City of East Lansing v. Smith ( 1936 )

I think the ordinance void in the particular here involved.

It may be that defendants should have sought relief by writ of mandamus but, be that as it may, we have the question of the validity of the ordinance in the case. The ordinance recognizes that a gasoline station on the property will not offend against the public health, safety, morals or general welfare in that it provides for a permit to so use the property if such use is consented to by a percentage of neighboring property owners. Act No. 207, Pub. Acts 1921 (1 Comp. Laws 1929, §§ 2633-2641) affords no warrant for this requirement in the ordinance and if it did it would be void.

An owner's use of his property for a purpose not injurious to public health, safety, morals or general welfare cannot be subjected to the will of neighboring property owners.

The learned circuit judge, in an opinion sustaining the ordinance requirement of the written consent of neighboring property owners, cited City of Spokane v. Camp, 50 Wn. 554 (97 P. 770, 126 Am. St. Rep. 913). The Washington court, inState, ex rel. Seattle Title Trust Co., v. Roberge, 144 Wn. 74 (256 P. 781), also cited that case as authority for holding such a requirement valid, but that holding was reversed upon review in Washington, ex rel. Seattle Title Trust Co., v.Roberge, 278 U.S. 116 (49 Sup. Ct. 50, 86 A.L.R. 654).

We quote the following applicable language from the opinion of the supreme court of the United States:

"The facts disclosed by the record make it clear that the exclusion of the new home from the first district is not indispensable to the general zoning plan. And there is no legislative determination that the proposed building and use would be inconsistent with public health, safety, morals or general welfare. The enactment itself plainly implies the contrary. The grant of permission for such building and use, although purporting to be subject to such consents, shows that the legislative body found that the construction and maintenance of the new home was in harmony with the public interest and with the general scope and plan of the zoning ordinance. The section purports to give the owners of less than one-half the land within 400 feet of the proposed building authority — uncontrolled by any standard or rule prescribed by legislative action — to prevent the trustee from using its land for the proposed home. The superintendent is bound by the decision or inaction of such owners. There is no provision for review under the ordinance; their failure to give consent is final. They are not bound by any official duty, but are free to withhold consent for selfish reasons or arbitrarily and may subject the trustee to their will or caprice. Yick Wo v. Hopkins, 118 U.S. 356, 366, 368 (6 Sup. Ct. 1064). The delegation of power so attempted is repugnant to the due process clause of the fourteenth amendment. Eubank v.City of Richmond, 226 U.S. 137, 143 (33 Sup. Ct. 76, 42 L.R.A. [N. S.] 1123, Ann. Cas. 1914 B, 192); Browning v.Hooper, 269 U.S. 396 (46 Sup. Ct. 141)."

It must be remembered that the ordinance does not establish a zoning district excluding the proposed gasoline station, but authorizes a permit to so construct the building if 60 per cent. of neighboring property holders consent thereto.

I think the bill should be dismissed, with costs to defendants.

BUTZEL and BUSHNELL, JJ., concurred with WIEST, J. POTTER, J., took no part in this decision.