Mango v. Plymouth Township Board of Trustees ( 1971 )

V. J. Brennan, J.

This is an appeal from a grant of accelerated judgment¹ in favor of the defendants in an action to compel issuance of a building permit.

The seeds of the present controversy were sown in 1957 when Plymouth Township adopted a zoning ordinance changing plaintiffs’ property from a commercial to a residential area. The plaintiffs’ restaurant and tavern thus became a non-conforming use. As these buildings grew older, the plaintiffs desired to tear them down and construct new ones, but this would be impossible as long as the zoning ordinance remained. On April 11,1967, plaintiffs filed a mandamus action to compel the township board of trustees to rezone plaintiffs’ property to commercial and to issue them a permit to construct new buildings. The basis of the mandamus action was plaintiffs’ contention that the zoning ordinance was unreasonable and arbitrary as applied to their property and, therefore, unconstitutional. In count II of this same complaint, plaintiffs alternatively sought a writ of mandamus to compel the township trustees to issue them a permit to restore, remodel, reconstruct, or repair the buildings on the ground that, even if the ordinance was constitutional, both Michigan law and the ordinance itself allow for certain changes and repairs to be made to non-conforming uses. At the pretrial conference, the plaintiffs abandoned count II without objection. The case was then tried solely on the issues raised by count I and the constitutionality of the statute was upheld.

On November 5, 1969, plaintiffs applied for a building permit in order to make repairs and install new equipment so as to correct violations of State Health Department regulations, which led to plaintiffs’ business being closed. When they were refused the building permit, plaintiffs instituted a mandamus action essentially similar to count II (the abandoned count) in the prior proceeding.

The defendants moved for accelerated judgment on the basis that the first action was res judicata of the issues in this case. The trial court agreed and granted accelerated judgment.

The briefs and records in this case indicate that the first action was essentially an attempt by way of mandamus to challenge the constitutionality of the zoning ordinance. The present action is a suit to determine the plaintiffs’ rights to repair or change their business under the ordinance.

The test to determine the applicability of the doctrine of res judicata is whether the facts or the evidence essential to the maintenance of the two actions are identical. If they are, the doctrine of res judicata bars the subsequent action. Sheridan Drive Association v. Woodlawn Backproperty Owners Association (1970), 29 Mich App 64.

Applying this test to the case at bar, it is clear that the facts and evidence necessary to attack the constitutionality of the ordinance are different from those necessary to establish plaintiffs’ rights thereunder. Thus, the doctrine of res judicata did not bar the second action. Moreover, the defendants’ failure to object to the abandonment of count II in the first action waived any right they may have had to invoke the compulsory joinder rule as a bar to this action. GCR 1963, 203.1.

For the foregoing reason the judgment of the lower court is reversed and the cause is remanded for a trial on the merits.

Reversed and remanded.

Lesinski, C. J., concurred.

1 GCR 1963, 116.