Robinson Township v. Knoll

Coleman, C.J.

(dissenting). Leave to appeal was granted in this case to include consideration of the continuing validity of Wyoming Twp v Herweyer, 321 Mich 611; 33 NW2d 93 (1948), in which this Court upheld the constitutionality of an ordinance restricting the occupancy of mobile homes to mobile-home parks.1

In addition to the issue mentioned in the order granting leave to appeal, the parties also raise other issues, including whether the classifications in and the application of the zoning ordinances fall unconstitutionally upon defendants’ property. Although this case could possibly have been resolved upon one of the more limited issues raised and relied upon by the Court of Appeals, my colleagues have reached out far beyond these issues and the perimeters of this case to strike down in general terms the mobile-home zoning classifications relied upon across this state and the nation.

A fundamental rule of judicial review is that a constitutional issue need not be reached when another ground exists for resolving the case, see MacLean v State Board of Control for Vocational Education, 294 Mich 45; 292 NW 662 (1940). A corollary to this rule is that if several constitutional issues are raised, the Court should not proceed to dispose of the case on the broadest *323constitutional issues, if other more specific issues could dispose of it. However, despite these well-founded principles of judicial review, the majority opinion appears to have completely bypassed the more limited issues which may have provided a vehicle for resolving this matter. In the process of holding the mobile-home zoning classification unconstitutional on its face and concluding that mobile homes can be located anywhere in any type of residential neighborhood, subject to some as yet unresolved criteria, the majority’s opinion has passed by the other questions raised. Also, while stating the facts of the case, the majority ignores them — and by some broad generalizations, with no clear direction to bench, bar and parties to any suit, simply states that there is no reasonable governmental interest being advanced by classifying mobile homes as a use separate from other residential uses.

Although I would prefer to resolve the other issues raised by defendant before addressing the constitutionality of mobile-home zoning classification per se, the majority’s opinion addresses the broadest issue first. Accordingly, I must also address the most sweeping issue first.

That issue is whether the classification of mobile homes as a separate use for zoning purposes is constitutional. Accordingly, the defendants have the burden of showing that no governmental interest is being advanced by the present classification. They have not sustained that burden.

I

Article III, § 307.1 of the Robinson Township Zoning Ordinance provides:

’’Mobile Homes — Where Permitted: Mobile homes are *324considered as dwelling units and are not permitted as an accessory use to a permitted principal use and are permitted only in approved mobile home parks.”

The ordinance does not restrict mobile-home parks (including mobile-home subdivisions) to any particular zone, but it does require approval of the location and plan by the Board of Appeals. It also places with the board the power to hear and decide applications for "special exceptions, special or conditional uses” and other special questions. Defendants did not apply for a variance or a special exception. They did not apply for a mobile-home park permit or a building permit. The property was not shown to be subject to a non-conforming use. The mobile home was not placed prior to the effective date of the ordinance.

Article II, § 203 of the pertinent zoning ordinance describes a mobile home as:

"A movable or portable dwelling constructed to be towed on its own chassis, connected to utilities and designed without a permanent foundation for year-round living as a single-family dwelling.” (Emphasis added.)

At the outset, one should note that this case involves mobile homes, not modular or prefabricated homes.

Comparisons between mobile homes and modular homes or prefabricated homes are inapposite, if for no other reason, because of the definition of a mobile home.

Moreover, modular homes and prefabricated homes are designed to become parts of site-built residences for which building permits are required and which are subject to approval by the building inspector. No such permit was sought or granted *325in this case. There is no dispute that the home in question is a mobile home by definition.

Likewise, the argument that other homes can be moved is inapposite. A site-built home is not constructed to be "towed on its own chassis” down a road. Some homes of appropriate size can be removed from their foundations and moved to another site. However, they are not built to be towed or to blend with the flow of trafile. On-site construction is not directed to that purpose. It serves no good purpose to belabor this point further.

II

In Kirk v Tyrone Twp, 398 Mich 429, 439-440; 247 NW2d 848 (1976), this Court summarized the appropriate standard for determining the constitutional validity of a zoning determination as follows:

"The principles and tests to use to determine whether the present zoning of plaintiffs’ property is valid [were] detailed in Kropf [v Sterling Heights, 391 Mich 139; 215 NW2d 179 (1974)].
"The important principles require that for an ordinance to be successfully challenged plaintiffs prove:
" '[F]irst, that there is no reasonable governmental interest being advanced by the present zoning classification itself * * * or
" '[Secondly, that an ordinance may be unreasonable because of the purely arbitrary, capricious and unfounded exclusion of other types of legitimate land use from the area in question.’ 391 Mich 139, 158.
"The four rules for applying these principles were also outlined in Kropf They are:
"1. ' "[T]he ordinance comes to us clothed with every presumption of validity.” ’ 391 Mich 139, 162, quoting from Brae Burn, Inc v Bloomfield Hills, 350 Mich 425; 86 NW2d 166 (1957).
"2. ' "[I]t is the burden of the party attacking to prove *326affirmatively that the ordinance is an arbitrary and unreasonable restriction upon the owner’s use of his property * * *. It must appear that the clause attacked is an arbitrary fiat, a whimsical ipse dixit, and that there is no room for a legitimate difference of opinion concerning its reasonableness.” ’ 391 Mich 139, 162, quoting Brae Burn, Inc.
"3. 'Michigan has adopted the view that to sustain an attack on a zoning ordinance, an aggrieved property owner must show that if the ordinance is enforced the consequent restrictions on his property preclude its use for any purposes to which it is reasonably adapted.’ 391 Mich 139, 162-163.
"4. ' "This Court, however, is inclined to give considerable weight to the findings of the trial judge in equity cases.” ’ 391 Mich 139, 163, quoting Christine Building Co v City of Troy, 367 Mich 508, 518; 116 NW2d 816 (1962).”

See, also, Ed Zaagman, Inc v Kentwood, 406 Mich 137; 277 NW2d 475 (1979).

Although my colleagues pay some attention to how the ordinance falls upon these defendants, the leap ultimately is made to the argument that because some mobile homes are improved in appearance and construction (defendant’s is not described as within this context), all must be considered for placement in areas zoned for other residential uses despite not only Wyoming, but also Kirk, Kropf, Zaagman and all other Michigan precedent, old and new.

III

For the purposes of constitutional analysis, the ordinance comes to us with every presumption of constitutionality, which can be overcome only by finding that no governmental interest is served thereby.

Zoning restrictions are enacted pursuant to the *327police power. This power encompasses regulations designed to advance the public’s health, safety and welfare. MCL 125.273; MSA 5.2963(3) provides that a zoning ordinance designed to promote the public health, safety and welfare shall be made "with reasonable consideration, among other things, to [sic] the character of each district”, the "conservation of property values” and the "general and appropriate trend and character of land, building and population development”.

Although the construction of some modern mobile homes has improved and the area of some has been enlarged, basic differences between mobile homes and site-built homes remain. By definition, a mobile home is built without a permanent foundation and must be of a weight and dimensions that can be towed on a highway. They are more susceptible to windstorm and fire damage, which increases the possibility of injury to persons and property in the surrounding area. The police power extends to imposing reasonable regulations to safeguard residents and others against the dangers of such damage.

Plaintiff notes additional problems caused by a general lack of storage space in mobile homes. This lack of storage space may result in personal property being stored outside or the addition of lean-tos. Plaintiff notes that various practical problems result from these conditions.

Also, because a mobile home is designed to be towed on its chassis, they may lead to transience. Increased transience may also result in unsightly and possibly dangerous conditions in the land when the mobile home is removed. Even if the mobile home remains in one spot, it is generally subject to more rapid deterioration than a site-built home. Further, it would be unreasonable to *328assume or take judicial notice of the conclusion that all mobile homes compare favorably with site-built homes.

As provided in the statute, classifications may take into consideration the preservation of property values.2 Accordingly, one widely acknowledged, reasonable governmental interest is the preservation of property values. The value of a piece of property or of property in a zone is dependent not only on the intrinsic nature of the property but also upon the nature and uses of neighboring property. For the most part, even the best of mobile homes (e.g., double-width homes towed in two parts, mobile homes with bay windows on the ends, a porch attached or decorator steps, etc.) are significantly different from site-built homes or are so perceived by many. This perception can have a significant effect on property values if mobile homes are scattered throughout any residential district. Regardless of whether the perception is valid, restricting mobile homes to designated areas furthers governmental interests by furthering the safety, sanitary and recreational needs of the occupants and others, and by grouping like uses together.

With only these surface considerations, it becomes apparent that the defendants have not overcome the burden of proving that there is no room for a legitimate difference of opinion concerning the reasonableness of this classification. The defendants have not overcome the presumption of constitutionality_

*329IV

While the zoning authorities might have been able to advance similar objectives by less restrictive means, they were not constitutionally required to do so if there exists some reasonable basis for the classifications chosen. In O’Donnell v State Farm Mutual Automobile Ins Co, 404 Mich 524, 542; 273 NW2d 829 (1979), this Court stated:

" 'If the classification has some "reasonable basis”, it does not offend the Constitution simply because the classification "is not made with mathematical nicety or because in practice it results in some inequality”. * * * "The problems of government are practical ones and may justify, if they do not require, rough accommodations * * *” ’.
" 'If it be said, the law is unnecessarily severe, and may sometimes do injustice, without fault in the sufferer under it, our reply is: these are considerations that may very properly be addressed to the legislature, but not to the judiciary — they go to the expediency of the law, and not to its constitutionality.’ ”

In Village of Euclid v Ambler Realty Co, 272 US 365, 388-389; 47 S Ct 114; 71 L Ed 303 (1926), the Supreme Court stated:

"Here, however, the exclusion is in general terms of all industrial establishments, and it may thereby happen that not only offensive or dangerous industries will be excluded, but those which are neither offensive nor dangerous will share the same fate. But this is no more than happens in respect of many practice-forbidding laws which this Court has upheld although drawn in general terms so as to include individual cases that may turn out to be innocuous in themselves. Hebe Co v Shaw, 248 US 297, 303; 39 S Ct 125; 63 L Ed 255 (1919), Pierce Oil Corp v City of Hope, 248 US 498, 500; 39 S Ct 172; 63 L Ed 381 (1919). The inclusion of a reason*330able margin to insure effective enforcement will not put upon a law, otherwise valid, the stamp of invalidity. Such laws may also find their justification in the fact that, in some fields, the bad fades into the good by such insensible degrees that the two are not capable of being readily distinguished and separated in terms of legislation. In the light of these considerations, we are not prepared to say that the end in view was not sufficient to justify the general rule of the ordinance, although some industries of an innocent character might fall within the proscribed class. It cannot be said that the ordinance in this respect 'passes the bounds of reason and assumes the character of a merely arbitrary fiat.’ Purity Extract & Tonic Co v Lynch, 226 US 192, 204; 33 S Ct 44; 57 L Ed 184 (1912).” See, also, Cady v Detroit, 289 Mich 499; 286 NW 805 (1939).

Zoning classifications designed to group like uses together while at the same time separating incompatible uses necessarily involve generalizations and rough accommodations. If all zoning classifications are now subject to constitutional attacks on the basis that the per se exclusion of certain uses from a zone is unreasonable when the municipality could have adopted more detailed, less restrictive, requirements which would have adequately served the public interest, then it is unlikely that most zoning classifications would survive constitutional scrutiny. For example, a multiple dwelling apartment developer might argue that single-family residence zones are unconstitutional because a zoning ordinance could be drafted imposing more detailed, less restrictive, requirements which would adequately serve the same public interest. Minimum floor space and set-back restrictions based on a family unit could be drafted to assure that the multiple-family apartment building is in a comparable situation with other single-family buildings.

*331The number of similar hypotheticals that could arise is almost infinite. The Constitution does not impose such restrictions on the zoning authorities. Rather, so long as there is a reasonable basis for the classification chosen, the landowner’s remedy lies with the local zoning authorities either through seeking a variance or attempting to change the classification itself.

V

For these reasons, we continue to adhere to the holding in Wyoming Twp that mobile homes may constitutionally be treated differently from site-built homes for zoning purposes. Although many developments have taken place since Wyoming Twp was decided, this same issue has recently been considered in other jurisdictions, and these cases have consistently upheld the constitutional validity of the classifications being considered.3 None of the cases cited in the majority’s opinion or *332the parties’ briefs hold that a zoning regulation may not constitutionally treat mobile homes differently from site-built homes. While this absence of authority is not dispositive, it does lend support to the conclusion that this ordinance is not unconstitutional.

VI

We also conclude that defendants cannot prevail on their de facto exclusion argument on the record presented in this case. The ordinance in issue speaks of mobile-home parks as including not only traditional parks in which lots are occupied on a rental basis but also mobile-home subdivisions in which lots are subdivided and sold.4 The zoning ordinance generously provides for mobile-home parks and the zoning authorities have approved an area in the township for a mobile-home park. The mere fact that the park has not been developed (and that others have not applied) is insufficient to prevail on a de facto exclusion claim.

Defendants have not introduced any evidence that the land zoned for a mobile-home park is unsuitable for this use, or that the zoning authorities have consistently denied permits to develop such a park or have acted in any arbitrary or capricious manner. Defendants did not introduce any evidence that they ever sought variance or requested any kind of a permit.

Defendants have failed to show that there is no governmental interest in a mobile-home zoning classification as a separate use.

Therefore, on the record presented, we would *333hold that defendants have failed to overcome the presumption of constitutionality and would uphold the constitutionality of the ordinance.

Finally, the majority’s opinion does not settle the question of retroactivity. Because the state (and nation) has to this date relied upon the constitutionality of mobile-home classifications, I would, at a minimum, provide that the opinion take effect prospectively.

Ryan, J., concurred with Coleman, C.J.

See Robinson Twp v Knoll, 406 Mich 1007 (1979).

Although the preservation of surrounding property values and characteristics may not be sufficient by itself to justify these zoning restrictions, see Senefsky v Huntington Woods, 307 Mich 728; 12 NW2d 387 (1943), these factors may be taken into consideration along with the other factors mentioned above, see MCL 125.273; MSA 5.2963(3).

Davis v Mobile, 245 Ala 80; 16 So 2d 1 (1943), McKie v Ventura County, 38 Cal App 3d 555; 113 Cal Rptr 143 (1974), Board of County Comm’rs of Jefferson County v Mountain Air Ranch, 192 Colo 364; 563 P2d 341 (1977), Town of Hartland v Jensen’s, Inc, 146 Conn 697; 155 A2d 754 (1959), Cooper v Sinclair, 66 So 2d 702 (Fla, 1953), Matthews v Fayette County, 233 Ga 220; 210 SE2d 758 (1974), People of the Village of Cahokia v Wright, 57 Ill 2d 166; 311 NE2d 153 (1974), City of Colby v Hurtt, 212 Kan 113; 509 P2d 1142 (1973), Wright v Michaud, 160 Me 164; 200 A2d 543 (1964), Town of Manchester v Phillips, 343 Mass 591; 180 NE2d 333 (1962), Town of Granby v Landry, 341 Mass 443; 170 NE2d 364 (1960), State v Larson, 292 Minn 350; 195 NW2d 180 (1972), State ex rel Wilkerson v Murray, 471 SW2d 460 (Mo, 1971), Town of Londonderry v Faucher, 112 NH 454; 299 A2d 581 (1972), Vickers v Twp Committee of Gloucester Twp, 37 NJ 232; 181 A2d 129 (1962), Mobile Home Owners Protective Ass’n v Town of Chatham, 33 App Div 2d 78; 305 NYS2d 334 (1969), Currituck County v Willey, 46 NC App 835; 266 SE2d 52 (1980), Davis v McPherson, 58 Ohio Op 253; 132 NE2d 626 (1955), Fayette County v Holman, 11 Pa Commw Ct 357; 315 A2d 335 (1973), Mobile Home City of Chattanooga v Hamilton County, 552 SW2d 86 (Tenn App, 1976), Duckworth v Bonney Lake, 91 Wash 2d 19; 586 P2d 860 (1978), Edelbeck v Town of Theresa, 57 Wis 2d 172; 203 NW2d 694 (1973).

Robinson Township Zoning Ordinance, art II, § 203.4, provides:

"Mobile Home Subdivision: A mobile home park except that the mobile home lots are subdivided, surveyed, recorded, and sold in accordance with Act 288 of the Public Acts of 1967, as amended.”