Opinion
Docket No. 51131.
Decided August 12, 1980. Leave to appeal applied for.
Eggenberger, Eggenberger, McKinney Weber, P.C., for plaintiffs.
Dykema, Gossett, Spencer, Goodnow Trigg (by W.A. Steiner, Jr., and Dennis M. Haffey), for defendants on appeal.
On remand from the Supreme Court, 408 Mich. 899 (1980), we are to reconsider Rofe v Robinson, 93 Mich. App. 749; 286 N.W.2d 914 (1979), in light of Redfern Lawns Civic Ass'n v Currie Pontiac Co, 328 Mich. 463; 44 N.W.2d 8 (1950). Redfern was cited and relied upon by the trial judge in his well-developed opinion, and, in passing, he noted, as do we, that the Supreme Court in Redfern reversed the trial court which had found that a subdivision's restriction as to use was not enforceable.
We determine upon reconsideration, as upon first consideration, that Redfern is to be distinguished and it is not controlling, either upon the facts or upon the law. Appellees argued as follows:
"In Redfern, the municipality had changed the zoning ordinance from residential to commercial; Grand River Avenue was a major thoroughfare; no commercial buildings had been constructed on any of the lots in question; the lots were vacant; business and commercial buildings were not immediately contiguous to the subdivision; and the desirability of using the vacant lots for residential purposes was small."
Admittedly, there are similarities. Telegraph Rd., like Grand River Ave., is a major thoroughfare and being separated from Telegraph is a continuing benefit to the association, and a residential use is the most desirable "buffer strip".
There are also, however, many dissimilarities. The rezoning at issue in the present case does not authorize commercial uses including, as in Redfern, the business of an automobile sales and service company, but rather a commercial use specifically restricted to an office building. The plaintiffs also had permitted, without objection, the alteration of an existing residential structure to an office structure in the disputed area. The plaintiffs did not institute suit until the defendants had started construction and expended approximately $30,000. The use of the area in question for residential purposes is not just undesirable but is also impractical and illegal.
It is to be noted in the subject area that an existing residential structure has been modified to permit an office use. The trial judge, in his opinion, in referring to this existing office stated:
"The use by Bing Construction Company is not so obvious or offensive that it immediately calls for action since it does not violate the structure restrictions and the use violation does not substantially alter the character of the neighborhood."
The material change of circumstances in the surrounding area is the reason for the rezoning. In Redfern, a pyramid use ordinance merely added commercial to residential as a permitted use. Here, the amended zoning ordinance creates an exclusive zone where the property may only be used for offices; it cannot be used for residential purposes.
Justice SHARPE in Redfern quoted very broad language from Putnam v Ernst, 232 Mich. 682; 206 N.W. 527 (1925), in stating:
"While the restrictions remain beneficial to the dominant estate, material violations of them will be enjoined to the extent that the restrictions remain beneficial." Redfern, supra, 468.
On the other hand, he also quoted:
"These building restriction cases present such wide difference[s] in facts that, in equity, but few rules can be applied generally. In the main, each case must be determined on its own facts." Id., 467.
The touchstone of the Redfern decision is this statement at 470:
"The only equitable consideration in the case at bar appears to be the undesirability of using the lots in question for residential purposes".
Cases seeking specific enforcement of restrictive covenants are brought in equity, and the chancellor should not be required to abandon his conscience or to wear too small shoes.
In Cooper v Kovan, 349 Mich. 520; 84 N.W.2d 859 (1957), Justice EDWARDS cited Redfern. The trial judge in Cooper had attempted to apply equitable principles in refusing to grant specific enforcement of a reciprocal negative easement and had issued only a limited injunction by requiring the creation of a green belt as a buffer zone. Stated at page 530 of Cooper is the following:
"The obvious purpose, of course, was to provide a buffer strip or green belt of residences or lawn between plaintiffs and the proposed shopping center, in accordance with present-day city planning principles. Desirable as such a plan may be in general city planning terms, we must answer the question here as to whether the circuit judge sitting in equity had power to effect such a compromise in the face of and at the expense of existing and valid residential restrictions, or whether such planning must be left to planning boards and private developers.
"We are unable to find that this power lies in judicial hands."
In the present case, equity is not being accomplished in a court of equity but rather by placing the matter in the good hands of planning boards and private developers referred to by Justice EDWARDS. The planning boards have reestablished the buffer zone in another form.
Good zoning gives recognition to the same principles and concepts that are deemed important to owners of property. The abutting edges of uses are everywhere recognized as difficult areas. As Justice SHARPE recognized in Redfern, movement of dividing lines can, in effect, shift the location of a buffer zone.
"There are two primary considerations in the establishment of boundaries between use districts:
"(1) The relation of each use district to its Neighbor.
"(2) The appropriate place for the boundary line separating one district from the other.
"Where each zone is to be in relation to the other zones will depend upon the care with which the legislative body has formulated its zoning plan and the reasonableness with which it has established the various uses and classifications. The most desirable arrangement would be one in which each zone is adjacent on one side to a little less, and on the other to a little more, restricted district. Where this can be done, each zone acts as a `buffer' between higher and lower uses".
Rathkopf, The Law of Zoning and Planning, page 16-6, § 16.02, Buffer Zones and Transitional Zoning.
The restrictions imposed on the use of the lots did not contemplate that the lots were to be vacant forever. There was no specific reference to a buffer strip and certainly no wording indicating a weedy green belt.
The municipality has determined that a proper buffer strip can accomplish a use of the property and still protect the dominant property owners. We determine that such planning is consistent with court-enforced equitable principles.
It is our continued opinion that the restriction of use to residential purposes only is inequitable and that the office use is to be permitted. We expressed then and express now no opinion as to how the balance of the restrictions should be enforced or what other equitable remedies might be available to the plaintiff. We would reverse, but remand for further proceedings consistent with this opinion.