Michigan National Bank v. Windsor Charter Township

Full title: MICHIGAN NATIONAL BANK v WINDSOR CHARTER TOWNSHIP

Court: Michigan Court of Appeals

Date published: Jun 20, 1977

256 N.W.2d 791 (Mich. Ct. App. 1977)

256 N.W.2d 791

Opinion

Docket No. 27348.

Decided June 20, 1977.

Appeal from Eaton, Willard L. Mikesell, J. Submitted March 10, 1977, at Lansing. (Docket No. 27348.) Decided June 20, 1977.

Complaint by Michigan National Bank and Grey Mobile Home Sales, Inc., against Windsor Charter Township seeking a judgment that a zoning ordinance was arbitrary, unreasonable and unenforceable. Judgment for plaintiffs. Defendant appeals. Remanded for additional findings.

Warner, Hart, Morgan Fuzak (by David A. Williams), for plaintiff.

Church, Wyble, Kritselis Tesseris (by Thomas H. Hay), for defendant.

Before: D.F. WALSH, P.J., and ALLEN and N.J. KAUFMAN, JJ.

PER CURIAM.

This case reflects the difficulties engendered by the repeated efforts of the Supreme Court to decide on the rules surrounding attacks on zoning ordinances. This state of flux initially developed when the Supreme Court came down with their decision in Sabo v Monroe Twp, 394 Mich. 531; 232 N.W.2d 584 (1975). In Sabo, Justice LEVIN, with Justices KAVANAGH and FITZGERALD concurring, stated that "the proper test to be applied in the majority of zoning cases should not be the Kropf ¹ test of whether or not the present zoning is unreasonable or confiscatory, but instead, should be whether or not the proposed use is reasonable under all the circumstances".² [Footnote 1 added.] This rule, however, was short lived, as the Supreme Court in Kirk v Tyrone Twp, 398 Mich. 429; 247 N.W.2d 848 (1976), returned to the test set forth in Kropf. In the present case, our task is to determine what to do with a case decided while Sabo was controlling.

1 Kropf v Sterling Heights, 391 Mich. 139; 215 N.W.2d 179 (1974).

2 Werkhoven v City of Grandville, 65 Mich. App. 741; 238 N.W.2d 392 (1975).

The trial judge in the instant case did an admirable job of trying to "save" his case from the onslaught of an ever-changing body of appellate law. His opinion is laced throughout with language which, we believe, was intended to be sufficient under either a Kropf or Sabo test. While we commend the trial judge on his efforts, we think it only fair that this case be remanded to the trial court for reconsideration in view of Kirk. This is similar to the position this Court took in zoning cases after Sabo. See e.g. Werkhoven v City of Grandville, 65 Mich. App. 741; 238 N.W.2d 392 (1975).

While it may be said that a remand is unnecessary because we hear zoning cases de novo, ³ we are of the view that this approach in the instant case is the best one to fully allow the trial judge's opinion to be accorded the great weight which we give it on appeal.⁴ Therefore, we order that this case be remanded for additional findings of facts or law, if any, necessitated by the Supreme Court's decision in Kirk, supra. ⁵ We retain jurisdiction.

3 Kropf, supra, p 152.

4 Biske v City of Troy, 381 Mich. 611; 166 N.W.2d 453 (1969).

5 We liken this procedure to the one employed where there has been a failure to comply with GCR 1963, 517.1. See Powell v Collias, 59 Mich. App. 709; 229 N.W.2d 897 (1975).