Opinion
Calendar No. 46,712.
Decided June 4, 1956.
Appeal from Wayne; McCree (Wade H., Jr.), J. Submitted April 10, 1956. (Calendar No. 46,712.) Decided June 4, 1956.
Mandamus by Clyde E. Smith and Beryl H. Smith against the building inspector for the Township of Plymouth to test zoning ordinance and to compel issuance of building permit for facilities of a trailer park. Judgment for plaintiffs. Defendant appeals. Affirmed.
Dale D. Libby, for plaintiffs.
Earl J. Demel, for defendant.
A writ of mandamus compelling the building inspector for the township of Plymouth to issue a building permit for the construction of buildings and other facilities to be utilized in the operation of a trailer coach park was granted to plaintiffs and appellees in the lower court. Defendant appeals.
Three questions are presented in this appeal, namely: (1) Did plaintiffs pursue a proper remedy in the form of a petition for writ of mandamus; (2) Is the zoning ordinance of the township of Plymouth a reasonable and justifiable exercise of the police power for the protection of the health, safety and morals of its inhabitants; and (3) Did the zoning ordinance comply with statutory requirements?
Question 1: Did plaintiffs pursue a proper remedy in the form of a petition for writ of mandamus?
It is appellant's contention that plaintiffs were not entitled to mandamus because they did not file an application for permit to construct a trailer coach park with the State health commissioner under the provisions of CL 1948, § 125.754 (Stat Ann 1955 Cum Supp § 5.278[4]). The record discloses that plaintiffs endeavored to file such an application with the State health commissioner but were informed that before an application could be filed they would have to have the signature of the Plymouth township clerk on the application; that they unsuccessfully endeavored to secure the signature of the township clerk. This precludes the township from raising the objection that plaintiffs were not entitled to mandamus because they had failed to file an application with the State health commissioner. The lower court on this point properly stated:
"The defendant urges that a writ should not issue because a permit had not first been obtained from the State. Issuance of a building permit by the building inspector does not excuse compliance by petitioners with the statute, and petitioners are still required before construction can begin to obtain the necessary permit from the State health commissioner."
Question 2: Is the zoning ordinance of the township of Plymouth a reasonable and justifiable exercise of the police power for the protection of the health, safety and morals of its inhabitants?
The trial court's summation of the evidence in regard to Plymouth township and the proposed trailer park is very clearly and concisely stated, is supported by the record, and is as follows:
"Plymouth township has experienced the smallest population gain in recent years of all townships in the metropolitan Detroit area, and the only existing construction in western Plymouth township consists of farms, barns and garage houses, and a small number of custom-built country homes. Zoning district 19, in which petitioners' land is located, is situated in the northwest corner of Plymouth township and is an area approximately 2 miles wide and slightly more than 2 miles long, and contains no existing construction. The proposed trailer camp site is on the westerly side of Ridge road, an unpaved way, and is approximately a half mile south of the Chesapeake Ohio railroad track. The testimony establishes that in district 30, a district only slightly smaller and immediately to the south of district 19, there is only 1 house. In district 29, a slightly smaller district to the southeast, there is a small subdivision approximately 2 miles southeast from the proposed site. There is no showing that district 20 is of a substantially different character. The Detroit House of Correction is immediately to the north of the proposed project site. Aerial photographs taken of the proposed site November 30, 1954, which are exhibits in the case, reveal open, undeveloped land, with only scattered farm buildings, except for the Detroit House of Correction, as far as the horizon.
"The evidence establishes conclusively that the area of the proposed site is largely agricultural and open country, and that there is no residential or industrial development in the district itself and surrounding districts."
The trial court was correct in finding that since trailer camps are not, as a matter of law, nuisances per se or detrimental to public health, safety, morals or general welfare, it could not be said that their prohibition in Plymouth township bears a real and substantial relationship to the promotion of public health, safety, morals or general welfare.
A case very similar to the present case was decided by this Court in Gust v. Township of Canton, 342 Mich. 436, 438, 439. In that case we said:
"Trailer camps may lawfully be operated in Michigan under CL 1948 and CLS 1954, § 125.751 et seq. (Stat Ann 1953 Cum Supp § 5.278[1] et seq.), which provide for the licensing and regulation thereof. Lawful uses of land may be prohibited in certain areas by zoning or building ordinances, if such exercise of police power bears a real and substantial relationship to public health, safety, morals or the general welfare. Roman Catholic Archbishop of Detroit v. Village of Orchard Lake, 333 Mich. 389, and cases therein cited. Presumption of the existence of such relationship and, hence, of the validity of the ordinance is resorted to in the absence of proof on the subject, but not when there are proofs upon which a judicial determination thereof may be made, as when the contrary is shown by competent evidence or appears on the face of the enactment. Roman Catholic Archbishop of Detroit v. Village of Orchard Lake, supra, and cases therein cited. Here the ordinances and record disclose the exclusion of trailer camps from the entire township. From the record and opinion in the former Gust Case and the record here, it is evident that the present character of the township, and particularly of the area in which plaintiff's lands are situate, is largely agricultural and open country, that plaintiff's lands are not in a residential section nor near industrial plants and that there is no industrially developed area in the entire township; that the nature and extent of the development of the township, or lack of it, are such that it cannot be said that zoning plaintiff's 33 acres of land partially into a 2-family residential zone, partly into a country home classification, and partly into a general industrial zone and prohibiting trailer camps therefrom bears a real and substantial relationship to present public health, safety, morals or general welfare. It is not seriously contended that it does. To so hold would be tantamount to declaring trailer camps detrimental to the public health, safety, morals or general welfare under every condition and circumstance and on that account subject to exclusion from every area in the State by local governing bodies. That would hardly square with the legislative intent expressed in the above act authorizing their operation in Michigan."
Gust v. Township of Canton, 337 Mich. 137. — REPORTER.
The record sustains the court's findings that the building permit should have been granted.
Question 3: Did the zoning ordinance comply with statutory requirements?
The zoning ordinance of the township of Plymouth prohibits trailer coach parks, and then provides a special procedure whereby a township board may make exceptions. Under the ordinance the township board was the final determiner.
The rural township zoning act (CL 1948 and CLS 1954, § 125.271 et seq. [Stat Ann 1949 Rev and Stat Ann 1955 Cum Supp § 5.2963(1) et seq.]) provides for a township board of appeals consisting of 3 members: The chairman of the township zoning board, a member of the township board, and a third member selected and appointed by the first 2 members from among the electors residing in the unincorporated area of the township.
Sec. 18 (CL 1948, § 125.288 [Stat Ann 1949 Rev § 5.2963 (18)]). — REPORTER.
The trial court correctly interpreted the above act by stating:
"The township zoning act * * * vests in a township board of appeals power to act upon all questions as they may arise in the administration of the zoning ordinance. There is no authorization in the act for a delegation of power to vary a zoning ordinance in specific instances to the township board. This provision is therefore invalid."
Judgment affirmed. Costs to appellees.
DETHMERS, C.J., and SHARPE, SMITH, BOYLES, CARR, and BLACK, JJ., concurred.
The late Justice REID took no part in the decision of this case.