Haven v. City of Troy

39 Mich. App. 219 (1972) 197 N.W.2d 496

HAVEN
v.
CITY OF TROY

Docket No. 10550.

Michigan Court of Appeals.

Decided March 22, 1972. Rehearing denied May 4, 1972.

Honigman, Miller, Schwartz & Cohn (by Norman Hyman), for plaintiffs.

Burke & Sawyer, for defendants.

Before: LEVIN, P.J., and HOLBROOK and BRONSON, JJ.

LEVIN, P.J.

Plaintiffs Dorothy L. Haven and Marjorie Van Fleteren own 2-1/2 acres of land located at the intersection of two streets in the City of Troy. Plaintiff Boron Oil Company claims an interest in the land under an exercised option. The defendants are the City of Troy, its plan commission, and its building inspector.

This is an action to compel the issuance of building and other permits which plaintiffs need to proceed with the improvement of the land as a shopping center with an automobile service center.

The land is zoned B-2. Until September 22, 1969, automobile service centers were a permitted use in that zone. On that date, the city purported to adopt an amendment to its zoning ordinance imposing limitations on automobile service center developments, and on December 1, 1969, purported further to amend its ordinance to delete altogether automobile service center uses.

The circuit judge granted the plaintiffs a summary judgment declaring that the amendments were not duly adopted and were, therefore, invalid, and that the proposed shopping center, including the automobile service center, was a permissible use. The judgment directs the city to issue site plan approval, a building permit, and other necessary permits to allow the contemplated construction to proceed.^[1]

Among the judge's findings to which the city takes exception is his finding that the city's plan commission did not hold a public hearing before considering and recommending to the city's legislative body that it approve the amendments.^[2]

In Boron Oil Co v City of Southfield, 18 Mich App 135, 139 (1969), we held that § 4 of the city and village zoning enabling act^[3] requires that before an amendment of a zoning ordinance may be adopted in a city having a population in excess of 25,000,^[4] the proposed amendment must be referred to a commission — which may be, and frequently is, its plan commission — appointed by the legislative body, for recommendation and that the commission must hold a public hearing before submitting its final report. We declared that "separate public hearings, both before the commission and before the legislative body, must be held before the amendment of an ordinance".

At the time the amendments to Troy's zoning ordinance were adopted, Troy was a city having a population of less than 25,000.^[5] However, its zoning ordinance provides that its plan commission "is hereby designated as the commission specified in Section 4" of the enabling act and "shall perform the duties of said commission as provided in the statute in connection with the amendment of this chapter". (Emphasis supplied.) It is further provided that Troy's legislative body may, on recommendation from its plan commission, or on petition, amend, supplement, or change the district boundaries or the regulations "pursuant to the authority and procedure established" in the enabling act. (Emphasis supplied.)

We agree with the circuit judge that these provisions of Troy's zoning ordinance impose on its plan commission the same "duties" as were legislatively imposed on commissions appointed for this purpose in cities having a population of more than 25,000, and that Troy's plan commission, as the plan commissions of municipalities having a population in excess of 25,000, must conduct a public hearing before acting.

Resolutions recommending that Troy's legislative body adopt the now challenged amendments were adopted by Troy's plan commission at a regular meeting of the commission held on August 12, 1969, and at a special meeting held on October 28, 1969. Notice of those meetings was posted in the city hall in accordance with the requirements of the public board meetings act of 1968.^[6]

The defendants contend that if the plan commission was required to conduct public hearings, the meetings at which the plan commission adopted the resolutions recommending the amendments were hearings and that the notices of those meetings so posted were adequate notice.

The purpose of the public board meetings act's requirement that public boards give notice of their meetings is to provide members of the public with the opportunity to be present so that they can observe the manner in which such boards transact public business. The act does not require that the nature of the business to be considered at a meeting be set forth in advance in the required notice.^[7]

A public body might hold a hearing coincidentally with one of its meetings, but a meeting is not necessarily a hearing. The right to a hearing imports an opportunity to be heard. Implicit in that right is the companion right to reasonable notice not only of the time and place of a meeting of the public body required to conduct the hearing but also notice that at a particular meeting of that body a particular question will be considered and those interested in that question will be given an opportunity to be heard.

A proposed amendment of a zoning ordinance, especially one, as here, which if adopted will frustrate a particular planned development that has already been made the subject of plans submitted to a city, cannot be considered by a plan commission unless notice is given to the public, and perhaps as well to the property owner affected, of the time, place, and purpose of the required public hearing. The notice must set forth that it is notice of a public hearing — not just another meeting — at which those interested in the particular question to be considered, as set forth in the notice, will have an opportunity to be heard.

It is not claimed that any notice of the plan commission's "hearings" was given other than the posting of the previously-mentioned notices that meetings of the plan commission would be held on the stated dates. Those notices were not notices of public hearings. They were not notices reasonably calculated to provide either the public at large or the property owners peculiarly affected by the proposed action with advance notice that the subject matter which was considered would be considered and that interested persons would be given an opportunity to be heard. The public and the property owners were denied a reasonable opportunity to be heard and the purpose sought to be achieved by requiring a public hearing was not realized.

For the first time on appeal the defendants assert that when the judge found that the amendments were invalid he should not have gone on to decide whether the proposed development was a permitted use in the B-2 zoning district, and that he erred in finding that it was a permitted use and in directing that site plan approval and building and other permits be issued. The defendants assert that if we find for the plaintiffs on the validity-of-the-amendments issue we should remand so that the defendants can challenge the site plan. We are persuaded, however, that if the site plan were not in accordance with the requirements of the ordinance or the plaintiffs were not entitled to the approval and permission required by the ordinance the city would have relied on those deficiencies at the trial level.^[8] Since the deficiencies now relied on were not asserted before him, the judge, having found for the plaintiffs, properly went on to provide adequate relief.

An issue was framed by the plaintiffs' motion for summary judgment and the defendants' answer regarding plaintiffs' standing to maintain this action, it being defendants' contention that the plaintiffs did not have the requisite interests in the land. At the hearing on the motion, plaintiffs supplemented their moving papers with documents showing their interests in the land.^[9] The defendants offered no controverting evidence or affidavits tending to show that there was a genuine issue concerning plaintiffs' standing. The judge did not err in finding that this was not a genuine issue.^[10]

Affirmed. Costs to plaintiffs.

All concurred.

NOTES

[1] The direction in the judgment that a building permit shall issue is subject to the proviso that the plans and specifications for the shopping center "are in compliance with valid and applicable code provisions".

[2] The affidavits in support and in opposition to the plaintiffs' motion for summary judgment do not comply with the requirements of GCR 1963, 117.3 that the affidavits show affirmatively that the "affiant, if sworn as a witness, can testify competently to the facts contained therein". The defendants, however, do not make an issue of this deficiency. See Wiegand v Tringali, 22 Mich App 230, 233, fn 1 (1970).

[3] MCLA 125.584; MSA 5.2934.

[4] According to the last Federal or state census.

[5] According to the last Federal or state census.

[6] 1968 PA 261; MCLA 15.251-15.253; MSA 4.1800(1)-4.1800(3).

[7] Our disposition of this case makes it unnecessary to decide whether a right to speak at a public meeting on matters that come before the meeting is conferred by the public board meetings act on members of the public who are present. We note that such a right is not expressly spelled out in the act.

[8] Before September 22, 1969, the plaintiffs filed an application with the Troy Plan Commission for approval of a site plan for the proposed shopping center and requested special permission from the plan commission for the proposed automobile service center. The requested approval and permission were denied.

In their motion for summary judgment, the plaintiffs asserted that they were entitled to the issuance of the requested approval and permission and necessary building permits. Neither in its answer to the plaintiffs' motion for summary judgment nor at the hearing on that motion nor in its motion for rehearing after summary judgment was granted nor at the hearing on that motion did the defendants assert that the proposed development did not comply with the requirements of the ordinance as it read before enactment of the amendments.

[9] In Wiegand v Tringali, 22 Mich App 230, 233 (1970), we said that in deciding a motion for summary judgment the court first considers whether the claimed factual issue is material, and if it concludes that it is material then considers "whether it appears from the affidavits of the parties and the depositions and documentary evidence of record that the factual issue is genuine". See GCR 1963, 117.3.

[10] The documents submitted by the plaintiffs at the hearing on the motion show that plaintiffs Haven and Van Fleteren own the land and plaintiff Boron Oil Company holds an exercised option covering a portion of the land. See Sun Oil Co v Ferndale, 6 Mich App 470 (1967), holding, in comparable circumstances, that Sun Oil had standing to maintain an action challenging a failure to issue a building permit. See, generally, comment, Standing to Appeal Zoning Determinations: The "Aggrieved Person" Requirement, 64 Mich L Rev 1070, 1076 (1966).