COMMERCIAL AUTO WRECKING CORPORATION
v.
BOYLE
Docket No. 5,707.
Michigan Court of Appeals.
Decided December 3, 1969. Rehearing denied January 9, 1970.*343 G. Daniel Ferrera, for plaintiff.
Ralph B. Guy, Jr., Corporation Counsel and Carl P. Garlow, Assistant Corporation Counsel, for defendant City of Dearborn.
Before: LESINSKI, C.J., and HOLBROOK and QUINN, JJ.
LESINSKI, C.J.
Plaintiff filed this suit seeking a writ of mandamus to require the city of Dearborn and its zoning board to issue a certificate of compliance and occupancy which would allow plaintiff to use its recently purchased 4-1/2 acre tract to expand its auto wrecking business, currently conducted on an adjacent four-acre tract. After trial, the circuit court denied the writ. Plaintiff appeals.
The general area in question is zoned under a classification which authorizes auto wrecking businesses only with approval of the zoning board of appeals after a hearing. The applicable section of the zoning ordinance provides a number of objective standards which the board is to use in exercising its discretion. Among these standards are objections by property owners in the immediate area and the proximity of schools and other public buildings.
Plaintiff twice sought approval from the zoning board for the proposed use, and after two hearings was twice denied. Plaintiff then brought this action, arguing that the board had abused its discretion in denying the certificate since "the parcel is adjacent to three other parcels in the same business," that the proposed activity is not a nuisance per se, and that if the certificate is not issued, it will suffer a $63,000 loss because of the land becoming valueless.
The testimony clearly supports the trial court's denial of the writ. Of the three auto wrecking businesses *344 which plaintiff alleges surround the new tract, one was put out of business when the city terminated its lease before its final denial of plaintiff's request for a certificate. The second is plaintiff's own business which the city allows because it is an existing nonconforming use. As to the third, the record gives no indication whether or not it too was an existing nonconforming use. From the record taken as a whole, it appears that by the passage of the zoning ordinance, the termination of the lease of one of the other businesses, and the denial of plaintiff's request, the city is making a uniform effort to limit the use by auto wrecking companies of this area.
Plaintiff argues that Dearborn is attempting to develop the area as an industrial park and cites DeMull v. City of Lowell (1962), 368 Mich 242, to the effect that this is not a legal purpose. The case is not relevant, however, since in DeMull the city of Lowell attempted to put an existing business out of existence by putting a time limit on its future activities. The Court, in that case, did not hold that the city's purpose was unlawful, but merely that the means used to attain the goal were not authorized by statute.
Dearborn is not trying to put plaintiff off his original four acres; it is only stopping expansion onto an additional 4-1/2 acres. The more applicable case, therefore, is Mazo v. City of Detroit (1958), 9 Mich App 354. In Mazo this Court stated, p 363:
"Plaintiff argued * * * that, since there previously had been three bars operating in this same block, the situation would be no worse if plaintiff were to be granted her petition. But the argument misses the mark. The previous nonconforming use, validly existing at 15232 East Eight Mile, does not confer a right on plaintiff to establish a new nonconforming *345 use at 15270 East Eight Mile. Zoning regulations may confer a right to a given use of property; they do not confer a right to transfer a use from one location to another."
Plaintiff's contention that the proposed use is not a nuisance per se is conceded by defendant. Yet, though not a per se nuisance, the record shows that there were nearly 200 complaints by local residents about the proposed use. Moreover, there is a school about a half mile away, and a residential area between a quarter- and a half-mile away. Thus, the trial court was clearly supported by the record in its determination that the board's denial of the certificate was not an abuse of discretion.
Finally, plaintiff argues that "if the defendant prevails in these proceedings, the plaintiff will not be able to use the land, * * * and the plaintiff will be out $63,000." Since $63,000 was the purchase price of the land, plaintiff argues that the tract will be valueless, if not used in the auto wrecking business.
The weight of evidence, however, supports the trial judge's conclusion that the plaintiff will suffer no substantial economic loss if the certificate is not granted. Indeed, the only two expert witnesses to testify specifically, testified that the property, if put to a permissible use, would be worth much more than $63,000. The language of the Court in Livonia Drive-In Theater Co. v. City of Livonia (1961), 363 Mich 438, 446, is equally applicable to the instant case.
"Neither the averments of the petition nor the stipulation of facts on which the case was heard in the trial court suggest any possible claim that plaintiff is being deprived of the right to make profitable use of its property. In other words, there is nothing before us tending to establish the confiscation of the *346 property in question because of plaintiff's inability to obtain the requested license and permit. Said property is in an industrial zone, and so far as this record discloses its value for nonobjectionable industrial use may be as great or even greater than for the use thereof for a drive-in theater.
"As the situation now stands, plaintiff is not entitled to the remedy sought against the clerk or the planning commission. The remedy of mandamus is discretionary and such a writ will issue against public officials only to compel the enforcement of a clear legal duty."
Affirmed. No costs, a public question being raised.
All concurred.