I am not in accord with the opinion of Mr. Justice BUTZEL. It is to be noted that the constitutionality of the ordinance is not in issue, as this question was neither raised in the petition for a writ of mandamus nor passed upon by the trial court. Nor is there any specific charge made of fraud or bad faith on the part of the board of zoning appeals. The most that can be claimed under the petition filed by plaintiff is that there was an abuse of discretion by the department of building and safety engineering and the board of zoning appeals in refusing to grant plaintiff a permit.
The zoning ordinance in question was enacted by virtue of the authority granted in Act No. 207, Pub. Acts 1921 (1 Comp. Laws 1929, § 2633 et seq. [Stat. Ann. § 5.2931 et seq.]). Such ordinances are constitutional and municipalities may adopt them as an *Page 457 exercise of police power. See Austin v. Older, 283 Mich. 667. The power to zone is not limited to the protection of the statusquo. A city may plan its future development. See Austin v.Older, supra.
The cases of Cole v. City of Battle Creek, 298 Mich. 98, and Pere Marquette R. Co. v. Muskegon Township Board,298 Mich. 31, have no application to the issue involved in this case. The Cole Case, supra, relates to structural changes proposed to be made in a building. We there held that structural changes in a building which would continue a nonconforming use were prohibited by the ordinance. We there said: "The continuation of a nonconforming use in this zoning ordinance is designed to avoid the imposition of hardship upon the owner of property, but the limitations upon such use contemplate the gradual elimination of the nonconforming use." In the Pere Marquette Case, supra, the issue involved was whether a triangular piece of ground should be classified as "industrial" rather than "residential." In this case the validity of the ordinance was the only issue involved. There was no question of a misapplication of the provisions of the ordinance.
Section 3.3 (D) of the ordinance provides:
"Any part of a building, structure or land occupied by such a nonconforming use, which use is abandoned, shall not again be used or occupied for a nonconforming use. Any part of a building, structure, or land occupied by such a nonconforming use, which use is discontinued for a period of two years or more, shall not again be used or occupied for a nonconforming use."
I am unable to read in this section any authority that permits a change from one nonconforming use to another or the same of a higher classification. The discretion of granting or refusing permits is *Page 458 that of the board of zoning appeals and will not be upset by the courts except in cases of fraud or bad faith. See Beardsley v.Evangelical Lutheran Bethlehem Church, 261 Mich. 458; andAustin v. Older, 278 Mich. 518.
In Pere Marquette R. Co. v. Muskegon Township Board, supra, we said:
"We realize that the court should not interfere with the judgment of a zoning board if there is a reasonable basis for its ruling."
In the case at bar, plaintiff seeks the writ of mandamus to compel the board of zoning appeals to grant him a certain permit. He has no clear legal right to such a permit. In such cases the writ of mandamus is not granted.
The judgment of the trial court should be affirmed, with costs.