Drummer Development Corp. v. Township of Avon

Bronson, J.

(concurring). I concur in the result reached by my colleagues; however, I think that a different analysis is required.

In Bristow v City of Woodhaven, 35 Mich App 205; 192 NW2d 322 (1971), a long-standing principle1 was reiterated as follows:

"[W]here it is shown that local zoning exists at odds with the general public welfare rather than in furtherance of it, there can be no presumed validity attaching to that portion of an ordinance which conflicts with public interest.” (Bristow, supra, at 210; 192 NW2d at 324).

A careful study of Bristow reveals a uniform method of analysis to be used when determining "whether local zoning serves to promote or inhibit the public health, safety, morals, or general welfare”.2

The inquiry proceeds first from a determination of whose interests are involved. This determination of what "public” is involved must include an evaluation of the interests of both the general "public” (metropolitan, regional and state) and the interests of the local "public”.

If general interests, as opposed to purely local *26interests, are involved it. is up to the courts to assure that all interests are properly considered. This was the very process at work in Bristow. In Bristow this process placed the burden of coming forward with evidence for the local enactment with the local municipality. The principal reason is that the general public is hardly ever represented in the process and cannot easily bring their interests into the decisional picture. Further, as I noted in Binkowski v Shelby Twp,3

" * * * Bristow provides a vehicle for encouraging municipalities to recognize their responsibilities to the development of not only their community but that of the surrounding community.
"The purpose of Bristow was to circumvent the problem of one community 'pushing off undesirable uses to another community. * * * ” (Binkowski, supra, at 469; 208 NW2d at 252.)

The rationale for the Bristow decision was also expressed in a quotation from the author of Bristow, who said:

" 'Practically speaking, the shifting of the burden of going forward is not only a rule of procedural convenience but is grounded in considerations of fairness to the parties as well. The governmental unit legislating zoning restrictions should have superior access to facts and justifications for the zoning exclusion. * * * ’ (Emphasis supplied.)” (Binkowski, supra, at 470; 208 NW2d at 252.)

Bristow then teaches that "where certain uses are concerned, a balancing must be reached between the effect of local considerations, concerns, and desires against the greater public interest”.4 There are many factors involved, and, as observed, *27"the combinations of factors are unlimited and each case must finally be decided on its peculiar factual setting”.5

If a controversy develops which is purely local in character, and the interests of the general public have been considered, then the local decision can be awarded its proper weight, assuming it is not otherwise unreasonable or confiscatory and meets other constitutional requirements.

By this analysis the present controversy is a local one. There is no evidence of any wider general public interest being involved. The evidence does not support any claim of unreasonableness or confiscation. Neither did the trial court find any unreasonable diminution in value. This was a local decision and we cannot say that it was arbitrary as to the land in question. I would affirm.

In Village of Euclid v Ambler Realty Co, 272 US 365, 390; 47 S Ct 114, 119; 71 L Ed 303, 311 (1926), the United States Supreme Court, after upholding the validity of a local zoning ordinance, cautioned:

"It is not meant by this, however, to exclude the possibility of cases where the general public interest would so far outweigh the interest of the municipality that the municipality would not be allowed to stand in the way.”

Bristow v City of Woodhaven, supra, at 219; 192 NW2d at 328-329.

46 Mich App 451, 469-470; 208 NW2d 243, 452-453 (1973).

Bristow, supra, at 218.

Bristow, supra, at 220.