Robert J. Eliassen & Sons v. City of Livonia , 55 Mich. App. 596 ( 1974 )

55 Mich. App. 596 (1974) 223 N.W.2d 84

ROBERT J. ELIASSEN & SONS
v.
CITY OF LIVONIA

Docket No. 17051.

Michigan Court of Appeals.

Decided September 24, 1974.

Cross, Wrock, Miller & Vieson (by Jonathan P. Macks), for plaintiff.

Harry C. Tatigian, City Attorney, for defendants.

Before: BASHARA, P.J., and DANHOF and CHURCHILL,^[*] JJ.

BASHARA, P.J.

Plaintiff co-partnership appeals the denial of an order of superintending control compelling waiver use approval for plaintiff's proposed restaurant. On appeal, we affirm.

Plaintiff is a land contract vendee of a parcel of land zoned "C-2", permitting a variety of commercial uses. Restaurants are not included in that classification; they are permitted only if specifically recommended by the Planning Commission and approved by the Council, upon a showing of compliance with Livonia City Ordinance § 11.03.

Plaintiff filed a petition for waiver use approval indicating the ordinance requirements had been met. At a meeting of the Planning Commission, plaintiff's petition was presented and certain questions were asked. Thereafter, the commission voted to deny approval, finding that the proposed use would adversely affect the residential character of the surrounding area, generate traffic problems, and possibly create a nuisance.

Plaintiff appealed to the City Council. Its presentation consisted of a description of commercial uses and blight in the surrounding area, followed by slides of other Livonia restaurants which demonstrated their parking and landscaping deficiencies. After brief comments and questions, the council voted to deny the proposed use, adopting the Planning Commission's findings.

Plaintiff sought an order of superintending control, or, in the alternative, a writ of mandamus compelling the waiver use approval of the property as a restaurant site. After taking testimony, the trial court recognized it was confined to the record below. Quigley v Dexter Twp, 390 Mich. 707; 213 NW2d 166 (1973); Lorland Civic Association v DiMatteo, 10 Mich. App. 129; 157 NW2d 1 (1968). MCLA 125.585; MSA 5.2935. Additional evidence cannot be offered to support plaintiff's requested order for superintending control:

"* * * However, while parties may enter into a stipulation concerning the record on appeal, they may not, by agreement or silence, add to the record something not considered by the trier of fact or change the nature of the inquiry on appeal. The circuit court can no more consider evidence not heard by the zoning appeals board than this Court could allow appealing parties to add evidence not considered by the trier of fact to a trial court record on appeal, whether in a civil or criminal case, and whether for support or opposition to a finding of fact." Lorland Civic Association v DiMatteo, supra, 137-138.

Plaintiff claims that the trial court misconstrued the test required for waiver use. The court's opinion referred to the test to be applied in seeking a variance, i.e., showing of hardship. Upon being informed of the mistake, the court simply substituted the words "waiver use" for "variance". Clearly, the court did not identify and apply the appropriate test for granting a waiver use. Mitchell v Grewal, 338 Mich. 81, 88; 61 NW2d 3 (1953). Farah v Sachs, 10 Mich. App. 198; 157 NW2d 9 (1968).

However, where independent grounds exist to support the result reached by the trial court, we do not reverse. Fessenden v Roadway Express, 46 Mich. App. 276; 208 NW2d 78 (1973); Buckeye Union Fire Insurance Co v Detroit Edison Co, 38 Mich. App. 325; 196 NW2d 316 (1972). The constitution requires us to determine whether the actions of the Planning Commission and the City Council were authorized by law, and whether their action was supported by competent, material, and substantial evidence on the whole record. Lorland, supra, 135; Puritan-Greenfield Improvement Association v Leo, 7 Mich. App. 659, 665; 153 NW2d 162 (1967). Const 1963, art 6, § 28. We turn to plaintiff's claim that the decision was arbitrary, capricious and unreasonable because no evidence supported the denial. The ordinance required compliance with conditions described therein. Under this ordinance the burden is on the petitioner to show compliance therewith. Unless plaintiff adduced affirmative evidence of compliance, the Planning Commission and the Council were bound to deny the application according to the mandate of the ordinance. Tireman-Joy-Chicago Improvement Association v Chernick, 361 Mich. 211; 105 NW2d 57 (1960).

Plaintiff failed to carry the burden of proof. Mobil Oil Corp v City of Clawson, 36 Mich. App. 46; 193 NW2d 346 (1971); Lafayette Market & Sales Co v Detroit, 43 Mich. App. 129, 133; 203 NW2d 745 (1972). Here, the reasons for initial denial of the permit can be linked to the Planning Commission's perception of deficiencies in compliance. Upon appeal to the council, plaintiff had every opportunity to rebut those findings. The minutes reflect no attempt at rebuttal, nor proofs that plaintiff's assertion in the application for waiver use had any greater stature than mere allegations. No proof was offered to show traffic problems would be avoided, nor that the neighborhood's residential character would not be affected. Instead, plaintiff concentrated on disadvantages of other restaurants. On this record, we must conclude that the denial of plaintiff's application for waiver use was proper, since plaintiff failed to produce sufficient evidence.

Affirmed, no costs, a public question being involved.

All concurred.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.