LONDON
v.
CITY OF DETROIT.
Docket No. 3, Calendar No. 47,053.
Supreme Court of Michigan.
Decided December 3, 1958.Wilcox, Lacy, Lawson, Kirby & Hoffman (Eugene D. Kirby, of counsel), for plaintiff.
Nathaniel H. Goldstick, Corporation Counsel, and John F. Hathaway, Assistant Corporation Counsel, for defendants.
EDWARDS, J.
Plaintiff is owner of a bowling alley located on Grand River avenue in Detroit. He also owns 2 lots known as 6817-6823 Vinewood which are located nearby and which he has used, and seeks to continue to use, for parking the cars of bowling patrons.
The city of Detroit in a zoning ordinance, effective December 25, 1940, zoned these 2 lots for R2, a residence classification, requiring a special permit before property thus zoned could be used for a parking lot. No such permit has been obtained by plaintiff, and the city of Detroit, through its department of buildings and safety engineering, filed an ordinance-violation complaint against plaintiff in Detroit's recorder's court, traffic and ordinance division.
Plaintiff, while that complaint was pending, brought this chancery action to enjoin the city of Detroit from interfering with his use of these lots for parking cars. He claimed that the use of these lots *573 for this purpose antedated the effective date of the zoning ordinance, and that he had a vested right to a nonconforming use of the property in question.
The chancellor who heard the matter took testimony from the owner and the neighbors and found as a fact "such nonconforming use existed at the time of the effective date of the zoning ordinance," and that such use had been "continuous from a date prior to the effective date of the zoning ordinance."
This represented a summary of the testimony of 2 neighbors whose home was directly across the street from the 2 lots and who had lived there all the time, and who had apparently no connection with plaintiff. There was, of course, testimony to the contrary.
While we hear chancery matters de novo on the record, we give great weight to the findings of fact of the judge who hears the testimony. Blough v. Steffens, 349 Mich. 365; Hartka v. Hartka, 346 Mich. 453.
From a review of this record we find no reason to reject the findings of fact entered by the circuit judge.
The principal issue of law presented is phrased by appellants as follows:
"Did the trial court err in entertaining equitable jurisdiction of a bill of complaint filed by plaintiff to determine the question of fact as to whether or not he had a vested nonconforming use under the zoning ordinance on his property, where plaintiff had failed and refused to exhaust his administrative remedy of appeal to the board of zoning appeals?"
The zoning ordinance of the city of Detroit deals thus with the matter of nonconforming uses:
"Sec. 3.3. * * *
"(b) Any such nonconforming use may be maintained and continued, provided there is no increase *574 or enlargement of the area, space or volume occupied by or devoted to such nonconforming use."[*]
The ordinance does not require any application or permit to continue a nonconforming use. The language quoted plainly excepts such uses from the effect of the zoning ordinance.
Thus, the right to use this land for parking, which plaintiff seeks to enforce, was not created by the zoning ordinance. It existed before the ordinance, and the ordinance merely recognized it by excepting the nonconforming use from its zoning regulations.
Defendants rely upon language in Certain-teed to the effect that administrative remedies under a zoning ordinance should be exhausted prior to appeal to the courts. Certain-teed Products Corporation v. Paris Township, 351 Mich. 434, 452.
See, also, DeCarlo v. Town of West Miami (Fla), 49 So2d 596.
However, equity jurisdiction to hear an attack upon the constitutionality of a zoning ordinance has been frequently upheld regardless of whether or not the administrative machinery of the zoning ordinance has been exhausted. Long v. City of Highland Park, 329 Mich. 146; Village of Euclid v. Ambler Realty Company, 272 U.S. 365 (47 S. Ct. 114, 71 L ed 303, 54 A.L.R. 1016); City of Miami Beach v. Perell (Fla), 52 So2d 906.
The courts have likewise upheld an owner of a nonconforming use in appealing directly to the courts for injunctive relief against infringement of his preexisting rights by a zoning ordinance. Biscay v. City of Burlingame. 127 Cal App 213 (15 P2d 784); Oklahoma City v. Dolese (CCA), 48 F2d 734, 117 A.L.R. 1117, 1137.
*575 We believe that the circuit judge's findings of fact and decree were correct in enjoining an unlawful application of the zoning ordinance to plaintiff's property. We likewise feel that the circuit judge was correct in finding that plaintiff had no adequate remedy at law.
Affirmed. Costs to appellee.
DETHMERS, C.J., and CARR, KELLY, SMITH, BLACK, VOELKER, and KAVANAGH, JJ., concurred.
NOTES
[*] Detroit, Official Zoning Ordinance (1953), § 3.3(b), p 9. REPORTER.