Robyns v. City of Dearborn , 341 Mich. 495 ( 1954 )

341 Mich. 495 (1954) 67 N.W.2d 718

ROBYNS
v.
CITY OF DEARBORN.

Docket No. 56, Calendar No. 46,289.

Supreme Court of Michigan.

Decided December 29, 1954.

John J. Fish, for plaintiffs.

Dale H. Fillmore, Corporation Counsel, and B. Ward Smith, Frederick G. Weideman and James A. Broderick, Assistants Corporation Counsel, for defendant.

DETHMERS, J.

Defendant appeals from decree enjoining enforcement of a zoning ordinance against plaintiffs' property because unreasonable and confiscatory as applied thereto.

Each of plaintiffs owns 1 of 8 lots on the south side of Ford road in the city of Dearborn across from the lots in Dearborn township involved in Ritenour v. Township of Dearborn, 326 Mich. 242. Seven of the lots have a width of 20 feet and one 24.44 feet, fronting on Ford road, with depths varying from 100 to 110 feet. Some of plaintiffs purchased their lots prior to, and some after, the adoption of the original ordinance which zoned the lots for residence C use and some bought after adoption of an amendment changing the zoning to the present residence A classification. Original building restrictions, since expired, limited use of some of the lots to business purposes and others to business or residential. Lots across the road in the township have been zoned light commercial since our holding in Ritenour and many are so used. Lots on the south side of Ford road, immediately west of the lots here involved, are zoned business B and those to the east, running for a considerable distance, are vacant. The ordinance in question provides "there shall be a minimum of 10 feet between residences."

Plaintiffs prayed that the ordinance be decreed to be unconstitutional and void as applied to their lots, that they be decreed to be business property, that defendant be enjoined from enforcing the ordinance with respect thereto, and that a building permit for nonresidential purposes be required to issue as relates to 1 of the lots.

Defendant says the bill is multifarious. This it predicates in part on the fact that some plaintiffs acquired lots before, and some after, the ordinance and its subsequent amendment, suggesting that, on the authority of Hammond v. Bloomfield Hills Building Inspector, 331 Mich. 551, the rights of those who purchased before the ordinance differ, for that reason, from those who bought thereafter. Hammond does not so hold. Provisions of a zoning ordinance void as relates to a lot because unreasonable and confiscatory are not made valid with respect thereto by the transfer of title from the owner to another. Faucher v. Grosse Ile Township Building Inspector, 321 Mich. 193. CL 1948, § 608.1 (Stat Ann § 27.591), permits joining a number of plaintiffs if sufficient grounds appear for uniting the causes of action in order to promote the convenient administration of justice. That is the consideration warranting joinder here, particularly because defendant is not thereby prejudiced. Gilmer v. Miller, 319 Mich. 136. The fact that 1 plaintiff seeks, in addition to injunctive relief, a provision in the decree requiring issuance to him of a building permit, which might be accomplished by mandamus, does not render the bill multifarious inasmuch as equity, having acquired jurisdiction to restrain defendant as prayed, may retain it to grant complete relief and finally dispose of the controversy even though some of the questions propounded could have been raised and some of the relief sought could have been obtained in a law action. City of Ecorse v. Peoples Community Hospital Authority, 336 Mich. 490.

Defendant contends that plaintiffs had an adequate remedy at law for testing the validity of the ordinance, namely, mandamus to compel issuing of building permits of a character prohibited by the ordinance. As relates to 7 of the plaintiffs, it does not appear that they were ready to build or desired such permits. From the pleadings it does appear that defendant was about to institute condemnation proceedings against the lots in question and others for park and green-belt purposes. Defendant may not, through the device of zoning for a use to which property is not suited, depress its value preliminary to condemning it for public purpose. Grand Trunk Western R. Co. v. City of Detroit, 326 Mich. 387; Long v. City of Highland Park, 329 Mich. 146. Under such circumstances, equity alone could afford plaintiffs the necessary remedy. Resort was had to equity for the purpose of having zoning ordinances declared invalid and their enforcement enjoined in Ritenour v. Township of Dearborn, supra; Elizabeth Lake Estates v. Township of Waterford, 317 Mich. 359; Faucher v. Grosse Ile Township Building Inspector, supra; Long v. City of Highland Park, supra; Hitchman v. Township of Oakland, 329 Mich. 331.

Is the ordinance unreasonable and confiscatory as applied to plaintiffs' lots? It limits use to residences which, under its provisions, cannot be constructed on these lots at a width of more than 10 feet, comparable, in this respect, to the situation in Ritenour. Other requirements of the ordinance with respect to area, minimum width of side yards, et cetera, cannot be complied with so as to permit construction of usable residences. Defendant's answer admits, in effect, plaintiffs' charge, that the provisions of the ordinance make use of the lots for residential purposes physically impossible, by alleging, in response thereto, that plaintiffs could comply by combining 2 or more lots for the building of residences thereon. We think the decision in Ritenour controlling here. Distinctions between that case and this in the respect that there the plaintiff acquired the property prior to enactment of the ordinance, that the property there involved had once been zoned for business purposes, and that the action there was brought by plaintiff within a year after adoption of the ordinance while here it was not brought until 22 years later, do not serve to alter the fact that the provisions of the ordinance would render plaintiffs' property here almost worthless. That the city may not do. Long v. City of Highland Park, supra. Transfer of title, or the lapse of 22 years, after adoption of the ordinance does not relieve the ordinance of its unreasonable and confiscatory character. It is invalid as applied to plaintiffs' lots.

Finally, defendant urges that plaintiffs have no standing in a court of equity because they did not first apply to the appeal board created under the ordinance. This point was not raised below nor in the statement of reasons and grounds for appeal and, accordingly, is not entitled to consideration here. At all events, it is without merit. The appeal board could not determine the validity of the ordinance nor afford plaintiffs the necessary relief under the circumstances of this case when building permits were not desired but redress against measures likely to depress value prior to condemnation proceedings was sought. Austin v. Older, 278 Mich. 518.

Affirmed, with costs to plaintiffs.

BUTZEL, C.J., and CARR, BUSHNELL, SHARPE, BOYLES, REID, and KELLY, JJ., concurred.