WILLIAMS, J. (for affirmance).
Turkish v City of Warren
This zoning case causes us to revisit Kropf, Sabo, and Kirk. We hold that the majority rule enunciated in both Kropf and Kirk as well as the minority opinion of Justice WILLIAMS in Sabo remain the law in Michigan today insofar as the appropriate standard for determining the validity of zoning ordinances is concerned. Accordingly, we affirm the Court of Appeals ruling of unconstitutionality, but remand this matter to the Warren City Council acting as zoning authority for further action consistent with this opinion.
Kropf v Sterling Heights, 391 Mich. 139; 215 N.W.2d 179 (1974).
Sabo v Monroe Twp, 394 Mich. 531; 232 N.W.2d 584 (1975).
Kirk v Tyrone Twp, 398 Mich. 429; 247 N.W.2d 848 (1976).
I. THE APPROPRIATE STANDARD
The appropriate standard for determining the constitutional validity of municipal zoning determinations was succinctly set forth in Kirk as follows:
"The principles and tests to use to determine whether the present zoning of plaintiffs' property is valid was detailed in Kropf.
"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
"`[S]econdly, 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 N.W.2d 166 (1957).
"2. `[I]t is the burden of the party attacking to prove affirmatively 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 N.W.2d 816 (1962)." 398 Mich. 429, 439-440.
See Sabo v Monroe Twp, 394 Mich. 531, 542; 232 N.W.2d 584 (1975). (Separate opinion of WILLIAMS, J., for reversal of the trial court.)
II. FACTS
This is an unusual zoning case involving what the defendant's Director of Planning has described as "a problem piece" of property. Plaintiffs allege that, because of two factors, the cost of developing their property under the challenged R-1-C single-family zoning ordinance would equal plaintiffs' potential sales return, thereby rendering the disputed zoning designation unconstitutionally confiscatory as applied to their parcel. Throughout both their pleadings and proofs, plaintiffs have urged that their parcel be judicially reclassified to permit the construction of multiple family dwellings, an R-3 use.
Plaintiffs' complaint, in pertinent part, reads as follows:
"(b) That plaintiffs be permitted to commence construction in accordance with defendant's R-3 zoning ordinance.
"(c) That plaintiffs have such further and other relief as may be just and equitable under the circumstances."
At no point in either their pleadings or testimony at trial have plaintiffs requested the judicial declaration of a proposed use other than the construction and development of multiple-family dwellings, one of many enumerated R-3 uses.
In its answer to plaintiffs' complaint, defendant merely prays that the complaint be dismissed and that costs as well as attorneys' fees be awarded. Defendant has consistently averred that the parcel in question is solely amenable to an R-1-C single-family residential use; defendant nowhere indicates that an R-3 use other than that requested by plaintiffs would be satisfactory.
Warren Zoning Ordinance 30, art X, §§ 10.01 et seq., delineates the particular uses and specifications to which property zoned R-3 may be put. Section 10.01 entitled "Uses Permitted" provides as follows:
"In all R-3 districts no building or land, except as otherwise provided in this ordinance, shall be erected or used except for one or more of the following specified uses:
"(a) All uses permitted and as regulated in R-2 districts.
"(b) Multiple-family dwellings and efficiency apartments.
"(c) Boarding, rooming and lodging houses or tourist homes.
"(d) Private garages or community garages, either separated or in connected groups, having common and unpierced dividing walls between contiguous private garages. Maximum area per car to be stored in such garages shall not exceed two hundred-fifty (250) square feet."
Warren Zoning Ordinance 30, art IX, §§ 9.01 et seq., details the uses and specifications permitted under the R-2 two-family residential district classification referred to in § 10.01, supra. Section 9.01 provides as follows:
"In all R-2 residential districts, no building or land, except as otherwise provided in this ordinance, shall be erected or used except for one or more of the following specified uses:
"(a) All uses permitted and as regulated in R-1-C districts.
"(b) Two-family dwellings.
"(c) Private museums, on approval of the Planning Commission.
"(d) Building and uses customarily incidental to the above permitted uses shall include not more than one (1) private garage which shall provide parking space for not more than two (2) motor vehicles per living unit, not more than one of which may be a commercial vehicle which shall not exceed three-quarter (3/4) ton capacity and shall be kept housed within a garage when not in use, provided said commercial vehicle is owned and operated by a member of the family who resides in said living unit. Maximum area per car to be stored in such garages shall not exceed two hundred fifty (250) square feet.
"(e) A residence may be used for a home occupation, provided it complies with § 2.29 of this ordinance, after approval has been granted by the Board of Appeals.
"(f) Hospitals, except animal hospitals and hospitals or sanitariums for contagious, mental or drug or liquor addict cases, and institutions of a philanthropic and charitable nature, after approval has been granted by the Planning Commission.
"(g) The storage or parking of trucks, truck tractors and truck trailers of over three-quarter (3/4) ton capacity, automobile trailers or the storage, parking or use of coaches, bus or streetcar bodies, or similar dwellings, tourist cabins, or tents shall not be allowed or considered a legal accessory use in an R-2 district. This shall not prohibit the storage of one unoccupied house trailer or watercraft, which is the property of the occupant, provided, however, that such house trailer or watercraft shall be parked in the rear yard at least ten (10) feet away from any dwelling and any property line."
Warren Zoning Ordinance 30, art VII, §§ 7.01 et seq., captioned "R-1-C One Family Residential District" provides in § 7.01 for all uses permitted under the R-1-B designation, Warren Zoning Ordinance 30, art VI, §§ 6.01 et seq., which in turn refers to all uses permitted under R-1-A. Warren Zoning Ordinance 30, art V, §§ 5.01 et seq., details the uses permitted under the R-1-A one-family residential district classification. Those uses are defined in § 5.01 as follows:
"In all R-1-A districts, no building or land, except as otherwise provided in this ordinance, shall be erected or used except for one or more of the following specified uses:
"(a) One-family dwellings.
"(b) Farms on those parcels of land separately owned outside the boundaries of proprietary or supervisor's plats, having an area of not less than three (3) acres, all subject to city and county health and sanitation ordinances.
"(c) Churches, public schools, public libraries, private educational institutions, when approved by the City of Warren Planning Commission.
"(d) Municipal owned and operated parks and playgrounds, available for use by the residents of the City of Warren, after approval by the Planning Commission.
"(e) Church or public building bulletin boards, not exceeding ten (10) square feet in area, and temporary signs not exceeding six (6) square feet in area appertaining to the lease, hire or sale of a building or premises, which sign shall be removed as soon as the premises are leased, hired or sold. Provided, further, that not more than one (1) temporary non-illuminated subdivision sign pertaining to the sale or rental of premises being developed on which it is maintained, and having an area of not more than three hundred (300) square feet nor more than ten (10) square feet for each lot within the subdivision of less than thirty (30) lots. Said sign shall not exceed twelve (12) feet in height above ground and shall be removed upon completion and occupation of buildings.
"(f) Community buildings, country clubs, fraternal lodges, or similar civic or social clubs (but not a residential club, or a club operated as a commercial enterprise), after approval by the Planning Commission.
"(g) The use of open land for privately owned and operated parks, picnic groves, golf courses, or similar facilities for outdoor exercises and recreation, which may or may not be operated for profit, provided such use does not impair the natural appearances of such land or tend to produce noise or annoyance to surrounding properties, shall be permitted only after approval by the Planning Commission.
"(h) Publicly owned buildings, transformer stations and substations, without service yards, after the approval of the City of Warren Planning Commission as being in harmony with the structures in the area, not injurious to the surrounding neighborhood and in accord with the spirit and purpose of this ordinance.
"(i) Temporary buildings for uses incidental to construction work, which buildings shall be removed upon completion or abandonment of the construction work.
"(j) The use of a parcel, lot or lots for the carrying on of gardening activities or the production of agricultural products through the direct tilling of the soil, together with facilities for the sale of the products thus produced thereon shall be permitted, provided that said facilities for the sale of any such products shall be located on the premises not nearer than thirty (30) feet from the front lot line.
"(k) Accessory buildings or uses customarily incident to any of the above permitted uses, when located on the same or adjoining lot and not involving any business, profession, trade or occupation. One (1) private garage for each residential lot in which there is housed not more than three (3) vehicles, not more than one (1) of which may be a commercial vehicle, shall be considered a legal accessory use, provided, however, any such commercial vehicle shall not exceed three-quarter (3/4) ton capacity, and shall be kept housed within a garage when not in use; and provided, further, that no moving vans shall be housed in private garages. All garages and/or accessory buildings shall contain not more than seven hundred (700) square feet of floor area.
"(l) The storage or parking or use of moving vans, automobile trailers, trailer coaches, bus or streetcar bodies, or similar dwellings, tourist cabins or tents, shall not be allowed or considered a legal accessory use in an R-1-A district, except that a temporary permit may be issued for the parking in the rear yard of one (1) house trailer, for not more than thirty (30) days within any calendar year, when occupants of such house trailer are provided with the sanitary facilities used by the household on whose lot they are occupying and only when such trailer occupants are visiting relatives and non-paying guests. This shall not prohibit the storage of one (1) unoccupied house trailer or small utility trailer, or a single watercraft in the rear yard no larger than one which may be transported with trailer by a passenger motor vehicle, and which is the property of the occupant on said lot, provided such trailer or watercraft is parked at least ten (10) feet from any dwelling or property line."
It is apparent from this zoning scheme that a plethora of uses are permitted under the R-3 zoning designation, including but not limited to the specific multiple-family dwelling use proposed by plaintiffs herein.
The first of two factors identified by plaintiffs in support of their position concerns the allegation that, despite plaintiffs' efforts to persuade the city to develop the abutting area with a uniform road system, defendant has consistently permitted the platting of surrounding land in such a manner as to render plaintiffs' property landlocked and roadless. The second factor put forward by plaintiffs concerns the further allegation that, due to the extreme narrowness of plaintiffs' parcel, in order to develop their land in accordance with the disputed R-1-C zoning scheme plaintiffs would have to construct a road servicing only one rather than two rows of homes. Under this circumstance, homes constructed on plaintiffs' property would necessarily face the backs of already existing residences, an obviously undesirable arrangement.
The trial court held that in view of these circumstances the city's zoning designation was "unreasonable, arbitrary and confiscatory" and therefore constitutionally invalid. That court specifically declined to consider the case as coming "within the purview of a preferred use doctrine", Bristow v Woodhaven, 35 Mich. App. 205; 192 N.W.2d 322 (1971), and relied on this Court's ruling in Bassey v Huntington Woods, 344 Mich. 701, 704-705; 74 N.W.2d 897 (1956), that: "[A]n ordinance that prevents the property owner from making any beneficial use of his property is both unreasonable and confiscatory". In its order of judgment the trial court granted the definitive relief sought in plaintiffs' complaint, stating:
"2. Defendant City of Warren, its agents, officers, employees, attorneys and all persons acting in concert with it, are hereby enjoined from interfering with plaintiffs' use of the property in accordance with defendant's R-3 zoning classification."
The Court of Appeals affirmed the trial judge's finding of confiscation as supportable by the record, citing Smith v Wood Creek Farms, 371 Mich. 127; 123 N.W.2d 210 (1963). That Court, however, simultaneously offered the following gratuitous remark:
"We would prefer to reverse without prejudice to an application to the legislative body of defendant seeking an administrative hearing with regard to the reasonableness of plaintiffs' proposed [R-3, multiple-family dwelling] use." 61 Mich. App. 435, 440; 232 N.W.2d 732 (1975).
III. APPLICATION OF THE APPROPRIATE STANDARD ON De Novo REVIEW TO THE FACTS
Applying those rules enumerated in Part I discussing Kirk, supra, it is clear that this matter is particularly governed by rule 3 of Kropf, i.e., "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". It is, of course, plaintiffs' duty "to prove affirmatively that the ordinance is an arbitrary and unreasonable restriction upon the owner's use of his property" (Kropf, rule 2), as the "ordinance comes to us clothed with every presumption of validity" (Kropf, rule 1).
Applying these three rules to the totality of circumstances adduced at trial, our review of the record supports the finding that defendant's platting of surrounding land has landlocked plaintiffs' parcel to the extent that all reasonable uses are precluded under the R-1-C zoning designation; plaintiffs have affirmatively proven that their development costs under the disputed R-1-C ordinance would be roughly equivalent to any potential sales returns on the developed property, thereby rendering the classification scheme unreasonable and void. Therefore, reviewing the record de novo, yet affording "considerable weight to the findings of the trial judge in equity" (Kropf, rule 4), we uphold the rulings of unconstitutionality made by both the trial court and Court of Appeals. As applied to plaintiffs' property, defendant's R-1-C zoning classification is adjudged "unreasonable, arbitrary and confiscatory", thereby rendering the disputed R-1-C zoning designation constitutionally invalid and void.
IV. EFFECT OF CONSTITUTIONAL INVALIDITY
Having found defendant's R-1-C single family zoning ordinance void, the following issues require our attention: (1) what effect is to be accorded our de novo finding of unconstitutionality?; and (2) through what procedure is this effect to be determined?
More specifically, the first question to be resolved is whether, considering both plaintiffs' asserted interest in constructing multiple-family dwellings on their parcel — a permitted R-3 use — and the trial court's order generally enjoining defendant "from interfering with plaintiffs' use of the property in accordance with defendant's R-3 zoning classification", plaintiffs may construct any structure deemed permissible within the R-3 classification or only that specific use prescribed at trial. For example, may plaintiffs construct: multiple-family units (as indicated in their pleadings); garden apartments; a two-and-one-half story apartment house; a storage building; a church, etc.? The second question requiring resolution is whether this determination is to be made by the trial court alone, an appropriate administrative entity as has been suggested by Justice LEVIN, the trial court supplemented by public testimony, or this Court alone?
In resolving these questions, after careful consideration we reject the approach suggested by both Justice LEVIN and the Court of Appeals below urging remand exclusively to an appropriate administrative body for a full trial-type administrative, quasi-judicial determination of the use to be made by an aggrieved landowner subsequent to a judicial declaration of unconstitutionality. In contrast, we rule that subsequent to a judicial declaration of invalidity the matter should be remanded to the appropriate municipal zoning authority to present, for the chancellor's consideration within 60 days of this Court's or the appropriate reviewing court's order of unconstitutionality, an adopted amendatory ordinance comporting with the dictates of equity as well as the requirements of constitutional reasonableness as applied to plaintiffs' parcel; upon the presentation of such amendatory ordinance, the chancellor shall proceed as detailed infra, Part V.
A. The Administrative or Quasi-Judicial Approach
While in the instant case a unanimous Court of Appeals felt "bound by existing precedent", 61 Mich. App. 435, 438, to uphold the chancellor's finding of invalidity and order of general injunctive relief, that Court expatiated on Justice LEVIN'S administrative approach to the review of zoning determinations set forth in Kropf, supra, 164 et seq. In obiter dictum, the Court of Appeals remarked:
"We would prefer to reverse without prejudice to an application to the legislative body of defendant seeking an administrative hearing with regard to the reasonableness of plaintiffs' proposed use." 61 Mich. App. 435, 440.
We note that the position urged by the Court of Appeals in the instant case has twice been rejected by a majority of this Court: in Kirk, supra, and Kropf, supra.
Although similar, Justice LEVIN'S opinion in this case adopts a somewhat modified version of the administrative approach urged by the Court of Appeals. Accordingly, having found defendant's R-1-C ordinance unconstitutionally confiscatory, Justice LEVIN is not disposed to affirm the trial court's order permitting construction "in accordance with defendant's R-3 zoning classification". Rather, the Justice would direct that the matter be remanded exclusively to the appropriate administrative body to conduct a full trial-type administrative hearing and to render a decision supported by substantial evidence on the record developed at that hearing; such decisional authority, absent subsequent appeal, is wholly ceded to the administrative body without the necessity of the chancellor's review and approval.
Contrary to the dictates of the traditional legislative approach, the LEVIN opinion offers plaintiffs the option of either (1) first seeking a court ruling on unconstitutionality followed by remand for an administrative hearing and determination unaided by impartial judicial scrutiny and equitable consideration with respect to a plaintiff's proposed use, or (2) first challenging a zoning classification in an administrative proceeding — whether the subject ordinance has been judicially determined constitutional or not — in the hope that such body will in effect grant a variance. In either case, the opinion continues, the administrative hearing is subject to judicial review, albeit not de novo as is presently the established law in this state.
We disagree with both options. The first option impermissibly invades this Court's powers of de novo review and places a successful litigant in the precarious position of seeking to establish its proposed use before an adversely interested litigant (in this case the city) without the benefit of subsequent judicial consideration unless an appeal is effected on the ground that such decision is not supported by substantial evidence on the record. The second option impermissibly encroaches upon the presumption of legislative validity as well as time-honored notions of separation of powers.
My Brother LEVIN firmly believes that such a system of administrative ad hoc zoning ordinance amendment procedures will promote the public welfare as well as relieve the burden on the courts. His opinion indicates that he is not alone in that laudable belief.
We are of the opinion, however, that such a system as proposed by Justice LEVIN which permits every constitutionally valid zoning ordinance to be challenged by an affected property owner can only invite countless challenges, many of which must proceed to the courts for a dispositive adjudication. The net result of such a quasi-judicial scheme would most assuredly increase rather than relieve the burden on the courts; the burden on zoning bodies would likewise be unquestionably magnified.
Further, and perhaps more significant, the authority of a zoning body's legislative action would likely be debased concomitantly to the extent that every affected property owner could challenge that authority, not on the basis of the value of the constitutionally valid zoning classification to the general public, but on the basis of that zoning determination's value to the individual property owner regardless of the general welfare. Such consequence would undoubtedly destroy both the necessity and desirability of representative legislative action as well as reduce land use determination to a type of "what's-in-it-for-me" or spot zoning scheme generally eschewed as not in the public interest.
For the above reasons, we reject both options of Justice LEVIN'S administrative approach to the review and challenge of zoning determinations. At the same time, however, we find certain components of that approach instructive insofar as they could be applied on remand to defendant city council aided by the chancellor to determine the reasonableness of a landowner's proposed use in accordance with the dictates of equity. We generally accept the following statement of Justice LEVIN in Part IV D of his opinion as apposite in this regard:
"The judicial determination that the ordinance as applied to the Turkish parcel is unconstitutional should not mean that the Turkishes are necessarily entitled to use the property for multiple-family residences. The surrounding owners have an interest in how the Turkish property is developed, as does the city in providing for orderly development, consistent with its master plan, with adequate services and protection of aesthetic and environmental values. Accordingly, although the Turkishes' proposed use may appear to a court to be `reasonable', there may be other feasible means of developing single-family homes on the parcel if the city permits variances regarding street width and lot size or under other circumstances. The parcel might also be used, consistent with the present zoning, for schools, religious institutions, or some other use. Although uses consistent with present zoning may not be feasible, it may be that some use other than multiple residences is feasible and more compatible with competing interests."
B. The Legislative Approach
While we are not persuaded to adopt Justice LEVIN'S administrative approach to the review of zoning determinations, questions remain regarding the effect to be accorded an ordinance's judicially declared invalidity as well as the appropriate judicial procedure to be undertaken in determining and ordering such effect.
In resolving these questions, the line of cases discussed infra provides this Court with five alternative methods of judicial action subsequent to a judicial finding of constitutional invalidity:
(1) leave the subject parcel unzoned until either a use is instituted by plaintiff or the parcel is rezoned, Daraban v Redford Twp, 383 Mich. 497; 176 N.W.2d 598 (1970) (dissenting opinion);
(2) enjoin defendant from enforcing a zoning classification other than that classification urged by plaintiff and determined appropriate by the court, Long v Highland Park, 329 Mich. 146; 45 N.W.2d 10 (1950) and its progeny, infra;
(3) enjoin defendant from such interference and affirmatively order the institution of plaintiff's proposed specific use on the parcel, Daraban (majority), infra;
(4) enjoin defendant from enforcing the unconstitutional classification but remand the matter to the appropriate municipal zoning authority to present for the chancellor's consideration within 60 days of this Court's or the appropriate reviewing court's order of unconstitutionality, an adopted amendatory ordinance comporting with the dictates of equity as well as the requirements of constitutional reasonableness as applied to an aggrieved landowner's parcel, see Dequindre Development Co v Warren Charter Twp, 359 Mich. 634; 103 N.W.2d 600 (1960) (separate opinion of Justice BLACK), infra; or,
(5) remand, per the LEVIN opinion, exclusively for an administrative hearing to determine an appropriate use of plaintiff's parcel, discussed supra.
We find alternative (1) unacceptable for the reason that merely rendering the parcel unzoned leaves it potentially vulnerable to any uses including those neither urged by plaintiff nor compatible with the orderly development of the community. Alternative (2) may be too expansive in scope insofar as it permits a landowner to develop its property within the general zoning classification approved by the court whether or not such use would be equitable. Alternative (3) is unacceptable for the reason that it may be too restrictive in its implicit rejection of other uses to which plaintiffs' land might more equitably be put. Finally, Justice LEVIN'S recommended position, (5), is not adopted for reasons heretofore discussed.
We adopt alternative (4) and hold that, subsequent to a judicial finding of zoning classification invalidity, enforcement of the disputed ordinance should be enjoined and the matter remanded to defendant city council to present, for the chancellor's consideration within 60 days of this Court's or the appropriate reviewing court's order of unconstitutionality, an adopted amendatory ordinance comporting with the dictates of equity as well as the requirements of constitutional reasonableness as applied to an aggrieved landowner's parcel.
Specifically, upon the expiration of or within this 60-day period, the chancellor shall enter one of the following orders:
(i) If, after remand to defendant city council, plaintiff and defendant find defendant's submitted amendatory ordinance mutually acceptable, the chancellor shall order the implementation of such "midsatisfactory" amendatory ordinance.
(ii) If, after remand to defendant city council, defendant submits an amendatory ordinance unacceptable to plaintiff but embodying Justice BLACK'S "midsatisfactory use" as determined by the chancellor through a balancing of equitable considerations, the chancellor shall order the implementation of such "midsatisfactory" amendatory ordinance.
(iii) If, after remand to defendant city council, defendant submits an amendatory ordinance unacceptable to plaintiff and plaintiff submits a proposed use embodying Justice BLACK'S "midsatisfactory use" as determined by the chancellor through a balancing of equitable considerations, the chancellor shall order the implementation of plaintiff's proposed "midsatisfactory use".
(iv) If, after remand to defendant city council, neither plaintiff nor defendant can agree upon the other's amendatory ordinance or proposed use and the chancellor determines that neither party's proposal embodies Justice BLACK'S "midsatisfactory use", the chancellor shall order the implementation of a "midsatisfactory use" after both plaintiff and defendant as well as other affected parties have had the benefit of a hearing and the submission of proofs to determine the most equitable or "midsatisfactory use" to be made of plaintiff's parcel.
(v) If, after remand to defendant city council, defendant does not submit an adopted amendatory ordinance to the chancellor for consideration within 60 days of this Court's or the appropriate reviewing court's order of unconstitutionality, we direct the chancellor to conduct a hearing supplemented by the submission of proofs by all affected parties to determine and implement the most equitable or "midsatisfactory use" to be made of plaintiff's parcel.
Of course, if either party is dissatisfied with the chancellor's order, an appeal is permitted from that order under normal procedures of de novo review.
This ruling is to be accorded limited retroactive effect as to all actions hereinafter commenced as well as all actions heretofore commenced and now pending in either the trial or appellate courts.
The alternatives set forth above are discussed below.
Alternative 1: Declaration of Invalidity Under Both the Brae Burn Rule as Well as the Daraban Dissent Rendering the Parcel Unzoned
The dissenting opinion in Daraban v Redford Twp, 383 Mich. 497, 501; 176 N.W.2d 598 (1970), argued that this Court was without the requisite constitutional power to affirmatively do more than declare a disputed land use classification invalid. The trial court having declared the Daraban zoning restriction void, the dissent reasoned, this Court was incompetent either: (i) to enjoin a defendant municipality from zoning the subject parcel in a manner different from that sought by plaintiff; or, (ii) to order the institution of plaintiff's proposed use as either prayed in plaintiff's complaint or argued before the lower judicial tribunal as to that now unzoned parcel.
In effect, the dissent in Daraban would have rendered the subject parcel unzoned, an interim determination awaiting either a legislative rezoning or the institution of some use of the parcel by the previously aggrieved landowner. Although a technically logical position, we are of the opinion that restricting the Court's declaratory powers in such an absolute manner may operate to produce a result neither generally prayed nor argued for by an aggrieved landowner and potentially incompatible with the orderly development of the general community or abutting parcels of property. We therefore reject this alternative form of judicial action rendering the property unzoned as impractical and inequitable.
See 4 Anderson, American Law of Zoning (2d ed), § 28.10, p 378.
Other courts have similarly found that leaving property unzoned is unacceptable. The Illinois Court of Appeals in Harshman v De Kalb, 64 Ill. App.2d 347, 352-353; 212 N.E.2d 146 (1965), stated the following in this regard:
"The practical effect of declaring an existing zoning ordinance null and void in regard to a particular piece of property is to leave that piece of property in a condition which, for lack of a better description, has been called unzoned. To avoid the obvious dilemma of such a situation, recent cases have held that the court may frame its order in reference to a specific proposal before it and find that the contemplated use would be a reasonable one. Sinclair Pipe Line v Village of Richton Park, 19 Ill.2d 370; 167 N.E.2d 406; Franklin v Village of Franklin Park, 19 Ill.2d 381; 167 N.E.2d 195.
"The aim of these decisions is to avoid the possibility of a re-zoning of the property to some other undesirable classification and, thus, invite further litigation, and to prevent any exploitation by the owner of the fact that his property is, at least temporarily, unzoned. To those ends, the wisdom of these decisions seems clear."
Alternative 2: Issuance of General Injunctive Relief
Sensitive to the potential dangers posed by leaving land unzoned, the judiciary of this state has, at minimum, uniformly granted aggrieved landowners injunctive relief generally restraining a defendant municipality from rezoning the subject parcel in a manner different from that classification sought by plaintiff.
Three cases decided by this Court are particularly illustrative of this proposition. In each of these cases, this Court sustained the chancellor's decree to the extent that the decree: (i) found the disputed classification unconstitutional; (ii) enjoined defendant from enforcing the invalid restriction; (iii) permitted plaintiff to proceed under the classification urged by plaintiff; but, (iv) did not consider or order the propriety of the aggrieved landowner's proposed specific use.
In Long v Highland Park, 329 Mich. 146; 45 N.W.2d 10 (1950), plaintiffs sought to institute an unspecified business use within the general B-2 business classification on a tract of land designated R-1 and, therefore, zoned for nonbusiness uses. The trial court declared defendant's disputed R-1 zoning ordinance (nonbusiness purposes) invalid as applied to plaintiff's land and issued an injunction restraining defendant from attempting to enforce the restrictions. The trial court further ordered that plaintiffs be permitted to use the subject parcel "for any of the purposes allowed by the ordinance under classification B-2, for business purposes". This Court unanimously affirmed. Neither the trial court nor this Court, however, ordered or passed on the reasonableness of plaintiff's proposed particular use.
Second, in the case of Industrial Land Co v Birmingham, 346 Mich. 667; 78 N.W.2d 656 (1956), a unanimous Supreme Court upheld a circuit court ruling of zoning classification unconstitutionality as well as the chancellor's order that "the use of this property for business purposes, as provided in section 1001 of ordinance No 221, as amended, is a reasonable use. * * * [P]laintiffs are also entitled to an injunction restraining the original defendants from prohibiting plaintiffs' use of the premises for those [business] uses permitted by section 1001 of the ordinance, and from interfering with such uses". 346 Mich. 667, 672. Attacking the trial judge's injunctive order finding defendant's single-family zoning ordinance unconstitutional, defendant claimed that "the court cannot, by injunctive relief, proceed to rezone plaintiffs' property, as that is a legislative act and a function of the city commission of Birmingham, and that by doing so, would be zoning by judicial determination". 346 Mich. 667, 671. This claim was summarily rejected by the Supreme Court on the basis of Long, supra. As in Long, this Court did not specify the precise use to which plaintiff could put its lands beyond permitting those general uses allowed under the zoning classification adjudged valid.
In Daraban, supra, Justice T.G. KAVANAGH in his dissenting opinion noted the following cases in support of the Long proposition which he unsuccessfully sought to overturn:
"The cases of Long v Highland Park, 329 Mich. 146 [ 45 N.W.2d 10] (1950); Redford Moving Storage Co v Detroit, 336 Mich. 702 [ 58 N.W.2d 812] (1953); Industrial Land Co v Birmingham, 346 Mich. 667 [ 78 N.W.2d 656] (1956); Dequindre Development Co v Warren Charter Twp, 359 Mich. 634 [ 103 N.W.2d 600] (1960), have apparently come to stand as authority for the issuance of injunctions which can restrain municipalities from zoning the property involved in a manner different from that sought by the plaintiff." 383 Mich. 497, 506.
Lastly, in Roll v City of Troy, 370 Mich. 94; 120 N.W.2d 804 (1963), plaintiffs sought to develop their parcel into 15,000-square-foot lots; that parcel was zoned to permit lots no smaller than 30,000 square feet in area. This Court upheld the chancellor's order declaring defendant's 30,000-square-foot minimum lot size restriction unconstitutionally confiscatory as applied to plaintiffs' property, restraining defendant from enforcing that restriction on plaintiffs' land, and permitting plaintiffs to develop their land in accordance with the general single-family zoning classification. This Court, however, vitiated the lower court's order to the extent that the chancellor had authorized plaintiffs "to use the said property for a residential subdivision in accordance with the proposed plat attached to plaintiffs' bill of complaint [establishing the minimum lot size at 15,000 square feet]". 370 Mich. 94, 96, 99. Thus, while upholding the lower court's decree that defendant could not constitutionally restrict plaintiffs' residential lot size to the disputed number of minimum square feet, the Court affirmed its earlier posture that the trial court could not affirmatively sanction a specific proposed use. Said a majority of six Justices:
"This Court agreed with the trial judge in Christine, 515, 516, that he had no legal duty, right, or obligation to undertake to pass upon the reasonableness of proposed zoning that is not yet the subject of an ordinance. Recognizing that zoning is a legislative function we affirm the principle that courts cannot write zoning laws. The trial court's decree is modified by striking therefrom that portion authorizing and empowering plaintiffs to use the property as proposed in the plat. In all other respects the decree is affirmed." 370 Mich. 94, 99.
The state of the law in 1963, therefore, appeared clearly settled that neither this Court nor the lower courts of this state could affirmatively order the institution of a specifically proposed use as reasonable subsequent to a finding of classification invalidity. Rather, this Court felt itself constrained to merely enjoin defendant from imposing a zoning classification other than that generally decreed permissible by the lower tribunal.
See 4 Anderson, American Law of Zoning (2d ed), § 28.10, p 379, and cases cited therein.
See Dade County v Moore, 266 So.2d 389 (Fla App, 1972); Clearwater v College Properties, Inc, 239 So.2d 515 (Fla App, 1970); Hudson v Buena Vista Twp Zoning Board, 6 Mich. App. 625; 150 N.W.2d 167 (1967).
We are of the opinion that this alternative form of relief may be too expansive in scope insofar as it sanctions an aggrieved landowner's development of its parcel in any manner enumerated under the general zoning classification whether or not such potential uses would be inequitable or deleterious to the surrounding community or abutting landowners. Since overall equitable considerations are ignored, we reject this alternative.
Alternative 3: Issuance of Injunctive Relief as Well as Order Affirmatively Sanctioning Plaintiff's Specifically Proposed Use: The Daraban Rule
In 1970, however, this Court expressly expanded the declaratory powers of the judiciary in reviewing zoning determinations beyond the options of either rendering the land unrestricted or merely enjoining the enforcement of a zoning classification as applied to a plaintiff's subject parcel different from that decreed by the court. Indeed, the majority in Daraban, supra, sanctioned an order not only enjoining defendant's interference with plaintiff's requested general use but also affirmatively permitting the specific use proposed by plaintiff.
In Daraban the trial judge decreed:
"It is further ordered and adjudged that the defendants, * * * be further permanently enjoined from interfering with plaintiff's erection of apartment dwellings on the property in question in accordance with plaintiff's exhibit number 4, referred to in the court's opinion on page 9, and in accordance with the R-3 zoning classification of the township of Redford." 383 Mich. 497, 500. (Emphasis added.)
On appeal, 15 Mich. App. 132; 166 N.W.2d 295 (1968), defendant alleged that the chancellor's use-specific injunction constituted a judicial invasion of the legislative power. Judge PRATT, writing for Presiding Judge HOLBROOK and then-Judge, now-Justice LEVIN, affirmed the trial court's definitive decree of injunctive relief as supportable by 15 years of precedent.
On subsequent appeal this Court affirmed the trial court's order permitting the institution of plaintiff's proposed specific use.
It is clear from the majority's 1970 opinion in Daraban that a court may order that definitive relief requested by plaintiff in its pleadings or argued before the Court. Contrary to the position urged by the Daraban dissent, a court may order the institution of not only the general land use classification urged by the landowner but also a specific use prayed for.
Other jurisdictions have sanctioned orders permitting the institution of an aggrieved landowner's proposed specific use subsequent to a finding of classification invalidity and supportable by evidence as to reasonableness of that specific use. We find the following cases persuasive:
In Fiore v Highland Park, 76 Ill. App.2d 62; 221 N.E.2d 323 (1966), plaintiff sought to develop multiple-family dwellings on its parcel zoned for office and research use; plaintiff presented specific proofs at trial as to the nature of the apartment complex they intended to construct on the subject parcel. The trial court declared the disputed ordinance invalid and ordered defendant to permit plaintiff to develop its parcel for multiple-family dwellings under the general zoning classification permitting such use. On appeal, the Illinois Court upheld the finding of unconstitutionality, but reversed the chancellor's order as too broad insofar as it did not address itself to the reasonableness of the "specific use contemplated by the owner". 76 Ill. App.2d 62, 76. The Court offered the following guidelines for the chancellor to consider on remand in framing its decree with respect to plaintiff's proposed specific use alone:
"The most that a court may do after declaring an existing zoning ordinance void as applied to certain property is to find that the specific use contemplated by the owner is reasonable and may be permitted.
"Under such circumstances, the court may frame its decree in the light of the evidence before it with reference to the specific proposed use; and may decree such contemplated use to be a reasonable one. Such decree neither impinges upon the legislative function, nor in effect leaves the property unzoned, with its potential problem of further litigation due to further rezoning by the municipality; and it limits plaintiffs' use of the land to that contemplated and indicated by the record. Sinclair Pipe Line v Richton Park, supra, 379; 167 N.E.2d 406; Harshman v De Kalb, supra.
"In the case at bar, the plaintiffs presented evidence as to the nature of the apartment complex they intended to construct on these premises. The decree of the trial court should be framed with reference to the evidence of this intended use and permit such use only, rather than any permitted under the applicable multiple-family zoning restriction. If the court finds that such evidence is not sufficient to enable it to intelligently frame its decree, it should hear additional evidence pertinent to such use." 76 Ill. App.2d 62, 76.
The Illinois Court of Appeals in La Salle National Bank v Chicago, 130 Ill. App.2d 457; 264 N.E.2d 799 (1970), was faced with a situation similar to that presented in Fiore. In La Salle, plaintiffs sought to construct "three detached structures containing a total of twenty-two units" on property zoned for single-family residential dwellings. The trial court held the disputed classification invalid and entered an order permitting plaintiffs to construct a "multiple-family apartment project subject * * * to the R-3 General Residence District provisions of the Chicago Zoning Ordinance". On appeal, the Court affirmed the chancellor's finding of unconstitutionality but reversed and remanded the lower court's order which directed the construction of multiple-family dwellings, a use different from that specifically proposed by plaintiffs (i.e., three detached structures containing 22 units). On remand, the chancellor was restricted to a determination of the reasonableness of plaintiffs' specifically averred definitive relief. Said the opinion's author:
"The issue here is how a decree in a zoning case is to be framed. * * * Since the practical effect of declaring an existing zoning ordinance void in regard to a particular piece of property is to leave that piece of property in an unzoned condition, the court may frame its order in reference to a specific proposal before it and find that the contemplated use would be a reasonable one. Harshman v De Kalb, 64 Ill. App.2d 347; 212 N.E.2d 146 (1965). Sinclair Pipe Line v Village of Richton Park, 19 Ill.2d 370; 167 N.E.2d 406 (1960). However, the court must exercise this authority with extreme care to avoid any encroachment into the legislative function of zoning. Harshman v De Kalb, supra. The most that a court may do after declaring an existing zoning ordinance void as applied to certain property is to find from clear evidence before it that the specific use contemplated by the owner is reasonable and may be permitted. Fiore v Highland Park, 76 Ill. App.2d 62, 76; 221 N.E.2d 323 (1966). Consequently, the decree of the trial court should be framed with reference to the evidence of the intended use and permit such use only, rather than being framed with reference to a multiple family zoning classification. Fiore v Highland Park, supra." 130 Ill. App.2d 457, 460-461.
Dixon v Kane County, 77 Ill. App.2d 338; 222 N.E.2d 354 (1966), presented a separate panel of Illinois appellate justices with an aggrieved landowner's attempt to construct a gas service station (a B-1 business use) on property zoned for single-family residential and agricultural uses. That panel reversed the chancellor's order upholding the validity of the disputed classification and remanded the matter for entry of an order authorizing the use of plaintiff's parcel for gasoline service station purposes "since the plaintiff did present evidence concerning [that] proposed use of the property and since this appears to be a reasonable use * * * in accordance with the evidence". 77 Ill. App.2d 338, 343. Again citing Fiore, supra, the Court stated the following general proposition:
"If no specific use is proposed, the most the court can do is invalidate the zoning. If a specific use is proposed, the court, after invalidating the zoning, may authorize the proposed use if that is reasonable under the circumstances of the case." Id., 342.
Further, in Harshman v De Kalb, 64 Ill. App.2d 347; 212 N.E.2d 146 (1965), the Illinois appellate panel upheld the chancellor's declaration of classification invalidity but reversed and remanded to develop a record, and finding thereon, as to a specific use to be made by plaintiff of its property, which specific intentions had not been averred at trial. Citing a statement of the Illinois Supreme Court in Reeve v Village of Glenview, 29 Ill.2d 611, 615-617; 195 N.E.2d 188, 191 (1963), the Harshman Court forwarded the proposition that a court may not order relief in the absence of clear evidence of the reasonableness of a specific use contemplated by plaintiff. Once presented with a proposed specific use, therefore, the chancellor was empowered to determine its reasonableness and frame a decree accordingly. Regarding the requirement of reasonableness, the panel cautioned:
"It is also apparent that the courts must exercise this authority with extreme care to avoid any encroachment into the legislative function of zoning. It is imperative that there be clear evidence before the court of the specific use to which the owner intends to develop his property and the order framed in reference to it, Sinclair Pipe Line v Village of Richton Park [ 19 Ill.2d 370; 167 N.E.2d 406 (1960)]." Harshman v De Kalb, 64 Ill. App.2d 347, 353; 212 N.E.2d 146, 149 (1965).
See, generally, Flair Corp v Brecksville, 49 Ohio App.2d 77; 3 Ohio Op 3d 146; 359 N.E.2d 459 (1976) (remand to determine specific use[s] to which plaintiff land could reasonably be put); Ellick v Board of Supervisors, 17 Pa Commonwealth Ct 404; 333 A.2d 239 (1975) (remand pursuant to statutory authority to determine the reasonableness of plaintiff's proposed specific use).
Compared to alternatives (1) and (2), we find that this alternative may be too restrictive in scope. The Daraban approach is rejected for the reason that it expressly dismisses consideration of any other uses to which the parcel may equitably be put beyond that specific use urged by plaintiff.
Alternative 4: The Position Urged by Justice BLACK in Dequindre: Balancing the Equities on Remand
Midway between the positions espoused by the Daraban dissent, rendering the parcel unzoned, and the Daraban majority, ordering a particular use proposed by an aggrieved landowner, lies the "balancing of the competing equities" position promulgated by Justice BLACK in his separate opinion for affirmance on condition found in Dequindre Development Co v Warren Charter Twp, 359 Mich. 634; 103 N.W.2d 600 (1960).
In Dequindre, plaintiff sought to construct a trailer coach park on a parcel of land zoned for single-family residential uses. The chancellor declared defendant's disputed ordinance confiscatory and ordered defendant to "permit the plaintiff to build and develop said property as a trailer park". 359 Mich. 634, 637.
On appeal, four Justices directed summary affirmance of the chancellor's order, three Justices urged reversal on the ground that plaintiff had merely presented a debatable question which the Court was not empowered to disturb, and Justice BLACK urged affirmance on condition. The trial court's decree affirmatively permitting the use of the subject parcel for trailer park purposes was summarily upheld.
In his separate opinion for affirmance on condition, Justice BLACK reacted to what he perceived to be the harsh result sanctioned by the majority of either invalidating "defendants' too-restrictive ordinance", thereby implicitly rendering the subject parcel unzoned, or granting "plaintiff's prayer for specific relief" as was done in the lower court's order permitting plaintiff's proposed specific use as a trailer park. Rejecting the appropriateness of forcing the Court into the "inexorable choice" of granting either one land use extreme or the other, the Justice opined that a more equitable "midsatisfactory" use of the subject parcel could perhaps be better arrived at by remanding the matter to the chancellor via the appropriate municipal zoning body for further proceedings. We quote at length Justice BLACK'S remarks in this regard:
"An over-concentration of trailer coach living undoubtedly creates problems of municipal concern such as the superintendent has described. The appealing need for solutional aid stares at us from the appendix, yet the usual extremes of affirmance or reversal appear as marking all limits of the judicial function. But do they? Looking upward and outward at the great horizons of equity, and recalling that the shape of decretal relief should as a rule be formed by the chancellor according to germane conditions and equities as same may be shown to exist at the time of final decree (Herpolsheimer v A B Herpolsheimer Realty Co, 344 Mich. 657 [ 75 N.W.2d 333 (1956)]; Carlson v Williams, 348 Mich. 165 [ 82 N.W.2d 483 (1957)]), it would seem that there need be no inexorable choice, now at least, between plaintiff's prayer for specific relief and defendants' too-restrictive ordinance. Why cannot plaintiff and the defendant city consider, together, some possibly midsatisfactory use such as light manufacturing, or retailing, or neighborhood-acceptable commercial endeavor? Why must the permitted use be a this-or-that showdown between temporary life in mobile coaches — or nothing? Does not equity have a duty here, the public interest being at prominent stake? Why not give the parties a chance to answer these questions, in the court below, prior to entry of final decree?
"I would remand by special order (see Court Rule No 72, § 1 [1945]) authorizing the city to present, for judicial consideration below if it will, an amendatory ordinance which in so many words relieves plaintiff's tract from the present R-1 designation and provides some less restrictive designation conforming — as the city may be advised — with the requirements of constitutional reasonableness; such amendatory ordinance to be adopted and submitted to the successor chancellor within 60 days from the date of such order. The order should provide that, if the city elects not to amend and submit as authorized, due report of that fact shall thereupon be made to this Court by the successor chancellor, whereupon our decree of affirmance will enter. It should also provide, for the event of amendment and submission so authorized, that further disagreement of the parties, if any, should be reported by the chancellor to this Court with accompanying certified record of such additional proceedings as may be ordered and supervised by him." 359 Mich. 634, 642-643.
This Court in Frendo v Southfield Twp, 349 Mich. 693; 85 N.W.2d 130 (1957), also recognized the need when fashioning zoning relief to "balance the conflicting equities and try to reach a fair working result consistent with the dilemma before us". 349 Mich. 693, 698. In this regard, the Court stated:
"Few decisions in any such zoning cases fail to harm and displease someone; our job is try to balance the conflicting equities and try to reach a fair working result consistent with the dilemma before us. We grant, then, that any relief given here to the plaintiffs will to some extent harm home owners in the vicinity. Yet a denial of relief will most certainly affect the plaintiffs; they will be left to pay taxes on lots which we believe the proofs plainly show are entirely unusable for the purposes to which by this ordinance they are restricted." Id.
The Frendo Court, however, was not disposed to direct remand for a determination of the "midsatisfactory" use to be accorded the subject parcel as was Justice BLACK in Dequindre, supra. Rather, having found the disputed single-family zoning classification unconstitutional, the Court ordered that the defendant permit a use of the parcel consistent with the general commercial use classification prayed by plaintiff.
We find most instructive Justice BLACK'S championship of the need to balance competing equitable considerations upon remand to the appropriate municipal zoning body for timely presentation of an adopted amendatory ordinance to the chancellor for a determination of the "midsatisfactory" use to be accorded the subject parcel. It is manifest to this Court that the inevitable tension between landowners and municipal zoning authorities subsequent to a judicial finding of classification invalidity can perhaps best be resolved only through a consideration and balancing of the competing equities revolving about the particular use to be made of a plaintiff's parcel at both the legislative and judicial levels.
V. CONCLUSION: REMAND TO THE CHANCELLOR FOR A DETERMINATION OF THE MOST EQUITABLE USE TO BE MADE OF PLAINTIFFS' PARCEL WITHIN THE R-3 ZONING CLASSIFICATION
In resolving the questions of (i) what effect is to be accorded an ordinance's judicially declared invalidity, and (ii) what judicial procedure is to be undertaken in fashioning such effect, the line of cases discussed above provide us with the following alternatives:
(1) render the subject parcel unzoned until either a use is instituted or the parcel is rezoned, Daraban (dissent), supra;
(2) enjoin defendant from enforcing a land use restriction more restrictive than that determined appropriate by the court, Long and its progeny, supra;
(3) enjoin defendant from such interference and affirmatively order the institution of plaintiff's proposed specific use on the parcel, Daraban (majority), supra;
(4) enjoin defendant from enforcing the unconstitutional classification but remand the matter to the appropriate municipal zoning authority to present, for the chancellor's consideration within 60 days of this Court's or the appropriate reviewing court's order of unconstitutionality, an adopted amendatory ordinance comporting with the dictates of equity as well as the requirements of constitutional reasonableness as applied to an aggrieved landowner's parcel, see Dequindre (separate opinion of Justice BLACK), supra; or,
(5) remand, per the LEVIN opinion, exclusively for an administrative hearing to determine an appropriate use of plaintiff's parcel.
Considering these alternatives, we find (1) unacceptable for the reasons stated supra, that such action would potentially render the parcel subject to uses neither argued for by plaintiff nor consistent with the orderly development of the community and abutting lands. We similarly find that alternative (2) may be too expansive in scope and therefore undesirable insofar as it sanctions development of the subject parcel in any manner enumerated under the ordered general zoning classification whether or not such use would be deleterious to the surrounding community. Alternative (3) is likewise rejected for the reason that it may be too restrictive in scope in its dismissal of other perhaps more equitable uses to which the parcel could theoretically be put but for the plaintiff's prayer for a proposed specific use. Finally, Justice LEVIN'S recommended position, (5), is contrary to the general posture assumed by a majority of this Court in the area of land use classification review for the reasons stated supra.
Therefore, rejecting alternatives (1), (2), (3) and (5), we find that alternative (4) embodies the current thinking of this Court in recognition of the inherent equitable nature of zoning classifications, challenges thereto, and the institution of uses on particular parcels of land which exist, not in a vacuum, but within a dynamic community. Such a "balancing of the competing equities" approach adopted by this Court today ensures the orderly and equitable development of the communities of our state; it similarly provides affected parties with a competent, disinterested, and reflective forum for the resolution of land use grievances guided by notions of equity while concurrently affording the legislative branch of our state government necessary deference.
For the reasons set forth in this opinion, we affirm the trial court's finding of unconstitutionality.
Further, we order that this matter be remanded to defendant city council to present, for the chancellor's consideration within 60 days of this order, an adopted amendatory ordinance comporting with the dictates of equity as well as the requirements of constitutional reasonableness as applied to plaintiffs' parcel.
Upon the expiration of or within this 60 day period, the chancellor shall enter one of the following orders:
(i) If, after remand to defendant city council, plaintiffs and defendant find defendant's submitted amendatory ordinance mutually acceptable, the chancellor shall order the implementation of such amendatory ordinance.
(ii) If, after remand to defendant city council, defendant submits an amendatory ordinance unacceptable to plaintiffs but embodying Justice BLACK'S "midsatisfactory use" as determined by the chancellor through a balancing of equitable considerations, the chancellor shall order the implementation of such midsatisfactory amendatory ordinance.
(iii) If, after remand to defendant city council, defendant submits an amendatory ordinance unacceptable to plaintiffs and plaintiffs submit a proposed use embodying Justice BLACK'S "midsatisfactory use" as determined by the chancellor through a balancing of equitable considerations, the chancellor shall order the implementation of plaintiffs' proposed "midsatisfactory use".
(iv) If, after remand to defendant city council, neither plaintiffs nor defendant can agree upon the other's amendatory ordinance or proposed use and the chancellor determines that neither party's proposal embodies Justice BLACK'S "midsatisfactory use", the chancellor shall order the implementation of a midsatisfactory use after both plaintiffs and defendant as well as other affected parties have had the benefit of a hearing and the submission of proofs to determine the most equitable or midsatisfactory use to be made of plaintiffs' parcel.
(v) If, after remand to defendant city council, defendant does not submit an adopted amendatory ordinance to the chancellor for consideration within 60 days of this Court's order, we direct the chancellor to conduct a hearing supplemented by the submission of proofs by all affected parties to determine and implement the most equitable or "midsatisfactory use" to be made of plaintiffs' parcel.
Of course, if either party is dissatisfied with the chancellor's order, an appeal is permitted from that order under normal procedures of de novo review. We note that this ruling is to be accorded limited retroactive effect as to all actions hereafter commenced as well as all actions heretofore commenced and now pending in either the trial or appellate courts.
Affirmed in part, modified in part, and remanded. No costs, a public question being involved.
Zaagman v City of Kentwood
Little need be remarked about this case. We affirm the Court of Appeals finding of constitutionality on the ground that plaintiff has failed to meet its burden to affirmatively prove that either defendant's ordinance is arbitrary and unreasonable or that no reasonable governmental interest is advanced by the present zoning classification. Kirk, supra; Kropf, supra. Plaintiff has not made out a case for either a denial of substantive due process or denial of equal protection.
Affirmed. Costs awarded to defendant.
COLEMAN, C.J., and FITZGERALD and RYAN, JJ., concurred with WILLIAMS, J.
BLAIR MOODY, JR., J., took no part in the decision of this case.