*1 Beports. my opinion Brother’s on reasons outlined principal questions case, we affirm award in this compensation in toto.' commission of the workmen’s appellee. Costs J.,C. Smith, Voelker, Dethmers, Kelly, with J. JJ., concurred Edwards,
Black, BLOOMFIELD BEARDSLEE. TOWNSHIP OF Injunction Pit —Residential —Public Nuisance —Gravel Area —t Zoning. land, by township zoning pit zoned owners
Gravel enjoined purposes, from continuance for residential ground very on real and active nuisance such use abated, the de was established which should be rather than withholding right struction or to secure subsurface ordinances,, through zoning substances from one’s very consequences unless follow therefrom. serious B.), Appeal (George from Oakland; Hartriek J.. (Docket 11, Decided Submitted October 1956. No. Cal 46,762.) July Behear- endar No. 1957. in'g denied October Township municipal' Bill Bloomfield, to-,
corporation, against Floyd and others Beardslee enjoin re- violation ordinance and restrain gravel. bill defendants contest- moval Cross validity property. ing to their De- ordinance as plaintiff. appeal. cree for Defendants Affirmed. References Points in Headnotes seq. Jur, 123 et 39 Am Nuisances § v. Beaedslee. Floyd plaintiff. Blakeslee, for A. Littel, & for defendants.
Poole, Warren *2 zoning contro- involves a This case J. Smith, prop- gravel-hearing versy. own defendants The they township erty develop to in of Bloomfield and wish commercially. that it The trouble is it purposes. town- The for residential an area zoned operation. ship, The to restrain the seeks hence, enjoin attempt by the town- bill, cross owners, mining operation. ship’s The their with interference upheld and the defendants ordinance, the trial court will, owners) (who the referred hereafter be appeal. general the bare bones took a Thus go controversy. on. filled in as we facts will be Other zoning appeal Upon the owners assert adopted special at a because invalid ordinance is township meeting a is not based board, enabling by required act, and plan formulated as applied to it invalid and unconstitutional that the property unreasonable, ar- it is owner’s because they confiscatory. bitrary claim addition, In and nonconforming prior, use. property purchased now had
The owners early 1 of the town- litigation in 1951. It is section ship, being thereof, bounded on the southeast 1/4 by 11, and section 12, the southwest section south appellants 1913 the 2. west section Since on the operations on their removal conducted have pur- in section was 2. site in section anticipation of this of the exhaustion chased certain 11, 12, and 1, 2, in sections The land source. roughly comprising corner the northeast others (The township other unzoned until was township 1, district had been described as special 1940.) purely At a meet- residential zoned January ing on board zoned as northeast corner was district npon for plan same basic as was used district 1. point At we face the first of objec the owners’ to the validity tions of the enactment of the zoning that the ordinance, enactment is not namely, ground ed on a basic “to plan public health, safe promote and morals welfare” in accordance with ty, general the township rural act.* The statute, it is zoning urged, provides mandatory requirement en actment forth zoning ordinances sets the fac tors be considered in formulating plan basic for a zoning district, which, i.e., no single one the conservation property values, will sustain the if ordinance, there is a total e.g., disregard others, extraction and conservation of natural resources. respect plan adopted, was the testi-
With of a member of the commis- mony experienced “had over the they people go sion territory and that “the territory,” surroundings *3 account.” it They had, testified, taken into were was land men who in, “various went over the experts In the chairman of addition, the com- proposition.” the basic in plan testified force under mission for 1 of ordinance district the zoning township the for operation (which many years) has was provide cordance with publie requirements, roads public improvements adequate provision based morals and proper made with reasonable uses, the tageous safe and character and § 5.2963(3)]). [*] PA general population development.” the conservation of and upon use of adequate uses streets, adequate of each and general No their character and plan land, “The appropriate the light 184, for a district, water reduce hazards to life designed welfare, and and services to conform with the most advan- land, to avoid the provisions § and consideration, system (CL 1948, supply, education, resources and air, its conserve the trend and character of to encourage peculiar to lessen promote of the values and natural adaptability overcrowding transportation, § among 125.273 zoning suitability the and expenditure properties; congestion the use of public health, other recreation and other and [Stat ordinance sewage disposal, to limit things, for population, land, Ann resources, on the and shall be of funds lands to facilitate particular building shall be the im- to the safety, Rev and for ac- v. Beardslee. zoning district This the basis for as considered opinion the to become basic in their was sufficient and plan map The ordinance for ordinance. this contested county zoning by approved the Oakland were committee. the rec- above, the and conclude, cannot zoning that the us, whole
ord as a before charged, formulation of without the enacted, was as by plan required The con- the statute. a basic as trary The reasonable- have been case. seems to consequently plan, course, ness questions. though related, ordinance, different, unpersuaded that the lower court was er- areWe argument rejection of thus made. ror in its objection re the owners with The next raised spect enactment of the ordinance is that was meeting township adopted special at board. in violation of an asserted statu to be This is said may adoption tory mandate that such be accom meeting.* regular township plished only at special meeting. urges, at a admits enactment regular distinction between however, that the legal sig special meetings no has, itself, and of respect pointing to the issue before us, nificance with provides, part, 46, which fol to PA No lows : meetings “Special board shall be any be fixed the board at
held at such times supervisor meeting the discretion of the or when in called from the incorporated Ann 1955 Cum such ordinance adopt, § 11) [*] “Thereafter As was amended : recommendations for the originally “At township zoning accordance portions the next purpose, Supp at enacted by PA any regular meeting unincorporated § with this 5.2963 regular meeting after and vote the section board, [11]). receiving township.” act, No 310 portions provides or at CLS recommended *4 read, adoption ordinance township any board shall consider (PA 1943, part, township.” special meeting § 125.281 of a zoning plan, for board as follows: No (Stat may un- Michigan Reports. * * * appears if all However,
it
members
advisable.
present
any special
are
at
the said board
meeting
any
might
then
thereof,
business which
law-
fully
regular meeting
come before a
of said hoard
special meeting.”
be
at
transacted
such
CLS
(Stat
).
§
Supp § 5.64[1]
1954, 41.72a
Ann 1955 Cum
agree
legislative
are constrained to
that the
in
expressed,
tent, here
is that the
board has
authority
any special meeting any
atdo
matter
might
regular
pro
meeting
which
be transacted at a
statutory requirements
vided other
are fulfilled. We
regard
proof
are mindful in this
that the burden of
upon
him
who attacks the ordinance to show
competent
legally enacted,
that
evidence
it was not
Squier,
(89
126),
Thorne
(“mostly residential”) all from an assessed valuation of $8,069,480to $21,278,635. It anis area relatively expensive township homes. The offi- “expect density population cials growth do not comparable in development.” this area to an urban Immediately south of 1 section is section 12, ad- joining portion of which contains Kentmore subdivi- construction, ranging sion, with homes under in value to $40,000. Not in contained the town- $28,500 ship, adjoining Troy township, but located in the the east, is the Charnwood subdivision, Hills adjoins property northwest corner of which question. This contains lots, over hundred of an average size with some acres, 80 homes cost- 1-1/4 upwards ing nearing from $25,000 either built or completion. finding The trial court’s that “Bloom- acknowledged field aas whole is an area extremely lending well situated, itself to the best type development” amply justified by of suburban the record.
Gravel, also, is found the area, and it is the deposit occurrence well dential this natural in a so adapted extensively by, and so to,' utilized resi-
development which lies at the root of our problem. immediately In section south of section (which presently operating 2 contains the owner’s note, located the township gravel pit.
pit) in ques- that in where the passing, section 3 or 4 have been built situated, tion is houses mining in which the years, last 10 while section taken no have operations place, permits have The operation issued in the same decade. a nonconform- owner section (unquestioned *6 on the “bulldozers and crushers ing use) employs a (screening crushers and vibrator stone “not a The pri- does have washer.” process).” highway gravel is the “excavation of mary operation opinion In the and stock it for purchase.” piling brokers, gravel operations upon several real-estate all of the depreciate would property question half and “would surrounding up mile, to a property to the sale be and detrimental definitely decidedly and of residential enjoyment and the use testimony neigh- in the immediate vicinity.” vicinity existing opera- in the immediate bors that operation varied. Some testified tion not bothersome to them. Another gravel pits was dust, that it and disturb- objectionable (noise, was that, respect proposed ance of and with to the rest) a meeting and others attended operation, “We everyone objec- board and voiced present Mr. except Upon phase tions Beardslee.” this the trial court held that “there was credit- the case in the case before the court testimony presently able immediately that those adjoined to the effect lands defendant’s, Floyd Beardslee, presently-oper- ated a detrimental for resi- gravel pit suffered effect development.” agree. dential We it antici- heretofore, have noted was the As we 2 which exhaustion section pated here of the site motivated section purchase impressed are the owners controversy. if the profits loss in heavy anticipated will suffer us is valid, although before sustained as v. Beakdslee. counters that the land will still retain property. considerable value as residential Is the upon ordinance, such facts, others herein enu- merated, invalid and unconstitutional because unrea- arbitrary, confiscatory? urged sonable, It is prohibits us that the ordinance the removal natural This, insists, resource. owner is invalid. legal right exploit “There exists,” told, we “a they natural resources where found.” If be griev- be law then the owner has, truth, been ously hurt the action of the and the undoubtedly lower court. And it true, as the own- points er further out, that the “extraction of natural from below resources taken at that the surface must be under-
spot or not at all.” though argument may Attractive seem its reading, logical appli first it must that a be obvious principle cation of its would be destructive of all zoning. particular parcel For in each case the has, always peculiar utility: it is asserted, some anis spot factory, junk yard, ideal for a motel, or aor contiguity or what not. It has that traffic, *7 peculiar topographical supply structure, that of wa unique. just ter or shade, which it Yet, makes the as give way, surface user desired the owner must public good, at times, the so must the subsurface exploitation. question In each case the whether, is peculiar on the facts before the us, ordinance ais regulation public reasonable of interests good, arbitrary or is an whether and whimsical prohibition enjoyment of a owner’s of all of of title. The benefits his test such cases has City been well stated court in Massachusetts (47 Oleksak, v. 313 Mass 553, 555 NE2d Pittsfield of 930): impact aof “Whether the particular a which landowner use desires to make 349 304 permissible inter reasonable of his land rights in the exercise of owner with his
ference power police or is an arbi for the benefit the trary, oppressive, therefore unreasonable, and private property deprivation without of forbidden, depends upon peculiar compensation cir often Village particular instance. 272 cumstances of Realty 395 Co., 54 365, 387, Euclid Ambler v. US (47 1016). may be L ALR 114, Ct 71 ed 303, S together. that in fact march said The correct decision such cases law and found the answer to be question particular that whether interference injury reasonably be causes individual can thought tendency inter to have some advance public, consequences, ests or either the direct indirectly by system upholding integrity of thought reasonably pro aas whole be' public.” mote the interests of the prohibitions, applied validity of similar many particular properties, to jurisdictions, despite has sustained the owner the result deposit thereby land. natural lost valuable Burlington (61 Dunn, 318 Town v. Mass See of 1181) Dunn nom., den., cert. sub 243, 168 NE2d ALR Burlington, (66 90 51, Town 739 Ct v. 326 S US 441); Quinn, v. L in Town Billerica ed followed (71 235); Seekonk v. Town 320 687 NE2d Mass (90 NE2d Inc., 325Mass 271 Sons, John McHale & J. Bridgewater, 325); 330 Mass Butler v. Town East City Beverly (110 922); Los 33 Angeles, Oil Co. v. NE2d (254 865); Brothers P2d West 40 Cal2d 552 (192 City Alexandria, Bride 169 271 SE Co. v. Va (58 881), appeal 369, 658 Ct 302 US S dismissed, (58 rehearing 508), 302 Ct denied, L US 781 S 82 ed 603); City v. 82 L Marblehead Land Co. ed (52 Angeles, 284 634 den., F2d cert. US Los Struyk 540); Braen’s L Ct ed Samuel S 279). nothing Super (85 Sons, There is 17 NJ A2d *8 City Muskegon North 249 Mich Miller, v. Beardslee. 57, inconsistent (“Practically herewith. all the wit- agreed nesses that the lowland was useless resi- purposes.”) dential similarity The factual between the case at bar and Burlington supra, justifies Case, an extensive excerpt (pp 222): from the case bylaw opinion “In our a valid constitutional regulation of the defendants’ use their land. We may judicial Burlington character, take small of the fact that notice generally ais town, residential commuting (cid:127)located within distance Boston. There approximately residences within a radius premises. half a mile from the The defendants have by. scraping commenced to remove the soil it into taking away by with a ‘bulldozer’-and it piles means stripping of a steam shovel and trucks. The only top likely soil from a tract of land not produce disagreeable during dust and noise p'rocess, prolonged, but, impor which be more ‘completed tant, after it is leaves desert area in period long nothing which for a of time little or will grow except permanently weeds and brush. de stroys agricultural commonly the soil for use and any purpose. leaves the land almost valueless for unsightly The effect of such an in a waste residential community hardly permanent can be otherwise than ly depress neighbor values of other lands hood and to If them render less desirable for homes. process repeated upon should be tract after might tract of suburban' land the cumulative effect well become disastrous to certain localities. town services 'public must continue to maintain roads and past blighted spite such areas of the fact destroyed development taxable values are retarded. All this concerns the welfare in constitutional sense. Wilbur v. Newton. 302 Mass (18 365). 38, 42, 43 NE2d It is natural that a town Burlington of the character and situation of should- protect against endeavor consequences.' itself such
306 349 themselves entitled considerations Aesthetic weight along other considerations.” with to some Municipal Rathkopf, topic, generally, McQuillin, see 8 theOn (3d ed), 25.136; 2 Corporations §§25.135, seq.; (3d ed), p Planning et Zoning 329 and of Law ed), (2d § 230; Zoning & Yokely, Law Practice 2 say, p of Zoning, not above is Bassett, given particular aof facts course, that under legislation unreasonable. not be found case the appear in the circumstances does not Such, however, us. before nonconforming
Finally, or use, the matter of the point the owners assert lack they On this thereof. prior nonconforming land a use had operation property of from the freed which the ordinance.* The their' noted, has been as utilizing purchased with the intention was it 1951 According gravel. own removal April, gravel premises in er, he first took processing “by dragline” no of this hut 1951, gravel “did Processing property.” at was done on gravel operation. re 2 was the section Additional during appellants and moved 1952 and 1953 county commission.† road Several the Oakland property digging or witnesses observed property. entering leaving and heard the trucks complaints township officials no to the There were May, date, until 1953. Until this of these activities property operations upon it is not obvious Something approached full or scale. extensive were the initiative years said, (CL † [*] During 1952 Section township’s “Because with this they § 16 of the 125.286 finally dump, request, my [Stat closed the I 1953 the township experience decided exempt Ann 1949 rural property nonconforming quit (fire Rev zoning it.” dump. and scattered § 5.2963(16)]) use question act, On uses. PA appellants’ dump. was refuse) and section used, No As own- [184] he at v. Beardslee. yards 1,000 over cubic was removed.* It Day appellants was about Memorial of 1953that the heavy equipment complaints moved in were then resulting pres made officials, litigation. ent nonconforming
To establish a
use there must be
by way
work
a “substantial character” done
preparation
premises.!
for an actual use of the
“preliminary”
e.g.,
operations,
Mere
ordering of
plans, surveying
buildings,
removal of
land,
old
*10
City
Lansing Dawley,
are not sufficient.
v.
247
of
operations upon
Mich 394. Nor do occasional
the
appropriation
par
land sufficeto indicate its
to a
Mayor
City
ticular
use. See
Council Balti
of
Shapiro,
(51
273),
more v.
187 Md 623 A2d
where the
dismantling,
fact that the
2on
of
occasions, wrecked
upon
appro
automobiles
a lot
held
was
insufficientto
priate
nonconforming
the
of
of
lots
use
sale
parts
dismantling
used cars, used
and the
of wrecks.
People
(65
318),
Also,
where the
Hein,
v.
part-time premises by use of the a school boy battery, repair for radio, not auto could yard. junk nonconforming a establish use aas comprehensive cannot state a formula. Each case recognized must stand on its own It facts. that every zoning regulation impairment involves some rights. rights of Whether the attained a status have they legis so so that sacred, inviolate, rise above the that command, i.e., lative the owner a “vested” has right particular balancing in some a of use, involves a determination factors, as whether the owner’s interest is so substantial that its destruction cannot tions Uof Pa Rev (2d ed), (3d [*] † It was On ed), acreage. (3d ed), L eh §§ estimated topic, 147-160; Bassett, Zoning, 91 (1953). § §§ 25.186; generally, 1-5, pp 1-31; [2] there Ratlikopf, see: 8 [1] Yokely, Zoning 7,163,000 McQuillin, eh Law of 5, pp cubic 105-116. Zoning Municipal Corpora &Law yards & Note, of Planning Practice [102] light accomplish the
reasonably be justified It is not of the ordinance. objectives ment of the measure susceptible precise quantitative matter or trucks excavated, many so feet so ment, many in Town Thus, or men dered, many so hired. sev Quinn, supra, Billerica owner the the eral the days enactment before' the the land and stripped placed power shovel extend an 30 to feet wide and top area soil nonconform land. No length the ing part the court. Its by found ing use was premises reasoning (pp 690): enlightening been follow from what has “It does not necessarily of a for operation that an use existing said busi- for a sand or gravel stone or quarry, example, can never be loam, or for removal ness, even after increasing continued the area of extraction bylaw ordinance or passage excluding of a is conceivable neighborhood. such use from area than that excavated larger previously occupa- use actual have devoted in a manner physically appropriating tion of land example by structures, means use, ways, use for or storage preparation ground, ofi; used, or fencing portion even to be perhaps by if had relation to the use. *11 particular the fencing * * * In case had been nothing the before us done to an actual the use amounting appropriation to area any except particular stripped. of the land intention to the remainder The mere strip an of it.” existing did not amount to use land principle expressed by This and the guiding Lansing Dawley, supra, v. and City of Court Juillerat, Smith 161 the Ohio court again, by NE2d here (119 431 seem de 611) Ohio St : cisive no be where substantial
“The rule seems made even use been has nonconforming 1957] 309' v. Beardslee. though money contemplated, such is and has use preliminary expended in work to that end, right acquired property owner has no vested deprived operation use such and is of none right denying aof valid proceed property.” with his intended of the use testimony characterizing
The trial court, prior “meager,” owner’s use find could not operation matter of fact sufficient to come within purview nonconforming aof use. see no We compelling justifying overruling reason our its de- cision.
Upon the a whole inclined to record as we are be- with the trial lieve, court— factually, operation pit gravel “that of a as con- templated by plaintiffs and defendants cross will eventually blight area. It will add traffic unnecesary regulation It
hazards. will result in and policing regulation of the area. The not a de- struction of the defendants’ values because they very profitably appropriate can it to a use with- in the terms of the ordinance.”
It our conclusion that the ordinance is valid. operation mining The deleterious effect of the surrounding clearly the is area is clear and shown. opinion, proposed not, our curable cur operations necessarily tailed which would involve ex years period cavation and traffic over a not ascer at tainable this time. not We do believe it can rea sonably prohibition be contended operations mining clearly in this residential area is arbitrary and that it unreasonable, has no sub public safety, general stantial relation to health, or Village Realty welfare. Euclid v. Ambler Co., (47 1016). L ed 54 US S Ct ALR judgment not do substitute our that' of legislative body municipality the of on matters
governmental policy every presumption
3lO of It validity in of the ordinance. favor is unfortunate that before us prohibition may is financial to the but such deprivation cause owner of a hard- often effect ordinances. is zoning is of the public that must be borne the light ship good. to appellee.
Affirmed. Costs J. JJ., concurred with Carr, Smith, Edwards (concurring). plaintiff township, J. Black, strength on of bill, injunctive its seeks relief jurisdic- theories of separate yet equity consistent ordinance consid- zoning tion. The first restricts opinion validly in Mr. Justice Smith’s ered on from the lands operations, removal equity and that should therefore aid defendants, The second is that operations. restraint such allegation record testimonial sustains the mentioned constitute operations “ nuisance” equity real and active very I chancellor’s prefer should abate. sustain and refer solely ground support decree on latter Mr. has care^ evidentiary facts Justice Smith opinion. assembled his fully from My caution, refraining support right to defendants’ asserted applied to an lands, of their indeed be due excess use depths over the implications zoning of concern from the surface. con Such distinguished nevertheless, author is, by respected cern sustained Park (Village Terrace have followed v. ity we City North Muskegon F2d Errett (CCA 6), 240; Miller, 249 Mich wherein 57-59), stress laid of “not or importance withhold destroying oil, right gravel, secure or mineral ing through zoning ordinances, unless one’s *13 Township v. Beardslee. 1957] will follow there- consequences very some serious from.” in affirmance on then, ground
I an concur, nuisance has been tes- enjoinable averred and established. timonially Kelly, JJ., con-
Dethmers, C.J., Sharpe, and Black, curred with J. J., part took no the decision of this Voelker,
case. STATE HIGHWAY COMMISSIONER GOODMAN. Expert Eminent Domain — 1. Witness Fees —Construction Equally Divided Court. Statutes — statutory provision Construction empowering judge a trial “attorney allow fees and proceedings witness fees” in to con- highway demn purposes land permit so toas inclusion of expert witness equally fees affirmed an (CL divided court 1948, 213.190). § 2. Costs —Public Witness Question Expert Fees. — No proceedings costs are allowed in to condemn highway land for purposes, question where sole involved related to whether expert or not witness fees were pertinent allowable under statute, being public question (CL 213.190). § Berrien;
Appeal Bobinson (Thomas N) J. Submitted January (Docket 1957. No. Cal- endar No. 46,580.) Decided July 31, 1957. References for Points in Headnotes Jur, Appeal
Am3 and Error §