Senefsky v. City of Huntington Woods

The first question to be considered in this appeal is whether the powers granted to cities and villages under Act No. 207, Pub. Acts 1921, as amended, 1 Comp. Laws 1929, § 2633 et seq. (Stat. Ann. § 5.2931 et seq.), entitled:

"An act to provide for the establishment in cities and villages of districts or zones within which the use of land and structures, the height, the area, the size and location of buildings may be regulated by ordinance, and within which districts regulations shall be established for the light and ventilation of such buildings, and within which districts or zones the density of population may be regulated by ordinance; to provide for the administering of this act; to provide for amendments, supplements or changes hereto; to provide for conflict with the State housing code or other acts, ordinances or regulations; to provide penalties for the violation of the terms hereof and to give immediate effect hereto,"

includes the power to impose, by ordinance, restrictions which regulate the height and size of dwelling houses by specifying minimum floor areas. Section 2 of the act reads in part:

"The legislative body of cities and villages may regulate and limit the height and bulk of buildings hereafter erected, and regulate and determine the area of yards, courts, and other open spaces, and for such purposes divide any city or village into districts of such number, shape and area as may be deemed best suited to carry out the purposes of this section."

This section concludes with the statement that such regulations for the promotion of the public health, safety and general welfare are to be made "with reasonable consideration, among other things to the character of the district, its peculiar suitability for particular uses, the conservation of propertyvalues and the general trend and character of building and population development." (Italics ours.)

Plaintiff Joseph J. Senefsky is the contract purchaser of a lot in Bronx subdivision of the city of Huntington Woods. In 1941 he made application to the superintendent of public works of the city for a building permit to construct a residence on his lot, in accordance with plans which provided for a usable floor area of 980 square feet at an estimated cost of $6,200.

Defendant city has a zoning ordinance which, among other provisions, contained therein, requires that:

"All dwelling houses hereafter erected or altered in this zone shall provide for each family not less than 1,300 square feet of usable floor area of which not less than 900 square feet of such usable floor area shall be finished prior to occupancy."

Because of this ordinance, plaintiff was refused a building permit, his plans failing to show 1,300 square feet of usable floor area as defined therein. Plaintiff seasonably filed a petition for writ of mandamus in the circuit court, in which he alleged that the provision of the ordinance requiring a minimum of 1,300 square feet of usable floor area was an unwarranted exercise of the police power, was unreasonable, arbitrary and discriminatory, and that the ordinance was not based "upon a plan fairly designed to accomplish the statutory purposes of public health, safety and general welfare.

Based on the 1940 census the city of Huntington Woods has a present estimated population of 2,400. The subdivision in question contains 1,100 individual residential and business lots. At the present time there are 378 houses in this subdivision, with 465 of the lots remaining for residential purposes. Of the houses erected in this subdivision, before the ordinance was enacted, 70.4 per cent. of the houses are over or within 100 square feet of the minimum area requirement. Of the 172 houses built subsequent to the passage of the zoning ordinance, 150 have more than the required minimum floor area and 14 are within 25 square feet of that area. Thus, at the present time 83.3 per cent. of all the houses in the subdivision are over or within 100 square feet of the minimum requirement of the ordinance.

The trial judge held that the minimum area requirement was reasonable and proper, and he found as a matter of fact that there was a direct relationship between usable floor space and public health, and that the ordinance followed the legislative criterion hereinbefore quoted. The trial judge said in part that —

"to place a lesser floor space restriction on houses in the city of Huntington Woods, which in turn would mean the building of smaller homes in said subdivision within said city, would amount to a total disregard:

"a. To the character of the district;

"b. Its peculiar suitability for particular uses;

"c. The conservation of property values;

"d. And the general trend and character of building and population development in the community involved."

Plaintiff argues that the language of the zoning statute which empowers cities and villages to "regulate and limit the height and bulk of buildings hereafter erected" was not an authorization by the State legislature to the legislative bodies of cities and villages enabling the latter to specify minimum floor areas. He quotes from Brown v. Board of Appeals of City of Springfield,327 Ill. 644 (159 N.E. 225, 56 A.L.R. 242), where the court said that the word "`limit' * * * must be construed to mean `abridge, confine and restrict,' and when used in connection with the word `height,' it seems clear that the only power given by the statute to the city council is that of fixing a height above which a building shall not be erected. * * * We are of the opinion that the words `regulate' and `limit' cannot be construed as power to compel the erection of a building of any specified height."

Though the title to an act is not a part thereof, it may be resorted to for the purpose of interpreting the act in doubtful cases; and the words therein are not generally construed in a technical sense, but as having been used in their ordinary meaning. People v. Powell, 280 Mich. 699, 703 (111 A.L.R. 721).

The title of Act No. 207, Pub. Acts 1921, as amended, 1 Comp. Laws 1929, § 2633 et seq. (Stat. Ann. § 5.2931 et seq.), provides in part that the "size * * * of buildings may be regulated by ordinance." There is no ambiguity in this language. Under the term "regulate," very broad powers may be exercised.Westgate v. Township of Adrian, 161 Mich. 333. The power to regulate size necessarily implies authority to fix a minimum as well as a maximum. The power to regulate may, in proper cases, take the character of prohibition. United States v. Hill,248 U.S. 420, 425 (39 Sup. Ct. 143, 63 L.Ed. 337). See, also,Cronin v. People, 82 N.Y. 318 (37 Am. Rep. 564).

Plaintiff further contends that the ordinance as applied to the facts in the instant case is both arbitrary and unreasonable.

This question of minimum floor area is one of first impression in this State. At the outset, we are confronted with the elementary propositions that every intendment is in favor of the constitutionality of an ordinance and that the plaintiff must bear the burden of showing that the one in question has no real or substantial relation to public health, morals, safety or general welfare. As stated in Austin v. Older, 283 Mich. 667,674:

"Zoning ordinances are constitutional in principle as a valid exercise of the police power. * * * Furthermore, the power to zone is not limited to a protection of the status quo, and the city may validly plan its future development."

See, also, authorities therein cited.

Under settled rule of construction, zoning ordinances must be sustained if their reasonableness is debatable. Village ofEuclid v. Ambler Realty Co., 272 U.S. 365 (47 Sup. Ct. 114,71 L.Ed. 303, 54 A.L.R. 1016). Our court said in Cady v. City ofDetroit, 289 Mich. 499, 514:

"Ordinances having for their purpose regulated municipal development, the security of home life, the preservation of a favorable environment in which to rear children, the protection of morals and health, the safeguarding of the economic structure upon which the public good depends, the stabilization of the use and value of property, the attraction of a desirable citizenship and fostering its permanency are within the proper ambit of the police power. Changes in such regulations must be sought through the ballot or the legislative branch."

The legislative authorities in the city of Huntington Woods are better acquainted with the necessities of their city than we are. They are also better able to determine whether the ordinance in question will accomplish the desired result of stabilizing and preserving property values. A clear and comprehensive statement of these propositions may be found in West Brothers Brick Co. v. City of Alexandria, 169 Va. 271 (192 S.E. 881).

Each zoning case stands by itself and the reasonableness of the zoning must be judged by the circumstances of the case. But in the last analysis, we must consider whether the particular provision of the zoning law advances the public health, safety, and general welfare of the people. Pere Marquette R. Co. v.Muskegon Township Board, 298 Mich. 31.

Testimony was produced indicating that the erection of dwelling houses with only 900 square feet of usable floor area was permitted in certain instances provided the owner would add an additional 400 square feet of nonusable space as an attic. It is apparent that the city in effect required the erection of dwellings within certain limitations of value without using a money value standard. One of the city's witnesses, who qualified as a zoning expert, testified in substance that the ordinance in question was designed to stabilize property values and protect the investments of the home owners of the community.

Zoning restrictions are a fairly new development in the theory of governmental regulation, and yet no one would seriously dispute today the power of government to impose restrictions upon the use of property in the promotion of public welfare, convenience, and general prosperity any more than they would have formerly disputed the power to impose such restrictions in the interest of the public health, morals and safety.

In the Cady Case, supra, this theory was developed and the court quoted extensively from statements along this line inState, ex rel. Carter, v. Harper, 182 Wis. 148 (196 N.W. 451, 33 A.L.R. 269), and adopted the following from Noble State Bank v. Haskell, 219 U.S. 104, 111 (31 Sup. Ct. 186, 55 L.Ed. 112, 32 L.R.A. [N.S.] 1062, Ann. Cas. 1912 A, 487).

"`It may be said in a general way that the police power extends to all the great public needs. * * * It may be put forth in aid in what is sanctioned by usage, or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public welfare.'"

It is the purpose of the ordinance to stabilize and conserve property values, and this purpose is within the ambit of the police power. Cady v. City of Detroit, supra. The sizes of the houses already erected in the subdivision in question are part of the circumstances of the case and furnish some basis for the test of reasonableness. See Pere Marquette R. Co. v.Muskegon Township Board, supra.

We cannot say that the requirement of 1,300 square feet of usable floor space is clearly unreasonable, because, under the circumstances, it is at least a debatable question. Whether or not the means adopted by defendant city will accomplish the desired end is also debatable. That being the case, we cannot substitute our judgment for that of the legislative body which is charged with the responsibility of deciding that question.Village of Euclid v. Ambler Realty Co., supra.

The order dismissing the petition for a writ of mandamus should be affirmed, with costs to appellee.

BUTZEL, J., concurred with BUSHNELL, J.