Michigan National Bank v. Windsor Charter Township

86 Mich. App. 35 (1978) 272 N.W.2d 330

MICHIGAN NATIONAL BANK
v.
WINDSOR CHARTER TOWNSHIP.

Docket No. 27348.

Michigan Court of Appeals.

Decided September 21, 1978.

Church, Wyble, Kritselis, Tesseris, Anderson & Robinson, for plaintiffs.

Warner, Hart, Morgan, Fuzak & Williams, for defendant.

Before: D.F. WALSH, P.J., and ALLEN and N.J. KAUFMAN, JJ.

AFTER REMAND

PER CURIAM:

This case has been before this Court on a prior occasion. In Michigan National Bank v Windsor Charter Twp, 76 Mich. App. 387; 256 NW2d 791 (1977), this Court remanded this case to the trial court for findings of fact under the Supreme Court's decision in Kirk v Tyrone Twp, 398 Mich. 429; 247 NW2d 848 (1976).^[1]

The original trial court was unable to participate in the remand, and so on September 29, 1977, this Court issued an order directing the successor to the trial court to render a decision under Kirk, supra. The trial court has complied with that order and we review the successor court's opinion.

Quoting from Kropf v Sterling Heights, 391 Mich. 139; 215 NW2d 179 (1974), the Supreme Court in Kirk, supra, detailed the applicable principles and tests:

"The important principles require that for an ordinance to be successfully challenged plaintiffs prove:

"``[F]irst, that there is no reasonable governmental interest being advanced by the present zoning classification itself * * * or

"``[S]econdly, that an ordinance may be unreasonable because of the purely arbitrary, capricious and unfounded exclusion of other types of legitimate land use from the area in question.' 391 Mich. 139, 158.

"The four rules for applying these principles were also outlined in Kropf. They are:

"1. ``"[T]he ordinance comes to us clothed with every presumption of validity."' 391 Mich. 139, 162, quoting from Brae Burn, Inc v Bloomfield Hills, 350 Mich. 425; 86 NW2d 166 (1957).

"2. ``"[I]t is the burden of the party attacking to prove affirmatively that the ordinance is an arbitrary and unreasonable restriction upon the owner's use of his property * * *. It must appear that the clause attacked is an arbitrary fiat, a whimsical ipse dixit, and that there is no room for a legitimate difference of opinion concerning its reasonableness." 391 Mich. 139, 162, quoting Brae Burn, Inc.

"3. ``Michigan has adopted the view that to sustain an attack on a zoning ordinance, an aggrieved property owner must show that if the ordinance is enforced the consequent restrictions on his property preclude its use for any purposes to which it is reasonably adapted. 391 Mich. 139, 162-163.

"4. ``"This Court, however, is inclined to give considerable weight to the findings of the trial judge in equity cases."' 391 Mich. 139, 163, quoting Christine Building Co v City of Troy, 367 Mich. 508, 518; 116 NW2d 816 (1962)." 398 Mich. at 439-440.

As to the first three rules applicable to a trial court, the successor court rendered conclusions of law based on the findings of fact enumerated in its opinion.

The successor court found that "[t]he presumption of validity of the ordinance was not rebutted". We agree. The ordinance is not unconstitutional on its face and contains sufficiently definite standards. Osius v St Clair Shores, 344 Mich. 693; 75 NW2d 25 (1956).

The successor trial court further elaborated:

"The terms of the ordinance are not an arbitrary and unreasonable restriction upon the plaintiff's use of their property. It was not an arbitrary fiat on the part of defendant's Township Board to deny the application of plaintiffs, and there is room for a legitimate difference of opinion regarding its reasonableness. Rule 2 of Kirk, supra, p. 439.

"The Bank and Grey failed to show that if the ordinance is enforced the consequent restrictions on the Bank's property preclude its use for any purposes to which it is reasonably adapted. To the contrary, they concede it is suitable for its zoned purpose. Rule 3 of Kirk, supra, p. 439."

Again, we agree with the conclusions of the successor trial court. See also Long v Highland Park, 329 Mich. 146; 45 NW2d 10 (1950). The testimony of a senior vice-president of plaintiff bank, to the effect that it didn't try to sell the land as agricultural merely because it felt that the land was "too valuable" for that purpose, puts to rest any contention that the ordinance was confiscatory in application. Biske v City of Troy, 381 Mich. 611; 166 NW2d 453 (1969), Cohen v Canton Twp, 38 Mich. App. 680; 197 NW2d 101 (1972). Nor can there be any argument that the terms of the ordinance totally exclude the proposed use from the township, as a special use permit was granted for an identical purpose on an adjacent tract.^[2]

Cognizant of a reviewing court's duty under the fourth Kropf rule, and thus giving "considerable weight to the findings of the trial judge in equity cases", we affirm those findings.

Affirmed.

NOTES

[1] This case arose prior to the Supreme Court's decision in Kirk v Tyrone Twp, 398 Mich. 429; 247 NW2d 848 (1976), at a time when the Supreme Court's decision in Sabo v Monroe Twp, 394 Mich. 531; 232 NW2d 584 (1975), was controlling.

[2] We would note that it is not arbitrary to allow a proposed use in one section of a township, and to deny the use in another section of the township — even if the parcels are close together. The consequences of adopting the opposing viewpoint might result in a township filled with trailer parks.