Ettinger v. Avon Township , 64 Mich. App. 529 ( 1975 )

64 Mich. App. 529 (1975) 236 N.W.2d 129

ETTINGER
v.
AVON TOWNSHIP

Docket No. 21318.

Michigan Court of Appeals.

Decided September 24, 1975.

Lawrence S. Cohen, for plaintiff.

Lawrence R. Ternan, for defendant.

Before: ALLEN, P.J., and D.F. WALSH and O'HARA,^[*] JJ.

Leave to appeal granted, 396 Mich ___.

ALLEN, P.J.

Plaintiff petitioned Avon Township to have an 80-acre parcel south of Avon Road near Livernois rezoned from single family to multi-family residential use. Upon the denial of said request, plaintiff commenced suit in circuit court to compel rezoning on the grounds that defendant's zoning ordinance was unconstitutional as applied to the subject property. The lower court sustained the reasonableness of the zoning restriction, and plaintiff appeals.

Plaintiff's arguments one and two concern the proper standard of review in zoning ordinance cases. Plaintiff maintains that the correct standard is set forth in the concurrence by Justice LEVIN in Kropf v City of Sterling Heights, 391 Mich 139; 215 NW2d 179 (1974), subsequently followed by three members of the Court in West v City of Portage, 392 Mich 458; 221 NW2d 303 (1974). This approach views a zoning board's action on a request for rezoning as administrative, not legislative. Moreover, under this theory, the courts would look to the reasonableness of the proposed use of the property rather than simply the reasonableness of the use permitted by the zoning restriction.

The LEVIN view has recently garnered support. In Turkish v City of Warren, 61 Mich App 435; 232 NW2d 732 (1975), Judge QUINN, speaking for the full panel, endorsed the LEVIN concurrence in Kropf, supra, while recognizing that the Court of Appeals was bound by existing precedent. On August 19, 1975, in Sabo v Monroe Township, 394 Mich 531; 232 NW2d 584 (1975), three members of the Supreme Court reversed the township board's rejection of plaintiff's request to rezone plaintiff's property so as to permit the construction of a mobile home park.^[1] In doing so, the majority of three held:

"Even if present zoning is not unreasonable or confiscatory, a proposed use should be permitted if reasonable under all the circumstances. Kropf v Sterling Heights, 391 Mich 139, 164 ff.; 215 NW2d 179 (1974) (concurring opinion).

"We would require that the proofs now adduced in circuit court be presented administratively and restrict judicial review to whether the record evidence supports the administrative finding on the issue whether the proposed use is reasonable. Kropf v Sterling Heights, supra (concurring opinion)." Sabo, supra, at 536-537.

Justice LEVIN'S approach, though gathering strength, does not yet represent the current jurisprudential law in Michigan. While the viewpoint gathered three votes in Sabo, this is still not a majority of the Court. Where no opinion is endorsed by a majority of the members elected to the Supreme Court, the result is not binding as precedent. In re Curzenski Estate, 384 Mich 334, 335; 183 NW2d 220 (1971). See also Palmer v Superior Twp, 60 Mich App 664; 233 NW2d 14 (1975). Though the law is obviously in flux we cannot at this point find that the trial court erred in applying the traditional standard of review reiterated by the majority of the Supreme Court in Kropf, supra, and followed by this Court in Ed Zaagman, Inc v City of Kentwood, 61 Mich App 693; 233 NW2d 146 (1975).^[2] In this connection we note that absent clarification, ambiguity appears in the suggested standard of review. Does this mean that the court would look only at the reasonableness of the proposed use without regard to the existing use, or does it mean that the court must be persuaded that the proposed use is more reasonable than the existing use?^[3]

Plaintiff points out that owing to the Clinton River flood plain and topography of the property, it is not possible under the existing zoning restriction to develop the maximum number of lots allowed; however, the maximum number of dwelling units could be constructed if the property was rezoned multi-family. It is argued that this factor creates such a disparity in property value as to constitute a confiscation, and, at least, indicates the unreasonableness of the ordinance. Therefore, says plaintiff, the ordinance is void as to plaintiff's property under the standard adopted by the majority in Kropf. We disagree. The fact that the land is worth more if used for developing multi-family dwellings does not suffice to render the zoning restriction unreasonable. Kropf, supra, at 160. Further, to be considered confiscatory, plaintiff must show that "all permitted uses are so devoid of feasibility that the restriction has accomplished the destruction of all usable value". Reibel v City of Birmingham, 23 Mich App 732, 739; 179 NW2d 243 (1970). The record shows it was feasible to develop single-family residences on the plaintiff's property. The estimated 1 to 3.6 disparity in value between single-family and multi-family use cannot justify the conclusion that the zoning restriction is confiscatory. Compare Land Development Corp v Township of Bloomfield, 55 Mich App 438; 222 NW2d 768 (1974).

We find no substance in the argument that the zoning ordinance limiting plaintiff's property to single family residential use bears no real relation to public health, safety, morals or general welfare. A zoning ordinance is presumed valid, and the trial court, after hearing all of the evidence, determined that plaintiff failed to carry his burden of overcoming the presumption. This Court cannot say that had we been sitting in the lower court's place, we would have reached a different result. Michaels v Village of Franklin, 58 Mich App 665; 230 NW2d 273 (1975).

Finally, we are convinced that the lower court did not rule plaintiff was precluded from attacking the zoning ordinance because of his awareness of the use restriction at the time the property was purchased.

Affirmed, but without costs, a public question being involved.

D.F. WALSH, J., concurred.

O'HARA, J. (concurring).

I regret the necessity of writing separately again.

I am aware of the three recent zoning opinions released by the Supreme Court,^[1] and the forceful opinion of Judge QUINN in Turkish v City of Warren, 61 Mich App 435; 232 NW2d 732 (1975).

I am obligated to say that I do not agree with what has been called the "LEVIN view" or "LEVIN approach".

Unless and until a majority opinion of the Supreme Court adopts by opinion the following language of Mr. Justice LEVIN, my friend and respected colleague in the appellate judiciary:

"Even if present zoning is not unreasonable or confiscatory, a proposed use should be permitted if reasonable under all the circumstances." (Citation omitted.) Sabo v Monroe Township, 394 Mich 531, 536-537; 232 NW2d 584 (1975),

I shall oppose it on both legal and philosophical grounds.

Zoning, in my judgment, can never by any exercise of judicial osmosis be relegated to the category of "administrative finding" reviewable on that basis by courts.

Zoning is a child of the police power. The police power is inherent in the legislative branch of government. It is enforceable by the executive branch and reviewable judicially for constitutional overbreadth.

If anything would turn courts into super zoning boards adoption of the so-called "LEVIN approach" would. This result, as I understand it, Judge QUINN and Judge ALLEN both disavow.

To me, the Kropf^[2] majority opinion merely reinstated the precedential control of Brae Burn, Inc v Bloomfield Hills, 350 Mich 425; 86 NW2d 166 (1957), which I previously had relied on in Nickola v Grand Blanc Township, 47 Mich App 684; 209 NW2d 803 (1973), affirmed 394 Mich 589; 232 NW2d 604 (1975). Kropf is the law and what I believe the law ought to be.

I reject the notion that:

"We would require that the proofs now adduced in circuit court be presented administratively and restrict judicial review to whether the record evidence supports the administrative finding on the issue whether the proposed use is reasonable." (Citation omitted.) Sabo, supra, at 537.

I cling tenaciously to the concept of Montesquieu, the intellectual father of our separation of powers doctrine, that the legislature should legislate, the executive should execute, and the judiciary should judge without invasion of the prerogatives of the other two branches.

As for the case at bar, I agree that the plaintiff failed to maintain his burden of proof under the test of Brae Burn and Kropf, supra. His case thus fails. I vote to affirm the trial judge.

NOTES

[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

[1] Also released on the same day and with the same division among the justices as Sabo, were companion cases Smookler v Wheatfield Township, 394 Mich 574; 232 NW2d 616 (1975), and Nickola v Grand Blanc Township, 394 Mich 589; 232 NW2d 604 (1975). The opinion in each read as follows:

"We affirm the Court of Appeals for the reason stated in our opinion in Sabo v Monroe Township."

[2] Absent the applicability of the LEVIN position, plaintiff's fourth argument must also fail. "Plaintiffs challenge defendant's refusal to rezone their property on numerous grounds. Several of these deal with administrative, not legislative, decision-making and would be cogent if we applied the Kropf concurrence- West test: that the Superior Township board has no standards to guide it in deciding requests for rezoning; that rezoning decisions have been selective and, in this case, inconsistent with the master plan. However, since we are applying the test of the Kropf majority, these reasons are of no force." Palmer v Superior Twp, supra, 60 Mich App at 674; Ed Zaagman, Inc v City of Kentwood, supra.

[3] If, for example, the court were to look only to the reasonableness of the requested use without balancing it against the existing use, variances would be more easily established and conceivably result in spot zoning by judicial rule. Well-recognized policy reasons work against opening the door to spot zoning.

[1] Sabo v Monroe Township, 394 Mich 531; 232 NW2d 584 (1975), Smookler v Wheatfield Township, 394 Mich 574; 232 NW2d 616 (1975), Nickola v Grand Blanc Township, 394 Mich 589; 232 NW2d 604 (1975).

[2] Kropf v City of Sterling Heights, 391 Mich 139; 215 NW2d 179 (1974).