Chynoweth v. City of Hancock

107 Mich. App. 360 (1981) 309 N.W.2d 606

CHYNOWETH
v.
CITY OF HANCOCK.

Docket No. 52239.

Michigan Court of Appeals.

Decided June 17, 1981.

McLean & McCarthy, for plaintiffs.

Vairo, Mechlin, Tomasi, Johnson & Manchester, for defendant Altman Development Corporation.

Before: D.E. HOLBROOK, JR., P.J., and M.F. CAVANAGH and BEASLEY, JJ.

PER CURIAM.

Plaintiffs, Jon Chynoweth and Thomas C. Halborg, sought a writ of mandamus for the purpose of ordering defendant City of Hancock to place an adopted amendatory zoning ordinance on the ballot or to repeal that ordinance, as requested by their referendum. The trial court granted plaintiffs' motion for summary judgment, based on GCR 1963, 117.2(3), and issued a writ of mandamus ordering defendant city to either repeal the zoning ordinance or to submit that ordinance to the electors. Defendant city had issued permits to defendant Altman Development Corporation to build a multiple-family dwelling on the land which had been rezoned. Defendant Altman was granted permission to intervene in the suit and files this appeal as of right.

The sole issue on appeal in this case is whether an amendatory zoning ordinance is subject to the right of referendum. In Elliott v City of Clawson, 21 Mich App 363, 376-377; 175 NW2d 821 (1970), this Court held it was not. However, in Rollingwood Home Owners Corp, Inc v City of Flint, 26 Mich App 1, 10; 181 NW2d 797 (1970), rev'd 386 Mich 258, 268 (1971), and Parr v Lansing City Clerk, 9 Mich App 719, 722-723; 158 NW2d 35 (1968), this Court assumed the ordinances involved to be subject to a referendum.

The Michigan Supreme Court has stated that a zoning ordinance cannot be adopted or enacted by an initiative. Korash v Livonia, 388 Mich 737; 202 NW2d 803 (1972). Then, in West v City of Portage, 392 Mich 458; 221 NW2d 303 (1974), Justice LEVIN, who was joined by Justices T.G. KAVANAGH and FITZGERALD, held that an amendatory zoning ordinance was an administrative act; therefore, a referendum could not be used since that only applies to legislative acts. Id., 461, 465-466, 472.

Justice WILLIAMS, who was joined by Chief Justice T.M. KAVANAGH and Justice SWAINSON, also agreed that the plaintiff's complaint should have been dismissed due to the fact that the referendum petition had been combined with an initiative, and thus was defective. Id., 472. However, he held that there was a right to referendum on a zoning ordinance.

Justice COLEMAN concurred in the result. Id., 472.

Subsequently, the majority opinion in Ed Zaagman, Inc v Kentwood, 406 Mich 137; 277 NW2d 475 (1979), stated, "[W]e are not persuaded to adopt Justice LEVIN'S administrative approach to the review of zoning determinations * * *". Id., 164. The majority opinion adopted "the legislative approach".

Since the majority of the present Court has indicated more support for the legislative approach rather than the administrative approach, we conclude that the Court would find that this amendatory zoning ordinance was a legislative act subject to the right of referendum. Accordingly, we affirm the decision of the trial court.

Affirmed. No costs.