Schaefer v. City of East Detroit

Dethmers, C. J.

Plaintiffs brought these actions in chancery, seeking to have defendant’s 1948 zoning ordinance, classifying their vacant lots for residential 1, single dwelling purposes, decreed to be unreasonable, unconstitutional, and void as applied thereto, and defendant enjoined from enforcing it against the same. Prom decrees granting plaintiffs such relief, defendant appeals.

*538The lots involved are on the west side of and front on Kelly road between Eight Mile and Nine Mile roads in defendant city. All are 100 feet deep, some have a frontage of 20 feet, some 25.21, and two 28.98 feet. All the other lots fronting on Kelly road are similarly narrow. One plaintiff owns bnt a single lot. The others own 2 or more contiguous lots.

Kelly road is a divided superhighway, 204 feet wide, with 2-lane, 20-foot pavements for traffic in each direction, separated by a wide grass parkway. Traffic on it runs as high as 29,000 vehicles per day. Because of the.heavy traffic, a professional traffic engineer consultant, after a study and survey, in a report to defendant city, recommended widening the street from 20 to 33 feet on each side to provide for 3 paved lanes for traffic in each direction.

The narrowness of all lots fronting on Kelly road in the subdivisions involved, as contrasted with the width of the rest of the lots west therefrom, intended for residential use, and the language with respect thereto in many of the deeds conveying title of lots from the original platters to their grantees, clearly indicate the intent and purpose of the common-owner-platters, when platting the properties years before the zoning ordinance, to designate and limit the lots on Kelly road to use for commercial purposes. It is for such purposes that plaintiffs wish to use their lots.

Real-estate experts testified that plaintiffs’ properties are unsuitable for residential purposes and that there is no demand for them for such use, but that there is for business purposes. This they attributed, in part, to the proximity of other business places, heavy traffic, and attendant dirt and noise. Their testimony was that if one built a residence there he would not be able to sell it and get his money out of it again. Defendant adduced no testimony in contradiction to any of this, but, on the *539contrary, it was confirmed by defendant’s own city planner, who testified that the best nse of the properties would be business, not residential.

One of the exhibits, a map of the area fronting on Kelly road between Eight Mile and Nine Mile roads, shows that a majority of the frontage has been zoned commercial, and the trial court so found. Alternating stretches, zoned commercial and residential, respectively, are interspersed through each other. Since adoption of the original ordinance, by amendments, which the trial court termed spot-zoning, some properties which had been zoned residential were changed to commercial, part of them, on which gasoline stations, et cetera, have been constructed, being adjacent to some of the properties of plaintiffs involved in this suit. By such amendments defendant has evidenced a recognition of the commercial trend in the area. There are only 4 houses but many businesses, some adjacent to plaintiffs’ lots, on the west side of Kelly road between Eight Mile and Nine Mile roads.

In its opinion the trial court stated that the zoning of the area, with an intermixture of business and residential classifications, in some instances even in the same block, gave rise to a serious question as to the proper exercise of the police power. The court found this did not amount to a comprehensive and carefully considered zoning plan, but to spot-zoning, with no uniformity of enforcement, bearing no relationship to promotion of the general welfare.

In view of the character of the superhighway, Kelly road, its heavy traffic conditions with attendant dirt and noise, the zoning of a major portion of the area in question for business rather than residential use, the actual existence of only 4 houses and many businesses, some next to plaintiffs’ lots, in the mile between Eight Mile and Nine Mile roads, the inability to get invested money back out of proper*540ties if residences were erected thereon, and the undisputably unsuitable character of the lots for such purpose, we think in point the following from syllabus in Frendo v. Township of Southfield, 349 Mich 693:

“Township zoning ordinance which limited the use of 18 lots, including 6 owned by plaintiffs, to single-family residence use held, unreasonable, confiscatory, and void, where 92% of the similarly situated frontage for 6 miles on main artery of travel is devoted to commercial or industrial uses, there is no market for residences on the thoroughfare, and noise and a heavy volume of traffic make it undesirable and unsuitable for any residential use.”

In Comer v. City of Dearborn, 342 Mich 471, defendant city denied plaintiffs’ application for permission to build a motel in an area zoned industrial. Holding the classification unreasonable and invalid, this Court said (pp 475, 476) :

“Obviously, it was the intention of the framers of the ordinance, in view of the restrictions imposed with reference to the purposes for which property so zoned may be used, to exclude any use ‘for dwelling purposes,’ and to permit business and industrial uses only. As bearing on the reasonableness of such restrictions the purposes for which property in the immediate vicinity is now being used require consideration. It appears from the record that in such area there are a number of residences, several business places, and very few industrial enterprises. As the situation now is, the neighborhood may not be regarded as an industrial one. The exhibits in the case clearly support this conclusion.

“In view of the existing situation we do not think that the ordinance, if construed as prohibiting the construction of a motel on plaintiff’s property, is reasonable. As so applied the restriction is invalid.” *541Consideration of the purposes for which a major part of the property in the immediate vicinity is now zoned and being used leads to the conclusion that here, as in Comer, the restrictions on plaintiffs’ properties are unreasonable and invalid. Under the record we are convinced that imposition of the residential restrictions on plaintiffs’ properties fronting on a busy superhighway, some next to business properties, in an area so largely commercial, bears no reasonable relationship to public health, safety, morals, or the general welfare and therefore fails to come within a lawful and permissible exercise of the police powers.

Defendant urges that plaintiffs are guilty of laches for not having attacked the ordinance until it had been in effect for several years. No showing of prejudice to defendant or others by reason of such delay was shown. That defense is, therefore, of no avail to defendant here. Wright v. Brown, 317 Mich 561; Kelley v. Hoogerhyde, 314 Mich 37; Manheim v. Urbani, 318 Mich 552; Rybinski v. Rybinski, 333 Mich 592.

The fact that some of plaintiffs purchased their lots after the ordinance had been adopted in no wise estops them from challenging its validity. Robyns v. City of Dearborn, 341 Mich 495.

Decrees affirmed. Costs to plaintiffs.

Carr, Kelly, Black, and Kavanagh, JJ., concurred with Dethmers, C. J.