Hessee Realty, Inc. v. City of Ann Arbor , 61 Mich. App. 319 ( 1975 )

61 Mich. App. 319 (1975) 232 N.W.2d 695

HESSEE REALTY, INC.
v.
CITY OF ANN ARBOR

Docket No. 19849.

Michigan Court of Appeals.

Decided May 28, 1975.

Conlin, Conlin, McKenney & Meader and Bromberg, Robinson, Shapero & Cohn, for plaintiff.

Edwin L. Pear, City Attorney, for defendants.

Dobson, Griffin & Barense, P.C., for John Dwyer.

Before QUINN, P.J., and BASHARA and N.J. KAUFMAN, JJ.

N.J. KAUFMAN, J.

Plaintiff appeals from a denial of its request for mandamus by the Washtenaw County Circuit Court. Plaintiff had requested the trial court to order defendant's city council to give plaintiff the site plan approval and building permits requisite to developing a parcel of land. The planned development was in conformity with the land use permitted by defendant's zoning ordinance.

Plaintiff purchased the subject land, 41.1 acres within the City of Ann Arbor, in June, 1972.^[1] At that time and throughout the litigation the land was zoned "R4B", multi-family residential, and plaintiff intended to construct apartment units on the property. In November, 1972, plaintiff, pursuant to the requirements of defendant's subdivision and land use control ordinance, submitted a site plan to the Ann Arbor Planning Commission. In accordance with established procedures, the commission referred the site plan to ten different city departments for their review. A number of the departments suggested changes in the plan, and plaintiff agreed to modify the plan in compliance with the suggestions. At a January 9, 1973, public meeting, the planning commission considered plaintiff's construction plans and, after finding that plaintiff had made the requested revisions, approved the site plan and recommended the issuance of a building permit.

The plan, with the planning commission's approval, was then submitted to the defendant's city council. The council voted to return the site plan to the planning commission so that the board of education might be asked to analyze the potential impact of the plan on the local schools. The board refused to give an opinion, claiming that it lacked jurisdiction to consider the propriety of new building developments and that plaintiff's plans were too indefinite to be analyzed as to school impact. On February 27, 1973, the planning commission reconsidered plaintiff's plan, which was the same one it had earlier approved, and this time, rejected it. The commission gave no reasons for its change of mind. The city council then held a March 5 public meeting to reconsider plaintiff's plan. Several Ann Arbor residents spoke against the plan. The council, alluding to possible traffic problems, voted unanimously to reject the plan and to deny the issuance of a building permit.

Plaintiff then instituted the instant action. It asked the circuit court to grant a writ of mandamus, ordering defendant's city council to approve the site plan and issue a building permit. The court refused to grant the requested writ.

To present a proper request for mandamus,

"plaintiffs must have a clear legal right to performance of the specific duty sought to be compelled; defendants must have the clear legal duty to perform such act; and it must be a ministerial act, one ``where the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment.' 38 CJ, p 598." Toan v McGinn, 271 Mich. 28, 34; 260 N.W. 108 (1935). See also Kortering v Muskegon, 41 Mich. App. 153; 199 NW2d 660 (1972).

In denying plaintiff's request, the trial court held that defendant's subdivision and land use control ordinance gives the city council discretion in deciding whether to approve or reject the planning commission's recommendations concerning site plans and building permits. The court stated further that, while "[t]he site plan ordinance does not * * * grant discretion to any city official to improperly withhold approval of a site plan", the city council did not act arbitrarily in denying plaintiff's site plan.

On appeal, plaintiff claims that because plaintiff had complied with all applicable statutory requirements, defendant had only a ministerial function to perform, the granting of a building permit. Alternatively, plaintiff contends that, if defendant's city council had discretion, its decision to deny the building permit was an abuse of that discretion.

Thus, we must examine defendant's subdivision and land use control ordinance to determine if defendant's city council has discretion in approving site plans and granting building permits and, if it does, to ascertain the breadth of that discretion. Our reading of the ordinance supports the trial court's finding that the city council has discretion in this area. The ordinance mandates the city council to examine the recommendations of the planning commission concerning proposed site plans and be the final arbiter of the acceptability of such plans. The ordinance does not bind the city council to the recommendations of the planning commission but makes the council an independent examiner. It requires that the site plan shall first be submitted to the planning commission which shall consult relevant city agencies, make recommendations and finally approve or reject the plan. Then, the

"Commission's recommendations and all related reports shall be submitted to Council for its consideration; the Council shall, after holding public hearings on said site plan, take final action * * *." Ann Arbor Code, Title V, ch 57, § 5:124(2)(B) (Emphasis supplied.)

The ordinance does not, however, provide a clear indication as to the breadth of defendant's discretion. At one extreme the city council might be given broad "legislative" powers to review the proposed site plan de novo, independent of planning commission findings, and be able to reject a plan which complies with all the statutory standards because it deems the plan to be contrary to its conception of public welfare. At the narrow extreme, the council would be limited, much as an "administrative" appellate board, to the job of reviewing the planning commission's deliberations and recommendations to make sure that they are consistent with applicable standards.

If we hold that city council is a "legislative" body for these purposes, a view supported by defendant and by the trial court, we would have to accord it broad powers and uphold all exercises of that power shown to be "reasonable". Kropf v Sterling Heights, 391 Mich. 139, 161-162; 215 NW2d 179 (1974). If we, as plaintiff urges, deem the council an administrative body for these purposes, we must determine whether its decision is based upon "competent, material and substantial evidence on the whole record". Const 1963, art 6, § 28; Keating International Corp v Orion Township, 51 Mich. App. 122; 214 NW2d 551 (1974).^[2]

We find that the requirements of the ordinance, read in their statutory context, give defendant's council only narrow "administrative" powers of review. Laws regulating land use must be considered in the context of what is often a conflict between two significant rights: (1) the right of a landowner to utilize his land as he desires and (2) the right of the state, through its political subdivisions, to guarantee that an individual's land use is consistent with the public good. See e.g., Anderson, American Law of Zoning, § 1.11, p 20. Municipalities are given great breadth in establishing general land use patterns through their power to zone. The overall zoning map and individual zoning decisions are clothed with a presumption of validity and will be upheld if at all reasonable. Kropf v Sterling Heights, supra. To preserve the property owner's right, the municipality's ability to regulate specific uses which the zoning scheme allows, through site plan approval and building permit issuance, must be carefully circumscribed by specific, published standards.

The ordinance, § 5:124(4), states as a requirement for site plan approval:

"Site plans shall not be approved by the Commission unless said site plan contains acceptable provisions for all improvements required by statute, ordinance or regulation." (Emphasis supplied.)

Defendant's ordinance, § 5:120, states as one of its purposes, the desire "to specify certain conditions which must be met by [property] owners". (Emphasis supplied.) The planning commission is empowered to "establish standards concerning, but not limited to, streets, drainage, open spaces, landscaping, and utilities". (§ 5:122[3].) The commission's duty is apparently limited to a determination that site plans meet such standards and, through a review by city agencies, comply with the relevant, specific "legal requirements". (§ 5:124[2][A].)

Thus, once the requirements of "statute, ordinance and regulation" have been satisfied, the commission must approve the site plan. We find the same limitations to apply to the city council. Its review is similar to that of an appellate court. The council can only review the site plan to determine if the planning commission has correctly applied the relevant standards and the site plan satisfies those standards.

We find that defendant's review of plaintiff's site plan and building permit request was improper, and defendant's denial represented an abuse of discretion. The record shows that the denial was not supported by competent and material evidence. Neither the planning commission nor the city council gave written reasons for their decisions as the ordinance requires. We can find no legitimate reasons in the record. Some concern was expressed at the council meeting over the impact which plaintiff's development would create on traffic at nearby schools. No specific evidence was presented to support this concern. Indeed, defendant's own department of traffic engineering and transportation had already approved the site plan. At trial, defendant cited an alleged failure by plaintiff to file a traffic impact study and an area plan. As the trial court found, however, these requirements had been expressly waived by defendant.

The best indication of defendant's failure to base its decision on legitimate evidence was the statement by council member Faber shortly before the vote which rejected the plan was taken:

"Yes, I presume there are reasons. I guess the strangest [sic] case the attorney would have is to play the tape of this meeting. We are supposed to be acting on sound planning considerations. Quite obviously we are just running around picking at straws and seeing a piece of light there and seeing a piece of dark there. * * * Of course, I'm going to ask that the attorney and planning staff try to come up with something. * * * Finally, I will vote against this and I will move that the attorney and the planning director tell us why we voted no because obviously we don't know yet and see what he can do with that in the court * * *."

Having found that plaintiff had fully complied with the ordinance requirements and that defendant's denial of plaintiff's site plan and building permit was an abuse of discretion, we reverse the trial court and order defendant to approve plaintiff's site plan and issue to plaintiff the requested building permit.

Reversed. Costs to plaintiff.

NOTES

[1] Plaintiff was a partner in a partnership known as Casee Development Company. It was actually Casee Development Company that entered into the purchase agreement, but Casee assigned its interest in the property to plaintiff in December of 1972.

[2] See concurrence by LEVIN, J. in Kropf v Sterling Heights, 391 Mich. 139, 164-174; 215 NW2d 179 (1974), and West v City of Portage, 392 Mich. 458; 221 NW2d 303 (1974), for distinction between "legislative" and "administrative" acts: "When action is based on general grounds, the decision is ordinarily legislative. When it is based on individual grounds, it is ordinarily administrative." Kropf at p 166. See also Palmer v Township of Superior, 60 Mich. App. 664; 233 NW2d 14 (1975).