HOMRICH
v.
STORRS.
Calendar No. 42, Docket No. 49,847.
Supreme Court of Michigan.
Decided April 6, 1964.Varnum, Riddering, Wierengo & Christenson (Harold H. Plassman, of counsel), for plaintiff.
William S. Wilson (Luyendyk, Hainer, Hillman, Karr & Dutcher, of counsel), for defendant Storrs.
Vander Veen, Freihofer & Cook (Walter Freihofer and Luyendyk, Hainer, Hillman, Karr & Dutcher, of counsel), for defendant Berkompas.
O'HARA, J.
Byron township, Kent county, Michigan, enacted a zoning ordinance in pursuance of its legislatively granted authority so to do. The township denominated the enactment "Zoning Ordinance Building Code." For the purpose of the ordinance the enactment said:
"Section 2
"Byron township is hereby divided into 7 classes of districts:
"Agricultural district "`A' Residential district "`B' Residential district "`C' Residential district "`C-1' Commercial district "`C-2' Commercial district "Industrial district"It is with an agricultural district and the uses *535 permitted therein that we are here concerned. Section 5 of the ordinance recited the permitted uses in an agricultural district. There were 8 listed which needed no special authorization. Subdivision 9 of section 5 is different. It provides:
"When authorized by the board of appeals, the following uses of agricultural zoned districts are permissible." (Emphasis supplied.)
The section then sets forth 8 subdivisions "a" through "h". Subdivision "d" reads: "Inns, dining places or commercial summer gardens."
Section 15 of the ordinance prescribes the manner of calling meetings of the board of appeals, the manner of conducting them, the duties of the board and the mechanics of conducting a hearing on appeals. It is silent as to what factors are to be considered in the granting of the "special authorization" specified in section 5, except to provide in the last paragraph of the section that the board may grant no variation, the effect of which would amount "to a rezoning of the premises involved."
The first section of the ordinance contains the usual general proviso that its interpretation shall be held to minimum requirements for "the promotion of the public health, safety, morals, comfort, prosperity and general welfare" of Byron township and its inhabitants.
All of the foregoing sets out the legal framework upon which the following facts must be superimposed to arrive at a decision.
For 13 years prior hereto, Dewey Storrs had operated a tavern in Byron township, a short distance north of a location where he proposes to open a new one. No one seems to complain of the manner in which he conducted the business in the prior period. For some reason or other in January, 1962, he closed up. Shortly thereafter he made application *536 to the board of appeals for "authorization to erect a building to be occupied as an inn." In the manner prescribed by the ordinance a public meeting was held, after postcard notices thereof were mailed out. In the course of the hearing, which was conducted somewhat in the informal and purely democratic manner of a New England town meeting, an advisory vote was taken. It resulted in a vote of 21-3 in favor of granting Mr. Storrs the "special authorization" provided for in the ordinance hereafter.
Albert Homrich, the landowner immediately adjacent to the site of the erection of the proposed inn, sought and obtained a temporary order from the circuit court of Kent county, restraining the erection of the building. The bill of complaint included a prayer for a permanent injunction. The bill also challenged the constitutionality of section 5 of the ordinance by reason of its failure to set "standards for the guidance of the board of appeals in the granting of special authorizations."
On hearing, the chancellor took extensive testimony, filed an opinion upon which a decree was entered dismissing the bill of complaint and dissolving the temporary injunction. From that decree, plaintiff-appellant claimed appeal.
The case is before us on the foregoing recitation of facts and the legal determinations of the applicability of the ordinance. Tangent factual controversy other than here set forth exists. These issues are concerned with the propriety of the so-called "private" part of the meeting of the appeal board after the vote, denominated by the board as "advisory," was taken; an addition to the minutes of the meeting stating, in substance, that the special authorization "would not change the character of the neighborhood" and recording the majority as favoring the grant. These issues are not controlling.
*537 The questions framed on appeal by the statements of questions involved are here set forth in juxtaposition for easy comparison in the sequence in which we shall pass upon them:
Appellant | Appellee
|
"1. Does the board of appeals | "1. Does the board of appeals have
have power under paragraph 9 of | power under paragraph 9 of section 5
section 5 of the Byron township | of the Byron township zoning ordinance
zoning ordinance to authorize | to authorize the erection of a
the erection of a building for | building wherein beer or wine will be
tavern purposes in an | offered for sale on the premises, to
agricultural district? | the public, in an agricultural
"3. Is the decision of the board | zone?
of appeals invalid by reason of | "3. Is the decision of the board of
absence of justiciable facts and | appeals invalid by reason of absence
findings or absence of | of justiciable facts and findings or
justiciable facts and findings in | absence of justiciable facts and
the minutes in support of the | findings in the minutes, in support of
action taken? | the action taken?
"2. Is paragraph 9 of section 5 | "2. Is paragraph 1 A 9 of section 5 of
of the ordinance invalid for | the ordinance invalid for failure to
failure to provide standards for | provide standards for guidance of the
guidance of the board of appeals | board of appeals in the exercise of
in the exercise of its | its discretion?"
discretion?" |
Little time need be spent on 1 and 2. We are not impressed with the semantic refinements of the terms "inn" and "tavern." True, the ordinance in section 9 specifies use of a building as a "roadhouse or tavern" in a C-1 commercial district as prohibited. This is relevant only to the point of the intention of the framers of the ordinance in having in mind a distinction between a roadhouse or tavern and an *538 inn. They may very well have intended to make such distinction. But that such is the case does not make the sale of beer or wine on the premises the single and conclusive distinction between an "inn" and a "roadhouse or tavern." We do not believe we need expatiate on the fact that "inns" per se may or may not sell alcoholic beverages. "Tavern" for liquor control commission purposes is defined in the act[*] (as amended) creating the commission. Briefly, it's a place where alcoholic beverages in their varied forms are sold and where the sale thereof is the primary and essential raison d'etre of the establishment. We don't know what the framers meant by a "roadhouse," and neither the record nor the briefs help us to so determine. Fortunately, it makes no difference. Appellant asks whether the board of appeals has power under subdivision 9 of section 5 of the ordinance to authorize the erection of a building for tavern purposes. Obviously not. It provides for special authorization for an "inn." Appellee asks whether the the same section authorizes the erection of a building wherein beer or wine will be offered for sale. The ordinance is silent upon the precise question. The words "beer and wine" nowhere appear therein.
Appellant and appellee both state question 3 in identical terms. They inquire jointly whether the decision of the board is invalid by reason of an absence of "justiciable facts and * * * or absence of justiciable facts and findings in the minutes" of the concerned meeting. No, it is not. The minutes recite the purpose of the meeting, who wanted what, who opposed what, what the board did, and the basis on which they did it. No one seriously contends that save inconsequential variations the minutes reflect what actually took place.
*539 Question 2, our number 3 in order of consideration, is controlling. The question is whether the ordinance is constitutionally invalid for failure to provide standards of guidance for the board in the exercise of its granted discretion. The appellant says the trial court did not answer the question, and that the answer should be "yes." The appellee contends that the trial court answered the question "no" and that the answer should be "no." We agree with appellant. The trial court did not answer that question. He did say:
"I am of opinion, therefore, that we can use the word `inn' in its very broadest sense, and that it would cover the operations that are contemplated here."
The foregoing answer is no different from our answer to question number 1, namely, that what Dewey Storrs intended to do fell within the ordinary accepted classification of things people who operate "inns" do. The court considered the architectural design of the proposed building, the class of trade to be expected, and the manner of conduct of the owner's prior establishment. When all this was considered, he determined Dewey Storrs was going to operate an "inn"; that he had received the special authorization from the appeal board necessary to construct a building to be used as one. In this we believe he was right and we so hold. But this holding does not answer appellant's contention that the special authorization section, subdivision 9 of section 5 of the ordinance, is unconstitutional, for want of any standard prescribed for the board in conformance with which it could exercise its discretionary powers.
Appellee claims (a) that the constitutionality of the section wasn't raised by the pleadings and (b) if it was and the trial court did not consider it, hence it is "now too late for plaintiff-appellant to *540 raise it." Paragraph of appellant's bill of complaint alleges:
"If the language of section 5 of the Byron township zoning ordinance does permit the board of appeals to issue a special authorization in an agricultural district for tavern purposes, and the board of appeals in fact issued a special authorization for tavern purposes in this instance, said special authorization so issued is nevertheless invalid for the following reasons:
"(1) Section 5 of the ordinance with respect to special authorizations sets no standards for the guidance of the board of appeals in the granting of special authorizations and, accordingly, section 5, to the extent applicable to special authorizations, is unconstitutional.
"(2) The board of appeals has no power to grant special authorizations for the reason that the township board of Byron township could give no power to the board of appeals to grant special authorizations and to grant special authorizations without standards for guidance of the board of appeals."
The foregoing clearly places in issue the constitutionality of the section involved. It was thus before the trial court. He did not hold the section unconstitutional. Implicitly, therefore, he must have held it constitutional in order to pass upon the other questions covered in his opinion.
Osius v. St. Clair Shores, 344 Mich 693 (58 ALR2d 1079), controls. Substituting "inn" for "gasoline station" and reversing the action of the board of appeals from a denial to a grant, the cases are indistinguishable. We need only to quote former Justice TALBOT SMITH'S language, substituting as above noted, at p 700:
"The ordinance presented is fatally defective. The zoning board of appeals is simply given authority to permit, and obviously to refuse to permit, the erection of gasoline stations [inns] after public hearings. *541 But what standards prescribe the grant or rejection of the permission? We find none."
Nor can we find any here. The ordinance is unconstitutional and void as to the particular provision, section 5, since it fixes no standard for the grant or refusal of the special authorization sought. So pending it becomes necessary to address ourselves to defendants' status in view of this holding.
It is to be noted that after the meeting of the board of zoning appeals the trial court had temporarily enjoined defendant from erecting the building for the purpose intended. Upon conclusion of hearing on the merits he dissolved the injunction. In his opinion he did not address himself directly to the point we found controlling. As we noted earlier, we construe this to have been an implicit holding of the constitutionality of the appeal board section. Whether he dissolved the injunction for its unconstitutionality does not affect the legal propriety of its dissolution. To dissolve it was required in any event. To this extent we affirm the order of dissolution.
We express no opinion on whether defendant-appellee may operate an establishment on his property in which alcoholic beverages are sold without contravening the provisions of the ordinance unaffected by our holding here because that question is not reviewably before us.
The order of the trial court to the extent it dissolved the temporary injunction is affirmed. The order dismissing the bill of complaint is vacated. The case is remanded for further proceedings in view of our holding here. No costs, neither party having fully prevailed.
KAVANAGH, C.J., and DETHMERS, KELLY, BLACK, SOURIS, and SMITH, JJ., concurred.
ADAMS, J., took no part in the decision of this case.
NOTES
[*] PA 1933 (Ex Sess), No 8, § 2s, as added by PA 1952, No 216 (CLS 1956, § 436.2s (Stat Ann 1957 Rev § 18.972[19]).