*1 1965] Watts Smith. J. Dissenting Opinion by Kelly, the court discretion between now and allowing trial. not err in
Tbe trial court did order entering forth above. set
The order of dismissal should be affirmed. Costs to appellees. concurred with J., J.
Dethmers,
Kelly,
v. MALCOLM
OF PITTSFIELD
TOWNSHIP
Townships
Zoning
Kennels.
Ordinance —Animal
1.
—
unambiguously
repeatedly and
which
Township
ordinance
should
thereof
or structure
no
provided that
1 more of the
than
erected, altered,
for other
or used
clearly
intent
indicated
an
in a district
specified uses
various
rights
property owners
with care the
dеfine
kennels,
thereby
animal
township,
made
within the
districts
property was
defendants’
light
district where
industrial
specifically
use,
use was
where such
impermissible
located an
in the
not included
permitted in 2
the other districts
(Pittsfield
permissible in defendants’ district
7-11).
Ordinance,
Zoning
arts
Zoning Ordinance —Intent.
2. Same —
intention
give
manifest
duty
effeet to the
of a court to
It is the
(Pittsfield
ordinance
worded
Ordinance,
7-11).
arts
Township Zoning
in Headnotes
for Points
References
[1,
Jur, Zoning
58 Am
11.
2]
§
Jur, Zoning
58 Am
70.
[3]
[4,
§
Jur, Zoning
Am
192.
§
authority
Right
municipality
рublic
to enforce
or other
previous conduct
regulations
affected
its
or fire limit
encouraging
Separate Opinion.
Black, J. Abatement—Nonconforming Zoning 5. Nuisance — under Use Or- Townships—Equity. dinance — township applied to which Plaintiff defendants for dog building permit light been issued a Icennel manufactur- ing permissible use, wherein not a district it was and who had expensive an erected and conducted business therein mоnths suit was commenced to declare the 10-1/2 for before nonconforming held, use a nuisance and abate it not entitled relief, governmental to such since a unit which comes into the equity higher than, preferred over, stands no it nor is forum party. Appeal (William J.), Washtenaw; Beer J., presiding. (Calendar Submitted June No. 50,589.) April No. 16, Docket Decided 9, 1965. Complaint by Pittsfield, a Mich- igan municipal corporation, against Karl Malcolm, Jr., and Saráh J. Malcolm declare their use оf enjoin and to certain land their nuisance continu- Pittsfield v. Judgment ing use of the land. for defendants. appeals. Plaintiff Affirmed.
Douglas Beading, plaintiff. K. McKenney
Conlin, Conlin, Parker, (Chris <&Wood McKenney, counsel), L. for defendants. securing J. After a letter from the town- Smith,
ship supervisor opinion expressing his that con- dog struction kennel their was ordinance, defendants application building permit filed for a with the inspector. township building published Notice was newspaper in a circulation in the town- ship. application apрroved May The 8, 1962, building inspector thereupon who issued a permit, posted which was on the *3 during construction. Defendants commenced build- ing immediately completed the structure on or July 20, about completion, they 1962, at cost of $45,000. Since operated
have the kennel for board- ing dogs and cats, allied services.
Although township building inspector the issued permit township municipal the corporation to defendants, the against
brought suit 4, defendants June building 1963, some months aftеr the 10-1/2 completed and in been use a kennel. The town- ship does not claim that defendants violated the permit, permit building erroneously but that the by building inspector township issued the at because adoption township zoning all the times since ordi- nance in defendants’ has been zoned Light “M-l Industrial” under which an animal ken- permitted, township nel is not In asserts. the permanent injunction sought. complaint, is In their sequence allege the answer, defendants events the Coukt. light deny “M-l industrial” stated but above prohibits If an animal kennel. inter- such say they preted prohibit then that use, such as to By way of affirma- is unreasonable. estoppel, plead waiver, defense, tive laches, defendants supervi- up pointing their reliance per- authority opinion and the sor’s commencing to build. them mit obtained before question faith, or bad either of fraud There is no on part municipal the defend- officers or good agreed faith. is both acted ants. It I question an ani- whether or first The use under is a mal kennel ordinance divides The ordinance. the most restrictive districts
into 7 zones or use as follows: least restrictive to the R-l R-2 district........................ district........................ Residence Residence farming residence district.....A-l General A-2 farm residence district......... Small C-l district.............. Local business C-2 commercial General district............... Light M-l industrial district ................. regu- district, It noted that for each should be following text: “No lations contain part altered, or structure shall be thereof or land used whole used, sрeci- or more other than one for fied specifying in this In addition to uses.” commonly scheme, em- ordinance has manner, *4 prior ployed, cumulating in each sections uses exceptions, succeeding how- section, with certain below. noted ever, light regulations “M-l industrial” for the
Use 11, of 11.1, in district are contained section article op Pittsfield v. Malcolm. ti-ie Court. township zoning ordinance. It reads the Pittsfield part in as follows: part shall or thereof or structure “No premises or or or -land altered, used, erected, part or more for other than one or in whole used * * * [specified specified uses: of the paragraphs through 4] in are listed uses general permitted Any C-2 commer- in uses “5. sup- dwellings” (Emphasis except cial districts plied.) any specified uses
It is not contended that immediately quotation have in above omitted any bearing authority, but that ease, dog any, con- kennel is and use if tained in “C-2 for erection zoning, insоfar commercial” paragraph therein are cumulated as uses com- “C-2 As quote zoning, of arti- 10.0 section we mercial” zoning ordinance: 10 of the cle part thereof shall or structure “No land or used, altered, or more other than one used whole following specified uses: permitted in C-l districts. “1. All uses shops for the conduct “2. Stores testing including re- and wholesale business display open sales or air laboratories, search dry parking clean- laundries, lоts, vehicles, motor ing plants, distributing- receiving milk establishments, yards, cartage truck line warehouses equipment storage yards, contractors terminals, yards similar char- hatcheries, lumber and uses including permitted uses, to the above but acter junk, slaughtering handling wastes, businesses are animals by ivhich and those businesses offensive odor, noise, smoke or vibration to the reason of adjacent they or to district which are located, zoning districts. *5 Opinion of Court. parks. trailer cabins and tourist Motels, “3. philanthropic, professional, indus- “4. Offices enterprises. and
trial commercial Accessory buildings customarily in- uses and “5. sup- (Emphasis any of the above uses.” cident plied.) per- Referring thus to C-2 uses enumerated and by M-l missible in districts defendants cumulation, argue employs lan- that where guage uses similar in character to the above “and empowered permitted court to uses” trial that under find animal kennels were They say zoning section of the ordinance. that this an animal kennel in character” to “similar hatchery more line and “no offensive than a truck processing plant.” or milk terminal analysis more to But there is the ordinance claim, than what defendants are the classifications, because animal kennels permitted specifically other sections A-2 ordinance, that under A-l and is, important it is note that uses A-l A-2 are not cumulated under classifications of the ordinance. sections say, is to that A-l A-2 uses are not cumu- This M-l, C-l, C-2, lated under lower classifications patently higher classifications R-l or not under Let turn R-2 us then those sections either. dealing specifically with animal ken- the ordinance pertaining “A-l nels. such section is One farming contained and residence” part ordinance and which reads article as follows: part thereof shall “No structure land or used altered, used, for other than one or more in whole or * * * following specified uses: parks, golf Churches, schоols, cemeteries, “4. airports, hospitals, community buildings, courses, of Pittsfield broadcasting livestock auc- stations, riding stables, gravel sanitary fills, kennels, yards, animal tion location, and use provided erection pits, township zoning approved been have shall netospaper given public in a notice board after a statement circulation *6 proposed the time of a and location and use the of appear hearing, hearing it shall If, thereоn. such proposed or be detri- location, erection, that the safety, public or health, mental to the wel- neighborhood or fare, the character of the wherein proposed it such use, is locate then such use shall (Emphasis supplied.) denied.” specific in to the Now addition reference to animal to animal zoning above, in A-l kennels reference in the of is also made section kennels quote devoted to A-2 uses. We ordinance article 8 of the zoning ordinance: part thereof shall be or or structure “No premises or used used, or or land erected, altered, part than or for other one more in whole or following of * * * specified uses: hospitals Riding animal kennels and stables, 6. buildings housing provided that however animals property least 100 all be at the lot have an area lines and that feet from not than 5 less acres.” of (Emphasis supplied.) specifically No other reference is made animal except quoted in kennels the ordinance as above under A-l and A-2 uses.
A similar
ordinance was
in
construed
Fass
Highland
City
Park,
fied. recog- accessory operation ‘generally as plaintiffs do not understand nized stores.’ We a matter stores, to contend that practice, as poultry. live sell The conclusion cannot specified purposes avoided none property may which the business ‘B2’districts be used includes handling poultry. being live Such question regarded case, use in must be prohibited expressly language by the the ordi- quoted. significant nance, It above is further operation expressly such an tricts. The ous sanctioned in ‘O’dis- language ambigu- of the ordinance is not indicates an intent to define with rights care the owners the various city.” (Emphasis districts supplied.) within the The same conclusion must be drawn as to the ordi- *7 specified nance in pur- the instant case. None of the poses property for which in the M-l district, оr districts cumulated animal thereunder, includes specifically kennels. Under the ordinance which permissible forth sets uses under each classi- specifically fication, therefore, absence of the stated regarded excluding use must be as that use. This especially expressly per- is true where use is supplied.) or or cluding storage clusively ‘Tlie ‘See. ‘5. ‘Section 10. G districts ‘2. ‘6. Uses ‘No ‘17. more used, Facilities Generally recognized building, Uses following 10.1 at accessory retаil, Fass accessory Uses premises used, regulations permitted v. such use to structure, to City to killing any specified handling retail stores. in of the above shall Highland Park, whole subject same, uses: apply in above and sale of thereof, or in for sale on the * * * permitted * * to permitted all part, C shall 326 Mich [*] approval districts: poultry for uses.’ be uses. ” of the board. [*] (Emphasis game, * * than altered, one ex- in- op Pittsfield other classifications: A-l A-2. under mitted 24) supra (p Fass, that lan- “The conclude We guage ambiguous not ordinance is and indi- rights to define with care the an intent cates property in the various districts within owners city.” per- are, kennels not therefore, Animal only M-l classification and are under the missible permissible A-l A-2 under classifications. argument that animal to defendants’ kennels
As M-l are are also because such hatchery to a “no “similar in character” more process- or milk than truck line terminal offensive say ing plant,” аrgu- this are constrained to that we might persuasive not more the ordinance ment specifically provided for animal kennels A-l and provide it The intent is clear and is A-2 districts. for animal kennels areas A-l and A-2. duty give intention. manifest effect Our is that if the ordi- to defendants’ other assertion As prevent of their nance is construed present M-l then for an animal kennel under say argu- that this we unreasonable, the ordinance is ment defend- also fail. We do understand must is that the ordinаnce unreasonable to contend ants is it What left nor do we find so. its face, being upon proofs it be, show to the burden whether the proofs we offered, were so No defendants. unreasonableness assertion of are left with the bald com- further turn, we without which ment, can leave, circumstances, except hold that under obviously the burden to sustain failed defendants proof. position plaintiff’s therefore, conclude,
We *8 interpretation ordinance regard of the with to the trial not that of defendants was correct, judge. Mich
II question, The more difficult however, is whether estopped enforce presented. herein under the circumstances As to plaintiff point, relies decision in also City Highland supra. Park, Fass v. The Fass on Case before was this Court different occasions. Highland City The case Fass v. Park, first city zoning a 320 Mich construed 182, ordinance. dressing killing poultry spe- Where and of live was cifically manufacturing authorized ordinance in a shopowners it was held that district, could not kill operation poultry and dress as an incident to the poultry of a retail market located in commercial “generally recognized district zoned for retail stores shops.” shopowners and The were thus limited selling already-dressed poultry, et cetera, killed and premises. In dressed off Case, the second Fass rehearing 321 Mich granted of the first Fass Case was question and limited of constitutional- ity shopowners argued The ordinance. that arbitrary ordinance as construed was city holding unreasonable. In with the this Court held the ordinance was constitutional. We said that killing, the ordinance intended defeath- ering dressing poultry of live be confined plaintiff-shopowners district other than where their store; that in the district where the store poultry located, dressed sold could but he poultry could not be killed, defeathered, premises. activity dressed We said that such (killing, defeathering, dressing poultry) awas subject proper municipal legislation, hearing it public relationship a distinct health. We held killing defeathering also that not an inci- were integral part (p 162), poultry dental and market *9 n 145 of Pittsfield Opinion op the Court. “especially provides the where ordinance that this activity he should to another zone confined particular estoppel question
Of relevance to the supra. presented Case, was third Fass It a some- what diffеrent fact situation from the first Fass plaintiffs cases. Under this, Case, third Fass seeking only poultry (not were to sell live kill dress) along already-dressed poultry. ap- with On peal, question the first was whether under the poultry plaintiffs’ ordinance live could he sold in “generally recognized store for zoned retail stores,” accessory” pointed and “uses This thereto. Court expressly out that ordinance forbade such uses specified appropriate not in each of sеction the ordi- poultry specified, nance; that sale of live was not poultry nor could it he said that of sale live was “accessory” operation “generally recog- to the aof nized retail store.” estoppel against city.
Plaintiffs also claimed years prior Plaintiffs showed that city for to refusal, shop officialshad issued a licenses under retail shop licensing authorizing ordinance of sale poultry, among things. live license When the city was rеfused, suit was instituted. The that the licenses had issued asserted erroneously because the precluded plaintiffs’ prem- use poultry. ises sale live This Court held city estopped enforcing that was not although building permit ordinance, a issued sometime earlier had authorized to be constructed for retail sale both dressed and live poultry operating and annual licenses for same had prior years issued for each 3 It should refusal. pointed operating license, be required out that the annual operate predi-
to part, store, upon interpretation cated at an least, city prohibit officialsthat the ordinance did Opinion op the Court. poultry,
of such for the of live sale an interpretation later found error. distinguished
-This Court
the Fass Case from eases
by plaintiffs
question
cited
activity
rights
in which the
of retro-
zoning regulations impinged upon
vested
persons
who
commenced construction
authority
prior rеgulations.
*10
Cf., Sand
enburgh Michigamme
v.
Co.,
Oil
As the Court said in third Fass “The zoning city of defendant inwas force and plaintiffs purchased effect at the time their real estate and erected thereon,” therefore, retroactivity was not an issue. We concluded in city estopped Fass, then, would not from enforcing zoning ordinances, the circum- plaintiffs charged stances, 'because “were with knowl- edge provisions of the restrictive of the ordinanсe” thereby, and, and with the nature and of duties extent
powers city acting officials under said ordi- nance. Enforcement of the there- ordinance was, permitted. fore,
Although
principle
nonestoppel
Fass,
enunciated in
a
was, however,
third
there
nonestoppel
clear intimation that
the doctrine of
municipality
in the field of
not without
opinion
exception. The
this
Justice Carr makes
plain by
(pp
statement twice recited
31):
26,
“No claim is
made
erected
by plaintiffs,
equipment
or the
cannot be
therein,
utilized for the transaction of a
busi-
opinion expressed
ness.” The
awareness
undoubted
exceptional
of an
militate
circumstance which could
There exceptional a munic- circumstances that under nized ipality enforcing estopped may a he previ- municipal regulation authorities where contrary permit ously a later found issued cir- will suffice to show cases Several law. exceptions requiring to the rule. cumstances App Cahill, DC Columbia In District of 453), (54 made owner where the F2d improve garage expenditures large residence relying upon a district, in a residential located building inspector’s permit, it was held that where good party acting affirmative acts faith under improvements city were made and where of expensive inequi- permanent, highly it would be unjust permit destruction table and estopped permanently rights. city was The *11 enjoined. City Tankersley Industries, Inc., In Brothers
Fayetteville, 412), (296 action Ark 130 227 SW2d city brought by property 2 owners the and was enjoin building of a commercial and to remоve building. In this obtained case, said defendant permit building. a commercial construct supervision city It was constructed under agents. city operations, After 4 the and months of brought claiming owners suit several viola- zoning regulations, including a claim that tions operated wholesale business could not be premises. being fraud, the no There evidence city 134) (p the court held that the “stood estopped long equitably the to have and is now too the Couet. deny appellant right tbe or to building removed operate wholesale.” exceptional regard so circumstances as the
We require exception made to an as to in this case parties good faith of all Here, rule. prop acknowledged. No collusion between city sug proved erty or even officialsis and owners kennel was to be gested. that an animal Notice newspaper given by and on said built by prem building permit posting on the of the By under construction. the kennel was while ises appurte special type building and reason variety, anyone cage or kennel fences of nant put notice construc area would be in the place. taking Defend kind was tion of some unusual type building specialty spent $45,000for a have ants plaintiff utility. In addition, doubtful otherwise occupancy construction, after 10 months waited over right challenging operation defendants’ before using animal kennel. as an to continue case, is in itself decisive no factor While present together, com circumstances, viewed entire plain why equity pelling refuse should reasons injunction. request To do otherwise would tiff’s equity good contrary conscience. See County, Spoon-Shacket Inc., v. Oakland Co., Mich 151. defendants.
Affirmed. Costs J., C. T. M. Dethmers, Kelly, Kavanagh, JJ., concurred with Adams, Souris, O’Hara, Smith, J. being affirmance). concurring This ( Black, J. way, equities being all one equity case,
an *12 plaintiff ground town- I affirm would 149 op Pittsfield by Black, J. . position equity’s ship in no at fount better stands similarly private than situated suitor.* would Having permit having encouraged issued the they proceed township, did, defendants even technically though estoppel, is free -by equi- is, entitled to abatement —that destruction— process ty’s expensively of defendants’ constructed manifestly By quoted valuable and rule rior of business. legally supe-
there limit, the sometimes sovereign rights of a State and its various units government, any when that State or such unit equity comes into a court of to assert a claim. In than nor party higher that forum at least no stands preferred party. over
I concur in affirmance. missioner, Barque “Thekla,” as to court to assert a [*] See “When the United States subject agree by implication application 350 Mich matter.” claim, of this 309, 321, US (Quotation it so far takes the principle [here [45 justice may from Hunt v. State S Ct to Auditor General v. plaintiff 112, United States v. position 69 L be done with township] ed 313].) Highway private Klenk, Norwegian comes into regard suitor Com