JJ., O’Hara, reversed, holding Bronson that the ordi- morals, relationship township’s nance has no reasonable safety, especially health-and-safety health or in view of the [6] [5] [1, [2] [3, [7] [8] [12] [16] [17] 4, 58 Am 58 Am Am58 58 Am 9-11, Tourist 58 Am 58 Am Am Am 58 Am 14, Jur, Zoning Jur, Zoning Jur, Jur, Zoning Jur, Jur, Zoning Jur, Zoning Jur, Zoning Camps 15] Zoning Zoning References Jur, 54 Am Jur §§ Zoning 5-16. § §§ §§ 20.§ 27.§ 14§ § § 140. 21, for Points et et §§ 22. 225. 2d, seq. seq. 16, 21, Mobile 256. in Headnotes Homes, Trailer Parks, parks by requirements imposed upon statute 12959). (Docket appeal. The decision of Held: Defendants No. Appeals Court affirmed. *2 J., Fitzger- Levin, J., Kavanagh, and J. C. W. T. G. with whom Appeals ald, J., concurred, for the Court to affirm voted ante, Twp, given 394 Mich in Sabo Monroe reasons (1975),namely: NW2d 584 legitimate use, community a proof excluded 1. has that a On obliged grant request necessarily to a i,t for does not become sought may rezoning permit to be rezoned The land to that use. development use. for the excluded not for be suitable property, seeking change in the zoned use of 2. a In administrative, legislative, plaintiffs sought not a determina- an not be the reasonableness should tion. The standard on review pro- permitted, of the use but the reasonableness the use zoning posed. or confisca- is not unreasonable Even if permitted tory, if under all proposed reasonable use should be a the circumstances. reasonable, proposed that the use 3. establishes The record and it should be allowed. J., affirm the decision the Court of also wrote to Appeals, hold that: but would prove to affirma- 1. their burden Plaintiffs have sustained arbitrary tively and unreasonable that ordinance is upon property and if use of the that restriction the owner’s prop- consequent restrictions on the is enforced the ordinance reasonably erty any purpose it is preclude for to which its use adapted. Township exclusionary ordinance 2. Grand Blanc unreasonably unlawfully and therefore is discriminates invalid. park may a mobile-home use their land for 3. Plaintiffs by the invalid ordinance. inhibition or restriction without Coleman, J., grounds that: dissented M.S. prove their burden to affirma- 1. have not sustained Plaintiffs arbitrary
tively is an and unreasonable that the ordinance upon if the use of the the owner’s restriction prop- consequent on the is enforced the restrictions reasonably any purpose erty it is preclude to which its use adapted. to elevate to and without sound basis law 2. It is unwise equal protection of the laws what status of the constitutional governmental be zoned for percentage of in a unit must land homes, owners be that mobile-home cannot said mobile Nickola v Grand Blanc legitimate or are excluded or that businesses have a right place constitutional a mobile-home on their property. Respect persons charged 3. responsibility for those with the determining community required within their interceding judge showing trial a to abstain from absent arbitrary there has been an unreasonable and action. (1973) App 684; affirmed.
Opinion op the Court Zoning Rezoning—Mobile-Home 1. —Ordinances—Excluded Uses — Parks. proof legitimate use, community On that a excluded such as parks, necessarily obliged it does not become grant use, request rezoning permit because the sought may development to be rezoned not be suitable for for the excluded use. Zoning —Ordinances—Amendment—Reasonableness. present zoning Even if confiscatory, is not unreasonable or *3 proposed permitted use should be if reasonable under all the
circumstances.
Separate Opinion Williams, Zoning Presumptions—Burden op 3. — Proof. zoning presumed valid, A ordinance will be with the burden on party attacking arbitrary the it to it show to be an and upon property. unreasonable restriction the owner’s use of his Zoning Ordinances—Presumptions—Burden Appeal 4. — of Proof — and Error. principles covering single-family-residence zoning whether (1) property governmen- is valid are that there is no reasonable being by present zoning tal interest advanced the classification (2) itself, may or that an ordinance be unreasonable because of purely arbitrary, capricious the and unfounded exclusion of types legitimate question; other land use from the area in principles operationally by following these two tested the (1) every presump- four rules: the ordinance comes clothed with (2) validity, party attacking tion of it is the burden of the to prove affirmatively arbitrary the ordinance is an and upon property, unreasonable restriction the owner’s use of his appear Hat, arbitrary and must that the clause attacked is an 394 legiti- dixit, ipse is room for a and that there no a whimsical (3) reasonableness, concerning opinion its to mate difference of ordinance, aggrieved property an on a sustain attack enforced ordinance is the conse- owner must that if the show preclude any quent property use its for on his restrictions (4) adapted, reasonably purpose the Court is to which it ñndings weight give trial inclined considerable to
judge equity in cases. Zoning Law. 5. —Confiscation—Valuation—Constitutional might Although plaintiffs’ property worth more if have been homes, to establish that alone is sufficient zoned for mobile property of the Fourteenth Amend- in violation conñscation (US XIV). Const, ment Am Zoning Findings of Fact —Ordinances. —Burden of Proof — prove affirmatively Plaintiffs did not their burden sustain arbitrary unreasonable restriction ordinance is an upon property if and to show that the the use of his owner’s prop- consequent restrictions his ordinance is enforced the reasonably erty preclude any purpose to it is use for its (1) adapted court found: an earlier where the trial good supervisor property suggested for would be site this (2) park; park present value of the would be a mobile-home park, quadrupled, permit a modern mobile-home if zoned to being improvements subject for made for sizable investment (3) large although purpose; for present is no demand there issue, housing it is within single-family at located site developments single-family proximity to other reasonable (4) 1-475; adjacent property superhighway easy access to plans developing has no owners include one who development piece single-family event that the and in the as a site, adjoining question were used as a trailer property high- property would seek the use owner (5) municipal density purposes; sewer and contains access to the site as well as services which are available water (6) large road; expression county to main there has rezoning opposition to citizens Grand site; permit in this create a trailer would *4 (7) occupied by parks in mobile-home acres of land there are existing rezoning granted Township; has been Grand Blanc existing zoning enlargement; parks permit ordi- parks township provides for and the mobile-home nance of the township of land proposed of the contains 300 acres land use allowed, parks plan has be and will where mobile-home (8) paid township board; adopted by the been Grand Blanc Nickola v
approximately $350 an for their land and at acre price market, present zoning, time it a on the under of $1,500 approximately an acre. Zoning Presumptions. 7. —Reasonableness—-Master Plan — presumption validly adopted a reasonableness accorded plan apply plan master for land use does not a master which process completion yet is in the but has not passed legislative body. community and its Zoning 8. —Ordinances—Excluded Use —Constitutional Law. An municipality totally ordinance which from excludes a a use recognized by Michigan the constitution or other laws of legitimate strong also carries with a taint of unlawful dis- equal protection crimination a denial and the law as to the excluded use. Zoning 9. —Mobile-Home Parks —Land Use —Discrimination—Con- stitutional Law. parks, guaranteed use, Mobile-home while not constitutional necessary problem to the essential human of low-cost shelter; use, legislatively judicially, they and as a lawful land protection by exclusionary zoning. deserve from discrimination Zoning 10. —-Trailer Parks —Prohibition—Land Use —Reasonable- ness. prohibition parks
Prohibition or almost of trailer is invalid either development where is there reasonable area for such available given property or where other uses are unreasonable for where a trailer would be reasonable use. Zoning —Ordinances—Master Plan —Mobile Homes —Exclu- Townships—Equal Protection. sions — township’s A dedication of area 1/10 of the of the of1% homes, plus applications beyond to mobile refusal all new existing parks illusory two and the and burdened nature of proposed acreage additional zoned to allow use is exclusion, parks tantamount where mobile-home would uses, acreage share the additional with other in- transitional cluding parks, and offices industrial research but where proposed municipal master does call for and sewer areas; light availability water services those where in of land in the such virtual exclusion is unreasonable justification, township’s exclusionary without unlawfully system unreasonably discriminates therefore invalid. *5 394 Zoning 12. —Invalid Ordinance —Effect. zoning invalidity township as to The of a ordinance mobile-home parks park exclusion of such use because its unreasonable seeking plaintiff to use their land for a leaves landowners any inhibition or restriction on without exercising that use. Opinion
Separate Coleman, J. M. S. Zoning
13. Proof —Arbitrariness—Un- —Ordinances—Burden reasonableness. prove affirmatively not
Plaintiffs did sustain their burden arbitrary zoning and restriction ordinance is an unreasonable upon that if the the owner’s use of his and to show consequent prop- on his ordinance is restrictions enforced reasonably erty preclude any purpose to it its for is use adapted. Zoning 14. Use — Boards —Loca- —Mobile Homes —Land tion of Mobile Homes. Supreme to assume the It would be most unwise for Court determining percentage any responsibility of what of land in homes; governmental it unit must be zoned mobile is Supreme township particularly Court to tell a unwise for the acreage be where the for mobile homes should board added located. Zoning Townships—Land Use —Exclu-
15. —Mobile-Home Parks — sions —Ordinances. practices regard township’s present proposed
A and with homes "tantamount to exclusion” where mobile was not actually now used for mobile-home acres enlargement parks parks rezoning providing for those with existing provides zoning homes for mobile approved plan providing a land-use board parks. acres of land for mobile-home Supreme Zoning Appeal Review and Error — Court —De Novo 16. — —Finding Judge of Trial —Evidence novo, gives great Supreme cases de Court reviews but The judge findings weight who and conclusions of the trial opportunity most and constant to observe immediate evidence; important. opportunity react to such Nickola v Grand Zoning Supreme — Court —Ordinances—Judicial Function— Legislative Function. Supreme superzoning commission; not sit as a Court does approve is not the Court’s function to ordinance as to desirability, alleged involving wisdom or and for abuses such box, courts; remedy factors the is the ballot the Su- preme judgment Court does not substitute that of the *6 legislative charged body duty responsibility the with in the premises. Zoning Zoning —Determination —Reasonableness—Arbi- Finding Judge. of Trial trariness — Respect persons charged responsibility for those with determining zoning community requires within judge interceding trial in a case to abstain from absent showing arbitrary there has been an unreasonable and by action taken those same authorities. (John Nickola, D. Richard A. Hamilton of coun- sel) plaintiffs. for Lattie,
Lyndon J. for defendants. Levin, Appeals J. We affirm the Court of for the Sabo v Monroe reasons opinion stated our ante, (1975). Twp, 531; 394 Mich 232 584 NW2d Kavanagh, J., Fitzgerald, J., T. G. C. and J. W. Levin, concurred with J.
Williams, J. This case involves two is- single-residence sues. The first issue is whether zoning in a particular against area is valid desiring property to use his for a owner mobile-home-park site. The second issue is whether there is an unlawful of the zoning power use where by zoning suburban ex- cluded mobile homes from all but 1/10 of 1% the area of the township. Kropf
These two issues cause us to revisit
Heights,
Sterling
139;
391 Mich
I. Facts purchased property plaintiffs In Township, portion of Grand the northwest expecting park. Al it as a mobile-home to use single though residences, the land was zoned representation plaintiffs, relying of a now township supervisor there would be deceased rezoning petitioned2 objection use,1 no years, year After two one later. petition denying be
advised premises yet been served cause sanitary Michigan Highway De and the sewers acquire partment 1-475 land for the had still to expressway right-of-way. *7 following completion April, 1969, of both
In plaintiffs again pe- acquisition system, and sewer and, ordinance amendment titioned for the hearings, public received a favorable two after Zoning the Grand Blanc from recommendation Co-Ordinating Zoning of Committee Board. The Supervisors, County Board of the Genesee rezoning proposals, review of all makes a technical to the board: recommended 1 objection supervisor thought no there would be Plaintiffs claim the proposed property proposed I- the would border the use because to 475 it, expressway, behind it. creek around and dense woods had a project Later, signatures approval from received whom, they owners, 2' surrounding property the other Appeals correctly said, township supervisor objection. found the no The Court township. Twp v Blackman did not bind (1959).' Roller, 98 NW2d approximately 20 plaintiffs owned 40 acres and added In 1963 they repetitioned in 1969. more when v Grand Blanc "Although request particular rezoning would higher allow a than density use would the zoning, general of the land character would not be (That residential.) changed. is, still the use would be
"In keeps a price rising, time when the of land ways bring becomes necessary to seek to the cost of housing range great people within a many who 9,600 could not a otherwise afford house on even a square foot lot.” Board, however,
The Grand Blanc at a meeting attended audience, vocal hostile unanimously rejected request, giving as rea sons: unsatisfactory ingress egress; area single was predominantly family character and such would change violate the town ship’s plan; land-use the proposed mobile- home would be too close to a single-family it; subdivision and would adversely affect plaintiffs’ brought petition was under the old zon ordinance,3 ing and that the amendment was not good, practical zoning.
Recall petitions alleging hoard members were to growth insensitive citizens’ desire for controlled were prior circulated to that meeting, and numer- ous phone newspaper calls and reporting articles opposition to the came rezoning mem- board filed, bers’ attention. petition No recall ever and board members testified the threats did not affect their votes. park-site plan lots, called with re-
tention of the wooded area serve as buffer single-family between the and the subdi- 3 Subsequent plaintiffs’ petition, to denial of the Grand Town- ship zoning parks ordinance was amended remove mobile-home heavy trailer-park from mony commercial a rural Testi- classification. *8 plaintiffs’ petition approved, at trial indicated that if been had simple change language it would have to the to reflect the new classification. 394 expressway 1-475 abuts to the The visions south. Avenue, west, Maple and now the the property on lanes, directly is north. four from widened two vacant, single- but presently Land to the east is Although that planned. family developments of a mobile-home creation developer testified that might cause him to disputed property the multiple dwellings or change plans his and build the value of his indicate duplexes, he did not property to Adjacent reduced. property would be township, northeast, was a different what Burton, zoned multiple City but now the family. property of the to the value
Testimony as paid ap- contradictory, apparently, but land, which, acre for their proximately an $350 $1,500 about zoning, under is worth would be contend that acre. Plaintiffs $2,500 acre zoned for mobile- per around worth $3,500 $35,000 per if per acre parks, home mobile-home sites spent develop seven acre were acre. per land-use master
The Grand as of the date of plan accepted had not been in fact petition, and the rejection plaintiffs’ planners 1970. The April, until published was not (about aspect the residential apparently completed 1969. They as of June township) of the 70% text, zoning township adopted had claimed uncertain were zoning map, they text and but township apparently itself about the date. text adopted or the residential yet accepted not as map proposed.4 treasurer, According on by board went 9,600 opposing square-foot-lot minimum recommended record the planning representative, referring However, 12,000 accept square planner, feet. but would testimony, the confusion in his added to 9,600 plan, square premise feet as the basic appears only published way version. in the this is the *9 Grand Williams, J. claimed, however, planner large part
The implemented the because already of was already of residential. township much the was As can trial, the as far as we of time of and deter- mine, time, township as the present of the ordinance, other than in zoning re- amended its to sponse petitions property to owners conform by the proposed plan. with master amendments, As a these the result of one of plaintiffs’, of to the west but directly was separated expressway, from it the rezoned by residence single-family by from multiple-family board, zoning the without the board’s township properties The two were charac recommendation. identical as far by terized witnesses as almost land, surrounding develop of type location concerned, except expressway ment were for the properties by to both would be between. Access Maple Avenue.5 proposed plan,
Under the master in areas of transitional parks placed would be portion in the largely use. These are southern planned the to accom- township about acres parks. modate industrial research time, present only At two mobile-home which, are in the one parks township, owned of the plaintiffs, slightly subject property. east old, built parks relatively having Both time, 1953 and 1956. Until no between interest, allege might Plaintiffs there have been a conflict township in his because a brother of the board member most vocal opposition property. Although ing, park attorney appeared attorney rezoned to the trailer for owners of this meet- at the board whether he did not address the board. It is also unclear disqual- plaintiffs would have wanted board member multiple-family ify petition, on himself from the vote issue, unanimity In view of the vote on their or on both. petition, to see how vote would have made a is difficult one vote, plaintiffs standing As for other do not difference. object have it, rezoning propriety nor is the of that before us. 394 Opinionby application (approximately for a new trailer enlargement five have been requested) only approved since then. existing park one has been did not defeat trial court found presumption of reasonableness town- ship’s ordinance.
The trial court the test we outlined in used Brae Burn, Hills, Inc v Bloomfield (1957). A will be *10 valid, presumed the burden on the party with an attacking arbitrary to show it to be upon unreasonable restriction the owner’s use of his property.
The Court reversed Appeals unanimously of on 1) 25, June holding the consent of the protests former and the of supervisor 2) legal significance, residents have no relationship ordinance has no reasonable morals, township’s safety, health or especially view of the im- safety requirements health and posed upon parks by statute. 47 Mich (1973). App 684; granted We leave 29, on 1973. 390 806. November Mich Single-Family Zoning II. Is of Residence Property Plaintiffs’ Valid? Controlling A. Law principles covering
The and tests sin- whether plaintiffs’ is gle-family-residence property valid detailed in Brae Kropf analyzes is Burn, Inc. important are forth: principles
Two set "[F]irst, governmental there is no reasonable being by present zoning interest advanced classifica- * * * or tion itself v Grand Opinion "[S]econdly, may that an be unreasonable capricious purely arbitrary, because and un- types legitimate founded exclusion of other land use 139, from the question.” 391 area in Mich 158. These two principles operationally tested by following four rules. four rules are: "1. 'The ordinance comes us clothed with every ” presumption 139, 162, validity.’ quoting Mich Burn, from Brae Inc. "2. is burden the party attacking prove '[I]t affirmatively that the ordinance an arbitrary upon unreasonable restriction the owner’s use of his * * * property appear It must the clause attacked fiat, is an arbitrary dixit, ipse whimsical and that there is no legitimate opinion room for a difference of ” concerning 139, reasonableness.’ quoting Burn, Brae Inc. "Michigan adopted the view that to sustain an ordinance, attack on aggrieved owner must show that if the ordinance is enforced the consequent property preclude restrictions his its use any purpose to reasonably adapted.” which it is 139,162-163. *11 " Court, however, 4. 'This give is inclined to consider- weight findings able to the judge of the trial equity ” 139, cases.’ quoting Mich Building Christine City Troy, 508, 518; Co v 367 Mich (1962). B. Plaintiffs’ Case
Plaintiffs’ case that the single-family-residence zoning in the area is invalid as to their property rests on three points:
1. longer The area no is a single-family-residence area and there is no demand for single-family- residences. 394 valuable zoned
2. is more for property Plaintiffs’ mobile homes. signed plain-
3. owners adjacent property Eleven petition. tiffs’ rezoning Property to Plaintiffs’ Application
C. of Law said, quoting Kavanagh Chief T. M. As Justice Inc, Burn, in Brae Justice Smith 430: " superzoning not does sit as Court '[TJhis ” 139, 161.
commission.’ 391 Mich therefore, 4 says, as rule "inclined to
We are findings the trial weight give considerable long and are findings are here judge”. These set forth full. 1) supervisor suggested this An earlier park.
property good site for mobile-home would be 2) quadru- present value of the would be The park, pled, permit a modern mobile-home if zoned to being improve- for subject made sizable investment purpose. for ments 3) large no demand Although there is issue, it at is located single-family housing in the site single-family proximity to other de- reasonable within I- superhighway easy access velopments and 4) has no include one who Adjacent property owners single-family developing piece as a present plans for question development. In the event that site, property adjoining used as a trailer were owner would high-den- use of seek the sity purposes. 5) municipal water property contains sewer and access to the site as well as which are available
services to a county road. main 6) large expression by citizens There has *12 603 Grand Blanc v opposition rezoning Grand Blanc Township in permit plaintiffs would park create trailer this site. 7) occupied by 23 of land There are acres mobile- parks Township; rezoning home Grand Blanc granted existing permit parks enlarge- their existing
ment. provides The the township parks the proposed plan use 300 contains acres of land allowed, parks where mobile-home will be and this adopted by has been board.
8) plaintiffs paid approximately $350 acre for their market, price land and time it has a at on the present zoning, $1,500
under approximately an acre.
While might these have findings been more specifically plaintiffs’ directed to the they case enough adequate plaintiffs to determine that have their sustained burden under rules 2 and 3 above. 1. Finding point Findings covers their addition, 2. point cover their In although plaintiffs’ property might have been worth more if homes, zoned for mobile that alone is not sufficient to establish of property confiscation in violation of Village of Euclid v the Fourteenth Amendment. Co, Ambler Realty 365; 114; 272 US S 47 Ct 71 L 303; 54 Patchak v Lansing (1926); Ed ALR 1016 Twp, 489; Paka (1960); NW2d 406 Jackson, Corp City (1961). Finding NW2d 620 point covers findings, With these the trial court correctly Brae Burn to hold relied failed to prove affirmatively maintain burden "to the ordinance an arbitrary and unreasonable upon restriction the owner’s use his property”. passing, In the Court of Appeals’ "we analysis, cannot see possibly how mobile home vis-a- single family vis residences affect can possibly *13 589 Mich by Opinion J. Williams, morals, or safety health Township’s Grand Blanc 684, 689; App Mich question”, in on the land inaccurate, is or 803, accurate whether 209 NW2d wrong on the foot. shoe It the point. puts not in single-family-residence issue is whether power. police the exercise of proper is Adoption/Non-Adoption III. Master Plan proposed to a refers opinion The trial court’s plan "and says and then plan land use Factual Township Board”. the adopted by been a trial weight great give 7. Conclusion We must look this case we finding but court’s "the De- says township’s own brief further. The adopted Board Township fendant-Appellant 11, plan] November development plan [master in this case However, complaint 1970”. the Novem- 11, Consequently, February filed directly does not 11, plan adoption ber Furthermore, adoption proof this case. influence resolution, enactment record, i.e., by by not on is ordinance, or what. appropriate of an township’s it is clear that hand the other On "the town- complaint admits plaintiffs’ answer had not development plan master ship’s 1, also the XII. See Count adopted”. Further- the same effect. testimony to
treasurer’s plan- Galbraith, professional more, James Plan- Regional Blanc ner, that the Grand testified recom- plan "accepted” ning Commission Blanc that the Grand firm but his mended adopted plan. fully Board had did not conclude, therefore, defendants We the commencement prior to plan a master adopt this lawsuit. Grand
This Court City in Biske v Troy, did say (1969): 166 NW2d any plan "Before credit may being we such 'of reasonableness’, itself we evidence of must first plan validly determine adopted whether fact Biske.) plan.” (Emphasis master then agreed We the community legisla- body tive pass should before according ait presumption reasonableness.
Here board was apparently run- *14 ning with the and with the hunting hare hounds because at and the same time it one had not adopted a plan, master but nonetheless based its refusal to rezone answer to plaintiffs’ petition ground on the that: zoning change
"Such would be in violation of the Township plan designates master land use property single family.”
The Michigan Legislature
strongly
has
endorsed
planning
health,
promote
public
to
safety and
general welfare.6 This Court
also recognized
has
(102)
125.322;
MCLA
5.2963
MSA
states:
purpose
plans prepared pursuant
"The
to this act shall be to
promote public health, safety
use of
welfare;
general
encourage
and
to
adaptability;
resources
accordance with their
and
character
overcrowding
buildings
people;
to avoid the
of land
or
to lessen
congestion
system transportation, sewage disposal,
supply,
public
streets;
provision
roads and
to facilitate
for a
adequate
and
safe
water
public improvements;
recreation and other
and to consider the
suitability
particular
character of each
and its
uses
judged
population
in terms of such factors as the
in land
trend
and
development.”
5.2963(3)
125.273;
provisions
MCLA
MSA
notes: "The
of the
upon
plan designed
promote
public
ordinance shall be based
to
health, safety,
general welfare,
encourage
morals and
to
the use of
adaptability
in accordance with
character
lands
the
provide adequate light
and to limit
land,
improper
overcrowding
population,
to
use of
avoid the
to
air,
congestion
public
to lessen
on the
In Padover
Farm
importance
of planning.
622, 639;
We the inchoate state town- recognize accepting our ship’s with precludes master enacted ordi- legislatively due a dignity However, planning. we good nance on the basis of next our on the exclusion issue be base decision discussed.
IV. Exclusion from of Mobile Homes Applicable A. Law
Kropf general a principle third relative stated zoning: streets, property, to life to facilitate roads and adequate to reduce hazards and transportation, sewage disposal, provision system for a of education, adequate supply, recreation and other
safe and water requirements, expenditure public public of funds for and to conserve improvements the most advanta- and services conform with land, properties; geous shall be made with uses resources and and of consideration, among things, to the of other character reasonable uses, particular district, peculiar suitability for the conserva- each its resources, general and natural tion of appropriate development.” values and land, building population of trend character 607 v Grand Blanc face, totally "On an ordinance which excludes from recognized municipality by a use the constitution or legitimate other laws of this state as also carries with it strong taint of unlawful discrimination and a denied equal protection of of the law as to the excluded use.” 139, Mich 155-156.7
A number Michigan decisions have said that legitimate exclusion of a use is unlawful. There is no case that alone fully controls one, instant but there are several that have ele- ments together which support judgment Grand Blanc Township’s ordinance system is an improper zoning power use of the as applied against mobile-home users and operators.
The leading exclusion case involves an ordinance which, although on its face allowed churches and schools, was found the trial to in judge fact exclude them Roman Cath- village. from the entire olic Archbishop of Village Detroit v of Orchard Lake, (1952). 389, 391; Mich This Court noted éncourages that our constitution reli- gion and schools and then said: "Hardly compatible presumption is this with a exclusion of school and church from an entire munici- pality health, public safety, is conducive to morals or general welfare, a presumption which we decline to (333 394.) indulge.” Mich
Archbishop, course,
dealt
with
constitution-
ally supported use. While shelter and food are not
specially enumerated
constitutional
like
concerns
Kropf
"totally”
While
stressed
it did so to
correct
the Court
Woodhaven,
Appeals
erroneously
City
that had
relied on Bristow v
205;
(1971),
App
35
neously
NW2d 322
in turn had erro-
Archbishop
Village
relied on Roman Catholic
of Detroit v
Lake,
(1952),
Orchard
NW2d 308
which was indeed
prohibition as
a case of total
hereinafter discussed.
*16
608
394 Mich 589
by
Opinion
schools,
both also
religion
nonetheless
are
As such they
essential
human condition.
rights still "re-
be
the unenumerated
may
among
1963,
1,
art
23. In
tained
Const
by
people”.
§
event,
persons
any
"dwelling accommodations
recognized
legislatively
low
as a
income” are
seq.;
125.601
matter of
interest”. MCLA
et
"public
5.3057(1)
and Justice
who
seq.,
et
MSA
Dethmers,
Archbishop,
took note
spoke
also
this Court
in
operated
be
may lawfully
camps
"trailer
Can-
Michigan”
licensing
statute. Gust v
under
(1955).
Twp,
438;
Turning closely to decisions more zoning prohibit Court has in cases invalidated two In one ing parks municipality.8 them,9 already shows there opinion itself case, was, trailer area so as in the instant only has acted in a case Court something but less than absolute exclusion also total exclusion. 436, 438; 70 Twp,
In Gust v Canton
342
(1955),
through
this Court
Justice
NW2d
Deth-
"holding
trial court decree
affirmed a
mers
open, undeveloped
agricul-
ordinances
[of
436;
(1955); Dequindre
Twp, 342 Mich
tural township] 'unconstitutional and void insofar establishment, they prohibit as maintenance operation park ***’”, a trailer coach where "the ordinances and record disclose the exclusion of from camps trailer the entire town- ship”. This Court looked to the then existing cir- open, undeveloped cumstances of land and refused speculate with the argument as to the utility and validity exclusionary an ordinance under years conditions to 25 hence. This Court said: development nature and extent of the "[T]he
township, it, or lack of are such that it cannot be said * * * prohibiting camps trailer therefrom bears a real and safety, relationship present public substantial health, general
morals or It welfare. is not seriously contended that it does. To so hold would be tantamount to declaring camps trailer public detrimental health, safety, general morals or welfare under every condition and circumstance and on that subject account every exclusion from in area the State by local governing hardly square bodies. That would with the legislative expressed intent in the authorizing above act operation Michigan.” 436, in 342 Mich
The ratio decidendi in Gust is generally applica- in ble the instant case. While Grand Blanc Town- ship is obviously not as undeveloped as Canton was, there is still available land for development. The significant difference between Gust and the instant case is that the exclusion in the instant case is not absolute as there is a token area available to mobile homes. For that reason the next discussed significant. case is
An important Dequindre Development feature of Warren, Co v Charter Twp 359 Mich (1960), NW2d 600 is that it accounts for the differ- ence between Gust and the instant in in case that 394 Mich was, the instant Dequindre exclusion Dequindre this Court af- case, In absolute. invalidating firmed a decree effect, by making parks no prohibited "in trailer (359 634, 638), although provision therefor” already there was opinion clear in the existence. area in some trailer-park Dequindre Gust Furthermore, unlike 636, 640. considerably developed. already the township was of the ratio deci- part In fact a further dendi, single-family-residence zon- namely surrounding area and circum- ing light stances was unreasonable. Dequindre, *18 in Justice this
Speaking for Court Black said: * * * justification afford no "These conditions * * * parks by prohibition of trailer coach outright local ordinance.” 359 of a
the selective administration 634, Mich reaching are two cases in Warren arising Also Warren, City Knibbe v 363 conclusion. same v Lacey City (1961), 283; 766 109 NW2d Mich (1967), Warren, 151 NW2d App Mich writing. Fitzgerald Justice J. W. with Dequindre support the conclusion Gust parks is of trailer prohibition almost prohibition or area there is reasonable either invalid where other development10 or where for such available where a given are unreasonable uses use.11 park would be a reasonable a trailer 95;. Park, City Mich v of Lincoln And see June Gust. upheld limiting (1960), an ordinance uses, jointly previously other parks for this use with areas zoned occupied, city already fully though because areas were even those Furthermore, previously plaintiff already developed. was just question five should be zoned residential testified the land before. months 11Dequindre. Grand Blanc B. Plaintiffs’ and Cases Defendants’
Plaintiffs,
landowners,
in their brief confuse the
second and
stated in Kropf. principles
third
* * *
second principle relates
to "arbitrary
exclu-
sion
other
legitimate land use from the
types
(391
158)
area in question”
139,
Mich
and the
third principle
legitimate
relates to exclusion of a
(391
"from a
land use
municipality”
156). (Emphasis supplied.)
argument,
Their factual
however,
cogent predicate
is a
for the conclusion that
principle
there
third
exclusion "from a munici-
pertinent
and is herewith in
set out:
pality”
part
"It is clear from the record that Grand Blanc Town-
ship
against
discriminates
parks.
mobile home
Cer-
tainly
type
legitimate.
of use is lawful and
Why
(sic)
then should this use
twenty-five
be limited to
acres
thirty-six
square
gross
miles? This is
discrimination.
Why
pushed
should this use be
into
undeveloped
areas,
municipal
without
sewer and
proposed by
water services as
plan?
unadopted
master
just
This
further evidence of Defendants’ atti-
tudes;
Township. "(Emphasis
not in our
plaintiffs’.)
Plaintiffs
brief
points:
rested their case on two
1)
Exclusion from the
of mobile homes.
2)
adopt
plan,
Failure of
and reliance on
*19
611,
City
Troy,
Biske v
381 Mich
Defendants in largely finding their answer relied on a of the trial court as follows: twenty-three "There are occupied acres of by land parks mobile home Township, rezoning Grand Blanc granted has existing parks been permit enlarge- to ment, existing the township ordinance of the 589 394 Opinion proposed the parks and provides home for mobile plan township three hundred acres the contains use parks will allowed and home be of land where mobile adopted by the Board.” this has been C. Exclusion? case, trial found that
In the court the instant acres devotes defendant arces) (23,040 parks. miles to mobile-home square parks new have All applications refused, only one of since been at least permitted existing parks the two expand. portion southern the
Although acres "transitional” in the are labeled parks will plan, mobile-home proposed master uses, acreage with other transitional share this parks. research and industrial including offices moreover, not call does proposed plan, in those and water services municipal sewer as.12 are to mobile the 1/10 of dedication We consider 1% homes, applications all new plus the refusal of existing illusory and the parks two beyond the additional acre proposed nature of burdened exclusion,13 as much certainly age, tantamount 12Furthermore, Township zoning ordi Grand argument, following oral it can be seen Court nance submitted this parks, portion of 300 acres is zoned for mobile-home that no residential, park, including multiple-family research other uses while light business, single-family as well numerous and local industrial fact, districts, only provided areas zoned for In for. residential mobile-home existing parks, previously still use are two totaling only 23 acres. 139, 155-156, speaks prohibition in Kropf, of "total” 391 Mich Woodhaven, App City 192 NW2d criticizing Bristow (1971). However, degree we in this case consider of exclusion event, any this case considers exclusion. In to such total tantamount light in the of unlawful discrimination exclusion such virtual as shifting proof did. justifying burden of as Bristow *20 v Grand Blanc Williams, J. Furthermore, Dequindre.
exclusion in we be- in lieve that of of light availability Grand Blanc such Township virtual exclusion is justification. unreasonable As and without a conse- quence, we hold that Grand Blanc exclu- sionary zoning system ordinance unlawfully unreasonably discriminates and therefore is in- valid.
V. Conclusion First, the plaintiffs failed to overcome Kropf presumption the township residential zoning Second, property was valid. because of a dispositive different and issue this Court does not resolve the question debatable fact whether indeed zoning residential confiscatory of plaintiffs’ the case property.
Third, the township’s unreasonable exclusion of parks makes invalid vis-a-vis use. This Court does not and However, will not zone or rezone. this invalidity leaves plaintiffs without any inhibition or restric- tion exercising from requested use of the land in issue.
This applies decision all pending this case and cases that preserved have raised and have same issue. Likewise after 90 days from the date opinion, issuance this decision will apply all such future provided cases properly shall not have remedied this deficiency its master ordinance. Appeals’ Court reversal the trial court
is affirmed but for different reasons. The matter remanded the trial court for further action not inconsistent with this opinion. Costs to plaintiffs. Opinion *21 v Grand Blanc Opinion by M. S. Coleman, J. (concurrence
M. S. Coleman,
part;
dissent
part). I
endorse Justice Williams’
conclusion in
response to the
first issue "that
have not
by Kropf
required
sustained their
v
burden”
Sterling Heights,
139;
The response to the second issue does not re- my ceive endorsement. It is said that proposed practices with regard to mobile homes is "tantamount exclusion” and "that light of land in availability Grand Blanc Town- ship such virtual exclusion is unreasonable justification”. opinion without concludes that the zoning system "unlawfully and unreasonably *22 discriminates is and therefore invalid”.
It would be
for
most unwise
this Court
to as
sume the responsibility
determining
of
per
what
centage
governmental
of
in any
unit—
whether Grand Blanc Township or the City of
Detroit —must be zoned for mobile
It
homes.
is
particularly
unwise
us to tell
the township
acreage
board where the added
for mobile homes
1
should be located.
One
question
is
led
necessarily
to
whether
same rationale would then
apply
have to
to apart-
buildings,
ment
condominiums
and untold num-
bers
other land uses. To compound
problem,
instance,
in each
this
might
upon
Court
be called
to establish what
percentage
given usage
any
or
would
would not be tantamount
to exclusion.
1Also,
say
legitimate
I cannot
that mobile-home owners or
busi-
plaintiff
nesses are excluded from the
or that
has a constitu-
right
place
property.
tional
to
mobile-home
can
his
Neither
is,
effect,
plaintiffs’ property
being
I find that
taken without
compensation. They paid
per
per
$350
acre. It is
worth $1500
now
they
quadruple
The
that
acre.
land
fact
cannot
value
implication
statutory
or
has no constitutional
cir-
under these
cumstances.
589
394
Mich
Coleman,
M. S.
becoming
super zon-
Court
prospect
this
probable.
than
more
ing
is rendered
commission
as
found
fact
judge
this
In
case
trial
actually
now
acres of Grand Blanc
parks,
rezoning
has
used
Impor-
parks.
of those
enlargement
provided for
however,
existing zoning ordinance
tantly,
and the
board
provides for mobile homes
providing 300
use
acres
approved
has
a land
important
It is
parks.
of land for mobile-home
note,
judge,
the trial
did
institution
governmental
situation
where
parks within its
sought
all mobile-home
deny
Catholic
Archbishop
Roman
community. Compare
Lake, 333 Mich
Village
of Detroit
of Orchard
(1952).
389; 53
NW2d
judge
the trial
ren-
testimony,
After extensive
findings
factual
made
opinion
dered
which
v Dexter
Compare Quigley
legal
drew
conclusions.
(1973).
For his
Twp,
213 NW2d
review,
judge
language
cited
standard of
the trial
Brae Burn
quoted
approval
with
from
Kropf.
that:
It was said
pre
every
comes to us clothed with
"[T]he
Inspec
Building
B.
validity, Hammond v H.
sumption of
(1951)], and it is the
tor,
NW2d 155
[50
attacking
prove affirmatively
party
burden of the
arbitrary
unreasonable
is an
the ordinance
property.
Janes
upon the owner's use
his
restriction
Detroit,
The trial determined "that the judge have not or met carried burden”. The court found "no the action indication taken is arbitrary authorities or unreasonable and that is an unreasonable arbitrary upon and restriction the owner’s use of property”. his
It is these cases de generally said that we review novo. However, situations, as in other many so we great give findings and weight conclusions all, of the trial judge. he or she had After the most immediate opportunity and constant to observe and react to the evidence. We properly regard such opportunity See Christine important. as Co Building City Troy, (1962), Kropf. NW2d 816 It is profitable to review frequently following philosophy found in Brae Burn repeated Kropf: frequency "In view of with which cases are Court, appearing
now to expedient before we deem it point again, out susceptible terms not of miscon- struction, a principle: fundamental this Court does not super-zoning as a sit committed to determination wisely commission. Our laws have people of a community themselves the * * * municipal destiny of their . With the wisdom or are not lack wisdom of the determination we people concerned. The community, through their appropriate legislative body, and not the courts, govern growth and its life. Let us state the proposition clearly may as It be: is not our function approve the ordinance before us as to wisdom or desirability. alleged involving For abuses such factors remedy box, is the ballot not the courts. We do not judgment our legislative substitute body that of the charged with duty responsibility prem- in the ises.”
I with the agree trial judge, who said *24 by Coleman, Opinion M. S. re- charged with the persons "for those respect zoning within their determining sponsibility in- to abstain from him required community” there has been showing that terceding "absent action taken arbitrary unreasonable same authorities”. those Appeals affirm Court
I would reverse the have not finding that judge’s the trial judg- and a required their burden "maintained enter”. may thq ment for defendant JJ., no part took Lindemer, Swainson the decision this case.