Marconeri v. Village of Mancelona ( 1983 )

124 Mich. App. 286 (1983) 335 N.W.2d 21

MARCONERI
v.
VILLAGE OF MANCELONA

Docket No. 58488.

Michigan Court of Appeals.

Decided March 21, 1983.

Stanley E. Brake, P.C., for plaintiffs.

Alton T. Davis, for defendant Village of Mancelona.

Murchie, Calcutt & Sondee (by Jack E. Boynton), for defendant Antrim County State Bank.

Before: R.B. BURNS, P.J., and BEASLEY and M.B. BREIGHNER,^[*] JJ.

R.B. BURNS, P.J.

Plaintiffs appeal from a judgment which declined to grant injunctive relief to plaintiffs because they had failed to demonstrate harm. Plaintiffs, owners of property adjacent to defendant bank, sought a temporary restraining order and a permanent injunction enjoining the bank from constructing a driveway for a drive-in window over a sidewalk running in front of their properties. The defendant village approved these plans, even though the proposed plans would require a curb cut of 34 feet. The width of this curb cut violates Chapter 4001-9 of the Mancelona Village Ordinance Code, which provides: "No single curb cut shall exceed twenty-five (25) feet nor be less than ten (10) feet." The driveway was completed one year before the case went to trial.

Despite their pleadings and claims of unsafe pedestrian conditions due to the length of the curb cut, plaintiffs' primary complaint seems to be with the increased street traffic due to the bank's drive-in window. This window backs up traffic on the street running in front of their businesses, blocking both pedestrian and vehicle ingress and egress to plaintiffs' business.

Injunctive relief is equitable in nature. In equity cases, this Court's review of the record is de novo with due deference being given to the findings of the trial court. This Court will sustain those findings unless its ruling would have been contrary to that of the trial court. Cascade Twp v Cascade Resource Recovery, Inc, 118 Mich App 580; 325 NW2d 500 (1982). Further, an ineffectual injunction will not be granted. See Three Lakes Ass'n v Kessler, 91 Mich App 371; 285 NW2d 300 (1979).

In the present case, requiring the driveway to be 25 feet in width or less will only compound plaintiffs' problems, not solve them. Should this Court require the bank to decrease the width of their drive, by enjoining the use of the wider drive, it would either decrease the number of windows available or the number of spots available to cars lining up to use these windows. Thus, the ultimate effect of the injunction and subsequent narrowing of the driveway would be to increase the blockage of the street, both in duration and occurrence. The other alternative, requiring the bank to route traffic onto the street, would clearly be hazardous to pedestrian traffic. This solution would create a blind spot because of the corner of the bank which would prevent drivers, as well as pedestrians, from anticipating the presence of danger.

Unquestionably, this Court could require the bank to go through the necessary procedure to obtain a curb-cut permit. Further, it could require that this cut be less than 25 feet in width. By doing this, however, this Court would not prevent that type of danger or harm which plaintiffs are alleging they have suffered. Under these circumstances, an injunction should not be issued. See, e.g., Dutch Cookie Machine Co v Vande Vrede, 289 Mich 272; 286 NW 612 (1939).

Accordingly, the trial court's refusal to grant plaintiffs' injunction is affirmed.

M.B. BREIGHNER, J., concurred.

BEASLEY, J. (dissenting).

I respectfully dissent.

The resolution of defendant Village of Mancelona approving defendant bank's plans for a 34-foot curb cut violated defendant village's ordinance limiting curb cuts, which provides as follows:

"9. Curb cuts. No openings in or through any curb of any street shall be made without first obtaining a written permit from the Superintendent. Curb cuts and sidewalk drive way crossings to provide access to private property shall comply with the following:

"(a) No single curb cut shall exceed twenty-five (25) feet nor be less than ten (10) feet."

Defendant village did not comply with the amendment procedure provided in its own ordinance. Neither defendant village nor the defendant bank had any right to violate the village ordinances. On the contrary, both are bound to comply with the ordinances, the same as everyone else.^[1] I do not share the trial court's conclusion that somehow subsection 9(d) permits defendant village to ignore 9(a). Subsection 9(d) provides as follows:

"(d) The maximum number of lineal feet of sidewalk drive way crossings permitted on any lot, parcel of land, business or enterprise, shall be forty-five (45%) percent of the total abutting street frontage up to and including two hundred (200) lineal feet of street frontage plus twenty (20%) percent of the lineal feet of street frontage in excess of two hundred (200) feet."

It may be, as the majority suggests, much ado about nothing to grant the bank special privileges regarding curb cuts, but the fact is that defendant village and the defendant bank violated the clear, unambiguous ordinances.

There was available a simple, straightforward way to amend the ordinance. Defendant village and the defendant bank did not choose to follow it. Under these circumstances, I would vote to grant the request for injunction, to set aside the permission insofar as it violates the ordinances, and to afford defendant village and the defendant bank a brief period to seek the requisite amendment of the ordinance. In the event defendant village does not so amend the ordinance and then permits the curb cut that has been constructed, I would grant plaintiff equitable relief to enforce compliance by the defendant bank with the ordinance.

NOTES

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

[1] Magruder v City of Redwood, 203 Cal 665; 265 P 806 (1928), cited with approval in White Lake Twp v Amos, 371 Mich 693, 698-699; 124 NW2d 803 (1963).