Quigley v. Dexter Township ( 1972 )

Targonski, J.

This case involves the denial by the defendants of a conditional use permit for a hunting club on a piece of rural acreage in Washtenaw County. The plaintiffs purchased the land in question in January of 1969 and began operating it as a hunting club in September of that year.

The land uses in the surrounding areas are composed of state recreational lands, farms, dwellings and a shooting club.

In September of 1969, the enforcement officer of the township served plaintiffs with a notice that the condition of the premises violated § 5.01 of the Dexter Township zoning ordinance.

The plaintiffs submitted an application for a conditional use permit, in accordance with § 5.01 which specifically provides for hunting clubs. Their application was denied by the zoning board and this decision was affirmed by the Zoning Board of Appeals.

The plaintiffs petitioned the Washtenaw Circuit Court to issue a writ of superintending control to overcome this decision.

The circuit court found that § 8.06 of the Dexter Township zoning ordinance, which required an applicant to establish his case beyond a reasonable doubt, was invalid. The court reached this conclusion by holding that the applicant need only prove his case by a preponderance of the evidence. The court also disqualified two members of the zoning board who were directly interested in the outcome. The court then ordered that the case be remanded to the zoning board for reconsideration of the plaintiffs’ application in light of its ruling.

From this order, the plaintiffs bring this appeal.

The first contention raised by the plaintiffs is that the ordinance is unconstitutional since it does not contain sufficient standards to regulate the action of the defendants.

The section of the ordinance which is under attack is Article VIII. This provision lays down the following standards which are to be followed in granting or denying permits:

"8.05 Required Findings

"The zoning board shall review the particular circumstances and facts of the proposed use in the light of the following required findings:

"A. That public facilities and services such as highways, fire and police protection, drainage facilities, refuse disposal and schools are adequate for the proposed use or are capable of being adequately provided by the agencies responsible therefor.

"B. That requirements for additional public services and facilities which will be created by the proposed use will not be detrimental to the economic welfare of the community.

"C. That the proposed use, activities, processes, materials and equipment and conditions of operation will not be detrimental to the public welfare, persons or property by reason of excessive production of traffic, noise, smoke, fumes, glares or objectionable odors.

"D. That liquids and other waste of any kind will be confined, treated or purified so as to prevent pollution of air, water, and soil resources.

"E. That the proposed use at the particular location will be consistent with the intent and purposes of this ordinance.”

The ordinance obviously lays down certain standards which the zoning commission must follow. The ultimate question to be decided by this Court is whether these guidelines are sufficient to thwart the present attack.

The courts of this state have decided similar issues involving ordinances similar to the one present in the instant case. In Florka v Detroit, 369 Mich 568, 581 (1963), the Supreme Court dealt with an ordinance requirement that the zoning authority determine whether or not the use sought would be injurious to the surrounding neighborhood and whether the use would be contrary to the spirit and purpose of the ordinance.

"Such standards are not inherently vague and uncertain but obviously require the ascertainment of facts and a determination as to whether the application shall be approved in accordance therewith.

* * *

"The case is not one in which no standards were fixed. On the contrary, it is clear that the intent of the ordinance provision was that the commission should ascertain the existence or nonexistence of particular facts justifying the action taken with reference to the approval of the use specified in the application.”

In the case at bar, the ordinance does not leave unfettered discretion with the zoning authority but, on the contrary, requires them to issue a permit if the conditions are met. This is not an instance where no standards are made which the zoning authority must follow. Therefore, Osius v St. Clair Shores, 344 Mich 693 (1956), which is relied on by the plaintiffs, is not applicable to the present controversy.

Since we find that the ordinance does contain sufficient standards, we further find that Article VIII is constitutional.

The second argument made by the plaintiff is that the circuit court erred in remanding the case to the zoning board. We find this argument to be untenable and reject it for the following reasons.

The circuit court, in reviewing the board’s action, discovered that the Zoning Board of Appeals had applied an erroneous standard. The board required the appellants to prove their case beyond a reasonable doubt. The circuit court concluded that this standard applied to criminal cases and that the appropriate standard to be followed was "a preponderance of the evidence”.

In Federal Power Commission v Idaho Power Co, 344 US 17, 20; 73 S Ct 85, 87; 97 L Ed 15, 20 (1952) the Supreme Court set down the following principle to be followed when it is shown that the administrative agency made an error of law.

"But the guiding principle, violated here, is that the function of the reviewing court ends when an error of law is laid bare. At that point the matter once more goes to the commission for reconsideration.” See also Federal Communications Commission v Pottsville Broadcasting Co, 309 US 134; 60 S Ct 437; 84 L Ed 656 [1940],

In the instant case, the defendants did commit an error of law and we find that the agency should be permitted to apply the correct standard in passing upon the plaintiffs’ application.

The plaintiffs also contend that they will be unable to get a fair hearing due to the present composition of the board. However, the circuit court disqualified the two parties who had a direct interest in the case.

We regret that the plaintiffs must be put to the expense of a second hearing. However, as we stated in Bennett v Royal Oak School District, 10 Mich App 265, 269 (1968):

"A remedy is not 'inadequate’ so as to authorize judicial intervention before exhaustion of the remedy merely because it is attended with delay, expense, annoyance, or even some hardship.”

The writ of superintending control is discretionary and should not be issued when another adequate remedy is available to the petitioner. GCR 1963, 711.2; Bennett, supra. We hold that the appellants have an adequate remedy which must be exhausted before seeking the intervention of this court.

Affirmed.

Lesinski, C. J., concurred.