Christine Building Co. v. City of Troy

Kavanagh, J.

Defendant city appeals from a decree of the circuit court for the county of Oakland *511holding void as to the plaintiffs’ property a provision in defendant city’s zoning ordinance pertaining to a lot size restriction of 21,780 square feet as unreasonable and not in any way related to the general welfare of the corhmunity.

Plaintiffs cross-appeal with reference to a particular provision of the decree wherein the court refused to pass upon the question of minimum lot sizes other than that specified in the ordinance of 21,780 square feet, on the theory this was a legislative function and the court would only have the right to pass on the ordinance after it had been adopted by the legislative body.

' The 3 cases were consolidated for trial below because they involved similarly situated lands and the same basic issues.

Plaintiffs Christine Building Company, Inc., and Mae Klipfel each own contiguous 40-acre parcels of land. Another parcel of land is involved containing 120 acres owned by the third plaintiff, Campus Estates, Inc. This latter parcel is not adjacent to the 2 parcels owned by the other plaintiffs but is located about a mile away. All plaintiffs are desirous of developing their property for residential purposes.

The 3 suits involved are an attack on the constitutionality, the legality, and the reasonableness of defendant city’s Ordinance No 23 because of the lot size restrictions imposed on plaintiffs’ property by article 14* of the ordinance.

*512The parcels of land involved are zoned under the ordinance as R-1B. This zoning regulation requires that each lot have a half acre or 21,780 square feet with a width of 110 feet. Plaintiffs, who have sought to have their property rezoned, contend they should be permitted to use their property as R-1D, which permits lots to contain only 8,500 square feet with a width of 75 feet.

The plaintiffs in essence say:

1. There is no public necessity for their property being platted in lots the size required in the R-1B classification.
2. That the present zoning restrictions on their property result economically in the ordinance being confiscatory and unreasonable.
3. That the ordinance is unconstitutional because the lot size requirements are not related to health, safety, or general welfare and exceeds a proper exercise of the police power.
4. That the city has no right under the laws of this State to arbitrarily use zoning to control the population and maintain or improve property values or aesthetics, except as an incidental result of protecting directly the health, safety, and welfare of the community.

Defendant city of Troy contends that Ordinance No 23 is a valid exercise of its police powers.

The real crux of defendant’s position is that Ordinance No 23 tends to limit the density of the population in proportion to the sewer capacity of the Evergreen interceptor system, which serves the area. Defendant contends this relationship between ultimate population and the sewer facilities directly involves the matter of health. Defendant urges that its right to have its inhabitants use the Evergreen interceptor sewer system is limited by contract and cannot he altered.

*513Defendant further maintains that the zoning plan of the city of Troy is a comprehensive one based upon a master plan and that any comprehensive plan must have a graduated lot size to accommodate people with different tastes and different pocketbooks. Defendant says the character of the neighborhood adjacent to and surrounding the 3 subject parcels is of such a nature that lots having a size of only 8,500 square feet would not be harmonious with the area to the east and south of the two 40-acre parcels or with the area to the west of the 120-acre parcel.

In substance, the city says it adopted a sewer plan for the general area to serve an estimated population of 21,300 people in the year 2000 A.D. The city then zoned so as to limit the area to that figure.

Testimony disclosed there were presently only about 2,000 persons in the sewer district.

Defendant city contends its testimony and exhibits support the following:

1. The present zoning of the subject parcels would create the maximum density of population that could be serviced by available sanitary sewers, and, therefore, bears a direct relation to the public health, safety, and general welfare.
2. The comprehensive zoning plan of the city of Troy, as evidenced by Ordinance No 23 and as applied to the parcels in question, constitutes a valid exercise of the police power and bears a substantial relation to the public health, safety and general welfare.
3. The present zoning, as applied to the subject parcels, tends to preserve the established character of the neighborhood, stabilizes the value of property therein and promotes the general welfare.
4. Operation of the zoning ordinance as applied to plaintiffs’ property does not render it worthless or almost worthless.
*5145. Where the court has decided that a provision of a municipal zoning ordinance governing the minimum lot size is unreasonable and, therefore, void, it does not then have the right to impose upon the subject parcel a smaller minimum lot size.

Defendant’s exhibit A is a contract between the city of Detroit and the county of Oakland. The total amount of sewage (or volume per cubic foot per second) to be received by the city of Detroit from the Evergreen interceptor was regulated by the contract between Oakland county and the city of Detroit. The designed capacity of the interceptor was fixed by the terms of the Evergreen sewage disposal system agreement (exhibit B) between the county of Oakland, the city of Troy, and other participating municipalities.

The Evergreen contract established Troy’s maximum population to be served at 21,300 people. According to the terms of the contract and because of the designed capacity of the sewer, a population of 21,300 people is the maximum population that could be served by the interceptor within the city of Troy.

The trial court found from the testimony and from the exhibits:

It would not be economical, from the standpoint of the developer, to build on building sites on these 3 properties on lots 1/2 acre in size, if the homes are to be sold at popular prices, meaning from $17,000 to $20,000.

Homes in the 3 parcels built on lots having a minimum size of 21,780 square feet and costing $25,000 and upwards would be in an extremely poor competitive position with houses selling at the same figure in nearby areas or developments, and would not meet with ready sales.

It is obviously desirable on the part of the plaintiffs to realize as much profit out of their land as possible and, subject to this desire, they would like *515to build on lots having not more than 8,500 square feet. It was agreed where septic tanks were necessary, the building sites needed to be larger than if serviced by a sewer system.

The trial court found as a fact that within the city of Troy other areas using septic tanks adjacent to plaintiffs’ property had much smaller lot sizes than those permitted under Ordinance No 23.

The trial court further found the reduction from 21,780 square feet to 8,500 square feet would not only-result in a great economic and financial gain to the land developers, but in a greatly increased burden upon the land because of population and services that would be required. The trial court found although plaintiffs’ profits from the land would be greatly curtailed, it could not be said the imposition of the minimum lot size of 21,780 square feet would amount to outright confiscation of the land.

The trial court failed to find a relationship between the lot size restriction and any present consequential effect on the public health, safety, and general welfare, and concluded the 21,780-square-foot lot size was a void provision as to the plaintiffs.

The trial court stated the city had no right to arbitrarily use zoning to control population and to maintain and improve property values or aesthetics, except as an incidental result of directly protecting public health, safety, and general welfare.

The court concluded, under the facts in this case and the law applicable thereto, the zoning restriction of a minimum lot size of 21,780 square feet was unreasonable, discriminatory, and not related to the protection of health, safety, and general welfare, and thus not within the power of defendant city to enforce as relates to the subject property.

The trial court went on to say it was of the opinion there devolved upon it no legal duty, right, or obligar tion to switch from the role of chancellor to that of *516municipal legislator for the purpose of rezoning the subject property, and refused to pass on the question of whether a minimum lot size of 8,500 square feet was reasonable.

Our courts have consistently held that the reasonableness of a zoning restriction must be tested according to existing facts and conditions and not some condition which might exist in the future. See the discussion in Comer v. City of Dearborn, 342 Mich 471, 477, where Justice Carr quotes from the case of Corthouts v. Town of Newington, 140 Conn 284, 288 (99 A2d 112, 38 ALR2d 1136), as follows:

“ ‘Zoning regulations constitute a valid exercise of the police power only when they have a “rational relation to the public health, safety, welfare and prosperity of the community” and are “not such an unreasonable exercise of [the police] power as to become arbitrary, destructive or confiscatory.” State v. Hillman, 110 Conn 92, 100, 105 (147 A 294). Whether a zoning ordinance meets this test must be determined in the light of existing conditions, in order that the purpose for which the police power is-invoked may be promoted. Village of Euclid v. Ambler Realty Co., 272 US 365, 387 (47 S Ct 114, 71 L ed 303, 54 ALR 1016).’ ”

This Court has held on numerous occasions that in determining the reasonableness of a zoning ordinance each ease must be determined upon its own facts. See Senefsky v. City of Huntington Woods, 307 Mich 728 (149 ALR 1433); Hitchman v. Township of Oakland, 329 Mich 331; Hungerford v. Township of Dearborn, 362 Mich 126.

In the case of Hitchman v. Township of Oakland, 329 Mich 331, Justice Carr outlined some of the-ground rules for testing the actions of a legislative body with reference to the reasonableness of a zoning-ordinance. Justice Carr said (p 335):

*517“Under the act, arbitrary action or the unreasonable exercise of authority may not be justified. A zoning ordinance must be reasonable in its operation. This is the test of its legality. City of North Muskegon v. Miller, 249 Mich 52, 57; Moreland v. Armstrong, 297 Mich 32, 36. Every case of this character must be determined on its own facts. Senefsky v. City of Huntington Woods, 307 Mich 728, 737 (149 ALR 1433). The presumption is in favor of validity. A statute or ordinance may not be held invalid unless the objections urged on constitutional grounds appear on the face of the measure in question, or are established by competent proof. Portage Township v. Full Salvation Union, 318 Mich 693; Northwood Properties Company v. Royal Oak City Inspector, 325 Mich 419.”

In the instant case, the population in the area involved presently amounts to 2,051. The city anticipates that by the year 2000 it will exceed 21,300. If we are going to speculate as to the future we might well recognize the possibilities of technological advances with reference to sewage disposal. By the year 2000 the city might find itself able to handle and service a population much greater than the 21,300 limitation.

Though each zoning case stands by itself and the reasonableness of the zoning must be judged by the circumstances of the case, in the final analysis, we must consider whether the particular provisions of the. zoning law have advanced the public health, safety, and general welfare of the people. See Pere Marquette R. Co. v. Muskegon Township Board, 298 Mich 31.

We hear and consider chancery cases de novo on the record on appeal. Johnson v. Johnson, 363 Mich 354; Osten-Sacken v. Steiner, 356 Mich 468; Futernick v. Cutler, 356 Mich 33; A & C Engineering Co. v. Atherholt, 355 Mich 677; Straith v. Straith, 355 *518Mich 267; Ball v. Sweeney, 354 Mich 616. This Court, however, is inclined to give considerable weight to the findings of the trial judge in equity cases. This is primarily because the trial judge is in a better position to test the credibility of the witnesses by observing them in court and hearing them testify than is an appellate court which has no such opportunity. We do not ordinarily disturb the findings of the trial judge in an equity case unless, after an examination of the entire record, we reach the conclusion we would have arrived at a different result had we been in the position of the trial judge. The trial judge here found, after listening to the witnesses testify and examining the exhibits, that the plaintiffs had shown the zoning ordinance to be unreasonable and arbitrary. After an examination of the entire record, we feel the trial judge reached a correct conclusion.

The limitation placed upon the city of Troy with reference to the Evergreen interceptor sewer can be changed by negotiation with the other municipalities. Self-imposed limitations by the city fathers cannot be considered as a restraint on their ability to further contract in the future.

A municipality might reasonably use zoning to control population when there is a present danger directly affecting the public health, safety, and welfare. However, the record in this case does not disclose such a situation. The city admits there are 8,500-square-foot lots in areas where sewers do not exist and are considered safe for a part of the city of Troy. Is it reasonable, then, when part of the city of Troy is without sewers, to contend health and safety demand 21,780-square-foot lots on plaintiffs’ property where a present sewer system exists?

The power granted municipalities to enact zoning ordinances is at all times limited by the word “reasonable.” There can be no question that in the in*519terest of the public health, safety, and general welfare, the municipality has authority to adopt a proper zoning ordinance; but in adopting any ordinance it must meet the test of reasonableness. The ordinance here involved fails to meet such a test so far as its application to plaintiffs’ property.

We agree with the trial court that he has no legal duty, right, or obligation to undertake to pass, under the present record, on the reasonableness of the purpose of zoning the plaintiffs’ property with reference to the 8,500-square-foot classification. It will be time enough for the court to review this matter if and when the municipal legislative body has rezoned plaintiffs’ property.

The decree of the lower court is affirmed. Neither party having prevailed in the entirety, neither shall have costs.

Carr, C. J., and Dethmers, Black, and Otis M. Smith, JJ., concurred with Kavanagh, J.

The pertinent portion of article 14 of Ordinance No 23 of the city of Troy, the schedule of regulations, limiting height and bulk of buildings and land use, reads as follows:

Use District Minimum Size Lot Per Unit Area in Width sq. ft. in feet
R^IA One-Eamily Residential 30.000 150
R-1B One-Eamily Residential 21,780 110
R-1B1 One-Eamily Residential 15.000 100
R-1C One-Eamily Residential 10,500 85
R-1D One-Eamily Residential 8.500 75
R-1E One-Eamily Residential 7.500 60