Hagelstein v. City of Troy , 93 Mich. App. 677 ( 1979 )

93 Mich. App. 677 (1979) 287 N.W.2d 7

HAGELSTEIN
v.
CITY OF TROY

Docket No. 78-1877.

Michigan Court of Appeals.

Decided November 19, 1979.

Ginn, Kramer & Jacobson, P.C., for plaintiffs.

William S. Wolanin, City Attorney, for defendant.

Before: BASHARA, P.J., and V.J. BRENNAN and J.C. DANER,^[*] JJ.

J.C. DANER, J.

In this case, both parties have appealed from the opinion and judgment of the trial court. After a review of the record and the trial court's opinion, we are persuaded that the case must be remanded for further consideration in light of Ed Zaagman, Inc v City of Kentwood, 406 Mich. 137, 182-183; 277 NW2d 475 (1979).

We concur with Judge Ziem's opinion that, as applied to the plaintiffs' land, the R1-B zoning by the defendant city is unconstitutional. We concur with his finding that there may be other uses besides that proposed by the plaintiffs which would be reasonable.

On remand, the matter is ordered to be resubmitted to the Troy city council for enactment of an amendatory ordinance which will allow an appropriate and constitutional use for the plaintiffs' land within 60 days. If the defendant city comes back to the circuit court with a mutually acceptable ordinance, one agreed to by both the plaintiffs and defendant, the circuit court shall then enter an order for implementation of that ordinance forthwith.

However, if, after remand to the city council, the defendant city submits an amendatory ordinance which is not acceptable to the plaintiffs, but does embody a fair "midsatisfactory use" as determined by the trial judge after a meticulous balancing of all equitable considerations, then the trial court shall order implementation of such amendatory ordinance as proposed by the defendant city forthwith.

If the city's proposed use in an amendatory ordinance does not satisfy the "midsatisfactory use" or equitable doctrine announced in Zaagman v City of Kentwood, supra, and the plaintiffs submit a proposed use which in the opinion of the trial court does do equity, then the trial court, after balancing the equities, must order the implementation of the plaintiffs' proposed "midsatisfactory use" forthwith.

If, after remand to the defendant city council, neither party can agree upon the other's amendatory ordinance or proposed use and the trial court thereafter determines that neither meets the equitable "midsatisfactory use" required by Zaagman, supra, then the trial court must order an appropriate use after a hearing in which both plaintiffs and defendant, as well as other affected parties, are adequately represented, requiring additional proofs to make an equitable determination as required by Zaagman, supra.

Finally, if the defendant city fails to submit an adopted amendatory ordinance to the trial judge for consideration within 60 days of this Court's opinion and order, then the trial court is directed to conduct a hearing forthwith, supplemented by additional proofs which may be tendered by all affected parties, in the trial court's discretion, and implement thereafter the most equitable or "midsatisfactory use" to be made of the plaintiffs' parcel.

Remanded.

NOTES

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