Detroit Edison Co. v. City of Wixom

T. M. Kavanagh, J.

We concur in the opinion of Chief Justice T. E. Brennan as to the first issue and the result reached on the second issue. On the latter issue we concur in the result reached for the following reasons:

The legal principle is firmly established that zoning ordinances, when related to the public health, morals, safety, or general welfare, are a valid exercise of the police power, provided that such ordinances satisfy the legal test of reasonableness. Roll v. City of Troy (1963), 370 Mich 94; Township of West Bloomfield, v. Chapman (1958), 351 Mich 606; Anderson v. City of Holland (1956), 344 Mich 706; McGiverin v. City of Huntington Woods (1955), 343 *687Mich 413; Janesick v. City of Detroit (1953), 337 Mich 549; City of North Muskegon v. Miller (1929), 249 Mich 52. It is equally well established that each case involving the reasonableness of a zoning ordinance and its consequent validity or invalidity must be determined on its own facts and surrounding circumstances. Korby v. Township of Redford (1957), 348 Mich 193; Long v. City of Highland Park (1949), 329 Mich 146; Moreland v. Armstrong (1941), 297 Mich 32; Pere Marquette R. Co. v. Muskegon Township Board (1941), 298 Mich 31.

Turning to the facts of this particular case to determine the reasonableness of the ordinance in question, we note the peculiar dilemma in which Detroit Edison, as a public utility, is placed.

As a public utility, it was not only desirable but incumbent upon Detroit Edison to anticipate and provide for the ever-increasing customer demand for electricity by expanding its system of high-voltage transmission. In the discharge of its duty and absent any countervailing statute or- zoning ordinance, the most feasible method of expansion in terms of technology and economics was to erect a 345 kv1 system. Proceeding under this system, the public utility would be required, pursuant to safety *688regulations adopted by the Michigan public service commission, to construct towers approximately 130 feet in height.

On the other hand, the city’s amendatory ordinance would prohibit structures in excess of 100 feet. This, in effect, restricts Detroit Edison to utilizing a 120 kv system.2 The intent of the city in imposing this restriction is well summarized in the trial court’s opinion, as follows:

“The city however does not look with favor upon the proposed construction. Speaking for the city, the. planner says that it would physically divide areas zoned for future residential use, that it would prevent the orderly development of street systems, that it has a ‘scare’ effect on prospective home buyers and that the line of towers would be offensive in appearance.”

Had this ordinance been in effect at the time Detroit Edison had initiated its long-term planning in 1956 and before its undertaking of the expansion of the existing facilities, all the parties undoubtedly would have recognized this presumptively valid ordinance as binding and would have acted accordingly.

The facts of this case, however, indicate that the amendatory ordinance, adopted in June of 1965, *689came long after the initiation of the project and purchase of the land by Detroit Edison in 1956. It was only after Detroit Edison had secured approval of the project from the Michigan public service commission in November of 1964 and was ready to commence its construction, that the city hurriedly adopted the amendatory ordinance. Furthermore, the ordinance was enacted after Detroit Edison had expended approximately $273,000 to purchase land measuring 200 feet in width and 4 miles in length through the city of Wixom. The record also discloses that Detroit Edison had made commitments for the .purchase of necessary towers, lines, and station equipment totaling approximately $25,000,-000.

Considering the operational function of a public utility and the necessity for comprehensive long-term planning3 and based upon the facts in this rec*690ord, we find that plaintiff had acquired vested property rights prior to the enactment of the city’s ordinance. Viewed in this chronological context, we must and do hold the ordinance to be invalid as applied to plaintiff in that said ordinance operates retroactively upon plaintiff’s vested property rights and not in futuro as required by our previous decisions. See Bane v. Township of Pontiac (1955), 343 Mich 481; Richards v. City of Pontiac (1943), 305 Mich 666; compare with City of Howell v. Kaal (1954), 341 Mich 585; City of Lansing v. Dawley (1929), 247 Mich 394.

In addition, we note from the facts in this record that Detroit Edison, to comply with this particular zoning regulation, would be forced to abandon its proposed 345 kv system; and, if it was to proceed under the only remaining plan, to acquire a 100-foot wider right-of-way and install two separate lines with twice as many towers. The net effect, therefore, of the ordinance in question would be to render the property in its present state, measuring 200 *691feet wide and 4 miles long, wholly unadaptable to any practical use by plaintiff and virtually worthless on any market.

We have in the past repeatedly held that zoning ordinances which render property almost worthless are generally unreasonable and confiscatory. Lincolnhol v. Village of Shoreham (1962), 368 Mich 225; Burrell v. City of Midland (1961), 365 Mich 136; Scholnick v. City of Bloomfield Hills (1957), 350 Mich 187; Fenner v. City of Muskegon (1951), 331 Mich 732; Grand Trunk Western R. Company v. City of Detroit (1949), 326 Mich 387. Based upon the facts in this record and the authorities cited, we hold this ordinance to be invalid.

We note, further, that the very nature of the ordinance in question indicates that it “bears no substantial relationship to present public health, safety, morals or general welfare.” Roll v. City of Troy, supra, p 97. The entire thrust of the ordinance and the single bone of contention between the litigants is not the route location but, rather, the height of the towers. In this context, the city’s planning consultant testified as follows:

“Q. What is your objection to the structure?

“A. The structure from an esthetic standpoint is certainly undesirable in a residential neighborhood.

“Q. If the ordinance you helped draft is addressed only to structure?

“A. That’s true.

“Q. It makes no attempt to prevent the company from owning the land?

“A. Not at all.

“Q. And the objection to the structure now is an esthetic one ?

“A. I only say this is part of the objection to it.

“Q. What is the rest of the objection to the structure?

*692“A. I think there is a real scare value in a high tension power line in a residential area. Whether you say or not it has effect on interference with radio or television doesn’t concern me. I know that it probably can be worked out so it won’t but I don’t think people know this. I am certain they don’t. If you have talked to people that live near a power line, you get this comment: ‘We feel that it affects the reception of our television set and it does this and does that.’ This makes this property less desirable as residential property.”

It may be conceded that, in implementing the plan apparently contemplated by the framers of this ordinance, aesthetics may be a valid consideration; but such consideration must be merely an incident and not the moving factor. Wolverine Sign Works v. City of Bloomfield Hills (1937), 279 Mich 205; Hitchman v. Township of Oakland (1951), 329 Mich 331. While we are not insensitive to the disruptive and unsightly effect which the proposed towers and lines may have upon the scenic beauty of the Wixom area, we cannot sustain the ordinance for purely aesthetic reasons or unsupported fears of the city planners. The ordinance to the extent that it is predicated upon an exclusively aesthetic basis is held to be invalid.

For the reasons given above and based upon the authorities cited herein, we hold the ordinance in question to be invalid.

Upon remand the circuit court shall enter an injunction as prayed for by plaintiff in conformity with this opinion.

No costs, a public question being involved.

Dethmers, Black, and Adams, JJ., concurred with T. M, Kavanagh, J.

To assist the reader in understanding the technical problems, the following testimony is pertinent:

“Q. If you will tell us about this lower voltage and higher voltage. Most of your transmission lines, most of your tower lines are operating at present at what voltage?
“A. 120kv.
“Q. 120 kv. The line which is in question here, if it is built, is intended to operate at what voltage?
“A. 345 kv.
“Q. What is the difference?
“A. It is about three times higher in voltage level and about eight times greater in transmission capacity. * * *
“Q. Is there any difference in the mechanical construction of the power line as between 345 kv and 120 kv?
“A. Not in basie concept but in physical details it has to be higher because the voltage is higher and the clearance between conductors and the steel and between conductors one to the other on the various phases and above ground has to be greater.”

The practical effect of the ordinance upon plaintiff’s project is disclosed by Detroit Edison’s transmission engineer as follows:

“Q. Now this eity ordinance limiting towers to 100 feet, would it be possible to construct legally or let me change that, would it be possible to construct in compliance with the code this transmission line if the towers were no more than 100 feet high?
“A.' It .would be possible but it would be very difficult.
“Q. What kind of thing would be involved?
“A. Well, if we wanted to transmit the same amount of power that we are going to earry on this line, we’ll have to change the type of structure and to accommodate two circuits we’d require two separate tower lines.
“Q. Would it require perhaps more towers?
“A. It would require double the number of towers and at least 100 feet more right-of-way than we now have.”

The nature and seope of plaintiff’s operational expansion is disclosed by the testimony of the systems development manager:

“Q. What is the business of The Detroit Edison Company?
“A. Supplying the electric power requirements of the customers in the area it serves.
“Q. What is its area?
“A. It’s roughly an area about 50 miles east and west from the Detroit river, Canadian boundary, and about 150 miles north and south. It ineludes the thumb of the State of Michigan and the area underneath, down to and including Monroe.
“Q. Does it include most of Oakland county?
“A. It does, sir. * * *
“Q. Will you tell the court something about the time this involves here? Why are you concerned with what the situation will be in 20 years from now?
“A. We are going to serve the public efficiently at lowest cost. We must plan our expansion on an orderly basis. This means that each step must fit into a long-range pattern so that the net end result is a coherent, adequate system.
“Q. In things like putting in new generating plants and putting in new transmission lines are those things which involve anything considerable in the way of time?
“A. Yes, the generating plant takes about five years of initial conception to installation, and transmission lines in some instances take about the same amount of time, á to 5 years.
“Q. Coming to the line which is in question this morning, we are here as I understand it about a proposed transmission line going north and south through the eity of Wixom. Will you tell us some*690thing about wliat that proposed Hue is to be like and why it is proposed to build it?
“A. Yes, and I think if I could use the chart it might help explain some of our developments in the past and how this fits into our future pattern. Thirty years ago, I stated earHer that our capacity requirements and power requirements have increased some seven-fold in the last 30 years, 30 years ago we put in our Trenton Channel lilant south of Detroit and our Marysville plant north of Detroit. At that time, our 120 kv transmission system was relatively new and we built 120 kv Hnes from Marysville into the north side of Detroit and from Trenton Channel into the south side of Detroit. The loads out around Pontiac and Ypsilanti and Superior were going rapid [growing rapidly, sic?], so we built a line at that time from St. Clair to the Pontiac area and from there on around to the Ann Arbor-Superior area and tied it back to the Trenton Channel. That is the present line that runs through the south side of Wixom. That tie is needed to give reliability to these power centers. Now as the load has grown, we have had to tap that line a number of times. One of the fairly recent taps is the Cody step-down station near South Lyons and the other is the Hancock, whiek is a few miles east of here. These step-down systems feed the subtransmission system and are necessary to pick up loads Hke the Wixom plant for general publie purposes.”