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Dwyer v. Ann Arbor, City of

Citation: 8 ELR 20229
No. Nos. 77-1086 et al., 261 N.W.2d 231/79 Mich. App. 113, (Mich. Ct. App., 10/11/1977)

The court vacates an injunction restraining further issuance of construction permits by defendants until such time as the municipality's sewage treatment plant is brought into compliance with state and federal laws. The trial court was correct in finding a violation of the city's national pollutant discharge elimination system permit and in rejecting the city's defense that violating the terms of the permit is insufficient to establish a prima facie case of water pollution under the Michigan Environmental Protection Act. Despite the importance of the public effort to control water pollution, however, the trial court's imposition of a ban against all growth in the city is too drastic a means for achieving this purpose. The case is remanded to the trial court for a formulation of an alternative and more appropriate method of bringing the city into compliance. The court also reviews an injunctive order forbidding other defendants from using certain parcels of real estate for other than construction of single-family dwellings, under the doctrine of implied reciprocal negative easement. Under Michigan law, this doctrine is inapplicable to the facts in this case, and the injunction is vacated.

Counsel for Plaintiff-Appellee
Ronald G. Morgan
Warren, Hart, Morgan & Fucak
703 Davenport Bldg., Lansing MI 48933
(317) 482-1591

Counsel for Defendant City of Ann Arbor
R. Bruce Laidlaw, Acting City Attorney
P.O. Box 647, Ann Arbor MI 48106
(313) 994-2670

Counsel for Defendant-Appellant Airey Building Co.
Alan J. Philbrick
Conlin, Conlin & McKenney
700 City Center Bldg., Ann Arbor MI 48108
(313) 761-9000

Counsel for Defendants-Appellants Hessee Realty and Cassee Construction Cos.
Steven A. Bromberg
Bromberg, Robinson, Shapero & Cohn
29201 Telegraph Rd., Suite 422, Southfield MI 48076
(313) 352-3322

Counsel for Amicus Curiae
Fred S. Steingold
Ecological Center of Ann Arbor
616 Ann Arbor Trust Bldg., Ann Arbor MI 48104
(313) 665-0635

Before GILLIS, P.J., and R. B. BURNS and BASHARA, JJ.