White v. Township of Southfield

Kelly, J.

The Oakland county circuit court decreed that a Southfield township ordinance (No 118) restricting the use of the easterly 200 feet of plaintiffs’ property to residential purposes was invalid, unreasonable and void as applied to, plaintiffs’ property, and the township of Southfield appeals.

Plaintiffs’ property consists of about 30 acres of vacant land located on the west side of Telegraph road, with a frontage on Telegraph road of approximately 1,616 feet and a frontage on Eleven Mile road of approximately 1,300 feet. The court decreed that the frontage on Telegraph road, of 1,616 feet, for a depth of 200 feet, should not be restricted to residential use, but did not disturb the residential restriction as it applied to the remainder of plaintiffs’ 30 acres.

Appellant admits that. Telegraph road is'a high speed, heavily traveled, arterial highway and- the proofs disclosed that approximately 15,000 vehicles travel Telegraph road each day, at an average speed of 55 miles per hour.

*550Property fronting on Telegraph road (to the south of plaintiffs’ property) between the Eight Mile and Ten Mile roads is zoned as commercial and business, and about 1/2 mile north of plaintiffs’ property Telegraph road is also zoned for commercial and business purposes.

Ninety per cent of the people seeking lots to build homes on would not consider lots on Telegraph road and fathers and mothers refuse to consider these lots because of the heavy traffic and high speed, according to the testimony of real-estate broker John W. Crimes.

Real-estate broker McKenzie testified:

“I am familiar with the traffic conditions upon Telegraph road. It would affect the desirability of this property fronting on Telegraph road for residential purposes very much. I wouldn’t know what line of salesmanship I would use to try to sell somebody a lot to build a house on Telegraph road. I would have to find some new angles. I don’t know —I can’t think of anything after all of these years.’’

Mrs. Catherine Ziemniak has resided at 26276 Franklin road for 17 years; her property extends from Franklin to Telegraph road and is approximately 100 feet from the southerly boundary of plaintiffs’ property. She has been endeavoring to sell her home and property for $12,000 without success; she testified that 9 prospective purchasers had looked at her property since she listed it and all 9 had said they were not interested because of its proximity to Telegraph road. She described the problems caused by the traffic on Telegraph road as follows:

“I have observed the traffic conditions for these past 17 years. I will say it is increased to an awful amount — much more — because we have our house standing on Franklin road and our kitchen is on the *551turn over there, facing Telegraph road — it is around 160 — maybe a little more — feet, and when the heavy trucks come by, the shaking and vibration I can feel in the kitchen. You do feel it at night. The heavy trucks at night. They start increasing after midnight — haulaway trucks — the vibration is so I can hear the windows shake in the house, so that is the vibration we hear.”

There are 6 homes on the easterly side of Telegraph road between Ten and One-half Mile road and Eleven Mile road. Four of these homes are directly across from plaintiffs’ property. None of the owners of these 6 homes offered testimony, nor were they called as witnesses, nor does the record disclose that they made any protest against plaintiffs’ desire to use their property for commercial purposes. Also, the defendant did not call a realtor to. refute the testimony of realtors Grimes and McKenzie.

All witnesses, including defendant’s witnesses, agreed that by requiring residential zoning, as opposed to commercial zoning, the value of plaintiffs’ property was reduced from $100 per foot to $20 to $30 per foot.

David Geer, a professional city planner, employed by Southfield township on a per diem basis, testified that plaintiffs should be confined to residential development because to allow them to develop their property fronting on Telegraph road for commercial purposes would call for “ribbon zoning,” thereby increasing “the hazard of the highway, add to the congestion and slow up the movement of the traffic on the highway itself.” He testified that he was quite sure a layout could be prepared for plaintiffs’ land that would make it a very sound residential investment, and, being questioned as to how this could be done, stated:

*552“I am not sure of all the details, it might possibly be (the buildings could face some other street parallel to Telegraph) or we might set the residences back three or four hundred feet from the highway, or they might be backed up to Telegraph.”

Geer’s testimony is not persuasive when considered with that of the traffic engineer for the State highway department, Samuel J. Levine, who testified that new commercial development is subject to controls of the State highway department regulating-traffic going off or onto the highway; that recently such access controls were satisfactorily established' on Telegraph road between Nine Mile and Ten Mile roads and, also, in Birmingham, Royal Oak, Pleasant Ridge and Pontiac.

This Court has repeatedly held that each zoning case must be determined upon its own facts and circumstances. The facts in this appeal sustain the conclusion of the trial court that ordinance No 118 of the township of Southfield does not and should not. apply to the easterly 200 feet of plaintiff’s land, fronting on Telegraph road and, therefore, such property is not restricted to residential development.

Affirmed. Costs to plaintiffs.

Dethmers, C. J., and Sharpe, Boyles, and Carr, JJ., concurred with Kelly, J.