Kropf v. City of Sterling Heights

V. J. Brennan, J.

(dissenting). The major issue in this case is whether a city may base its zoning on circumstances which it believes will occur in the future. The case thus puts to this Court the obligation to attempt to resolve the dilemma created by the recurrent statement in this state’s case law that, to be valid, zoning must bear a present relationship to the "public health, safety, morals or general welfare” and the heavy emphasis on planning for the future in this state’s zoning laws. This dichotomy has yet to be adequately resolved.

The extent of the emphasis on planning in our zoning laws is apparent from even the most cursory reading of the relevant statutes. The statutes conferring the authority to enact zoning regulations on municipalities (MCLA 125.581, et seq; MSÁ 5.2931, et seq), counties (MCLA 125.201, et seq; MSA 5.2961[1], et seq), and townships (MCLA 125.271, et seq; MSA 5.2963[1], et seq), all compel the relevant governmental unit to zone in accordance with a plan and to consider, among other factors, "the general trend and character of building and population development”.1 It is therefore *30obvious that all zoning in this state must be in accordance with some sort of plan. Furthermore, the requirement of the existence of a plan compels those authorized to enact zoning regulations to consider factors which will arise in the future.

The statutory emphasis on planning may also be found in the statutes which authorize the creation of planning commissions. Such planning commissions may be established by municipalities (MCLA 125.31, et seq; MSA 5.2991, et seq), counties (MCLA 125.101, et seq; MSA 5.1192[1], et seq), townships (MCLA 125.321, et seq; MSA 5.2963[101] et seq), and furthermore two or more local governmental units may establish regional planning commissions (MCLA 125.11, et seq; MSA 5.3008[1], et seq). Such municipal and county commissions are charged with developing a plan for,

"The general purpose of guiding and accomplishing a coordinated, adjusted, and harmonious development of the municipality and its environs which will, in accordance with present and future needs, best promote health, safety, morals, order, convenience, prosperity, and general welfare, as well as efficiency and economy in the process of development; including, among other things, adequate provision for traffic, the promotion of safety from fire and other dangers, adequate provision for light and air, the promotion of the healthful and convenient distribution of population, the promotion of good civic design and arrangement, wise and efficient expenditure of public funds, and the adequate provision of public utilities and other public requirements.” (Emphasis added.) MCLA 125.37; MSA 5.2997. See, also, MCLA 125.104; MSA 5.1192(4).

Poised against this statutory insistence that those who zone must consider the future is the requirement, frequently stated in the opinions of our Supreme Court, that zoning must bear a present relationship to a valid purpose.

*31These two seeming opposites are not as impossible to reconcile as may first appear. In most of the cases in which the "present relationship” requirement has been advanced, the challenged zoning has been of a "speculative character”. In Gust v Township of Canton, 342 Mich 436, 440 (1955), the anticipated changes on which the zoning was based were expected to develop within 20 to 25 years. In discussing the basis for the challenged zoning in Comer v Dearborn, 342 Mich 471, 476 (1955), the Supreme Court concluded "that no such change may reasonably be expected”. Again in Biske v City of Troy, 381 Mich 611, 617 (1969), the standards condemned by the Court were again characterized as "speculative”. Furthermore, in that same opinion, the Court stated at p 616:

"The mandatory requirement, that 'The commission shall make and adopt a master plan for the physical development of the municipality, including any areas outside of its boundaries which, in the commission’s judgment, bear relation to the planning of the municipality’ (see PA 1931, No 285, § 6 [CL 1948, § 125.36], as amended by PA 1962, No 138 [Stat Ann 1969 Cum Supp §5.2996]), is of no little significance when courts are called upon to consider the reasonableness of zoning which depends upon the predictions of such a plan and the need for reasonable stability thereof once the plan has been adopted pursuant to the procedure required by section 8 of the act (CL 1948, § 125.38 [Stat Ann 1958 Rev § 5.2998]).”

And finally, the Court in West Bloomfield Twp v Chapman, 351 Mich 606, 615 (1958), while reasserting the "present relationship” rule, delivered the following praise for city planning:

" 'The benefits to be derived by cities adopting such regulations2 may be summarized as follows: They at*32tract a desirable and assure a permanent citizenship; they foster pride in and attachment to the city; they promote happiness and contentment; they stabilize the use and value of property and promote the peace, tranquility, and good order of the city. We do not hesitate to say that the attainment of these objects affords a legitimate field for the exercise of police power. He who owns property in such a district is not deprived of its use by such regulation. He may use it for the purposes to which the section in which it is located is dedicated. That he shall not be permitted to use it to the desecration of the community constitutes no unreasonable or permanent hardship and results in no unjust burden.’ ”

Therefore, the "present relationship” requirement is something less than an absolute.

The rule asserted by the majority does not condemn planning for the future, but rather the abuse of the authority to plan by relying on "speculative” factors. Whenever a municipality plans it must look to the future; in so doing it is unavoidable that certain property owners will be subjected to at least temporary inconvenience. In evaluating cases of this nature, it would be appropriate for the courts of this state to consider the interrelationships among several factors, rather than apply one general maxim. The relevant factors should be the difficulties created for the property owner; the likelihood of the anticipated changes and the expected time lag before the changes occur; and, finally, the courts should look to the reasonableness of the plan as a whole rather than considering isolated parcels of land.

Considering those factors in relationship to the case at hand, we find that plaintiffs have made no challenge to the validity of the plan as a whole; there is no indication that the City of Sterling Heights has sought to exclude or preclude develop*33ment of property for multiple-family residential purposes. We find that the time lag between the present and the realization of certain of the anticipated changes is relatively short. The offensive sewage treatment plant should be phased out before this opinion appears in the advance sheets. (To disparage such progress, as the majority does, on the basis that the necessary construction is not under the control of defendant city is a genuine distinction without a trace of difference.) Furthermore, the Huron-Clinton Metropolitan Authority is and has been acquiring substantial property in the area for a large park development.

I am of the opinion that such developments are both realistic and certain. On the basis of these, and other, developments, I feel that plaintiffs’ land would, in the very near future, be extremely attractive and desirable for the purpose for which it is zoned. On this basis, I would hold that the property owners have not sustained their burden in attacking the reasonableness of the zoning and would, therefore, affirm the judgment of the court below.

See MCLA 125.581; MSA 5.2931; MCLA 125.203; MSA 5.2961(3); MCLA 125.273; MSA 5.2963(3).

Systematic development.