Union Bank & Trust Co. v. First Michigan Bank & Trust Co.

T. M. Burns, P. J.

In August, 1969, the First Michigan Bank & Trust Company, a Michigan banking corporation with its principal office in Zeeland, Michigan (hereinafter denominated applicant) filed an application with the Michigan Department of Commerce, Financial Institutions Bureau, requesting permission to establish a branch bank in Georgetown Township, Ottawa County, Michigan. The applicant proposed to locate the branch bank in a shopping center within the unincorporated community of Jenison.

Notice of the applicant’s request to open a new branch was given to other area banks, and objections to the proposed branch were received from the Union Bank & Trust Company of Grand Rapids (hereinafter referred to as objector), and from the State Bank of Michigan at Cooperstown. The objector presently operates a branch bank in Georgetown Township approximately six-tenths of a mile east of the applicant’s proposed location.

A full adversary-type hearing was held on the matter before the Commissioner of Financial Insti*86tutions on February 16, 17, and 26, 1970.1 The applicant and both objecting banks appeared, produced witnesses, introduced exhibits, and offered testimony in support of their respective positions. On June 19, 1970, a written opinion filed by the commissioner found that the statutory requirements2 for the establishment of the applicant’s branch bank had been met since:

"[t]he proposed branch site is within a village within 25 miles of applicant’s parent bank in which no other state or national bank or branch thereof, is in operation * * * .”

Subsequently, on June 26, 1970, the objector filed a petition in Kent County Circuit Court for a review of the commissioner’s decision. This petition averred that the commissioner erred in approving the applicant’s request, inasmuch as the proposed branch bank would be in a "village” where the objector already had a branch bank in operation. The objector also maintained that the commissioner’s decision was not supported by competent, material, and substantial evidence on the whole record. Thereafter the circuit court in an opinion dated July 2, 1971, determined that there was not substantial evidence to support the commissioner’s finding of a separate and distinct village for the establishment of the applicant’s branch bank. Consequently, a judgment reversing the commissioner was entered July 23, 1971, and applicant appeals therefrom as of right.

The judicial yardstick for assessing the validity of an administrative decision is whether or not the *87decision was supported by competent, material, and substantial evidence on the whole record. Const 1963, art 6, § 28; Viculin v Department of Civil Service, 386 Mich 375 (1971); Diepenhorst v General Electric Co, 29 Mich App 651 (1971).

Therefore, we are confronted with the identical question which faced the circuit court, namely, whether there was competent, material, and substantial evidence on the whole record to support the commissioner’s finding that applicant’s proposed branch bank would be located in a "village” in which no other state or national bank or branch was in operation.

The term "village” contained in the branch-banking statute3 has been defined as an unincorporated assemblage or community of people gathered together in a nucleus or cluster for residential and business purposes. Wyandotte Savings Bank v State Banking Commissioner, 347 Mich 33 (1956). In addition, the Michigan Supreme Court indicated that in delineating a village for branch-banking purposes economic criteria rather than governmental, geographical, or physical boundaries would be controlling. Bank of Dearborn v State Banking Commissioner, 365 Mich 567 (1962).

In an attempt to impugn the competency and materiality of the applicant’s evidence, the objector asserts that the applicant was preoccupied solely with physical factors and not the requisite economic factors in defining its banking village. A close examination of the testimony before the commissioner, however, belies this contention and indicates that the applicant did indeed consider economic and commercial factors in defining the banking village.

The applicant’s president, for example, testified *88that among other things population growth, shifts in trading patterns, the amount of business the applicant transacted in the area, and the number of residences in the area were taken into consideration before submitting the application for the branch bank to the Financial Institutions Bureau.

Next, the planning director for Kent County testified in terms of neighborhood planning units used by regional planners in their planning activities. He stated that in his opinion the applicant’s proposed branch bank and the objector’s bank would be in separate planning units. On direct examination, he was asked what indicia were used in defining a neighborhood planning unit and the following dialogue developed:

”Q. What factors do you consider in determining what constitutes a neighborhood planning unit?
"A. In looking at a neighborhood planning unit, we look for relative compactness of size, definition of the area by major arterial streets or other physical factors, homogeneity in terms of land use. * * *
"Q. Do you also consider commercial activity?
”A. We consider these as ancillary to and serving the neighborhood planning units.
”Q. And it is a factor, as to the type of commercial activity, a factor that you consider?
'A. Yes * * * we’ve tried to effect shopping areas that meet the demands and needs of the community. ” (Emphasis supplied.)

Next the applicant called Dr. Carl Bajema, a long-time resident of the Jenison area, to the stand. During cross-examination, the following colloquy occurred between the witness and objector’s counsel.

"Q. "What does it [the unincorporated village of Jeni-son] mean to you * * * 9
'A. Well, Jenison means what is covered by the post *89office, because I have students who say they live in Jenison who I, according to my definition, would put them in Allendale, but they happen to be in Georgetown Township. To my, my own personal use, I prefer the term Georgetown.
"Q. But Jenison, to you, today, means basically what is covered by the post office district; is that fair? Is that what Jenison means to you?
"A. Well, if you want to talk about something amorphous and having to pin it down, I really can’t say that, because Jenison sometimes means a school district; in terms of taxes, it means where a shopping center has been constructed and you’ve given the name of 'Jenison Plaza’ * * * .” (Emphasis supplied.)

Although the applicant used streets and the like to define the area covered by the bankinjg village, an examination of the record discloses that for the most part they were used as a matter of convenience for defining the perimeters of the village after an analysis of the economic factors within the territory bounded by these physical markers had been completed. It is neither impermissible nor unusual to define the area contained within a banking village by reference to physical boundaries. See, for example, National Bank of Wyandotte v Detroit Bank and Trust Co, 19 Mich App 439 (1969); Wyandotte Savings Bank v State Banking Commissioner, supra.

We hold, therefore, that since the applicant used commercial and economic criteria to define its banking village, the evidence presented by the applicant was both competent and material.

A proper review, however, necessitates a comparison of the applicant’s banking-village evidence with that produced by the objector.

Three Georgetown Township officers4 testified for the objector via deposition. All opined that given *90the definition of "village” as set forth in Bank of Dearborn v State Banking Commissioner, supra, the objector’s present branch bank and the applicant’s proposed branch bank would be in the same village.

Finally, a professor of urban planning from Michigan State University who had assisted in preparing the Georgetown Township development plan and the township’s zoning ordinance was also of the opinion that the objector and applicant’s proposed branch would be in the same community trading area.

After comparing the testimony and the numerous exhibits presented by the parties, we conclude that the evidence, albeit conflicting, was competent, material, and substantial on the whole record to support the commissioner’s finding that the applicant’s proposed branch bank would be located in a "village” wherein no other state or national bank or branch was in operation.

Admittedly, the question is close and although had we been sitting as the commissioner we may have reached a different result, we will not substitute our opinion for that of an administrative agency where, as here, there is the requisite evidence to support the administrative decision. Sak-sey’s Lounge, Inc v Liquor Control Commission, 29 Mich App 656 (1971).

Accordingly, the commissioner’s decision permitting the establishment of the applicant’s branch bank is affirmed and the circuit court’s decision overruling the commissioner is reversed.

Holbrook, J., concurred.

The hearing was held pursuant to MCLA 487.330; MSA 23.710(30).

MCLA 487.471(1); MSA 23.710(171)(1). The other requirements of the statute as to the sufficiency of the applicant’s capital and surplus, necessity for the proposed branch, and prospects of successful operation if established are not in issue here.

Ibid.

The officers were the township’s supervisor, clerk, and treasurer.