Randall v. Meridian Township Board , 342 Mich. 605 ( 1955 )

342 Mich. 605 (1955) 70 N.W.2d 728

RANDALL
v.
MERIDIAN TOWNSHIP BOARD.

Docket No. 52, Calendar No. 46,454.

Supreme Court of Michigan.

Decided June 6, 1955.

Gregg, Glassen, Parr & Rhead (H.W. Glassen, of counsel), for plaintiffs.

Fred C. Newman, for defendant.

DETHMERS, J.

Plaintiffs, lot owners, sought to enjoin defendant from amending the township zoning ordinance to change property adjacent to theirs from agricultural to a commercial classification. The ground urged was insufficiency of the notice of public hearing on the proposed amendment before the township zoning board, required to be published under CL 1948, § 125.279 (Stat Ann 1949 Rev § 5.2963 [9]). The trial court entered a decree dismissing plaintiffs' bill of complaint for failure to exhaust their legal remedies by way of appearance and protest of the amendment before the township board and petition for referendum. Plaintiffs appeal.

Defendant says that plaintiffs have no right to injunctive relief because they have no vested or contractual right to keep the adjacent property in its present zoning classification, citing Gratton v. Conte, 364 Pa 578 (73 A2d 381). See, also, annotations commencing at 138 A.L.R. 500 for the proposition that such vested or contractual rights do not exist. It does not follow, however, that plaintiffs have no standing in a court of equity to challenge the validity of an amendment to the zoning ordinance on the grounds of arbitrariness or unreasonableness of the proposed change or irregularities in the proceedings. Possible adverse effects of the change on their property create in them such an interest in the subject matter as to entitle them to maintain an action for that purpose. Crozier v. County Commissioners of Prince George's County, 202 Md 501 (97 A2d 296, 37 ALR2d 1137), and annotations commencing at 37 ALR2d 1143.

We need not determine the controverted question of defectiveness of the notice or whether plaintiffs have exhausted their legal remedies, inasmuch as we hold the court to be without jurisdiction to grant the relief prayed.

The function of the township board in enacting a zoning ordinance is legislative. Township of Dearborn v. Dearborn Township Clerk, 334 Mich. 673. "The court may not direct or control legislative action." Board of Education of the City of Detroit v. Superintendent of Public Instruction, 319 Mich. 436, 454. "Injunctive or consequential relief to compel action by the legislature may not be granted by the court." Id. (Syllabus.) To same effect, see City of Jackson v. Commissioner of Revenue, 316 Mich. 694.

"While it is within the province of the courts to pass upon the validity of statutes and ordinances, courts may not legislate nor undertake to compel legislative bodies to do so one way or another. Attorney General, ex rel. Graves, v. Mayor and Common Council of City of Adrian, 164 Mich. 143; School District of City of Pontiac v. City of Pontiac, 262 Mich. 338; City of Jackson v. Commissioner of Revenue, 316 Mich. 694. The court erred in seeking to compel the defendant mayor and city commission members to amend the ordinance." Northwood Properties Co. v. Royal Oak City Inspector, 325 Mich. 419, 423, 424.

See, also, Tel-Craft Civic Ass'n v. City of Detroit, 337 Mich. 326.

Plaintiffs have an interest which would entitle them to maintain an action to challenge the validity of the amendment once it is adopted or to seek to enjoin violation of provisions of the zoning ordinance in effect prior to the amendment, and the courts have jurisdiction to entertain such actions; but they have none to enjoin the legislative action of adopting it. See, also, State, ex rel. Rose, v. Superior Court of Milwaukee County, 105 Wis 651 (81 N.W. 1046, 48 LRA 819).

Decree affirmed, with costs to defendant.

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