Opinion
Docket No. 8,391.
Decided October 30, 1970.
Appeal from Wayne, Richard M. Maher, J. Submitted Division 1 October 13, 1970, at Detroit. (Docket No. 8,391.) Decided October 30, 1970.
Complaint by Morris S. Brent, Shelbourne Apartments, Inc., Palmer Court Apartments, Inc., Manderson Road Apartments, and Merton Road Apartments, Inc., against the City of Detroit for an injunction to restrain the Department of Parks and Recreation from constructing a swimming pool. Summary judgment for defendant. Plaintiffs appeal. Affirmed.
Abraham Satovsky, for plaintiffs.
Michael M. Glusac, Corporation Counsel, and John R. McKinlay and Francis J. Pipp, Assistants Corporation Counsel, for defendant.
Plaintiffs appeal from a summary judgment issued by the lower court in favor of defendant. Plaintiffs, property owners, complaint prayed for injunctive relief against defendant city to prevent it from building an outdoor swimming pool in Palmer Park near plaintiffs' property. A temporary restraining order was issued. At the "show cause" hearing the court dissolved the restraining order and entered summary judgment for defendant. Plaintiffs' complaint was dismissed because it failed to state a cause of action upon which relief could be granted. GCR 1963, 117.2(1).
Plaintiffs allege that construction of the proposed swimming pool on the site selected by defendant will constitute a public nuisance. Plaintiffs argue that there are more suitable sites for the swimming pool elsewhere in the park area.
Defendant testified that a public meeting was held on the pool situs before the city's Common Council, and plaintiffs' objections were heard. As a result of that meeting, the original situs was moved to a new location, over 400 feet from plaintiffs' nearest property.
Plaintiffs represent owners of five apartment buildings surrounding the perimeter of the park, only one of which is within 500 feet of the proposed swimming pool situs.
It has been a long-standing rule in Michigan that the judiciary will not interfere in the discretionary acts of municipal governments, absent fraud or a clear abuse of discretion. The Michigan Supreme Court articulated this judicial attitude when they said:
"So long as the power to govern the city and control its affairs is vested by the people in local municipal officers in pursuance of law, neither this court nor any other may assume to dictate the local governmental policy of the municipality. The power and authority is vested in the commission to govern as its discretion dictates so long as its action is not contrary to law or opposed to sound public policy. So long as the city commission acts within the limits prescribed by law, the court may not interfere with its discretion. The judiciary is not charged with supervisory control over the exercise of governmental functions by the city commission * * *. It is not the business of courts to act as city regulators and, unless the authority of the representatives of the citizens * * * has been illegally exercised, their action cannot be interfered with merely because it may not seem to other persons to have been as wise as it ought to have been." Veldman v. City of Grand Rapids (1936), 275 Mich. 100, 111, 112.
See also: Nelson v. County of Wayne (1939), 289 Mich. 284; White v. Welsh (1939), 291 Mich. 636; Gordon v. Samson (1940), 294 Mich. 294; Moran v. Detroit Board of Election Commissioners (1952), 334 Mich. 234; Sebewaing Industries, Inc., v. Village of Sebewaing (1953), 337 Mich. 530; Keller v. City of Southfield (1966), 2 Mich. App. 323.
Courts are reluctant to enjoin anticipatory nuisances absent a showing of actual nuisance or the strong probability of such result. Conway v. Gampel (1926), 235 Mich. 511; Falkner v. Brookfield (1962), 368 Mich. 17. This has been true with proposed uses of children's playgrounds and park areas. See Annotation, 32 ALR3d 1127. It is especially true in cases where anticipatory nuisance claims have been leveled against proposed municipal swimming pool sites. Nichols v. Rock Island (1954), 3 Ill.2d 531, 121 N.E.2d 799; Incorporated Village of Lloyd Harbor v. Huntington (1956), 3 Misc.2d 849 ( 157 N.Y.S.2d 442), aff'd 4 App. Div. 2d 763 ( 165 N.Y.S.2d 705), rev'd on other grounds 4 N.Y.2d 182 ( 173 N.Y.S.2d 553, 149 N.E.2d 851).
Michigan law is replete with applications of the equity maxim that:
"Equity, as a rule, will not interfere in advance of the creation of a nuisance where the injury is doubtful or contingent, and anticipated merely from the use to which the property is to be put." Plassey v. S. Lowenstein Son (1951), 330 Mich. 525, 529.
See also: Warren Township School District v. City of Detroit (1944), 308 Mich. 460 (proposed use of nearby property as airport); Village of St. Clair Shores v. Village of Grosse Pointe Woods (1947), 319 Mich. 372 (apprehension that use of beach as municipal park will pollute the waters of plaintiff village); Foster v. County of Genesee (1951), 329 Mich. 665 (proposed use of nearby property as animal shelter); Brown v. Shelby Township (1960), 360 Mich. 299 (proposed use of nearby property as automobile race track); Falkner v. Brookfield, supra, (proposed use of nearby property as an automobile junk yard); Oak Haven Trailer Court, Inc., v. Western Wayne County Conservation Association (1966), 3 Mich. App. 83 aff'd. sub nom. Smith v. Western Wayne County Conservation Association (1968), 380 Mich. 526 (26 ALR3d 647) (proposed use of nearby property by a gun club), and cases cited therein.
This is not to say that such swimming pool is forever insulated from becoming a nuisance. However, plaintiffs have pleaded nothing at this time which indicates that increased noise, traffic and parking problems will necessarily result with its construction.
"[T]o secure an injunction against a neighbor's prospective use of his property, more must be shown than the mere possibility or even probability of harm resulting from that use." Commerce Oil Refining Corp. v. Miner (CA1, 1960), 281 F.2d 465, 474. (Emphasis supplied.)
Therefore, the order entered in the circuit court granting summary judgment to defendant is affirmed. Costs to defendant.
All concurred.