Abaco Finance, Inc. v. City of Birmingham ( 1981 )

Per Curiam.

Plaintiff brought this action for a writ of mandamus to compel defendants to issue a regulated use license to operate a pawnshop. The trial court issued the writ of mandamus upon a finding that defendant City of Birmingham’s regulated use ordinance as applied to plaintiff bore no reasonable relationship to the public health, safety and general welfare. Defendants appeal by right. A settled statement of facts has been filed pursuant to GCR 1963, 812.2(b) as a substitute for a transcript of proceedings in the lower court, no record having been made.

Title V, Chapter 39, § 5.101(6) of the Birmingham City Code provides:

"No regulated use shall be permitted within one thousand (1,000) feet of any lot for which a Certificate of Occupancy has been issued for another regulated use * * * >>

It appears that plaintiff was denied a regulated use license because its location would be within 1.000 feet of two establishments which were regulated uses under Title V, Chapter 39, § 5.2(2)(g) of the ordinance.

However, according to the settled statement of facts, plaintiff applied for a license on December 12, 1979, and defendants denied the application on February 4, 1980. The two existing regulated uses on which defendants rely were not issued certificates of occupancy until after plaintiffs application was denied. As noted above, the ordinance prohibited establishment of a regulated use within 1.000 feet of another lot for which a certifícate of occupancy for another regulated use has been issued. Since no certificate of occupancy had been issued at the time of plaintiffs application, § 5.101(6) of the ordinance did not require or permit denial of the license. We hold that the writ of mandamus was correctly issued.

This finding makes it unnecessary to consider the constitutional challenge raised by plaintiff and addressed by the trial court. Lisee v Secretary of State, 388 Mich 32, 40-41; 199 NW2d 188 (1972), In re Winkle, 372 Mich 292; 125 NW2d 875 (1964), app dis 379 US 645; 85 S Ct 611; 13 L Ed 2d 551 (1965).

Affirmed.