Township of Farmington v. Scott

374 Mich. 536 (1965) 132 N.W.2d 607

TOWNSHIP OF FARMINGTON
v.
SCOTT.

Calendar No. 6, Docket No. 50,370.

Supreme Court of Michigan.

Decided February 2, 1965.

Joseph T. Brennan, for plaintiff.

Wendell Brown, for defendants.

SMITH, J.

Plaintiff township filed its bill of complaint September 29, 1961, alleging that defendants were operating a swimming pool supply business on residential property, contrary to the township zoning ordinance, passed pursuant to the township rural zoning act, being PA 1943, No 184 (CL 1948, § 125.271 et seq. [Stat Ann 1958 Rev § 5.2963(1) et seq.]). Based upon the provisions of section 24 of said act, an injunction was sought which was refused by the trial court. Section 24 reads as follows:

"Uses of land, and dwellings, buildings or structures, including tents and trailer coaches, used, erected, altered, razed or converted in violation of any provision of local ordinances or regulations adopted under the authority of this act are hereby declared to be a nuisance per se. The court shall order such nuisance abated and the owner and/or agent in charge of such dwelling, building, structure, tent, trailer coach or land shall be adjudged guilty of maintaining a nuisance per se. The township board shall in the ordinance enacted under the authority of this act designate the proper official or officials whose duty it shall be to enforce the provisions of such ordinance and provide penalties for the violation thereof." (Emphasis supplied.)

Despite provisions of said section declaring violations of local ordinances or regulations adopted under authority of the act to be abatable nuisances, the trial court ruled that because the admitted violation in this case did not constitute a nuisance in fact, injunction was refused. Plaintiff township says the trial court erred in refusing the injunction because the statute clearly authorizes an injunction where there is a violation of a township zoning ordinance passed pursuant to the statute. Defendants concede that they are using their property in "technical violation" of the zoning ordinance but claim immunity from statutory enforcement because use of the property is not of such an offensive nature as "to hurt anyone", that is, it does not constitute a nuisance in fact.

In cases involving Act No 184, or its predecessor, this Court has approved injunctive relief where an abatable nuisance is asserted by reference to the statute. In Portage Township v. Full Salvation Union, 318 Mich. 693, it was held that where a similar statute declared that buildings erected or converted to uses in violation of a township zoning ordinance were nuisances per se, a court of equity would enjoin the violator. In the Portage Case, this Court commented upon similar language of a prior act as follows (p 703):

"It thus appears that under the specific terms of the statute the use made by defendants of the premises in question, and the buildings erected, in violation of the terms of the ordinance, constitute a nuisance per se."

We may restate, therefore, the proposition that the legislature may determine by statute that a violation of a township zoning ordinance passed pursuant to the township rural zoning act constitutes a nuisance abatable by injunction. See Township of Garfield v. Young, 348 Mich. 337; Village of Port Austin v. Parsons, 349 Mich. 629; and Wolff v. Steiner, 350 Mich. 615. See, also, the same conclusion in a reference to said provision of the township rural zoning act discussed in Banc v. Township of Pontiac, 343 Mich. 481.

The trial court in the instant case held, however, as follows:

"Even though the statute herein involved declares violations of zoning ordinances to be nuisances per se and further directs that the court ``shall order such nuisance abated', it is the opinion of this court that if the ordinance is unreasonable under the facts as applied to this case at this time that this court is then under no obligation to enforce the ordinance and the statute at this time, because an injunction is still a discretionary writ, that is, to be issued in the discretion of the court."

While we may agree that the legislature may not command the issuance of a discretionary writ, we take the view, as do other courts, that such language of the statute as would seem to require the courts to issue injunctive writs in such circumstances merely authorizes rather than commands such relief. Injunction should have been granted, therefore, based upon several decisions of this Court, including Bane v. Township of Pontiac, supra, and Township of West Bloomfield v. Chapman, 351 Mich. 606, and Township of Superior v. Reimel Sign Company, 362 Mich. 481. The basis for injunctive relief comes from the case law not from the statute. To refuse it was an abuse of discretion, under the circumstances in this case.

The trial court used the expression in its opinion "that if the ordinance is unreasonable under the facts as applied to this case at this time" then the court could refuse injunction. It is, of course, settled beyond peradventure that a zoning regulation which bears no real and substantial relationship to the public health, safety, morals, and welfare is unreasonable, void, and unenforceable. No citation is necessary. The trial court does not seem to use the term "unreasonable" in its usual sense as applied to zoning. There was no finding that the ordinance itself was arbitrary and confiscatory as applied to defendants' property, only that as used no one was "hurting" presumably from factors such as noxious odors, excessive traffic, et cetera. If the term "unreasonable" was used in that sense that the violation, though proved, was of a nonoffensive variety, then a new way of granting nonconforming uses judicially has been discovered, a practice we cannot sanction. Absent a direct and successful attack on a zoning ordinance as it may apply to a particular property, it is presumed that the exclusion of nonconforming businesses from residential districts bears a reasonable relationship to the public health, safety and welfare. Northwood Properties Company v. Royal Oak City Inspector, 325 Mich. 419.

If the trial court meant, however, by "unreasonable" that the zoning ordinance as applied to defendants' property bore no substantial relationship to the public health, safety, morals, and welfare of the community, then we hold such finding to be unsupported by the record. A municipal zoning ordinance is presumed to be valid, a presumption which may be overcome only by clear and satisfactory proof. Paka Corporation v. City of Jackson, 364 Mich. 122. Defendants did not overcome this burden in the instant case. The thrust of their proofs was to the effect that although in "technical violation", the method of operating their business was so small, hidden, and inoffensive to the senses that no one should complain, that is, "no one was hurting." We think on such proofs the presumption of validity was not overcome and hence the ordinance may not be held invalid.

Reversed for the entry of injunction against defendants as prayed. Costs to plaintiff.

KAVANAGH, C.J., and DETHMERS, KELLY, SOURIS, O'HARA, and ADAMS, JJ., concurred with SMITH, J.

BLACK, J., concurred in result.