Franklin Village Square Corp. v. Village of Franklin , 20 Mich. App. 671 ( 1969 )

20 Mich. App. 671 (1969) 174 N.W.2d 609

FRANKLIN VILLAGE SQUARE CORPORATION
v.
VILLAGE OF FRANKLIN

Docket No. 6,251.

Michigan Court of Appeals.

Decided December 9, 1969.

Hartman, Beier, Howlett, Howlett & McConnell, for defendant.

Before: J.H. GILLIS, P.J., and McGREGOR and V.J. BRENNAN, JJ.

V.J. BRENNAN, J.

The zoning plan for the village of Franklin allows for two, but only two, land uses — single-residential and commercial. Plaintiff landowner applied for the rezoning of its 3.18 acres to multiple-residential use, but the village denied its application. The plaintiff then commenced the present action to compel the issuance of a building permit, contending that the zoning restriction is unreasonable as applied to its land and that the zoning plan does not comply with the enabling act^[*] since the plan allows for only one kind of residential use. The trial court accepted the latter contention without considering the former and issued a writ of superintending control directing the issuance of a permit. The village of Franklin appeals.

The trial court based its ruling on its reading of Gundersen v. Village of Bingham Farms (1964), 372 Mich 352. In Gundersen, the Supreme Court struck down a zoning ordinance restricting the entire community of Bingham Farms to a single-residential use. However, the ordinance was held to be invalid not because of some supposed, predetermined requirement that a plan permitting single-residential use also permits multiple-residential use, but because the enabling act, as construed by the Court, does not authorize zoning plans that restrict the entire community to one use. Since a zoning plan must permit more than one use to comply with the enabling act, a plan permitting only single-residential use is invalid on its face. The Franklin plan, on the other hand, permits a use other than single-residential, namely, a commercial use, and therefore cannot be faulted under Gundersen.

Reversed and remanded for further proceedings to determine whether the zoning restriction is unreasonable as applied to the plaintiff's land. See Hammond v. Bloomfield Hills Building Inspector (1951), 331 Mich 551.

All concurred.

NOTES

[*] MCLA § 125.581 (Stat Ann 1969 Rev § 5.2931).