Hall v. Village of Franklin

No. 69-52580 (Mich. Cir. Ct. February 10, 1972)

A state statute which authorizes municipalities to exercise their zoning power to establish historic districts, and the establishment of a historic district by the Village of Franklin pursuant to that statute, is a constitutional exercise of the state's police power. Preservation of historic objects is essential to a full education of the prople and as such is a contribution to the public welfare, which is a proper goal of the police power. The historic integrity of the area selected for preservation supports the reasonableness of the Village of Franklin's exercise of its authority to create a historic district. However, the Village of Franklin's change of the zoning classification of plaintiff's property from commercial — for which purposes it had been used since 1927 — to residential is not reasonably related to the public health or welfare and is therefore invalid as a confiscation of property.

Counsel for Plaintiff
Howard I. Bond
6345 Orchard Lake Road
Orchard Lake, Michigan 48033

Counsel for Defendant
Dean G. Beier
74 West Long Lake Road
Bloomfield Hills, Michigan 48013

Counsel for Intervening Defendant Michigan Department of Natural Resources
Warren R. Snyder Asst. Attorney General
630 Seven Story Office Building
Lansing, Michigan 48913

[2 ELR 20241]

Adams, C.J.

OPINION

In 1965 the Plaintiff purchased 7 1/2 lots in Franklin Village Subdivision with frontage of 150 feet on Franklin Road. At that time the property was zoned commercial and the purchase price of $27,000.00 reflected that zoning. Each of the Plaintiff's lots is twenty feet in width.

The building on the property is an old home but it has been used commercially since 1927 and that use continued until 1968 when a tenant abandoned the property with resulting damage to the plumbing. Thereafter the Plaintiff sought permission to construct a commercial building adjacent to the existing one. The application was considered by the Village Council over a period of time and then without explanation the Council directed the Village Planning Commission to recommend residential zoning of the property. This action was then commenced on February 28, 1969 seeking relief from the proposed change in zoning.

Subsequently, on March 6, 1970 the Council, pursuant to a Village Ordinance, created a "historic district" that included Plaintiff's land and on March 11, 1970, the Plaintiff's property was zoned residential despite the fact that commercial use of the property had just been confirmed by amendment to the Zoning Ordinance on February 23, 1970. In the meantime and prior to March 6, Plaintiff's application for demolition had been denied. Later in the year, Act No. 169 of the Public Acts of 1970 (effective in April 1971) had become law. Proceedings were had by the Village pursuant to the State's Enabling Act and on November 8, 1971, the Village Council adopted Ordinance 113 re-creating a "historic district" that again included the Plaintiff's land.

The Plaintiff now seeks relief from the affect of the provisions of the two ordinances that place his land in both a residential district and a "historic district".

It is his position that the two ordinances are arbitrary, unreasonable and confiscatory as applied to his land and totally unrelated to the health, welfare and safety of the community and have therefore taken from him valuable property rights without due process.

Despite a number of days of testimony, voluminous exhibits, lengthy briefs and arguments of counsel, there are in reality only two issues for decision by the Court. They are, first, is the Historic District Act of 1970 constitutionally firm and reasonably applied in Franklin Village and, second, is the most recent zoning ordinance of the Village constitutional as applied to Plaintiff's land?

The Historic District Act has apparently not been tested by the courts of this State, although at least two other districts have been ordinance-created in Michigan. Many comparable statutes have been adopted in other states and their validity sustained in most instances.

Historically in Michigan public control of private lands has been approved only when such control was found to be a proper exercise of police power. Review courts have always insisted that there be a reasonable relationship between the control and the public health, welfare and safety of the community, and so the first question here is whether the preservation of a historic area is so related. If such relationship exists, it is in the area of public welfare for clearly no matters of health or safety are involved.

The Legislature of this State has declated historic preservation to be a public purpose and has granted to municipalities the authority to "safeguard the heritage of a local unit by preserving a district in a local government which reflects elements of its cultural, social, economic, political and architectural history".

Several out-state review courts have found a reasonable relationship between the creation of Historic Districts and the public welfare.

The history of this State, as found in writing and in display of ancient objects, is essential to a full and adequate education of the people. Education is surely of greatest concern to the community. It follows and this court finds that the creation and preservation of Historic Districts does contribute to the public welfare and violates no constitutional restraint.

But the Plaintiff says that the authority granted to the Village by the Enabling Act was not reasonably exercised when the "historic district" was defined. No convincing proof was offered to justify that conclusion. Although not incorporated until 1954, Franklin Village had existed long before that as an area separate and apart in large degree from the rest of the county. It is and always has been almost exclusively residential in character. No manufacturing exists in the Village and commercial shops and service activities are and always have been located on or adjacent to the main street (Franklin Road). It is locally known as the town that time forgot. In its existence of more than a century homes and [2 ELR 20242] shops have been built and many of them are well preserved and presently occupied. While there have been changes and alterations, as would be expected, the center of the Village remains in appearance much as it did at the turn of the century. Exhibits indicate a number of buildings including the Plaintiff's are about the same today in exterior appearance as they were in the first instance.

Such being the fact the Court must conclude that the Village Council acted reasonably in creating a "historic district" of the center portion of the Village under the provisions of the State Enabling Act.

Turning then to the constitutionality of the provisions of the last amendment to the Zoning Code as applied to the Plaintiff's land we find that the property was subdivided into twenty foot lots some forty-six years ago suggesting the subdivider's intent that the property be used for commercial purposes. It fronts on the main street of the Village where substantially all commercial activity exists. Beginning in 1927 the premises were used commercially until deterioration caused by vandalism and the elements resulted in its being vacated in 1968. Until 1970 the Village and its Council considered it to be commercial property and it was so assessed for taxes.

Then suddenly and without explanation or request the Village Council on February 10, 1969 directed the Planning Commission to recommend the re-zoning of the Plaintiff's land to residential use. A year later the Council adopted a new Zoning Ordinance in which Plaintiff's land was still zoned commercial. Just a few weeks after that the Council reversed itself, without explanation or formal request, and on March 11, 1970 re-zoned the Plaintiff's land to residential use.

The courts of this State have consistently held that the zoning of a privately owned land must be reasonably related to the public health, welfare and safety of the community and that such zoning, once established, is presumed valid. Here however we are faced with circumstances that do not ordinarily appear in zoning causes. To repeat, we are concerned here with lands obviously intended for commercial use when subdivided nearly a half century ago. Later when the Village of Franklin was incorporated the land was zoned for that use. The land has been used for that purpose from 1927 to 1968 when the building became unusable without extensive repairs. Nearby property has changed very little in use, if any, up to this moment. The Village has accepted taxes on an assessed valuation related to commercial use.

With this background, the Village Council without adequate explanation and certainly without request from the owner has re-zoned the Plaintiff's land and restricted the use to residential purposes.

Expert opinions by appraisal witnesses differed as to the dollar value of Plaintiff's land when zoned commercial or residential. Builders' testimony also varied in relation to the costs of repairing the present building but it is clearly apparent and the Court so finds, that as a result of the change in zoning the Plaintiff has had a substantial amount of the market value of his property taken from him.

This Court is of the firm conviction that no property, regardless of its value, can be taken from a citizen by a municipality without legal justification. If there is no legal justification for the amending of the Zoning Ordinance then it should not have the benefit of the usual presumption of validity. Instead the municipality taking affirmative action without explanation should carry the burden of justification.

Here the Village has shown no change of circumstances to support the change in zoning. To the contrary it has indicated by of the Historic District Ordinance that there should be no future change and that the earlier use and appearance of the central village should be retained.

There is no testimony of probative value that the public health, welfare or safety of the community is enhanced by the re-zoning. Factually this Court can find no affect on the community as a result of the change. But there is positive and convincing proof that the Plaintiff has had valuable property rights taken from him because of the Council's action.

This Court finds that the change in zoning of the Plaintiff's land in 1970 had no relation to the public health, welfare or safety and is therefore arbitrary, capricious and confiscatory as applied to his property, constituting a taking without due process and is unconstitutional and void. The prior commercial zoning, accepted and followed by the citizens of the Village for many years is presumed valid and will continue to control the use of the Plaintiff's land. A Judgment may enter accordingly.