M. &. S. Builders v. City of Dearborn , 344 Mich. 17 ( 1955 )

344 Mich. 17 (1955) 73 N.W.2d 283

M. & S. BUILDERS
v.
CITY OF DEARBORN.

Calendar No. 46,405.

Supreme Court of Michigan.

Decided December 1, 1955.

Belding & Belding, for plaintiff.

Dale H. Fillmore, Corporation Counsel, B. Ward Smith, Deputy Corporation Counsel, and James A. Broderick, Assistant Corporation Counsel, for defendants.

DETHMERS, J.

Defendants appeal from an order for writ of mandamus directing them to issue a building permit to plaintiff. Plaintiff's property is part of a small, triangular parcel which had been zoned residence D permitting multiple dwellings. On February 8, 1954, plaintiff obtained approval of the city plan commission for erection of a duplex and a 4-family residence on the property, followed by an OK from the zoning board of appeals for duplexes on the property. On June 8, 1954, the zoning ordinance was amended, changing the classification of the portion of the triangular parcel containing plaintiff's premises from residence D to residence A, limited to use for single-family residences. On June 23, 1954, plaintiff applied for a building permit for the erection on the premises of a 3-family and a 4-family dwelling. The permit was denied on the ground that the premises were now zoned residence A.

The trial court found as a fact that the small, triangular parcel, including plaintiff's premises, now zoned residence A, is surrounded on 3 sides by zone D property. Only across the street to the south is there residence A land, recently upgraded by ordinance amendment from residence B. Immediately across the first street to the north, about 200 feet from plaintiff's premises, is a business B zone, containing a gasoline station, cleaning establishment, supermarket, and other business places, while on the south side of that street, nearer to plaintiff's premises, is a site approved for a doctor's clinic. To the east of plaintiff's property is a players' guild building and the property across the street to the west is devoted exclusively to a multiple-dwelling development. Under such factual showing the presumption of validity is rebutted. The trial court held that restriction of the small parcel in question to use for single-family residences, when it is so closely surrounded by properties devoted to or zoned for other uses, as above indicated, is unreasonable and arbitrary and that it bears no substantial relationship to public health, safety, morals or the general welfare. In this we think the court correct. City of Pleasant Ridge v. Cooper, 267 Mich. 603; Pringle v. Shevnock, 309 Mich. 179.

Defendants urge that, even though the amendment, insofar as it places plaintiff's property in a residence A zone, be invalid, the writ ought not to issue because plaintiff's application was for a permit to build one 3-family and one 4-family dwelling on premises containing an area less than the residence D provisions of the ordinance required for such units prior to the amendment as well as after. Plaintiff counters that the amendment expressly repealed the residence D provisions insofar as they applied to plaintiff's property and that they cannot be revived and again be made applicable thereto by a holding that the amendment is invalid. We think that it was not the intent, in adopting the amendment, that plaintiff's premises should be left free from all zoning provisions in the event the residence A classification of the amendment were invalid as applied thereto. Accordingly, under our previous holdings, the repeal falls with the rest of the amendment, insofar as plaintiff's property is concerned, and the residence D provisions theretofore in effect apply. Campau v. City of Detroit, 14 Mich. 276; John Spry Lumber Co. v. Sault Savings Bank Loan & Trust Co., 77 Mich. 199 (6 LRA 204, 18 Am St Rep 396); People v. De Blaay, 137 Mich. 402 (4 Ann Cas 919). Plaintiff also stresses testimony of 1 of defendants that joining the 2 residences for which permits were sought would result in compliance with the area requirements and plaintiff indicates in its brief the intention of so doing. It was evidently with such view of the law and facts in mind that the court caused its order for the writ and the writ itself to provide for issuance of a permit to erect a building or buildings in accordance with the ordinances of defendant city.

In view of the fact that the permit denial was not based on failure to comply with area requirements but only on the residence A classification in the amendment, and that joining the 2 dwellings will result in compliance with applicable residence D area requirements, and, finally, that the order appealed from contemplates and provides for such compliance, it is affirmed, with costs to plaintiff.

CARR, C.J., and BUTZEL, SMITH, SHARPE, BOYLES, REID, and KELLY, JJ., concurred.