Jamens v. Avon Township , 78 Mich. App. 289 ( 1977 )

78 Mich. App. 289 (1977) 259 N.W.2d 349

JAMENS
v.
AVON TOWNSHIP

Docket No. 77-1959.

Michigan Court of Appeals.

Decided July 26, 1977.

Alspector, Sosin, Mittenthal & Barson, P.C., for plaintiffs.

Patterson, Patterson, Whitfield, Manikoff & White (by Lawrence R. Ternan), for defendant.

Before: R.M. MAHER, P.J., and D.C. RILEY and R.M. RYAN,^[*] JJ.

ON REMAND

PER CURIAM:

A recent change in the law of zoning brings the present case for our reappraisal. In Jamens v Avon Twp, 71 Mich. App. 70; 246 NW2d 410 (1976), this panel, applying then controlling standards, affirmed a finding of the lower court holding defendant's residential zoning classification unconstitutional as applied to plaintiffs' property. We remanded the case, however, to permit the lower court an opportunity to particularize its factual findings under the Environmental Protection Act (EPA), MCLA 691.1201 et seq.; MSA 14.528(201) et seq. and GCR 1963, 517.1. Prior to the remand, our Supreme Court issued Kirk v Tyrone Twp, 398 Mich. 429; 247 NW2d 848 (1976), and later ordered us to reconsider Jamens in light of Kirk. 399 Mich. 894 (Order of April 29, 1977). We comply.

Kirk resurrected a line of cases culminating in Kropf v Sterling Heights, 391 Mich. 139; 215 NW2d 179 (1974). Interpreting Kropf and its forebears, the Court in Kirk summarized two principles and four rules applicable in zoning disputes:

"The principles and tests to use to determine whether the present zoning of plaintiffs' property is valid [were] detailed in Kropf.

"The important principles require that for an ordinance to be successfully challenged plaintiffs prove:

"``[F]irst, that there is no reasonable governmental interest being advanced by the present zoning classification itself * * * or

"``[S]econdly, that an ordinance may be unreasonable because of the purely arbitrary, capricious and unfounded exclusion of other types of legitimate land use from the area in question.' 391 Mich. 139, 158.

"The four rules for applying these principles were also outlined in Kropf. They are:

"1. ``"[T]he ordinance comes to us clothed with every presumption of validity."' 391 Mich. 139, 162, quoting from Brae Burn, Inc v Bloomfield Hills, 350 Mich. 425; 86 NW2d 166 (1957).

"2. ``"[I]t is the burden of the party attacking to prove affirmatively that the ordinance is an arbitrary and unreasonable restriction upon the owner's use of his property * * *. It must appear that the clause attacked is an arbitrary fiat, a whimsical ipse dixit, and that there is no room for a legitimate difference of opinion concerning its reasonableness."' 391 Mich. 139, 162, quoting Brae Burn, Inc.

"3. ``Michigan has adopted the view that to sustain an attack on a zoning ordinance, an aggrieved property owner must show that if the ordinance is enforced the consequent restrictions on his property preclude its use for any purposes to which it is reasonably adapted.' 391 Mich. 139, 162-163.

"4. ``"This Court, however, is inclined to give considerable weight to the findings of the trial judge in equity cases."' 391 Mich. 139, 163, quoting Christine Building Co v City of Troy, 367 Mich. 508, 518; 116 NW2d 816 (1962)." 398 Mich at 439-440.

Having applied these standards, and having fulfilled our duty of de novo review, Biske v City of Troy, 381 Mich. 611; 166 NW2d 453 (1969), Kropf, supra, at 152, we hold that plaintiffs have failed to satisfy the burden of proving "that if the ordinance is enforced the consequent restrictions on [their] property preclude its use for any purposes to which it is reasonably adapted".

Our reading of the record suggests that defendant presented three feasible alternatives for residential construction on the parcel and that plaintiffs failed to show by preponderating evidence that significant dumping covered more than the northeastern six acres of the property.

While we accord due weight to the trial judge's personal view of the property, we note that his visit could only take account of superficial dumping and that the nontestimonial evidence — soil bores performed in 1969 — found refuse in only three of eight samples tested. Unlike the trial court, we cannot presume the property is checkered with refuse where the bulk of the evidence confined the dumping to the northeastern quadrant. Nor can we relieve plaintiffs of the burden of proving their case.

Accordingly, the lower court is directed to dissolve its injunction and dismiss plaintiffs' suit. Reversed and remanded for proceedings consonant with this opinion.

Costs to defendant.

Judge RYAN did not participate on this remand.

NOTES

[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

On Remand