DocketNumber: Calendar No. 44,320.
Citation Numbers: 39 N.W.2d 25, 325 Mich. 419
Judges: DETHMERS, J.
Filed Date: 9/8/1949
Status: Precedential
Modified Date: 1/12/2023
Defendants appeal from a judgment ordering issuance of a peremptory writ of mandamus directing the defendant city inspector to issue plaintiff a building permit for erection of multiple dwellings on certain property owned by plaintiff in the city of Royal Oak and directing the defendant city, mayor and city commissioners to amend the city's zoning ordinance by changing said property from a residence "A" classification, in which single residences only are permitted, to a residence "B" classification, permitting erection of multiple dwellings thereon.
The trial court's action was predicated on a finding that the provisions of the ordinance classifying plaintiff's property bear no relation to public health, safety or general welfare, are unreasonable and therefore deprive plaintiff of property without due process of law in violation of the 14th amendment to the Constitution of the United States and Michigan Constitution 1908, art 2, § 16, citing Senefsky v. City of Huntington Woods,
Testimony for the defense established that the property in question fronts on Vinsetta Boulevard, one of the best streets in Royal Oak, wide and divided by a beautiful, well-kept parkway, and that the area is one of the choicest and nicest residential districts in the city; that lots in the area are all restricted to single residences; that no violations of the zoning ordinances or restrictions have occurred and that all dwellings built in the area are single residences. In our view plaintiff did not establish by competent evidence that the ordinance's classification of plaintiff's property is unreasonable or bears no relation to public health, safety or the general welfare.
In the court's opinion in Village of Euclid v. Ambler RealtyCo.,
"The improvement of residential districts by the exclusion of nonconforming businesses has a reasonable relationship to the public health, welfare and safety."
The burden was not on the defendants to establish the relationship, but upon the plaintiff to show the *Page 423
lack of it. Austin v. Older, supra; People v. Scrafano,
In City of Pleasant Ridge v. Cooper, supra, we held unreasonable and confiscatory a classification of property as residential when the record disclosed that the area was unsuited for that purpose. Such is not the case before us. No more in point is the Senefsky Case, supra, in which we held a zoning ordinance which "prohibits the erection of houses having less than 1,300 square feet of usable floor area" possibly reasonable "under proper circumstances" but not so "under the circumstances disclosed by this record" because the testimony affirmatively established that houses of lesser floor area equally met the requirements of public health, safety and welfare in the community and under the circumstances then and there before the court.
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 CommonCouncil of City of Adrian,
Plaintiff contends that PA 1921, No 207, § 4, as amended (CL 1948, §
Judgment reversed and writ quashed, with costs to defendants.
SHARPE, C.J., and BUSHNELL, BOYLES, REID, NORTH, BUTZEL, and CARR, JJ., concurred. *Page 425
Portage Twp. v. Full Salvation Union , 318 Mich. 693 ( 1947 )
Fass v. City of Highland Park , 321 Mich. 156 ( 1948 )
School Dist. v. City of Pontiac , 262 Mich. 338 ( 1933 )
City of Pleasant Ridge v. Cooper , 267 Mich. 603 ( 1934 )
City of Jackson v. Com'r of Revenue , 316 Mich. 694 ( 1947 )
People v. Scrafano , 307 Mich. 655 ( 1943 )
Village of Euclid v. Ambler Realty Co. , 47 S. Ct. 114 ( 1926 )
Seward Chapel, Inc. v. City of Seward , 655 P.2d 1293 ( 1982 )
Connor v. West Bloomfield Tp. , 207 F.2d 482 ( 1953 )
City Council v. Superior Court , 179 Cal. App. 389 ( 1960 )
Bredberg v. City of Wheaton , 24 Ill. 2d 612 ( 1962 )
Huff v. City of Des Moines , 244 Iowa 89 ( 1952 )
Trumper v. City of Quincy , 358 Mass. 311 ( 1970 )
Hammond v. Bloomfield Hills Building Inspector , 331 Mich. 551 ( 1951 )
Bartkowiak v. Wayne County , 341 Mich. 333 ( 1954 )
Bowman v. City of Southfield , 377 Mich. 237 ( 1966 )
Scholnick v. City of Bloomfield Hills , 350 Mich. 187 ( 1957 )
Township of Farmington v. Scott , 374 Mich. 536 ( 1965 )
Brae Burn, Inc. v. City of Bloomfield Hills , 350 Mich. 425 ( 1957 )
McClain v. City of Hazel Park , 357 Mich. 459 ( 1959 )
Christine Building Co. v. City of Troy , 367 Mich. 508 ( 1962 )
Robinson Township v. Knoll , 410 Mich. 293 ( 1981 )
Prince George's County v. McBride , 268 Md. 522 ( 1973 )
Kropf v. City of Sterling Heights , 391 Mich. 139 ( 1974 )
Tel-Craft Civic Ass'n v. City of Detroit , 337 Mich. 326 ( 1953 )
Patchak v. Township of Lansing , 361 Mich. 489 ( 1960 )
Roman Catholic Archbishop v. Village of Orchard Lake , 333 Mich. 389 ( 1952 )