I’ ff. 5, I

ZONING FROM THE LEGAL PERSPECTIVE
OPPORTUNITIES FOR EFFECTIVENESS
THROUGH SYNTHESIS

Thesis for the Degree of M. U. P.
MICHIGAN STATE UNIVERSITY
GREGORY ALAN LYMAN
1976

 

ABSTRACT

ZONING FROM THE LEGAL PERSPECTIVE OPPORTUNITIES
FOR EFFECTIVENESS THROUGH SYNTHESIS

by

Gregory Alan Lyman

Zoning represents a very basic and traditional tool employed

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by planners to achieve objectives formulated to enhance the welfare

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‘oiwou: communities Over the years this frequently used planning in—
strument has been the subject of continuing criticism for its inabil-
ity to pro e results equal to the visions of the planning profes-
sion. erhpas, this reoccurring criticism contains elements of val-
idity because the planning profession has failed to concisely and cre-
atively view the true nature of the creature called zoning.

As a legal instrument, zoning by virtue of its basis in legal
theory as wedded to our system of government, contains inherent con-
straints which establish how it may properly be used to accomplish
goals properly defined as within its purpose. While such parameters

on purpose and use may be subject to change, they do indeed exist and

must be recognized by individuals involved in applying zoning to

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Gregory Alan Lyman
I

attainment of public objectivesf It is the purpose of this thesis to

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propose that more effective and realistic application of the zoning

power may result from greater sensitivity to legal parameters, and the

merits of a creative synthesis between planning theories and legal doc-

trines.

This proposition is presented through discussion of the fol-

lowing subjects:

I.

The practice of planning may benefit from an approach which
systematically focuses on the development of strategies to
resolve specific problems, real or anticipated. Such an
operational framework for planning practice is consistent

with the use of zoning in a strategy configuration.

An essential element of understanding the legal parameters in-
herent in the use of zoning is sensitivity to the nature of

law itself.

A review of Michigan court decisions related to zoning reveals
the legal constraints present in Michigan with regard to the
zoning power, and provides the framework for development of

zoning strategies.

The concepts expressed in a recent Michigan Supreme Court De-

cision, Nest v. City of Portage, indicate the need for planners

Gregory Alan Lyman

to entertain a positive, interactive and creative posture with
regard to legal pronouncements. This decision also reveals
opportunities, derived from the legal perspective for more

effective planning and zoning practice.

In conclusion, this thesis suggests to planners that a positive
awareness of the legal doctrines involved in the use of the zoning
power, when synthesized with planning concepts, can result in more
effective and beneficial use of this planning tool. In a broader
sense, this thesis calls for greater interaction between planners
and all professions, offering the opinion that a focus on specific
problems in an atmosphere of cooperation and an awareness of compre-
hensive impact, can contribute greatly to making our future visions
tomorrow‘s realities. A strategy-oriented approach to the use of
zoning represents one illustrative component of such a planning

framework.

ZONING FROM THE LEGAL PERSPECTIVE OPPORTUNITIES

FOR EFFECTIVENESS THROUGH SYNTHESIS

by

Gregory Alan Lyman

A THESIS

Submitted to
Michigan State University
in partial fulfillment of the requirements
for the degree of

MASTER IN URBAN PLANNING

School of Urban Planning and Landscape Architecture
College of Social Science

1976

ACKNOWLEDGEMENTS

The completion of this thesis would not have been possible
without the assistance of several individuals. Appreciation is ex-
tended to the faculty of the School of Urban Planning and Landscape
Architecture, Michigan State University, for their contributions to
my planning education. I would also like to express my gratitude to
Professor Keith Honey for the guidance, personal assistance and moral
support he has rendered both in the preparation of this thesis and
throughout my tenure in graduate school.

Acknowledgement is also due the Office of Land Use, Michigan
Department of Natural Resources, for the opportunities it created for

intensive study of the practice of zoning in Michigan. The staff of

the Office of Land Use and the members of the Zoning Advisory Committee

provided perspectives of zoning which contributed greatly to the con-
tent of this thesis.

As I reflect on this thesis and the past few years of graduate

education, I am reminded of the irreplaceable experiences I have shared

with my family during this respite from the world of gainful employment.

My wife, Susan, and son, Bret, deserve my deepest thanks for their very

1'1

important contributions. From a very practical standpoint, Susan has
served as the breadwinner, and I the "househusband," while my desire

for higher education has been fulfilled. And, without Susan's agree-
ment to type into the early hours of the morning, I would still be
trying to meet deadlines for research papers. More importantly, Susan
has patiently shared this experience with me, offering needed criticism,
affection and moral support. To my son, Bret, I must say thank you for
the curiosity and mischievousness which help an adult maintain a proper

perspective of what life is really about.

iii

TABLE OF CONTENTS

Page

AN INTRODUCTORY COMMENT ................ I

I. TURNING VISIONS INTO REALITY--A PLANNING CHALLENGE . . 6

II. AN INTRODUCTION TO AMERICAN LAN ............ 23
An Historical Perspective of American Law ..... 29
A Look at Legal Procedure ............. 40
Concluding Comments ................ 60

III. A REVIEW OF MICHIGAN COURT OECISIONS--GUIDELINES FOR

EFFECTIVE ZONING STRATEGIES .............. 67
Background ..................... 59
The Constitutionality of Zoning .......... 75

In the United States .............. 75

In Michigan. .................. 79
The Interpretation of Provisions of the

Enabling Acts .................. 82

Adoption and Amendment ............. 84

Ordinance Administration ............ 99

The Reasonable Application of the Zoning Power. . . l24

iv

TABLE OF CONTENTS (cont'd.)

 

Page

According to Community Objectives ........ 131

Zoning Techniques ................ 146

As Applied to Specific Property ......... 154

IV. THE VALUE OF THE LEGAL PERSPECTIVE IN ZONING ..... 177
V. NEST V.gCITY OF PORTAGE--THE JUDICIARY PROVIDES

PROVOCATIVE THOUGHTS ON ZONING PRACTICE ........ 191

Background ..................... 195

The Decision .................... l97

The Impact of the Levin Reasoning --------- 202

Departure from Current Rezoning Practice ...... 209

The Levin Decision and Planning .......... 213

The Lessons of West ................ 229

VI. REFLECTIONS ...................... 234

BIBLIOGRAPHY ..................... 238

LIST OF FIGURES

Figure Page

1. A PROBLEM-ORIENTED MODEL ............... 12

2. ELEMENTS OF A PROBLEM-SPECIFIC PLANNER ........ 17

vi

AN INTRODUCTORY COMMENT

AN INTRODUCTORY COMMENT

The law, as embodied in our state and Federal constitutions,
the enactments of legislative bodies and the decisions of our courts,
represents society's overt statement on the pr0per conduct of human
activities. Prohibitions are delineated restraining actions, while
basic freedoms are guaranteed. Incentives are institutionalized to
promote achievement of implicit and explicit goals. Programs and oper-
ational mechanisms are created, symbolizing a societal recognition of
a common need or desire, and the determination to initiate responsive
action. The law defines the relationships of citizen to citizen,
corporation to corporation, employer to employee, and attempts to
balance public and private interests as it defines the rights and
duties of government in relation to the individual. As population
increases and social relationships become more complex, the pervasive
influence of the law becomes greater and its impact on the form, con-
tent, and structure of society becomes more far reaching. Increasingly,
the law has become more than the adjudicator of conflicts between indi-

viduals. It has become the instrument through which society

collectively establishes its goals and implements actions which are
deemed necessary to promote and achieve common welfare.

Since its inception in the United States, the planning profes-
sion has focused its efforts on the achievement of a high quality of
life for all citizens. Acting out of concern for the public interest,
planners have urged that decisions on behalf of society be made based
on foresight and a knowledge of future direction. It is in the desire
to achieve social stability and equity, the resolution of public prob-
lems and the promotion of society's future welfare that law and plan-
ning interface. Planning strives to anticipate and resolve problems
afflicting society, while the law increasingly represents the mechanism
through which the public collectively effects action to insure common
welfare, as well as protect individual rights.

Although it may not be commonly recognized by either entity,
law and planning exist in reciprocal relationships. The practice of
planning in the absence of a positive, interactive relationship with
law reduces the impact of subsequent studies, plans and recommendations.
On the other hand, the formulation and practice of law may suffer in
substance and effect if it is not based upon an adequate knowledge of
the problem it purports to avert, the objective it should serve, and
the future repercussions implementation may cause. To attain an opti-

mum level of performance in our efforts to shape and enhance the quality

of human existence, law and planning must enjoy a supportive relation-
ship with the disciples of each sensitive to the goals and tenets of
the other's discipline, and willing to strive to effect a meaningful
interface.

The objective of the document which follows is to describe the
essence of the area of interface between law and planning, explaining
the directions and constraints each discipline is offering the other
and the potential for society which a proper synthesis can bring. Of
course, such nebulous terms as interface and synthesis, as well as
planning, can have very elusive meanings in the absence of reality and
a point of reference. Thus, the process of zoning will serve as a cata-
lyst bringing the professions of law and planning together in an overlap
situation where study can be succinctly focused.

Zoning, since its contemporary introduction just after the turn
of the century in New York City, has continually represented a field of
interest entertaining a high level of participation by members of both
the legal and planning professions. As a technique embodied in law,
attorneys and members of the judiCiary have maintained a keen interest
in insuring that its powers are restrained within constitutional limits.
As a tool for guiding land development, planners have viewed zoning as
an implementation technique to be used to effect planning objectives

and recommendations. Quite obviously, planners and lawyers have viewed

zoning from different perspectives with different interests in mind.
It is also apparent that if the object of their interest, zoning, is
to be used at anywhere near an optimum level the members of each pro-
fession must open their eyes and understand the objectives each hold
as well as the benefits which will accrue to society if zoning is
structured and practiced from a position of synthesis rather than
separation. Perhaps the problems and potentials revealed by this
narrow investigation of zoning will stimulate thought on other areas
of professional synthesis in addition to law and planning, where
greater understanding, interaction and cooperation between disciplines
could result in a larger collective benefit to society; a benefit
greater than that achieved within the narrow confines and limited
perspectives of distinct professional categories.

The pages which follow in the broadest sense serve to illustrate
the need for greater interprofessional awareness and understanding. In
a more specific, detailed vein, improvements in the process of zoning
will be suggested as indicated by an analysis of the constraints and
directions present in the decisions of the courts. In an attempt to
bridge the gap between law and planning, a planner with planning objec-
tives in mind will attempt to understand the role of the courts and
members of the bar, develop a sensitivity to their concerns and relate

the legal perspective of man and his world to that held by planners.

This description of the legal system will be followed by review of
Michigan court decisions relating to planning and zoning. The purpose
of the court decision review is to analyze and identify in specific
terms the constraints and directions the judiciary has indicated for
the use of the zoning power. This analysis will then provide the fuel
for illustrations recommending to planners the ways in which an under-
standing of the legal perspective can be used to advantage to increase
the effectiveness of planning and zoning practice.

The conclusion of this thesis will consist of an analysis of

the decision of Michigan Supreme Court Justice Levin in West v. City

 

of Portage. The conclusions reached by Justice Levin indicate direc-

 

tions for zoning and planning practice with far reaching implications.
The reasoning exhibited by Levin illustrates in a precise manner the
interface concept between law and planning and provides a new frame-

work for zoning radically different from traditional concepts. Jus-

tice Levin has not been alone in his advocacy of a new approach to
zoning. Courts in other states, most notably Oregon, have reached
similar conclusions. Thus, out of the law/planning interface described
in West v. City_of Portage, recommendations will be presented which may
indicate the dynamics involved in a new approach to zoning and planning;
an approach stimulated and framed by the law, and adapted and used to the

advantage of society by the planning profession.

TURNING VISIONS INTO REALITY

A PLANNING CHALLENGE

7 Chapter I
TURNING VISIONS INTO REALITY
A PLANNING CHALLENGE
The urban planner in the 20th century must lead people from
the world of the practical into the realm of dreams and then

back again in a way that makes dreams possible.
--John Alan Stock

As America has shifted from a country dominated by rural set-
tings and agrarian perspectives to an intense industrialized society,
an increasing awareness of the problems inherent in unconsidered
growth, population concentration, and urban expansion has surfaced.
Now, more than ever before, the "growth is good at any expense“ ethic
which has dominated American history is being questioned. Faced with
expanding metropolitan complexes, balkanized local governments unable
to grapple with complex social problems and deteriorating physical in-
frastructures, and a wave of urban development which is consuming vital
agricultural land, essential natural resources, and significant environ-
mental features, citizens are voicing their concerns over the quality
of life. However, in their search for solutions they have been caught
in a feeling of inevitability and helplessness. In many cases, they
have adopted a defensive posture, exhibiting skepticism in the ability

6

of government to solve problems, displaying apathy at the polls, becom-
ing involved in public problems only out of negativism, running to the
suburbs and beyond, erecting privacy fences, and buying handguns-~the
list of symptoms could go on. Americans are now realizing that there
are problems with the patterns of growth, the operations of society,
and the quality of the environment--physical, social and economic.

The average citizen, existing in daily contact with environmental
problems, can readily list a multitude of dysfunctions which he or she
observes and feels during daily travels through a unique social network
of relationships. These simple observations tend to indicate that the
frustration of modern urban life emanates not from an inability to point
to problems, but from a lack of ability to make succinct problem de-
scriptions, assessments of interrelated variables, and the translation
of descriptive information into effective resolution strategies. In
the absence of effective solutions, the defensive attitudes of the
American public grows, the ability to dream is lost, and the task of
problem resolution becomes more and more difficult.

At a recent planning and zoning seminar for local government
officials, the need for problem solutions became very evident.1 As a
planner and a lawyer conducted separate workshop sessions, participa-
tion in both revealed the same general tone of discussion. Questions

invariably centered on specific local problems with requests for how

to solve those problems. For example, a township official from south-
eastern Michigan explained that rapid new development was consuming
prime agricultural land and asked what they could do to guide this de-
velopment elsewhere. From southcentral Michigan came the description
of a problem involving isolated mobile homes without proper sanitary
facilities and the request for a solution. For over two hours, ques-
tions were posed by over lOO local officials without hesitation. They
seemed to be repeatedly saying, "We know our problems; give us solu-
tions.“ The need for solution strategies was readily apparent.

While the experience described above occurred within the con-
text of land use and zoning, the pattern is not unique. Consider the
situation faced by the police chief of a small city in central Michigan
who was experiencing the increasing use of bicycles and corresponding
increases in accidents and thefts. This gentleman recognized his
problems and asked for assistance in devising such solutions as the
drafting of a bicycle ordinance and the establishment of a licensing
program.2 Or, the township supervisor seeking design standards for
bikeways and methods of financing a bikepath system.3 Or, the police
detective from southwestern Michigan seeking ways to curb a growing
influx of pornography stores.4 These examples illustrate on a small
specific scale the existence of a large insatiable desire for tech-

niques, tools and strategies which will solve a multiplicity of

problems facing the American citizenry. As these questions go unan-
swered or are poorly answered, those who have exhibited the concern

to ask for solutions may feel the frustration which leads to defensive
attitudes. Correspondingly, those who are repeatedly and continually
exposed to the adverse impacts of societal dysfunctions will become
more firmly entrenched in a defensive posture.

Since the days of the City Beautiful Movement, just after the
turn of the century, the observance of the increasing magnitude and
complexity of problems afflicting America's ubanized society has
strengthened the planner's belief in planning as a solution. And,
perhaps in a situation analogous to an architect designing a build-
ing, the science of city planning could produce a smoothly function-
ing urban community. Planning could serve at least as the solution
to the physical problems of urban growth. However, the realities of
American society, its institutional arrangements, values and social
networks seem to indicate that the ability of the planner to operate
as the architect in designing a city may be no more than a theory at
the present time. The pressure of existing problems is so great, the
complexity of governmental, business and individual relationships is
so intricate, and social cohesion so fragmented that the traditional
plan as a "grand scheme" or solution can only be described as impotent

in the American context. There is a need apparent for a redefinition

10

of the planning process, its components, and the dynamics of operational
emphasis in its application.

The planner of the 70's is faced with a unique and difficult
challenge. The planner must realistically listen to the queries and
requests for help voiced by the public official, understand the reasons
for the defensive posture assumed by the citizenry, and proceed to ques-
tion his planning traditions while developing a new configuration for
the planning process. The planner today must do more than create a
master plan. He must do more than complain of the day-to-day distrac-
tions which hinder his preparation of documents describing the state
of his city 20 years hence. The planner must recognize his strengths
and weaknesses, and seek to build a planning process sensitive to human
needs, aware of the realities of modern society, and based upon the
contributions which planning can make to social progress. The planner
must understand that it is today's problems which help create tomorrow's
realities and without an intricate understanding of how to resolve our
short—range difficulties, designs for the future will soon be covered
with dust and forgotten. The planner must instill enthusiasm for
visions of the future. But, equally important, he must bring reality
to those visions by painstakingly building a bridge to the future
through the resolution of individual tangible problems. The planner

must be willing to change his profession, and, equally important,

11

be unafraid to fight for changes he, as a professional, feels will
benefit society.

The point of this discussion is not new. The inadequacies
of the traditional master plan approach to planning have been analyzed
many times before. The frustrations of the planner being unable to
effectively influence the events which determine a city's growth pat-
tern have been discussed by many authors. And, it would be grossly
unfair to say that planners themselves have not recognized their weak—
nesses, and applied many new approaches to public problems. Yet, these
general comments serve as contextual material for the remainder of this
thesis. The comments, observations and opinions which follow illustrate
one component of planning strategy which can transform the traditional
process of planning into a configuration which takes aim at specific
problems, and tackles the realities of today while keeping an eye on
what tomorrow shoufld be like. This process deemphasizes the tradi-
tional plan and depends upon action plans derived from the continual
cycling of the steps presented in the following diagram, with a general
policy framework providing guidance to promote directional consistency;5
Plans are not scrapped, they are reformulated as documents character-
ized by realism, and the strategic use of information to combine plan-
ning and implementation into blueprints for action--strategies cognizant
of long-range goals, sensitive to comprehensive repercussions, and cap-

able of progress.

12

     
   
 

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A PROBLEM-ORIENTED MODEL

13

This model of a planning process differs from traditional
planning theories not so much in the logic of its steps, but rather
in its scale, points of emphasis and the dynamics of operation. For
example, under traditional doctrines the problems of a community
would be analyzed, its future potentials would be quantified and a
future plan derived for how the community should appear in 20 years.
The plan was advanced as a vision of the community's future. It was
then assumed that all decisions would have as their objective the
realization of this plan. This method could be called the architec-
tural model of planning.

In the planning process configuration to which this thesis
contributes, planning attention becomes problem specific. The planner
narrows his focus to identified or anticipated specific dysfunctions.
Rather than reacting to problems in an isolated manner, the planner
identifies key problems influencing the present and future state of
the community environment, and formulates a positive program or set
of action plans for dealing with these problems. In looking at specific
key problems, effort is focused on description of the essential charac-
teristics of the problem. The key elements or variables describing
its character are isolated and resolution alternatives created to amel-
iorate the problem. At this point, the planner reassumes his comprehen-

sive perspective and measures the various impacts of his solution array

14

on (1) the problem as originally defined, (2) other identified key
problems, (3) the external environment of which the problem is in-
terdependently linked, and (4) the policy guidelines which provide
the general parameters designed to lead human action toward desired
goals. On the basis of this impact analysis depicting alternative
visions of the future, a solution strategy would be selected and
implemented. Following implementation, evaluation and realignment
would be essential to adjust the strategy to changes in the charac-
ter of the problem, changes in the character or relative influence
of other problems, altered policy parameters, or alterations in the
external environment caused by uncontrolled outside variables or the
unforeseen impacts of other solution strategies. The important fea-
tures of this process are its separate but concurrent focus on spe-
cific problems which have been identified and prioritized as influ-
ential in determining the environment of the community, and its em-
phasis on an affirmative program composed of complementary action
plans realistically addressing the resolution of critical problems.
Comprehensiveness is achieved through impact analysis and evaluation,
and realignment. Effectiveness and relativity are imparted through
its focus on producing solutions. Thus, visions of the future are
put into a tangible, operational, framework which the mind can com-

prehend as attainable, and toward which progress can be discerned.

15

Typically, the traditional planning process focuses, and in-
deed places its greatest emphasis on a desired end state predictably
10, 20, or 30 years in the future. It may then describe general im-
plementing actions which will lead to this desired result, and then
hope that the multitude of individual public and private decisions
will be calculated to support the planner's vision of the future.
While such an approach is quite rational and truly reflects what the
reasonable man should do in decision-making decisions, it is not a
model for public decision making which is congruent with the realities
of human behavior. The immediacy of "here and now“ problems creates
demands for solutions which easily overshadow the well thought out
generalities of a planner's vision for the future. In terms of the
hard cold probability, the vast number of public and private decisions
made each day affecting the future form of the city and the quality of
life defeats any hope that they will all adhere to the principles of a
master plan. The rapid pace at which society moves, changes and
evolves introduces a time element capable of quickly outdating the
premises of any well considered comprehensive plan. Each of these
factors--immediacy, multiplicity and pace—eacting interdependently
creates a dynamic context for human action rendering the comprehensive
plan, as a major solution to societal problems, an unrealistic venture.

Rather, it may be more realistic for the planner to overtly concentrate

16

his skills on specific critical and influential problems while im-
plicitly achieving comprehensiveness and an improved future quality
of life through greater attention to impact analysis and policy
formulation.

It can be readily seen that a shift in the planner's role in
public decision making from the preparation of long-range planning
documents, characterized by their generalized comprehensive nature,
to short-range problem-specific analyses characterized by specificity,
detailed solution strategies and impact analyses, would most certainly
require the planner to assume new skills and working relationships.
Should the reorientation in the planning process previously discussed
be accepted as an alternative or a supplement to traditional doctrines,
a planner facing a specific complex dysfunction could easily find he
lacks the specific knowledge needed to truly understand the specifics
of the problem, and to formulate an effective solution strategy. A
strategy of problem specific attack requires problem specific knowledge.
However, for the planner to acquire the detailed knowledge necessary to
confront a specific difficulty endangers his comprehensiveness. In
addition, in today's society of complexity, the accumulation of de-
tailed expertise in all areas relative to public problems would be
impossible. Thus, in view of these constraints, the elements or

skills of a professional planner engaged in the problem-specific model

17

of planning hypothesized in this contextual material could be con—

structed as illustrated in the following diagram:

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Figure 2

ELEMENTS OF PROBLEM-SPECIFIC PLANNER

18

The planner engaged in the problem-specific mode of planning
would need to be skilled in policy formulation--the slow frustrating
process of educating the public, encouraging future vision, goal formu—
lation policy articulation. As a part of policy formulation, the
planner would need to be humanistic in his viewpoint and truly recog-
nize the value of citizen input and participation in decision making.
The humanistic characteristic of the planner involved in policy formu-
lation is essential for it sets the tone for later use of evaluation
methodologies which can pose the distinct danger of failure to include
human considerations. The problem-specific planner would also need a
working knowledge of the principles and perspectives of the other major
disciplines with potential for solving public problems. Such skills in
professional synthesis would require that the planner understand what
knowledge another profession can bring to bear on the problem, possess
sensitivity to the perspective of the other professions, develop an
awareness of when specific technical knowlege is needed, and be capable
of working closely with other professionals in an interdisciplinary
setting. It is through professional synthesis that the planner will
gain access to information providing the basis for creative solution
strategies.

The problem-specific planner would primarily induce comprehen-

siveness and future vision in his work through his efforts in policy

19

formulation and development of impact analyses. The techniques of im-
pact analysis employed by the planner would require creative use of
evaluation methodologies applied to determine the impact of proposed
actions on overall policy, other operational problem solution strate-
gies, and the current state of the community environment. The policy
framework, creating a commonly-held vision of the future, imparts com-
prehensive direction for individual decisions, while impact analysis
provides continual awareness of the effect specific actions will have
on other variables affecting an.ability to realize the vision of the
future deemed desirable.
The planner's ability to employ evaluation methodologies serves

a three-part function. First, evaluation methodologies assist in the
identification of problems and the assessment of their relative influ-
ence on the state of the community. Secondly, they provide the basis
for developing impact assessments. And, thirdly, they enable the
planner to monitor the success of the strategies applied, recognize
the changing character and influence of problems, and apply corrective
measures designed to realign strategies.

. The planner of the 70's who possesses these components and is
able to apply them to the problems and policy choices we face will
perhaps enjoy a greater opportunity to enhance the livability of com—

munity environments.

20

With a sensitive and humanistic ability to induce visions of
the future through policy formulation, combined with the capability
to blend professional skills into effective problem solution strate-
gies, the planner of the 70's can become the catalyst who can "lead
people from the world of the practical into the realm of dreams and
then back again in a way that makes dreams possible.‘l

Against this contextual background suggesting a hypothetical
model for planning divergent from traditional modes, the remainder
of this thesis will be devoted to the discussion of one aspect of this
strategy. Consideration will be focused on the synthesis between
planning and the law, illustrating one dimension of the component re-
ferred to as professional synthesis. A look will be afforded at how
greater sensitivity by planners to the nature and principles of law--
the practice of a complementary profession--can provide the planner
of the 70's with important knowledge and perspectives for creating
effective problem-specific strategies for making future visions

attainable.

FOOTNOTES

IObservations of the author at a Planning and Zoning Seminar
conducted in Ann Arbor, Michigan on May 23, 1975 by the Michigan Town-
ship Association.

2Based on a telephone conversation with the Police Chief of
the City of Dewitt, Michigan, October, 1974. Assistance was requested
from the writer.

3Based on telephone conversation and subsequent interview with
Supervisor Dale Emerson of Dewitt Township, Michigan, October, 1974.
Assistance was requested from the writer.

4Based on telephone conversation and personal interview with
Detective Lieutenant Ronald Smith of the Benton Harbor Police Depart-
ment, Benton Harbor, Michigan, September, 1971. Assistance was re-
quested from the writer.

5For additional discussion of traditional planning theories
and new planning frameworks see: Robert B. Mitchell, "The New Fron-
tier in Metropolitan Planning," Journal of the American Institute of
Planners, XXVII, No. 3 (1961), 169; Martin Meyerson, "Building the
Middle—Range Bridge for Comprehensive Planning," Journal of the Amer-
ican Institute of Planners, XXII, No. 2 (1956), 58; Peter H. Nash and
Dennis Durden, "A Task-Force Approach to Replace the Planning Board,"
Journal of the American Institute of Planners, XXX, No. l (1964), 10;
Edward C. Banfield and Martin Meyerson, Politics,_Planninggand the
Public Interest (Glencoe, Illinois: The Free Press, 1955), chapters
10, 11 and Supplement; Richard S. Bolan, "Emerging Views of Planning,"
Journal of the American Institute of Planners, XXXIII, No. 4 (1967),
233; Ira M. Robinson, "Beyond the Middle-Range Planning Bridge,"
Journal of the American Institute of Planners, XXXI, No. 4 (1965),
304; American Law Institute, A Model Land Development Code, Proposed
Official Draft No. 1 (Philadelphia: American Law Institute, 1974);

21

22

Fred P. Bosselman, "The Local Planner's Role Under the Pr0posed Model
Land Development Code," Journal of the American Institute of Planners
XLI, No. l (1975), 15; Norman Krumholz, Janice M. Cogger, and John H.
Linner, "The Cleveland Policy Planning Report,“ Journal of the Ameri-
can Institute of Planners, XLI, No. 5 (1975), 298; Herbert J. Gans,
“Planning for Declining and Poor Cities,“ Journal of the American
Institute of Planners, XLI, No. 5 (1975), 305; T. J. Cartwright,
“Problems, Solutions and Strategies: A Contribution to the Theory
and Practice of Planning," Journal of the American Institute of
Planners, XXXIX, No. 3 (1973), 179.

AN INTRODUCTION TO AMERICAN LAW

Chapter II

AN INTRODUCTION TO AMERICAN LAW

Law represents an essential and fUndamental social framework
within which planners and other professionals, and all members of so-
ciety must operate. It is in law that society embodies the parameters
which define the roles of government, institutions and individuals;
assigns responsibilities; balances individual freedom against public
needs; and restrains and allows the exercise of power. For the
planner an understanding of law is essential, for in devising strate-
gies to resolve problems he will inevitably become involved in shift-
ing the balance between individual rights and collective benefit,
redefining roles of government, individuals, and institutions, and
using power in new and different ways. Even the planner who chooses
to function passively as advisor, using persuasion as his implementing
tool, must understand the role and perspective of law if his recom-
mendations are to appear conceivable as well as desirable.

The groundrules for action are present in law. It is law

which grants and removes power. A key element of effective solution

23

24

strategies is the creative use of law. For the planner desiring to
translate dreams into reality, this imparts a responsibility to under-
stand the principles of the legal framework, the perspectives of its
practitioners, and the specific doctrines which constrain or offer
potentials for a specific implementation strategy. While a general
discussion of American law may appear as a diversion, it serves two
essential functions. It serves to illustrate the type of background
information important to the planner utilizing the planning model
described in the previous chapter, and it serves in a practical sense
as a necessary foundation for understanding of the discussion of zon-
ing law which follows. As Archibald Cox suggested in 1961, progress
toward goals we deem desirable can only be made with an intelligent
understanding of our system of justice.1

Law has developed because men have wanted their relationships
between other men and government to conform to defined standards. Each
person wants to know what conduct he can reasonably expect from others;
as well as what conduct others can expect from him. With such rules
of conduct established, a citizen is able to make intelligent decisions
in terms of commonly understood legal rights and obligations. The legal
rules, or laws, which have been adopted for this purpose express the
social, economic, and moral desires, standards and aspirations fo so-

ciety.2

25

There is no doubt that in the absence of man-made law, persons
would impart certain moral principles or natural laws. However, in
the absence of an organized or institutionalized legal framework, a
common understanding of legal rights and duties would be difficult
to achieve. In addition, those who did not assume moral principles
of responsibility in relation to others would present difficult prob-
lems for society--particularly in a complex, contemporary society.

Thus, man-made law is necessary not only to define responsi-
bilities and establish rules of conduct, but, also to create the ma-
chinery for enforcing proper conduct, punishing wrongful acts, and
settling disputes. The substance of law could be described as a body
of principles, contained in statutes, constitutions, local ordinances,
court decisions and amdinistrative rules, which govern conduct and
provide means of enforcement.

In its broadest sense, law is present to provide order, sta-
bility and justice. It represents a crystallization, into relatively
fixed rules, of those patterns of behavior for individuals, institu-
tions and government which society deems desirable. Yet, in spite
of its embodiment into fixed rules of conduct, law is not static.

It represents an institution which is not an end unto itself, but
an instrumentality for obtaining social justice. While law is

thought of in terms of statutes, ordinances and court decisions,

26

its nature is more like a process; a system within which all partici-
pants are performing seemingly conflicting roles in pursuit of a com-
mon objective: justice. In actuality, law the substance is contin-
uously being used and tested within law the process, each insuring in
a dynamic way that equity and justice are being maintained in accord
with accepted social desires and beliefs. The truth then is that law
has been evolving, and by necessity will continue to grow, change and
evolve, rejecting old principles and adopting new standards.3 Law the
rule and law the process will cease to grow and become static only when
society ceases to grow and becomes static.

It is apparent therefore that civilized coexistence depends to
a great extent on the proper functioning of our legal system. And, as
society becomes increasingly urban and interpersonal relationships be-
come more complex, our legal system will most assuredly shoulder more
and more responsibility for insuring an ordered society in which indi-
vidual freedom is maintained while public welfare is promoted. Recog-
nizing that for society to grow, improve and progress requires that
law--our contextual framework defining conduct--remain dynamic, reveals
the delicate nature of law. While it must be sensitive to social change,
law cannot bend with the changing winds of popular will. Law must re-
main a stabilizing force focusing its processes insistently on the ob-

jectives of justice and equity. And, as new social problems arise,

27

innovative solutions, changes in social policy, and redefinitions of
responsibility, freedom and power will ultimately be considered by
the legal system to assure a congruent fit between changing social
needs and the consistent evolution of society's concepts of what is
right, just and fair for its members. Law changes as social needs
become evident, but only in a consistent restraining manner. In
fact, at times law is so consistent in its responses to the needs of
society, that the popular will is forced to move in directions it
seemingly does not want to go, in spite of the fact that justice sup-
ports the viewpoint of the legal system.

Thus, it is evident that as law embodied in constitutions,
statutes and ordinances defines responsibilities, allocates power,
and regulates conduct, so too law as a process applies these rules,
insures their fair application, and maintains their appropriateness
in light of social needs.

Certainly, these general comments concerning the nature and
purpose of law are common knowledge. Indeed, every individual who has
had a high school government course has picked up a rudimentary under—
standing of what the American system of justice stands for, and how it
operates. We all know that each man "has his day in court"; will be
tried by jury composed of his peers"; is presumed innocent until proven

guilty"; and "is entitled to life, liberty, and the pursuit of

28

happiness.“ We understand that trials occur in an advocacy setting;
that a prosecutor presents the case against the defendant for the pub-
lic; that a jury determines guilt or innocence; and that appeal is
possible to a higher court called a supreme court. Yet, when faced
with a legal obstacle, or when involved in designing implementing
programs or tools to promote a planning goal, do planners remember
basic lessons in what law is all about? Furthermore, do planners
understand not just the basic principles and components of our legal
system mentioned above, but the objectives they exist to support?
Unfortunately, it appears that planners, like everyone else, can
easily become engrossed in a specific goal and entertain the narrow
perspective which leads to that goal. When it happens that a law,
or a judgment of the court, is on their side, they rejoice. When
they become entangled in legal obstacles, they become derogatory.
As an alternative, it would be beneficial for planners--particularly
if they intend to become problem-oriented and solution-intent--to
understand and entertain a sensitivity to the purpose, role, operations
and perspective of law.

It is essential that planners understand that the operational
objectives of law--equity and justice for all citizens--cannot be met
through shortcuts, inconsistency, or speculation as to what might have

been or may be. A stable and consistent system of laws is necessary.

29

Procedures must be used in a systematic attempt to insure that we
accomplish goals, exercise power, determine truth, or settle disputes
in a manner that insures that each party will have an opportunity to
be heard; relevant facts will be identified; legal principles reflect-
ing accepted rules of social conduct will be applied, and just deci-
sions will be made. It is only through such a seemingly tedious sys-
tem emphasizing equity and justice that we can assure that such tradi-
tional goals as life, liberty and the pursuit of happiness can be in-
sured. Planners could benefit from an intimate understanding of this
perspective--its origins, its participants and its procedures-—for it

is the framework of implementation.

An Historical Perspective of American Law

As the early colonists settled the North American continent,
their primitive lifestyle did not demand a complex system of rules for
the regulation of interpersonal or community affairs. However, as the
population of the early colonies grew and commercial ties with England
became more intricate, there grew a corresponding need for a more so-
phisticated body of law. Quite expectedly, as the need for doctrines

of law became apparent, the colonists turned to England for the basic

framework of colonial codes. In looking to England for a system of law,

30

the colonists did not transplant English legal doctrines without change.
Rather, the developing law of the colonies was adapted from the doc-
trines of late 17th century English law.4 On the basis of this adapta-
tion of contemporary English law existing at that time the law of the
colonies, and later the United States, evolved into the American sys-
tem of justice we know today.

At the time the colonists referred to English law for models
to create their new legal systems, the English legal system and its
doctrines had been developing for several centuries. The English sys-
tem, unlike those prevalent in other countries on the European conti-
nent, was not based on Romanesque law--the "civil law" of Roman origin
derived from the Justinian Code. Rather, England, from a fragmented
beginning, had developed a unique legal system and body of principles
which had grown on a case-by-case basis, with its substance substan-
tially defined by the judiciary. This distinct product of England has
been referred to as "common law," and can be best understood through
a brief look at its development.

Prior to the 14th century in England, the law and judicial
system was extremely fragmented. Early courts were not viewed as a
public service, but were conceived of as private property. Just as
an individual would operate a ferry and through the excellence of his

service exclude others from competition, so courts were established

31

in various settlements each with their own peculiar form of justice.
In the free enterprise style, the courts which dispensed the best jus-
tice grew, while those which could not offer competitive redress dis-
appeared. Eventually, the laws of competition resulted in many small
individual courts being surplanted by the King's Court simply because
it could offer a better form of justice.5

By the 14th century, the fragmented system of local courts
operating on free enterprise principles evolved into a comprehensive
legal system. The feudal and communal courts gave way to justice
emanating from the county level with points of law argued at Westmin-
ster.6 This shift in the English system of law has been described
in terms of the viewpoint of English judges of that era. While 13th
century judges were considered to be empowered to do what justice de-
manded, English judges in the 14th century considered their duty to
be an application of the law.7 Thus, it is significant that in the
14th century, recognizable doctrines of law began to emerge as part
of the English legal system.

The body of law emerging during the 14th century was in fact
a growing base of principles and rules developed by the judges them-
selves as they administered the "law and custom of the realm."8 During
the early years of English law development very little statutory law

existed. Thus, judges in solving controversies adopted the use of

32

precedents--the reasoning and conclusions exhibited by judges in de-
ciding similar cases. The early use of precedents depended on word
of mouth as attorneys would describe similar cases in other jurisdic-
tions with bearing on the controversy under adjudication for the bene-
fit of the judge. However, as this process became more formalized,
cases which raised points of interest to lawyers and judges were re-
ported, with each report containing the facts of the case, the argu-
ments put forth and the reasoning of the decision.9 Consequently, on
a case—by-case basis various doctrines of law became established and
were applicable in similar factual situations.

During the 14th century a doctrine of law began to appear which
was nationwide in application rather than fragmented. As a result the

10 This turning

term “common law“ became descriptive of English law.
point away from the predominance of local law and custom signaled the
beginning of the body of legal principles which would later be referred
to by the colonists to form American law. By the end of the 17th cen-
tury the common law of England had evolved into a highly elaborated
body of doctrine, particularly in the fields of real property, torts
and criminal law.]] Thus at the point when the American colonists
turned to England for a system of law they were viewing a distinct

body of principles developed apart from the legal tradition of the

European continent. They were drawing upon a unique experience, a

33

body of legal doctrines derived at a minimum from statute, and to a
large extent from the decisions of judges drawing upon an accumulation
of past precedents. The English legal doctrine represented a rational
set of principles governing human interaction in various areas of con-
cern developed over a period of several centuries on a case-by-case
basis.

In large part, the colonies established their principles of law
through enactment of statutes-~a practice which was more expedient than
waiting for precedents to deve10p and which allowed them to adapt English
doctrines to their needs. Yet, despite variances from colony to colony,
the substance of colonial law remained rooted in English tradition.

This consistency was not totally by chance or choice, however. The
Crown, acting through the Privy Council, retained the power of veto
over colonial enactments in order to maintain consistency between
colonial law and English law. Additionally, the colonists in looking
for models upon which to base their judicial procedure quite naturally
turned to England and copied acts of Parliament for establishing Amer-
ican legal procedure.12

Following the American Revolution, the states established the
judiciary as a separate branch of government--a change from the colonial

practice of vesting judicial authority in the governor or the legisla-

ture. By 1800, most states then in existence had established a court

34

13 With a judicial framework established, culminating

of last resort.
in a supreme court, the machinery was set for establishing a distinct
body of American law.

During the early 1800's, state legislatures devoted a great
deal of time to the repeal of archaic colonial statutes, and the pas-
sage of new laws suitable to the growing commercial society emerging
in the United States. However, the widespread legislative reform
which might be expected did not take place. Apparently, there was not
present in America the large body of professional individuals skilled
in accomplishing large legislative reform projects, and, as a result,
sweeping changes in the basic framework of law were not initiated.
Additionally, it has been observed that at that point in history it
was difficult to foresee the needs of a growing country, and thus
difficult to construct with certainty a new legal system.14 As a re-
sult the English influence in traditional legal doctrines remained
woven in the American legal fabric, and the courts, rather than the
legislatures, became the institutions responsible for molding American
law to the needs of its citizens. By the 1850's the task of laying
America's legal foundation was complete. The period following 1850
was one of elaboration by the courts and the legislatures.15

It is interesting to note, however, that while the courts were

assigned by default the task of molding the essense of American law,

35

they were hesitant to assert this responsibility at both state and
federal levels during the early years of the United States. As will
be pointed out with regard to the federal courts later, the state
courts accepted the supremacy of the legislature; partly because they
were usually appointed or approved by the legislative body. Thus,
since it often was the legislative body which drafted the constitution
for a state in those early years, the fact that the constitution was
supreme over statutes was not as readily apparent as it is today. As
a result, state courts were hesitant during the 18th and early 19th
century to void state laws. It was not until after the Civil War--

a time coincident with increased federal court activity--that states
began to actively check legislative excesses, and thus play an impor-
tAnt role in shaping the form and direction of law.

As the states were establishing their legal frameworks, con—
current efforts were underway at the federal level to institute a sys-
tem of laws. Of course, at the federal, as well as state levels of
government more is needed than the simple passage of laws. A system
for administering, interpreting and enforcing the laws enacted by a
legislative body is necessary. And, it is this system which through
its machinations creates law itself.

Contrary to popular belief, the United States Constitution at

Article III states "The judicial power of the United States, shall be

36

vested in one Supreme Court, and in such inferior courts as the Con-
gress may from time to tiHe ordain and establish." Thus, while the
Constitution gives life to Congress and the President, it is Congress
which must act to create a federal judicial system. (A judiciary, or
system for interpreting and enforcing law, needed to be created.)

Through the Judiciary Act of 1789, Congress created "one Su-
preme Court" and a system of "inferior" federal courts. Thus, through
its power not only to create the substance of law, but to establish
the system giving the law life, Congress enjoyed an influential role
in determining the nature of our legal system. In addition, Congress
through legislative action determined which cases the inferior federal
courts had jurisdiction over. As a result, the role of the federal
system of laws was to a large part determined by Congress, and was
distinctly separate from the state legal systems.

The sovereignty of the states continued unimpaired by the
federal judicial system until 1868 when a provision was added to the
United States Constitution which had the effect of subjecting state
courts to the supervision of the United States Supreme Court. The
14th Amendment provided that "no state shall deprive any person of
life, liberty or property without due process of law, or deny to any
person within its jurisdiction the equal protection of the law." The

words “due process" and "equal protection of the law" proved over time

to be the most important part of this amendment.

37

The reason this phrase became important lies more in the impact
it has had than its original intent. The words "due process of law"
were not new. They had appeared in English law during the 14th century,
and in colonial law. Since the words also had appeared in the 5th
Amendment, and were repeated in many state constitutions, it is assumed
that the original intent was to reinforce federal authority in the
states at a time when the Negro was not receiving equal justice. Appar-
ently, the phrase originally meant that established legal procedure
would be followed in their case--thus protecting the Black man from
discriminatory justice. It did not mean--as later extrapolated--that
the legal procedure followed must be fair or rational, for the 14th
Amendment existed at a time when the accused was denied the right to
testify in his own behalf, and for decades no one suggested a different
interpretation.16 In fact, it was not until 1927 that a state court
conviction was set aside for unfair procedure which violated the due
process clause. Tumey v. Ohio, 273 US 510 (1927).]7

However, it did not take until 1927 for the effect of the 14th
Amendment to be felt in state courts. During its first 100 years of
existence, the United States Supreme Court voided only 175 statutes.
Yet, interestingly enough, 100 of those decisions occurred during the

20 years following the Civil War and the adoption of the 14th Amendment.

Since 1889, the number of statutes declared void has been estimated at

38

18 This marked increase in the frequency of intervention

over 500.
into the affairs of state legislatures by the Supreme Court has been
attributed primarily to the existence of the "due process" and "equal
protection" clauses in the 14th Amendment. Although it should be
pointed out that two additional acts enacted by Congress contributed
to the increasingly active role played by the Supreme Court in state
legal affairs, and thus the entire American legal system. In 1876
Congress expanded the jurisdiction of the federal courts permitting
suit solely on the ground that a federal question concerning a state
enactment of law was involved. And, in 1914, Congress acted again
enabling the Supreme Court to review state court decisions on the
validity of state legislative action. As a result of these two enact-
ments and the 14th Amendment, the Supreme Court has assumed an impor-
tant role in determining the nature and essence of our legal system.
Contrary to the situation which existed following the American Revolu-
tion where the American legal system was growing uncertainly through
separate state and federal activity based on colonial experiences,
today the function of state courts, and indirectly state legislatures,
is simply preparatory, subject to final approval or disapproval by

the United States Supreme Court.

The Supreme Court has in essence assumed a twofold role: (1)

an arbiter between federal power and the states; and (2) an umpire

39

between the citizen alleging governmental invasion of constitutionally
protected rights of property or person, and the governmental authority
exercising that power. It is perhaps this second role which is more
pronounced, and more readily discernable by the citizenry. It is also
this second role which has led to integration of state and federal le-
gal systems into one system of American law.

During the first 100 years after the United States Supreme
Court established its right to declare federal enactments void, it did
not invalidate a single act of Congress for invading the rights of in-
dividuals. Even today, with respect to federal law, the protection of
individual rights by the Court is insignificant.19 However, the oppo-
site is true with regard to state legislation. While there was little
constraint on state legislative and judicial activity prior to the
adoption of the 14th Amendment, state activities were closely scrutin-
ized following its adoption. As previously mentioned, particularly
after the 1927 case of Tumey v. Ohio, the phrase “due process" became
extremely important as a vital ingredient of our legal system. As one
author has stated the phrases "due process" and "equal protection"
fixed the framework for constitutional revolution.20 In the criminal
law field, the words "due process" became synonymous with fundamental

fairness. "Due process" and "equal protection” also became the key

concepts to prevent unreasonable invasion by government on the use of

40

private property, with the court being the arbiter of reasonableness.
During the years since the 1920's these two phrases have been applied
to public issues which the original drafters could not have conceived
of. For example, noteworthy precedents based on these concepts have

occurred in the areas of economic regulation, freedom of expression,

religion, racial discrimination, and representation in state legisla-
tures.

It is perhaps these principles enunciated in the 14th Amendment
denoting ultimate fairness in the law and its application which act as
the cohesive element of our legal system influencing its shape, form
and effect at every level of the American legal system. While statutes,
ordinances, administrative rules and court decisions-~the tangible
pieces of script which constitute the law——can address a multiplicity
of subjects and appear in various forms and degrees of detail, it is
adherence to and respect for the principles of "due process" and "equal
protection“ which maintains focus on our collective objective of social

justice.

A Look at Legal Procedure

 

The law, whether in the form of statutes or in case law, merely

sets forth guidelines for the conduct of human behavior, and for our

41

judicial tribunals to make decisions. The significance of our body of
laws can only be completely understood through an understanding of the
way in which our legal system operates as it applies the guidelines to
the particular facts present in specific situations.

It was noted in "Two Views from the 1830's: Alexis de Tocque-
ville and a Critic“ that there is probably no single thing that our
government does with less efficiency than administer law. The opera-
tions are expensive to government as well as the litigant. The work
of interpreting and applying law is done with great dilatoriness, and
yet, miscarriages of justice still occur.21 These observations of the
American legal system made over 100 years are probably still true.
Justice is not accomplished efficiently or cheaply. At times it does
not even seem that the results of such a lengthy, involved process are
just or fair. Yet, it is this method of determining truth and obtain-
ing justice that we operate under, and despite the fact that it may be
inefficient and produce results we don't agree with, it is the system
we must understand if we are to use law as a creative implementor of
our public objectives. A discussion of the merits and deficiencies of
the legal system, while certainly important, is inappropriate in the
context of this discussion.

If we step back a moment, the context within which our legal

system operates can be quickly visualized. The scenario goes something

42

like this. We are a country of laws. Our legislative bodies at federal,
state and local levels have been delegated the responsibility for formu—
lating the rules under which we will all live, relate to each other,
relate to our government, and accomplish collective goals. The result-
ing statutes, ordinances, administrative rules--laws--provide the guide-
lines defining permissible human behavior. Yet, it is not enough to
simply have the rules established. A means must be available for de-
termining how these abstract rules relate to the facts of everyday human
action; the resolution of disputes in light of interpretative decisions;
and methods for enforcing the objectives of the law. Of course such
interpretations will necessarily review the validity of the guidelines
themselves--a check on the legislative authority which has been dele-
gated by the citizens--and will by virtue of the ability to enforce
decisions become law themselves. Thus, we have as the basic framework
of law a dynamic situation where the abstract principles spelled out

in statute become operational through the work of the courts. As a
consequence the process of interpreting and enforcing law becomes a
major contributor to its substance, as well as its changing nature.

It is therefore just as necessary to understand legal procedure and

the relative importance of its products, as it is to understand the
meaning of words placed in a statute. Without a comprehension of the

manner in which law becomes real and displaces impact on human

43

activity, it is impossible to creatively use law to achieve public
objectives.

The forms in which law is expressed can be categorized as:
constitutional, statutory, ordinance, administrative regulation and
case law. Case law differs from the previous mentioned categories in
that rather than being succinct policy statements adopted by a legis-
lative body, or administrative agency under legislative approval, it
is composed of principles expressed in court decisions which through

the doctrine of stare decisis become precedent to be followed in simi-

 

lar cases. Within these categories of law it is possible to discern
substantive law which defines legal rights and responsibilities--
guidelines for human activity--and procedural or adjective law. Ad—
jective law specifies the procedures which must be followed to exer-
cise a power, resolve a dispute, or interpret and enforce substantive
law.22
As a practical matter, law becomes operational in light of the
facts present in a given situation. In a criminal context, certain
fact situations describe behavior which is prohibited by law, and when
such fact situations are present, applicable penalties can be invoked.
In a civil context, it is the factual situation present which determines

how and when a specific power may be exercised, or when one party has

infringed upon the legal rights held by another. In either sphere--

44

civil or criminal--the guidelines defining proper human action exist
for application to specific factual situations.

Thus, law only has meaning to the layman within his ability to
relate it to the reality of his behavior. In its most rudimentary
form, a citizen knows that if he drives his car through a stop sign
without stopping, this factual situation will violate the principles
embodied in the motor vehicle code and applicable penalties will be
applied. In a more sophisticated sense, a citizen desiring to acquire
a parcel of property and build a housing development will become in-
volved in a complex exercise, analyzing and manipulating the facts
inherent in his activities in order to use as well as satisfy the
legal principles which permit and control the reaching of his objec-
tive. As a consequence, the creator of a statute or ordinance attempts
to frame his guidelines in language that will result in the desired
mode of human behavior, while encompassing the widest range of factual
situations which could arise with respect to that desired mode of be-
havior. In the case of stopping at intersections this will be rela-
tively easy. However, with respect to property rights and responsi-
bilities this task could be considerably more difficult. As a result,
statutory wording to be brief will generally be vague when dealing
with a complicated issue, while to be concise necessitates length

and detail. By its nature, brief and vague or lengthy and complex,

45

statutory law to be relevant to everyday activities--particularly in
complex situations--often results in the need for: (l) attorneys to
advise the layman on how legal principles relate to a particular fact
situation, and to advocate the layman's position on this relationship;
and (2) courts to act as the arbiter to finally establish the facts

in the issue at hand and apply the applicable legal guidelines accord-
ingly.

It is out of this need to consistently and fairly apply our
laws to the specific circumstances of everyday life that legal proce-
dure evolves. Through the cycling of this procedure, on a case-by-case
basis, we gain a firmer understanding of the intent of our laws, the
relationships between uncodified principles and statutes, and the im-
pact that law has on our daily activities. We also are enabled through
the process of interpretation and application to maintain a flexibility
in law which allows adaptation to changing social needs.

Legal procedure has as its objective the attainment of justice,
and attempts to reach this objective through the use of formalized
procedures focused on equity—-a process founded upon fundamental fair-
ness and objectivity. This emphasis on procedure is often criticized
as unnecessary. Yet, mechanisms for resolving disputes are necessarily
of human design, and human weaknesses being what they are, particularly

in stressful situations, artificial procedures consistently applied to

46

all parties represents the only way to insure an equitable process of
adjudication. When both parties to a dispute are desirous of a quick
and equitable solution, procedure will pose little difficulty. How-
ever, when the parties are in serious conflict and inclined to abuse
the rights of others in order to attain their concept of the proper
solution, procedure will act to prevent abuse and produce fair resolu-
tion of the conflict. Of course, procedure itself is not pure. It
can be manipulated. It may be archaic and unsuited to new forms of
contemporary problems. By virtue of its long-range insistence on con-
sistency, it can produce seemingly immediate injustices, commonly re-
ferred to as “getting off on a technicality." However, our purpose
in this discussion is to understand the need for procedure and not to
criticize its characteristics.

The procedures of our legal system are aimed at the resolution
of disputes--conflicts over how power should be exercised, or in a
criminal context whether an individual has violated rules of acceptable
social behavior. This goal is reached by first ascertaining the true
facts present in the case or dispute under consideration, and then
applying the relevant principles of law. In a criminal context the
ascertainment of the correct facts will be for the purpose of determin-
ing whether the person accused is guilty of violating certain statutes.

In civil cases the proper factual context is determined in order to

47

apply the applicable legal principles, thus reaching a decision as to
which party has exceeded the parameters of its legal rights and re-
sponsibilities.

The determination of the facts present in a case is a very im-
portant element of the legal process, for only 1 in 5 of the cases
which reach court turn on "what the law is"; the usual dispute is over
the true facts present in the case. Once the facts are set, the result
is usually foreordained by the applicable principles of law. When in-
justice occurs it is usually because of an error in ascertaining the
correct facts present.23 The importance of facts in legal procedure
is a key factor to be remembered by planners. If a planner is to de-
velop creative strategies for implementation and use law innovatively
to accomplish public objectives, he must understand the essentialness
of relating facts to legal principles. He must have the foresight to
visualize the specific factual environment into which he is injecting
a legal strategy to accomplish his goals, and be prepared on a case-
specific basis to present the factual information to support the rea-
sonableness of his actions in accord with applicable legal concepts.
These words of Judge Frank directed to attorneys are equally applicable
to planners intent on using legal tools for implementation:

Trained lawyers know the “jurisprudence" relevant to murder

trials of automobile accident trials and can prophesy with
a high degree of reliability what rules will be applied in

48

such litigation. But what of it? The layman wants to

know whether these rules will be applied to actual

facts . . . . If a man, defeated in a suit because

of a mistake about the facts goes to jail or the elec-

tric chair or loses his business will it solace him to

learn that there was no possible doubt about the

applicable legal principles?24

The legal mechanism can be said to begin its movement at that

point when a potential party to a legal action mulls over a given set
of factual circumstances and believes that an injustice has occurred.
This can result intuitively, spontaneously, through extended reflection,
or as a result of an overt action as in criminal situation. Generally,
this feeling of injustice will be followed by contact with an attorney
to determine the proper course of action to obtain redress. The
attorney will critically establish the facts present in the case and
apply principles evident in statute or case law to determine if redress
is warranted, and the proper strategy to be followed to obtain a reso-
lution to the problem. Once the appropriate legal principles have
been identified and their relationship established within the facts
present, appropriate actions will be taken to obtain redress. In a
criminal case this would mean the bringing of charges against the indi-
vidual believed to be responsible for the infraction of law. Civilly--
the area of law probably of more interest to planners-—contact may be

made with the other party to the dispute to determine if a solution

may be consumated. If such informal overtures are not successful,

49

the plaintiff will bring suit in the court with the appropriate
jurisdiction, identifying the facts present, the legal issues
involved and the redress desired. Even at this point though, when
it would seem that the commitment has been made to enter formal
adjudication procedures, the parties to the dispute through nego—
tiation may arrive at a solution agreeable to both without inter-
vention of the courts.

Historically, once a controversy entered the courtroom, the
objective has been to obtain redress, rather than the prevention of
an act or the mere declaration that one party is right and the other
wrong. To obtain redress facts must be established and legal prin-
ciples applied. To accomplish this task, the American system of law
has utilized an adversary process which proceeds on the theory that
since each party is intent on discovering all facts present and favor-
able to its contentions, and disproving allegations, no fact will be
overlooked, or false claim allowed to stand. While simple in theory,
this concept can be intricate and subject to abuse. There is an in-
centive to discover all facts; however, there is also the temptation
in arguing one side of a case to fabricate or discolor, to forget
facts or even suppress certain facts.25 In other words, two parties
locked in a competitive battle can often be tempted to use facts in

selective and directed manners. Thus, trial proceedings often assume

50

the character of a forensic duel, rather than a disinterested investi-
gation. Essentially, combat occurs between two attorneys with the
judge acting as a referee to announce the victor. If a jury is pres-
ent its purpose is to listen to arguments and establish the true facts
in the case; yet, interestingly enough the individuals who must evalu-
ate the testimony are not permitted to ask questions.26 The adversary
approach to determine the facts present in a case--a key characteristic
of the American system--is termed an accusatorial proceeding. This
method of obtaining justice differs from that on the continent where
the court takes a distinct lead in conducting an investigation to de-
termine the true facts present. This approach has been termed inquis-
itorial.27

It is this characteristic of the American system-—the adversary
process-~whfich has been pointed to as responsible for less than per-
fect judgments. As we have noted, establishment of the facts is a
key element of applying the proper legal principles and resolving a
controversy. It has also been noted that where miscarriages of jus-
tice occur, it is usually because of an inaccurate ascertainment of
the facts present in a situation. Thus, a heavy responsibility falls
on the adversary process, for it is the mechanism by which facts are

sorted and a true picture of the situation in contention is construc-

ted. Yet, it is the adversary type of proceeding which places great

51

emphasis on the roles of two competing attorneys intent on scoring a
win, reduces participation by the judge to that of a referee, prohibits
inquiries from the jury, and reduces witnesses to subordinate roles sub-
ject to great control by the attorneys. In such a setting each side to
a controversy led by its advocate can orchestrate a strategy designed

to array facts in a manner supporting its ultimate objective. It is

not surprising that as we encounter increasingly complex and technical
questions which under our system can only be ultimately resolved through
litigation, there are suggestions from legal scholars that the court
take a more active role in investigation. Additionally, it has been
suggested there is a need for access by the court to experts on tech-
nical issues which are not employed by either side to a controversy.28
These suggestions recognize the merits of the adversary approach, while
also entertaining cognizance of the deficiencies of traditional legal
procedure in an increasingly complex society.

Recognizing the adversary nature of our legal system, it is
easier to understand the steps followed in litigation once the decision
to bring suit is made. Since civil proceedings are more relevant to
the concerns of planners than criminal, the remarks which follow are
descriptive of the procedures followed in civil litigation.

Generally speaking, in a civil proceeding the court will be

asked to (l) declare that a certain party possesses certain rights;

52

(2) prevent a threatened wrong; (3) undo a wrong already accomplished;
or (4) award monetary compensation.29 For the planner,)it is the
first two types of redress which will be most relevant; In the first,
it is not improbable that a planner employed by a governmental unit
will find himself associated with the defendant in zoning litigation
where a plaintiff seeks to establish that he possesses certain rights
denied by governmental action. In the second, the planner may assume
the position of plaintiff seeking to block an activity damaging to

the environment. In any case, as plaintiff or defendant in any form
of civil litigation it is important that the planner understand the
dynamics of the lawsuit process once the commitment to enter the
courtroom has been made. Advance knowledge of the process as well as
applicable legal doctrines may assist the planner in using implementa-
tion strategies which avoid the courtroom, and, when unavoidable, in-
crease the probability of success.

Once the preliminary attempts to resolve a dispute have failed
and the decision to institute a lawsuit has been made there are several
stages to civil litigation which must be traversed; (l) the acquisition
of jurisdiction; (2) provisional steps; (3) the framing of issues; (4)
proceedings preparatory to trial; (5) trial; (6) proceedings following
trial?O As can be readily seen there are several stages to a legal ac-

tion before the controversy is brought to trial. And, at any of these

points the controversy could be resolved.

53

Once the lawsuit has been filed in the proper court which has
legal jurisdiction to consider the controversy in question, several
provisional remedies are available to the plaintiff while the proceed-
ing is pending. These remedies, such as a temporary injunction, are
designed to immobilize the defendant until a full review of the situa-
tion can be made by the court. When a request for an injunction is
received, typically a judge will review affidavits from both parties
and decide whether the facts present warrant an order restraining the
defendant from doing certain acts. Since formal proceedings subject-
ing the affidavits to cross examination are not held, the issues
should be very clear to justify issuance of an order. In some cases
a hearing will be heid.31

In commencing the lawsuit, the plaintiff prepares an initial
pleading which contains a statement of the facts and a demand for the
judgment that he believes he is entitled to. It is an important ele-
ment of the American legal system that the petitioner state exactly
the form of redress he is seeking. Thus, in the subsequent stages of
the litigation the question posed is not what the rights of the peti-
tioner and defendant are, but whether the plaintiff is entitled to
the redress he is seeking.32 This element of the legal process is
important for the planner to remember for it is a very human tendency

to view a controversy from a general perspective of who is right and

54

who is wrong, while the legal process will be focused in a very case
specific way on the manner in which specific facts relate to specific
legal principles. This perspective may create a disadvantage for the
planner which he must realize and compensate for. The planner typic-
ally operates on a generalized scale in line with his concept of the
public interest; yet his actions will be legally challenged from a
case specific perspective, questioning whether individual rights have
been violated.

Once the initial pleading of the plaintiff has been received
by the court, and certain technical questions, such as whether the
court petitioned can grant the redress requested, have been answered,
the defendant is permitted to file an answer to the pleading. The de-
fendant, in his answer, will typically establish his version of the
controversy and deny the facts which have been alleged. In addition,
the defendant may mount an affirmative defense which will reveal mat-
ters which would have the effect of nullifying the plaintiff's right
to the redress he seeks.

The plaintiff may then reply to the defendant's version of the
controversy, and if it appears to the court that there is no necessity
for a trial to determine the facts present, a summary judgment may be
rendered. However, if the pleadings do not establish the facts, they

serve as the basis for identifying the issues of fact which will have

55

to be resolved by trial. Since every allegation in a complaint should
be answered by the plaintiff and subsequently addressed by the plain-
tiff and subsequently addressed by the plaintiff in his reply, it
should be possible to identify the allegations which are at issue be-
tween the parties. The trial will then be confined to consideration
of the facts at issue.
The trial itself is held in an adversary atmosphere with each
side presenting proof supporting its version of the facts present in
., the case. While several issues may be involved in a trial, they are
not taken sequentially. The plaintiff, who normally has the burden of
proof, will present his entire case first. Then the defendant will
have the opportunity to present proof in rebuttal, and evidence support-
ing any matters he may be taking the initiative on. As the evidence
supporting the contentions of each side is presented, the judge acts
as the umpire, ruling on the admissibility of evidence, the competency
of witnesses, motions for dismissal and directed verdicts, and finally
instructs the jury as to the points of law to be applied to the fact-
ual situations presented. In a high percentage of civil cases, a
jury is not used.33
Following the presentation of the case by attorneys for the
plaintiff and defendant, the jury, or in its absence, the judge, must

decide if the redress requested is warranted. To accomplish this a

56

decision must be reached on what factual configuration is actually
present in the case, and against these facts applicable legal prin-
ciples must be applied to determine if redress should be granted.

Once a decision has been reached at the trial level, our sys-
tem of law permits either party to appeal to a higher court for a re-
view of the judgment. Upon review, appellate courts generally will
not review the finding of facts established at the trial court level.
Although, many states do provide for "trial de novo” which permits
the appellate court to conduct a retrial of the case with the same
freedom of action enjoyed by the lower court. Usually, the appellate
court on appeal is concerned with issues of law. It is looking for
errors of law which may be procedural-—mistakes were made in the con-
duct of the trial-—or substantive--legal principles were not correctly
applied to the facts present in the case. A common procedural error
in civil cases is the admittance of improper testimony, or the failure
to admit proper testimony.35

Once the appellate court receives a case, it has great latitude
in how it will treat the controversy. The court may find other legal
issues present in the facts to address, ignore other issues present,

order additional briefs from the parties, and solicit the filing of

amicus curiae briefs--arguments from persons who are not parties to
36

 

the suit, but “friends of the court." Yet, in spite of this

57

latitude the appellate court is very much in a dependent relationship.
It has no power of initiative. It must rely on parties to a contro-
versy to appeal and thus bring the issues under its purview. The
appellate court is very dependent on outside circumstances with re-

37 Additionally,

gard to the type and timing of the cases it hears.
as previously mentioned, that very important aspect of each case-~the
facts--will have been determined at the trial level.

Once the preliminary steps of bringing an appeal have been
taken, a date for oral argument before the court is assigned. Norm—
ally the time allowed for presentation of arguments will be strictly
circumscribed. The United States Supreme Court has a 1 hour limit.
Many state supreme courts limit each party to one half hour.38 In
light of the fact that the oral argument will be brief, the burden of
proving a case rests with the written brief which is presented to the
court.

The brief is a distinctive feature of the American legal sys-
tem. It represents a written document which sets forth the facts of
the case, the pertinent statutes, regulations, constitutional provi-
sions and case law, and then makes carefully arranged legal arguments
on the issues involved. A good brief has been described as a document
which embodies a good combination of learning, logic and literary

qualities.39

58

Prior to the oral argument, the case is generally assigned to
a judge who prepares a preliminary memorandum on the case. This memor-
andum will summarize the case, outline the parties' contentions and
indicate the major or most difficult issues to be resolved. This docu-
ment is circulated to the other judges to assist in their review of the
case and participation during the oral arguments.

The oral arguments consist of presentations by both parties to
the case with the court asking questions to probe for weaknesses and
resolve issues. Following the argument the court will hold a private
conference during which the issues will be discussed and general agree-
ment reached. A judge will then be assigned the task of drafting a
majority opinion which will be circulated among the other judges for
criticism, amendment and signature.40 At the conclusion of a case there
may be one opinion signed by the entire court or several opinions dis-
cussing various viewpoints of the justices either concurring or dis-
senting from the result.

Once a decision enters the appeal process the steps it will
follow before a final decision is reached will vary. Court structures
in states will vary. However, generally speaking, there is an inter-
mediate level of appeal before reaching the highest state appellate
court. The same is true with the federal court system where the Court

of Appeals hears cases prior to consideration by the United States

59

Supreme Court. Whether cases reach the supreme court level is dependent
upon the initiative of the parties, and also the court itself, for with
the exception of certain controversies defined by law, the court itself
decides if it will accept and hear the case being appealed.

To the parties to an appeal, a decision by the appellate court,
just as with the trial court, means one position will be vindicated and
the other party will lose. Yet, within the system of law the outcome
has a distinctly different meaning at the appellate court level as
opposed to the trial court. The function of the trial court is to dis-
pose of specific controversies--a very utilitarian purpose. However,
the decisions of appellate courts have more far reaching implications.
Their actions serve to shape the development of law and create new law.

This result occurs because of the doctrine of stare decisis—-the rule

 

that courts will follow the rule or doctrine which has been established

in previous cases exhibiting similar factual situations. Thus, when a
decision is made with regard to a specific controversy, everyone is put
on notice that when similar facts arise again the law will be applied in
the same manner as it was applied in the case in point. As a consequence,
while it may be difficult to find cases with factual situations which are
exactly the same, the reports of the appellate court decisions are very
important as sources of reasoned doctrine. Commentaries are presented

on statutes, constitutional provisions, and legal doctrines, refining

60

them and explaining how they apply to the realities of life. In this
way, the appellate courts slowly reexamine and reevaluate the law, ad-
justing it to meet new social needs.

It should be noted that in the American legal system the rule
of stare decisis is not firm. The decisions of American courts, though
following precedent, are never beyond challenge in a new lawsuit. In
fact our courts have not shown the hesitancy displayed in England to
overrule themselves. Thus, a precedent can be said to be controlling
only until it is reversed. Because of this feature of the American
system, lawyers need not only argue precedent in presenting their cases,

they may also argue principle.

Concluding Comments

 

Against the advocacy of a planning framework which can be
described as problem-oriented, and solution-intent, this discussion
has revealed the nature of one major implementing tool--the law.
Sincere in the belief that specific problem resolution strategies
can become part of the planner's arsenal only through a sensitivity
to the creative use of professional synthesis, an attempt has been

made to lay the foundation for one such synthesis--planning and law.

61

Although there are many subject areas in which planners and other pro—
fessions could share knowledge and realize a net increase in social
benefit, law has been chosen as a suggestive model because of its per-
vasive influence in our society and profound effect on public policy,
and the affairs of each citizen's life. With an understanding of the
nature of law, its purpose and the manner in which it is used, planners
can increase the effectiveness of their actions--find ways to develop
potent strategies for transforming visions into realities.

As the preceding discussion has illustrated, planners and
lawyers may not find themselves at odds as they each attempt to imple-
ment their objectives because they hold different values or ascribe
to different concepts of justice. Their conflict may very well result
from the holding of different perspectives necessitated by the nature
of their professions with a total lack of understanding of what moti-
vates the other's viewpoint. Since each advocates a function in so-
ciety which is essential to the beneficial existence of all citizens,
a sensitivity to the merits of the other's task, an awareness of why
the planner performs the function he does and its importance, as well
as a reciprocal feeling by the attorney, can only serve to assist so-
ciety with its increasingly complex problems. With the blending or
synthesis of perspectives can come problem solutions impossible to

attain from a position of separation.

62

While it is equally important for the lawyer to understand
the planner, it is the purpose of this thesis to sensitize the planner
to the law and its potential when placed in a complementary relation-
ship to enhance planning objectives. With a general understanding of
the nature of law, its administration, the manner in which it is for-
mulated and evolves, and its ultimate purpose, the planner can more
specifically place his objectives in an implementation framework.

With the adoption of such a stance, the planner can develop visions
for the future and develop strategies to turn such visions into
reality.

As we move to look in greater depth at law and its relationship
to zoning, it is important to keep the contextual material discussed in
the preceding pages in mind. It is equally important to remember'that
while law and planning are both interested in collective social benefit,
the American legal system places heavy emphasis on justice and equity
from the standpoint of the individual citizen, while the perspective
of the planner may be considerably broader, and neglect to adequately
weigh public need against individual rights. Additionally, planners
must remember that while they form their objectives and programs with
broad brush strokes, their actions will be tested for legality on a
case specific basis. The importance of facts cannot be ignored, for

one of the basic operations of the legal system is to determine the

63

factual environment of a situation, and relate this environment to the
legal guidelines which prescribe proper social action. The planner
who undertakes an implementation strategy without consideration for
the factual configuration which must be present to substantiate his
activities invites disaster. Just as certainly, the planner who ig-
nores, or fails to establish a strong factual basis for his Opinions
risks disapproval of his vieWpoints by the courts, should his actions
be subjected to litigation.

The law is interested in maintaining a proper balance between
needs and individual rights. Using the guidelines society establishes
for itself through legislation, and concepts of justice and equity,
the law will judge individual controversies in line with its perspec-
tive of the public interest. The planner must understand the stance
of the law in defining the public interest if he is going to also seek
to transform his Visions of what is in the future public interest into
reality. The perspectives of law and planning need not be divergent,

they can be complementary.

FOOTNOTES

1Archibald Cox, “The Nature of Supreme Court Litigation,"
Constitutional Law in the Political Process, ed. John R. Schmidhauser
(Chicago: Rand Mc Nally, 1963), p. 520.

 

2Ronald A. Anderson, Business Law Uniform Commercial Code,
(7th ed.; Cincinnati: South—Western Publishing Co., 1964), p. l.

 

3Oliver Wendell Holmes, Jr., "Law and Policy: How Judges Make
Law,“ Constitutional Law in the Political Process, ed. John R. Schmid-
hauser (Chicago: Rand McNally, 1963), p. 455.

 

4Lewis Mayers, The American Legal System (New York: Harper
and Row, 1964), pp. 339-340.

 

5R. M. Jackson, The Machinery of Justice in England (London:
Cambridge University Press, 1960), pp. 2-5.

 

6Ibid., p. 5.

71bid., p.11

81bid., p. 11.

91bid., p. 11.

1oMayers, p. 341.

”16111., p. 341.

121bid., p. 344

64

65

13Ibid., p. 345.

1411318., p. 345.

15Ibid., p. 345.

16Ibid.. p. 15.

17Ibid., p. 16.

1815111.. p. 321.

191bid., p. 330.

201bid., p. 332.

2William Willoughby, “A Contrary View of the Role of the Bar,"
Constitutional Law in the Political Process, ed. John R. Schmidhauser
(Chicago: Rand McNally, 1963), p. 253.

 

22Anderson, p. 14.

23Harry Jones, ed., The Courts, The Public, and the Law Explo-
sion (Englewood Cliffs, New Jersey: Prentice Hall, 1965), p. 132.

 

24Ibid., p. 135.

25Mayers, p. 100.

261bid., p. 101.

27Ibid., p. 102.

281bid., p. 258.

291bid., p. 151.

66

3OIbid., p. 229.

311bid., p. 236.

321bid., p. 240.

33Ibid., p. 261.

34Ibid., p. 272.

351bid., p. 275.

36Jones, p. 67; planners could make more effective use of
amicus curiae briefs to promote public goals.

 

371616., p. 68.

38Ibid., p. 73.

39Frederick Wiener, "The Conduct of an American Appeal," Cog;
stitutional Law in the Political Process, ed. John R. Schmidhauser
(Chicago: Rand McNally, Rand McNally, 1963), p. 237.

 

4OJones, p. 71.

A REVIEW OF MICHIGAN COURT DECISIONS
GUIDELINES FOR EFFECTIVE ZONING

STRATEGIES

Chapter III
A REVIEW OF MICHIGAN COURT DECISIONS-~GUIDELINES

FOR EFFECTIVE ZONING STRATEGIES

...both the law and the planning profession need to
improve tools and techniques.
--Padover v. Township of Farmington
374 Mich 622 (1965) at 642
Zoning represents a legal instrument which planners have tradi-
tionally and frequently used to implement plans for communities in
their attempts to guide future growth and deve10pment. Since it does
permit legally enforceable control over private property, it also rep-
resents an area of interface where planners and lawyers will find them-
selves either working together, or in conflict. As one of the oldest
and more basic tools available for implementation by governmental
units, it is vitally important that planners understand what the pur-
pose of zoning is, and how it can be used creatively for the benefit
of the public. This understanding must emanate not only from the per-
spective of planning, but also from the law--an understanding derived

from synthesis. Deficiency in this area of planning practice can

greatly reduce the effectiveness of planning programs.

67

68

In the context of a problem-specific approach to planning, the
value of a working knowledge of zoning law is readily apparent. As
one of the tools available to planners to avert or resolve problems
relating to land usage, the planner should have the ability to call
this tool to bear on specific development problems when appropriate.
This capability necessitates an intimate knowledge of zoning law--an
awareness of the principles of our legal system, sensitivity to legal
doctrines applicable in zoning matters, and the ability to work effec-
tively with members of the legal profession. Since zoning is an ob-
vious area of interface between law and planning, it serves as an ex-
cellent example of the benefits which can be derived from planning
based on professional synthesis.

In the pages which follow a look will be afforded at zoning
law, particularly as practiced in Michigan, providing a distinct legal
perspective of zoning for the planner. This review of court cases in-
volving zoning controversies, when viewed against the contextual ma-
terial presented previously on the general nature of law in substance
and as a process, should reveal considerations for the practice of
zoning which can help the planner use this tool more effectively and

with more benefit to the general public.

69

Background

 

Zoning is an instrument traditionally used by local units of
government to regulate the use and development of privately owned
land. It represents one tool available to government for encouraging
pleasing, healthful, and safe community environments, by insuring
proper use of land and protecting essential resources. More specific-
ally, zoning is a means for insuring that the land uses of a community
are properly situated in relation to one another; adequate space is
provided for each type of development; land uses will be efficiently
served by public utilities, facilities, and services; natural resources
protected; and individual residents will be secure from the potential
of an adverse impact by an adjacent use of land. As a community recog-
nizes its development problems and visualizes its future character,
zoning represents one power available to local governments which will
assist in creating pleasing urban and rural environments.

It was not until 1916 that a zoning ordinance, as we know them
today, was enacted;I This ordinance, passed by New York City, contained
features common to modern zoning ordinances, including the division of
the city into land use zones and the establishment of height and bulk
regulations.

Following the New York City enactment, interest in zoning in-

creased but a great deal of uncertainty concerning its constitutionality

7O

persisted. It was not until 1926 with the Supreme Court's decision in
City of Euclid v. Ambler Realty that questions regarding the basic con-
stitutionality of zoning as a valid exercise of the police power were
answered. This event combined with the release of the Standard State
Zoning Enabling Act by the United States Department of Commerce in the
same year, resulted in the adoption of zoning legislation by states
' throughout the country. Today, all 50 states have zoning enabling
acts designed to authorize local units of government to regulate the
use of land.2

Since recognition of the validity of the zoning power and the
creation of statutory authority to adopt zoning ordinances, this tech-
nique of land development control has gained widespread usage. It may
be accurate to say that it is more prevalent in governmental units than
any other planning technique and in many governmental units zoning is
planning. For example, in Michigan 40% of the townships have zoning
ordinances, yet only 24% have planning commissions.3

Due to the popularity of zoning among government units--81% of
Michigan cities have zoning ordinances--it has been used and abused
frequently.4 While the planner has viewed zoning as a tool to imple-
ment plans and create better future environments for a community, this

has not always been the perspective adopted by public officials. In

some cases zoning has been used to exclude certain so-called undesirable

71

land uses, such as mobile homes, or socio-economic classes. It has
been used to create a small segment of population's image of a desir-
able lifestyle. There are many documented cases, particularly on the
east coast of the United States where it has been used to obtain mone-
tary gain—-both by the developer and the public official. In some
instances zoning hasn't been abused as much as misused. For seemingly
noble intentions, zoning has been applied in ways inconsistent with
its legal basis. Perhaps, because of its convenience and familiarity,
zoning has often become the catch—all tool with which communities
attempt to reach their implicit, as well as explicit, legitimate, as
well as illegitimate development objectives. This factor, combined
with the fact that by its nature zoning invokes a confrontation be-
tween the rights of the individual property owner and the powers of
government, has produced an enormous history of litigation.

A glance backward over the history of zoning reveals a propen-
sity for zoning to become a battleground for classic confrontations
between competing public and private interests. Units of government,
using zoning to implement legitimate community objectives, have found
their intentions challenged and their goals frustrated within a tran-
sitional area where planning concepts and objectives must fit legal
principles defining the role of government and the rights of individ-

uals--principles which are essential to prevent the abuses which zoning

72

may have a tendency to encourage. 0n the other hand, individuals
attempting to exercise property rights have found that when zoning
is exercised fairly with proper cause, they must yield to the public
interest. It is in this zone of confrontation--the area of zoning
1itigation--that the essence of the zoning power and how it may be
used to promote planning objectives is found.
In light of the history of zoning litigation--an endless

series of legal challenges based overwhelmingly on the application
of zoning, and not the concept itself-~there is apparently a need for
the users of the zoning power-~p1anners and public officials-—to
understand in greater detail the proper functions of zoning, and the
parameters which define the limits of its application to private prop-
erty. Perhaps, with a better understanding of the delicate balance
zoning must maintain between public objectives and private interests,
zoning can be used more effectively to improve community environments,
while respecting and enhancing the privileges of individual citizens.

. In the pages which follow, the decisions of Michigan courts
relating to zoning are briefly summarized. The intent of this presen-
tation is not to engage in a lengthy, detailed and comprehensive dis-
cussion of Michigan case law. Rather, the objective is to create an
overview of the positions taken by the Michigan judiciary on the use

of the zoning power. It is anticipated that this material can be read

73

from two perspectives: l) informatively as to the legality of zoning
in concept and as applied; and 2) problematically as background indi-
cating constraints and directions for solutions improving the effec-
tiveness of zoning as a land use guidance technique. For the informa-
tive reader, the court case narratives will only act as guidelines for
further research. Specific legal opinions should only be formed after
reading the cases of interest in detail. In terms of problematic re-
view, this material will simply indicate litigation patterns and sug-
gest subject areas deserving detailed study. In any case, when faced
with a specific situation needing legal interpretation, it is best to
ultimately consult with legal counsel.

It should not be expected that a review of Michigan zoning
cases will reveal clearcut legal parameters on zoning use. It is a
peculiar characteristic of zoning case law that precedents and rules
of law are not easily formed. As with other areas of law, the Opinions
and attitudes of the courts swing like a pendulum, evolving over time
as society changes. In addition, zoning cases are each heard on their
own merits, with the specific facts peculiar to each case becoming key
variables affecting the outcome. For this reason it is difficult to
find similar cases which can establish firm precedents. Consequently,
the pattern of the judicial attitude toward zoning may appear conflict-

ing in some areas. In many cases it may be a difference of opinion

74

between two judges. However, in other instances, there may be a dif-
ference in the facts present in the cases, or the issues the judges
chose to base their opinion on. Therefore quick conclusions as to
the judiciary's opinion on a specific subject usually must be aban-
doned in favor of more detailed study into the issue at hand.

In presenting this review of Michigan court cases relating to
zoning an attempt has been made to keep the format and contents con-
cise and uncomplicated. Thus, the cases have been arranged under de-
scriptive headings which easily convey the essence of the issues under
discussion to public officials, planners, and zoning administrators as
well as attorneys. In the majority of instances, major and minor head-
ings, as appropriate, will be followed by a short narrative briefly
providing background information on the subject matter being presented.
The introductory remarks may contain comments on Federal court cases
relating to the subject under consideration, the judicial position in
other states, or appropriate historical data. Against the contextual
background of the introductory narrative, relevant Michigan court cases
will be cited and the decisions summarized. If specific Federal cases,
or court decisions in other states are particularly noteworthy in rela-
tion to the issue being considered, they will also be cited and the de-

cision summarized.

75

It is anticipated that the approach used to review Michigan
court cases related to zoning will provide a generalized feel as to
the Michigan judiciary's stance on numerous aspects of zoning and its
use to control land development. Thus the planner can more readily
ascertain the legal perspective of zoning, and by synthesizing this
perspective with planning objectives create strategies for implementa-
tion which will result in improvement of our rural and urban environ-

ments.

The Constitutionality of Zoning
In the United States

While control over use of the land was not uncommon prior to
adoption of the first comprehensive zoning ordinance by New York City
in 1916, the drafters of the New York ordinance took specific steps to
avoid constitutional challenges. It was their opinion that the ordin-
ance would stand only if a firm relationship could be established with
the police power. This they accomplished through repeated, specific
references to health, safety and welfare, and detailed statements of
purpose. The early drafters of the New York ordinance were also aware

of the danger of discriminatory treatment under a zoning ordinance,

76

and were careful to ensure that all lands.wjthin a zoning district
were treated alike. And finally, they attempted to keep zoning out

of the courts by providing a system of administrative relief where

the ordinance might impose hardship on a landowner. The authors of
the New York ordinance felt that without the administrative safeguard,
their ordinance would be immediately challenged and the chances of a
successful defense were slim.5 The efforts of the drafters of the New
York ordinance were rewarded in 1920 when in Lincoln Trust Co. v. Wil-

liams Bldg, Corp., 128 NE 209 (1920), its constitutionality was upheld

 

by the New York Supreme Court.

The New York City ordinance aroused considerable interest
throughout the United States with numerous cities attempting to imple-
ment similar ordinances. Yet, the question of the legality of zoning
remained unsettled, even after the New York City ordinance was upheld,
with contrasting opinions and court decisions arising in state after
state.

Prior to 1920, the courts usually held zoning ordinances in-
valid whenever non-nuisance uses were prohibited.6 In a number of
states challenges to ordinances were based on the due process clause
of the United States Constitution and similar clauses in state consti-
tutions, using the argument that private property could not be taken

for public use without just compensation.7 The results of these

77

challenges were varied, with doubts as to legality lingering to in-
hibit widespread adoption of zoning ordinances. The uncertainty over
the validity of the zoning power led in some jurisdictions to its use
by eminent domain, paying compensation where development rights were
restricted.8

During the ten years following adoption of the New York City
ordinance, the constitutionality of ordinances was reviewed in a dozen
states with mixed results. Even though courts in Wisconsin, New York,
Minnesota, Illinois, Kansas, and other states had upheld zoning as a
valid exercise of the police power, it became obvious that the ulti-
mate validity of zoning could only be established by the United States
Supreme Court.9 In 1926, in the case of Euclid v. Ambler Realty Co.
272 US 365 (1926), the Supreme Court settled the controversy and
answered the questions of the preceding ten years by upholding zoning
as a valid exercise of the police power. The Eugljg_case became the
foundation establishing the constitutionality of zoning in principle,

and was recognized ultimately by all state courts.

Case Review

Euclid v. Ambler Realty C0. 272 US 365, 71 L Ed 303,
47 S Ct 114, 54 ALR 1016 (1926)

The zoning ordinance of the Village of Euclid, Ohio, was chal-

lenged on the grounds that it unconstitutionally deprived the plaintiff

78

of property without due process in violation of section 1 of the 14th
Amendment to the United States Constitution. The plaintiff argued
that his property was in the path of industrial development and worth
$10,000 per acre for industrial use, while worth only $2,500 per acre
as residential. Another portion of the parcel would be worth $150 per
front foot if unrestricted, but worth only $50 per front foot as resi-
dential.

In answering this challenge, the Court noted that a zoning
ordinance to be valid must find its justification in some aspect of
police power asserted for the public welfare, and that a definite line
between legitimate and illegitimate exercises of the police power can-
not be drawn. This decision will vary with the circumstances.

In searching for criteria to define the proper exercise of the
police power, the Court suggested the common law of nuisance as an in-
dicator and stated:

In solving doubts, the maximum "si utere tuo ut alienum
non laedas" (use your own property in such a manner as
not to injure that of another), which lies at the foun-
dation of so much of the common law of nuisances ordin-
arily will furnish a fairly helpful cue.‘0

In following this reasoning, the court suggested that the de-
termination as to whether the power to regulate exists, just "like

the question whether a particular thing is a nuisance, is to be de-

termined, not by an abstract consideration of a building . . . but

79

by considering it in connection with the circumstances and the 10-
cality."]]
Reliance on the nuisance rationale provided an adequate basis

for upholding the exclusion of industrial uses from residential areas,
but did not seem adequate to justify the exclusion of commercial uses
and apartments. In answering this more difficult question, the court
relied upon the relationship between the exclusion of the use and the
promotion of health, safety and welfare. Citing such factors as im-
proved fire protection, reduced street congestion, decreased noise and
a better environment for raising children, the Court determined that
the Euclid ordinance was a reasonable exercise of the police power and
thus constitutional. In establishing the constitutionality of zoning,
the court concluded:

the reasons are sufficiently cogent to preclude us from

saying, as it must be said before the ordinance can be

declared unconstitutional that such provisions are clearly-

arbitrary and unreasonable, having no substantial relation
to the public health, safety, moral, or general welfare.12

In Michigan

 

Prior to Euclid v. Ambler Realty Co., zoning in Michigan was

 

viewed with the same uncertainty as existed throughout the nation.
Units of government desiring to use the zoning power relied upon the

authority granted by Public Act 279 of 1909, the Home Rule Act, which

80

permitted cities to provide "for the public peace and health, and
safety of person and property."13 However, in 1920, in the case of
Clements v. McCabe 210 Mich. 207 (1920), the Michigan Supreme Court
struck down the zoning ordinance of the City of Detroit on the grounds
that cities derive their police powers from the state, and neither the
Constitution, nor the statutes, authorize a city to enact a zoning
ordinance. This line of reasoning is based on the fact that zoning
was unknown at common law, and thus the general grant of police power
cannot be presumed to include the intent to authorize zoning.14 The
Michigan Legislature responded to the court's action by passing Public
Act 207 of 1921, the City and Village Zoning Enabling Act, which ex-
pressly permitted cities to exercise the zoning power.

Passage of the City and Village Zoning Enabling Act, while
answering the questions raised in Clements, did not resolve the con-
stitutional issues raised by zoning generally during this pre-Euclid
era. It was not until 1928, in the case of Dawley v. Ingham Circuit
Jugg§_242 Mich. 247 (1928), that the constitutionality of zoning was
established by a Michigan court. Following the decision in Dawley,
the Michigan Supreme Court has repeatedly reaffirmed its position in

. . 15
a great number of cases over the 1nterven1ng years.

81

Case Review
Clements v. McCabe; 210 Mich. 207 (1920)

The plaintiff desired to erect in compliance with the Detroit
Building Code a building to be used as an automobile battery station.
In accord with the provisions of a residential zoning ordinance passed
by the Detroit Common Council, the City refused to issue the necessary
permits allowing the defendant to build the structure.

In challenging the action of the City, the plaintiff's chief
contention questioned the right of the municipality to impose zoning
restrictions. In considering this challenge, the court stated

this is a larger issue than the validity of the ordin-
ance before us which is not to be "tested merely by its
effect upon relator's piece of property," and "involves
its effect on the entire community." The controlling

test is whether by any adequate, definite provision in

the Constitution or general act . . . cities have been

vested with . . . comprehensive police power of zoning

The Court concluded that neither the Constitution nor the Legislature

had conferred the right to zone upon cities, and invalidated the De-

troit ordinance.

Dawley v. Ingham Circuit Judge, 242 Mich. 247 (1928)
The City of Lansing under the provisions of the City and Vil-
lage Zoning Enabling Act, Act No. 207 of 1921, had enacted a zoning

ordinance. When the plaintiff attempted to erect a building in

82

violation of the ordinance, the City had obtained an injunction. In
an attempt to dissolve the injunction, the Supreme Court considered
two questions posed by the plaintiff: 1) has the city power under
statute, without a charter amendment, to enact a zoning ordinance?
2) is the City and Village Zoning Enabling Act unconstitutional?

In regard to the first question, the court concluded that a
charter amendment was not necessary. However, from a historical per-
spective, the second question is probably the most important. It was
the plaintiff's contention that the Act was unconstitutional because
it had more than one object or purpose; specifically that it (1) per-
mitted both cities and villages to adopt zoning ordinances; and (2)
it attempted to permit the regulation of occupations and businesses,
as well as subjects covered by building codes. The Court very simply
concluded:

We have discussed the questions considered . . . and find

no occasion to direct the circuit judge to dissolve the
injunction.

The Interpretation of Provisions
of the Zoning Enabling Acts

 

 

As a general rule, the courts strictly construe the delegation

of zoning power. As evidenced by Clements v. McCabe, 210 Mich. 207

 

83

(1920), the power to zone must be expressly conferred on the local
unit of government in Michigan. This is not the rule in all states.
Courts in Ohio and California have upheld zoning under the home rule

16 Additionally, the courts

powers granted by their constitutions.
view the scope of authority and the procedural steps contained in the
zoning enabling acts as mandatory. Failure to substantially comply
with the procedures specified in the enabling act can void the ordin-
ance.17 Invalidity can also result when zoning power is exercised
outside the scope of the enabling act.18 'In Michigan, the courts, as
evidenced by the decision in Korash v. City of Livonia, 388 Mich. 737
(1972), have repeatedly reaffirmed the position that zoning must be
exercised in compliance with the procedural requirements contained in
the zoning enabling acts.

The procedural requirements of the enabling acts are consid-
ered vitally important by the courts. It is common for challenges
to be based on procedural irregularities, and the courts will care-
fully review the legislative procedures followed during ordinance
adOption.19 In some jurisdictions substantial compliance may not be
sufficient to ensure the validity of the ordinance. The courts may
insist on strict adherence to statutory procedures. The reason for

such stringent supervision by the courts, lies in the basic relief

that the procedural requirements established by the Legislature

84

represents safeguards against the arbitrary use of power. Failure to
comply may be regarded as a denial of the due process rights constitu-

tionally guaranteed to citizens.20

Adoption and Amendment
Ordinance Formulation
The statutes in a majority of states require zoning to be

based on a comprehensive plan. Yet, definition of this term has
elicited a great deal of controversy, with even the earliest author-
ities differing as to the amount of planning needed to support an
ordinance.21 In light of the fact that only a few of the 423 cities
which had adopted zoning ordinances by 1926 had based their efforts
on a formal plan; it is not surprising that the courts were initially
reluctant to require a master plan as a prerequisite to zoning.2
Accordingly, it is generally found throughout the United States that
the courts have usually made modest estimates of the plan requirement.
The words of a New Jersey court typify the court's attitude toward the
plan requirement. In Ward v. Montgomery Twp., 147 A2d 248 (1959), at
252, the plan required by statute was defined as:

an integrated product of a rational process revealing a

physical partition of the municipality reasonably designed

to produce a homogeneous pattern of location and uniform

development of variant land uses. The zoning ordinance

itself may bespeak the scheme, there need be no extrinsic
guide.

85

Without a specific statutory requirement, the courts have not
required that zoning be predicated upon the adoption of a plan. The
view of the courts, evidenced by numerous decisions in many jurisdic-
tions, is that zoning can be accomplished in one step with the ordin-
ance being the plan.23 However, the courts have not looked upon the
Icomprehensive plan requirement as a mere technicality. Rather, they
view this requirement as an element which brings rationality to the
zoning process, and in determining whether an ordinance meets the
plan requirement the courts consider whether forethought has been
given to the community's land use problems.24

The view that the statutory requirement that zoning be based
on a plan can be met by the ordinance itself when based on proper
consideration of a community's problems is apparently so widespread
that this question seldom arises currently with regard to the basic
ordinance. However, in reference to ordinance amendments the issue
of the plan enters a great deal of litigation.25 This pattern is
also present in Michigan.

Clan Crawford notes that Michigan statutes reveal that the
Legislature intended the freedom of local units to establish differ-
ent zoning classifications on different tracts of land to be limited

by consistency with a general plan. Crawford finds it surprising

that basic zoning ordinances are challenged so rarely in Michigan

86

for lack of a general plan.26 More frequently the challenge is
focused on the reasonableness of an ordinance amendment with refer-

ence to a general plan.

Case Review--Michigan

Bloomfield Twp. v. Beardslee, 349 Mich. 296 (1957).
The plan requirement of the statute was met when zoning map
was approved by a group of real estate experts prior to ordinance

adoption.

Bzovi v. Livonia, 350 Mich. 489 (1957).
The Supreme Court recognized that because of prior existing
uses, a city is not always able to produce a completely consistent
zoning plan and refused to void zoning which was inconsistent with

surrounding areas.

Padover v. Farmington Twp,, 374 Mich. 622 (1965).
In upholding the validity of a zoning classification, the
Supreme Court placed great emphasis on the relationship between

planning and zoning in determining reasonableness.

87

Biske v. Troy, 381 Mich. 611 (1972).

The Supreme Court noted that it would not give evidentiary
value to a master plan which had not been formally adopted.

Raabe v. Walker, 10 Mich. App. 383 (1968) reversed 383 Mich. 165
(1970).

The Appeals Court stated that while the statute calls for a
plan, it does not require a written plan before ordinance amendments
can be made. All that is necessary prior to zoning is "evidence of
some rational procedure to insure that the property in question will
be put to its best use . . . ."

The Supreme Court reversed this decision apparently being of
the opinion that a major rezoning was imprOper in the absence of an
adopted plan calling for the change.27 The court stated that the ab-
sence of a formally adopted plan does not invalidate zoning, but it
does weaken substantially the presumption which attends any ordinance

or amendment.

Baker v. Algpnac, 39 Mich. App. 527 (1927).
In approving a contested rezoning, considerable mention was
made of testimony that the rezoning was in accord with a master plan,

and based on advice of a professional planner.

88

Dunk v. Brighton Twp., 52 Mich. App. 143 (1974).

A township ordinance as applied to the plaintiff's property
was unreasonable when shown that the refused zoning was consistent
with an adopted master plan.

Sabo v. Monroe Township, decided by Michigan Supreme Court
August 19, 1975.
The plan referred to in the enabling statute as the basis for

a zoning ordinance may emanate from the ordinance itself.

CaseJReview--United States

Appeal of Township of Upper Darby, 198 A2d 538 (Pa.).
The statutory requirement of a plan does not contemplate a
rigid “master plan." 0n the other hand it should not consist of ad

hoc legislative determinations.

Bartlett v. Middletown Township, 51 NJ 239 (N.J. 1958). The gov-
erning body, like the planning board, considered the views of the
citizenry and the merits of the rezoning proposal. "The ordinance
presents a clearly defined comprehensive plan, as called for by the

statute."

89

Udell v. Haas, 288 NY 52d 888 (N.Y.)

 

"No New York case has defined the term comprehensive plan.
Nor have our courts equated the term with any particular document."
By examining the evidence, the court determined that the plan could
"be found both in the village's zoning ordinance and in its zoning

map."

Fasano v. Board of County Commissioners, 507 P2d 23 (Or. 1973).
Zoning and planning are integrated. The courts will review
changes to be certain they conform to the comprehensive plan.
Jean Baker v. City of Milwaukee, April, 1975 decision of the
Oregon Supreme Court (citation unavailable).
The court held that zoning ordinances must conform to compre-

hensive plans, even if adopted subsequent to the zoning ordinance.

Public Hearings

A public hearing concerning general legislative action by a
governmental unit is usually permissive and has no relation to the
validity of the legislation.28 However, public hearings in regard
to the adoption of a zoning ordinance are required by statute and

thus mandatory to insure the validity of the ordinance.

90

Coincident with the public hearing requirement is the need for
adequate notice apprising the public of the impending hearing. Such
a notice may be inadequate if not given in an appropriate, timely man-
ner, and sufficient in content to apprise the public of the nature
and scope of the regulation being considered. While nearly all states
require publication of the notice, a few also require posting. Mail
notice or personal service is usually not required.29

The courts strictly superintend the conduct of public hearings
and the adequacy of notice. Usually, beyond the question of whether
the hearing was held, the nature of the hearing is not an issue. In
those cases where the nature of the hearing has been challenged, the
court usually emphasizes "basic fairness" and the ability of the citi-
zen to be heard.30 On the other hand, the adequacy of notice is liti-
gated frequently, and where there is doubt, it will usually be resolved
against the notice. Since the purpose of the notice is to warn the
public, the courts use the requirement of "fair" notice; granting the
average reader considerable warning that land in which he has an in-
terest may be affected by a proposed regulation.3] Generally, this
measure will require three elements present in the notice: 1) the
identity of the land affected, 2) the nature and scope of the re-
striction proposed, and 3) the date, time, and place of the hearing.

Of course, "fair notice" also implies compliance with the publication

91

or posting time requirements contained in the statute. Failure to

provide adequate notice will render the ordinance invalid.32

Case Review--Michigan

Krajenke Buick Sales v. Hamtramck City Engineer
322 Mich. 250 (1948).

The notice and public hearing requirements of the zoning en-
abling acts are mandatory and must be complied with before a valid

ordinance can be adopted.

Baura v. Thomasma, 321 Mich. 139 (1948).

 

Failure to state the time of the public hearing in the notice

invalidated the ordinance.

Brown v. Shelby Twp., 360 Mich. 299 (1960).

 

The fact that the meeting hall was too small did not invali—
date the ordinance where everyone received a chance to be heard, and

there was no claim of bad faith in selecting the hall.

Edel v. Filer Twp., 49 Mich. App. 210 (1973).

 

Although there were several procedural errors in conflict with
statutory requirements, the ordinance was not set aside because it had

been relied upon without challenge for 18 years.

92

Bingham v. Flint, l4 Mich. App. 377 (1968).

 

The duty to hold a hearing cannot be delegated. A public

hearing must be held before the city council.

Lamphear v. Antwerp‘Twp., 50 Mich. App. 641 (1973).

 

If the notice is reasonably calculated to apprise interested
parties of the pending action and affords them an opportunity to be

heard, the constitutional requirements of due process are met.

Haven v. City of Troy, 39 Mich. App. 219 (1972).

 

The right to a hearing imports an opportunity to be heard.
Implicit in that right is the companion right to reasonable notice
not only of the time and place of the meeting, but also that a par-
ticular question will be considered and those interested will have

the opportunity to be heard.

Keating International Corp. v. Orion Twp., 51 Mich. App. 122 (1974).
An amendment adopted after public hearing notice which failed

to state time, place and date is invalid.

Boron Oil Co. v. Southfield, 18 Mich. App. 135 (1969).
A public hearing before the city planning commission must be

held to comply with the enabling act.

93

Case Review--United States

Hyson v. Montgomery County Council, 217 A2d 578 (Md. 1966).

 

Where the action contemplated was administrative and not
legislative, the court required a quasi-judicial hearing with the
opportunity of cross-examination.

Hart v. Bayless Investment and Trading Co., 346 P2d llOl
(Ariz. 1959).

 

Notice requirements are “no mere legal technicality, rather
' [they] are a fundamental safeguard assuring each citizen that he will

be afforded due process of law.“

Bell v. Studdard, 141 SE2d 536 (Ga. 1965).

 

A statute or ordinance which fails to require notice and hear-
ing prior to enactment may be invalid for failure to require procedure

affording due process.

Village of Riverwoods, v. County of Lake, 237 NE2d 547 (Ill. 1968).

 

The rezoning of land in excess of that described in the notice

of public hearing will invalidate the ordinance amendment.

94

Ordinance Adoption

Case Review-—Michigan

Parr v. Lansing, 9 Mich. App. 719 (1968).

 

A resolution is not a sufficient means of amending a zoning

ordinance; an amendatory ordinance is required.

Schrier v. Kalamazoo, 380 Mich. 626 (1968).

 

A rezoning can only be accomplished by ordinance adoption.

Northwood Properties Co. v. Royal Oak, 325 Mich. 419 (1949).

 

The provision of the City-Village Zoning Enabling Act re-
quiring a 3/4 vote of the legislative body on an amendment when pro-
tested by 20% of nearby property owners was upheld against a challenge

that it was an improper delegation of legislative authority.

Joseph v. Grand Blanc, 5 Mich. App. 566 (1967).

 

A township resident, who is not a member of the board, has no
right to vote on an ordinance amendment.
Initiative

Several states, including Michigan, except with reference to

cities, and villages, authorize zoning by initiative.33 In those

95

states where initiative is not authorized, the usual reason is that

the use of initiative would make it impossible to comply with the

procedural requirements contained in the zoning enabling acts.34

Case Review-~Michigan

Korash v. City of Livonia, 388 Mich. 737 (1972).

 

A city zoning ordinance cannot be ammended by initiative.
The zoning enabling act establishes enactment procedures incompatible

with the initiative power under charter authority.

Referendum

A number of states including Michigan except with regard to
cities, authorize referendum on zoning in the zoning enabling acts.
In states where it is not authorized in the zoning enabling acts, it
may be exercised under general referendum authority.35 However, this
is not the case in Michigan.

Typically, the power of referendum can only apply to legis-
lative acts.36 Therefore, administrative actions such as variances
and special permits are not subject to referendum. Currently, the
issue of what constitutes a legislative action has been brought to

the forefront by the decision of Justice Levin in West v. City of

96

Portage, 392 Mich. 458 (1974). In a 3-3 split decision, the court
deadlocked on the issue of whether a rezoning of a specific parcel
was an administrative act. The opinion of Justice Levin indicated
that a rezoning is an administrative act and thus not subject to
referendum. Should this viewpoint gain support in future decisions,
the validity of referendum on zonings in townships and counties may

be in doubt.

Case Review--Michigan

Elliott v. Clawson, 21 Mich. App. 363 (1970).
A provision of home rule city charter allowing referendum

on legislation is not applicable to a zoning ordinance amendment.

Parr v. Lansing, 9 Mich. App. 719 (1968).
Township officials may not void the referendum provisions
of the zoning enabling act by attempting to rezone property by reso-

lution instead of by ordinance.

Mohave Plantations v. Rose Twp,, 23 Mich. App. 232 (1970).

 

A referendum vote cannot legitimize unreasonable zoning.

Stadle v. Battle Creek Twp., 346 Mich. 64 (1956).

 

The referendum provision of the zoning enabling act for town-

ships applies to amendments as well as the original ordinance.

97

Renne v. Oxford Twp,, 5 Mich. App. 415 (1966).

 

The right to vote on a referendum cannot be limited to

property owners.

Reva v. Portage Twp,, 356 Mich. 381 (1959). A township referen-

 

dum cannot be held for the purpose of challenging all of one and part
of another amendment to a zoning ordinance. There is no statutory

authority for a referendum on two amendments or part of one amendment.

Interim Ordinances

During the early years of zoning interim ordinances were not
authorized in the enabling statutes. As a result, early interim or
emergency ordinances were found invalid by many courts either for
lack of basis in statute or for lack of relationship to a comprehen-
sive plan.37 On the other hand, where the delay until a permanent
ordinance would become effective was reasonable, interim ordinances
were upheld.38

In some cases, a freeze on the issuance of building permits
has been combined with the interim ordinance. In these instances the
courts have both upheld and condemned this approach. Where the ordin-

ances were upheld, the court found that the suspension on building

permits was for a reasonable time.39 In Walworth County v. Elkhorn,

98

133 NW2d 257 (Wisc. 1965), the court upheld a 2 year freeze on build-
ing permits as reasonable while a land use plan was being prepared.

A New Jersey court, in Campana v. Clark, 197 A2d 711 (N.J. 1964) up-

 

held a 31 month freeze.

Today, a number of states have authorized interim zoning
ordinances in their enabling statutes. Michigan authorizes interim
ordinances in counties and townships. The granting of statutory
authority for this device usually reduces the probability of exten-

sive litigation.

Case Review—-Michigan

Lake Twp. v. Sytsma, 21 Mich. App. 210 (1970).

 

The zoning enabling act does not authorize the adoption of an
interim ordinance when a permanent ordinance is in effect and when

there is no new ordinance in the process of preparation.

Miscellaneous Considerations

Case Review

Gundersen v. Village of Bingham Farms, 372 Mich. 232 (1964).
The township zoning enabling statute does not authorize the

placing of an entire township in one zone.

99

Brown v. ShelbyATwp,, 360 Mich. 299 (1960).

 

The township zoning enabling act does not prevent the township
attorney and engineer from assisting the zoning board, if they are not

paid, and not considered employees.

Temple v. Portage Twp,, 365 Mich. 474 (1962).

 

In enacting a zoning ordinance, the township board need not
follow the recommendations of the zoning commission or the county

zoning coordinating committee.

Brown v. Shelby Twp., 360 Mich. 299 (1960).

 

The adoption of a resolution of intent is not necessary before

passing an ordinance amendment.

Ordinance Administration

 

Board of Appeals

Each of the zoning enabling acts provides for the establish-
ment of a zoning board of appeals for the purpose of (l) interpreting
the zoning map and language of the zoning ordinance, (2) reviewing
administrative decisions, (3) deciding questions on matters specific-

ally referred to it by the ordinance, and (4) granting variances and

lOO

exceptions when necessary. Although the statutes provide for the
board of appeals and its organization and general powers, questions
continue to be litigated concerning its power relative to the legis-
lative body, the zoning commission and planning commission, approp-
riate record keeping, proper notice and public hearing, and the

limits of the board's authority.

Case Review—~Michigan
Tireman-Joy-Chicago Improvement Assn. v. Chernick, 361 Mich. 211
(1960).

The court considered the issue of whether the power of the
zoning board of appeals to modify the provisions of the zoning ordin-
ance was an improper delegation of legislative power to an administra-
tive body. The court upheld the statute's grant of authority to the
board of appeals to vary ordinance provisions. The majority opinion
also required that board of appeals set forth the factual basis of

their decisions.

Shulhan v. Hamtramck, 5 Mich. App. 399 (1966).

 

A city council does not have the power to overrule a decision

of the board of appeals.

101

Burch v. Bloomfield Hills, 30 Mich. App. 246 (1971).

 

The court held that a planning commission cannot overrule a
decision of the board of appeals. Furthermore, "a zoning board of

appeals decision can be set aside only by the courts . . . ."

Jones v. DeVries, 326 Mich. 126 (1949).

 

The court hints that such formalities as sworn testimony and

a stenographic record are not necessary in board of appeals hearings.40

Thomas v. Busch, 7 Mich. App. 245 (1967).

 

The court suggests that some of the formalities normally asso-

ciated with a trial may be necessary in board of appeals hearings.4]

Sitz v. General Motors Corp., 24 Mich. App 119 (1970).

 

The court held that the failure of the board of appeals to
keep minutes of a meeting at which a variance was granted was a denial

of due process to persons opposing the variance.

Lafayette Market Co. v. Detroit, 43 Mich. App. 129 (1972).
The court cited Article VI, section 28 of the Michigan Consti-
tution in holding that a court is limited to a review of the evidence
on the record in determining the validity of a board of appeals deci-

sion.

102

Teglund v. East Lansing, 316 Mich. 185 (1946).
The board of appeals has no authority to impose conditions on
a property owner building in conformance with the ordinance even if

it created hardships for the neighbors.

Baura v. Thomasma, 321 Mich. 139 (1948).

 

The zoning board of appeals cannot authorize a variance longer

than requested.

Variances

A primary function of the zoning board of appeals is the
granting of variances. The board of appeals also grants special ex-
ceptions and it is not uncommon for confusion to arise over the dif-
ference in definition of these two terms. Michigan courts have de-
fined a variance as a deviation from the terms of the zoning ordin-
ance, as authorized by the enabling statute upon findings of practi-
cal difficulties and unnecessary hardship. On the other hand, a
special exception is an exception to the general rule provided for
in the ordinance under specified conditions. The distinction between
these terms is important because to establish a variance practical
difficulties and unnecessary hardship must be shown, while to justify
a special exception it is only necessary to establish the conditions

set forth in the ordinance.42

103

In creating the variance procedure, the early drafters of zon-
ing ordinances intended to create a safety valve to permit equitable
treatment of property owners in unusual circumstances where conform-
ance to the letter of the ordinance could create unnecessary hardship.
Terms such as "unnecessary hardship" and "practical difficulties" were
chosen as standards for the issuance of variances in order to give the
board of appeals maximum discretion. At first, a number of courts
held that these standards were too vague; but, as time passed they
became the accepted language in enabling statutes and ordinances.43

The term “practical difficulties" has not been used as widely
as "unnecessary hardship" in zoning enabling acts. And, in some jur-
isdictions, the terms have been used interchangeably, although it
would appear that they connote different sets of circumstances.44
Several zoning enabling acts have attempted to add greater specificity
to the standards for issuance of a variance, requiring its use only
where hardship results from unique circumstances, or only where con-
ditions affect the parcel and not the whole district.45 Since these
terms, used in various forms, have become the standard upon which
variance decisions are based, their interpretation as applied to

specific parcels of property has been the subject of discussion and

a great deal of litigation.

104

Hagman notes that while the court has established rigorous
criteria for justifying a variance, this is largely ignored by zoning
boards of appeal and as a result the variance procedure is extremely
abused in zoning practice. If the courts strictly enforced variance
issuance, close to 90 percent would be declared invalid.46

The grounds for issuance of a variance hinge on interpreta—
tion of the terms "practical difficulties" or "unnecessary hardship."
Hagman has stated that the variance does not confer a privilege and
goes on to establish 3 basic standards: 1) the absence of adverse
impact on the public, 2) the absence of adverse effect on neighbors,
and 3) the presence of the property characteristics which make it
eligible for a variance.47 The courts have been repeatedly asked on
a case by case basis to definitively delineate the grounds for a var-
iance. Generally, the crucial issue lies in Hagman's third standard:
are the proper characteristics present to make a parcel eligible for

a variance in accord with the court's interpretation of "practical

difficulties" or "unnecessary hardship?"

Case Review--Michigan

Badanek v. Schroskey, 21 Mich. App. 582 (1970).
The court held that the inability to obtain financing for a

development which would satisfy the provisions of the zoning ordinance

105

was not sufficient grounds for granting a variance. The reason being
that this problem affected the entire district and was not unique to

the property.

Farah v. Sachs, 10 Mich. App. 198 (1968).

 

A variance was declared ihvalid because the record failed to
show that the property couldn't be used in a manner consistent with
the zoning classification. The court stressed that a determination
that the proposed development was consistent with the spirit of ordin-

ance did not provide proper grounds for issuing a variance.

Puritan and Greenfield Assn. v. Leo, 7 Mich. App. 659 (1967).

 

The court held that the term “practical difficulties" refers
to dimension variances, while the term “unnecessary hardship" refers
to a use variance. A use variance cannot be granted unless it is
found that the property cannot be used in a manner consistent with
the zoning classification. This decision also appears to support the
idea that a use variance cannot be granted unless the condition is
unique to the property and not a general neighborhood condition. The
theory is that if the condition is general, an amendment should be

made to the ordinance.48

106

O'Keefe v. E. Grand Rapids BOA, 35 Mich. App. 583 (1971).

The court upheld the issuance of a variance on a parcel where
practical difficulties and unnecessary hardships were shown based upon
inability to use existing structure for a conforming use. The vari-
ances on the adjoining two parcels were invalidated for lack of show-
ing practical difficulties and unnecessary hardship, despite the fact
that it was not practical to develop the first parcel in the absence

of variances for the second and third.

George v. Harrison Twp., 44 Mich. App. 357 (1973).
The fact that granting a variance would render a parcel usable
under the zoning ordinance, will not validate an unreasonable classi-

fication.

Indian Village Manor Co. v. Detroit, 5 Mich. App. 679 (1967).
Once practical difficulties have been shown, it is not neces-
sary to show, in addition, unnecessary hardship where the variance

does not authorize a change in use.

Special Exceptions

As previously mentioned, the Michigan courts have defined a
special exception, or conditional or special use, as an exception to

the general rule as set forth in the ordinance which can be authorized

107

49 Generally,

if certain conditions specified in the ordinance are met.
it is the board of appeals which makes the determination whether the
applicant for special use permission has complied with the conditions
set forth in ordinance. Yet, many ordinances delegate this function
to the planning commission or the zoning commission. In these in—
stances, it is generally held that the board of appeals still retains
final jurisdiction in the matter as a result of its statutory charge.50
While the Michigan courts have never specifically addressed
the validity of the special exception technique, they have considered
so many cases where its use was at issue without invalidating it, that
it can be assumed that it has the court's implicit approval at the
present time.51 However, the courts have refused to uphold the spe-
cial exception when the ordinance failed to provide the board of
appeals with adequate standards to make a determination. Evidently,

these standards need not be elaborate though, for in Florka v. City_

of Detroit, 369 Mich. 568 (1963) the court upheld a standard as mini-

 

mal as:

The use is injurious to the surrounding neighborhood
or contrary to the spirit and purpose of the ordinance.

McTaggart, in commenting on the special exception technique,thas
called it "a practical necessity in every workable zoning ordin-
ance . . . .“52 Hagman has observed the widespread use of special

exceptions and called it one of the fundamental changes in the

108

evolution of zoning. It is his opinion that the special exception can
be a valid zoning technique where the standards are adequately estab-
lished in the ordinance and the conditions imposed are reasonably re-
lated to the valid use of the zoning power.53 In all probability it

is these two areas of the special exception which will generate liti-

gation.

Case Review-—Michiqan

Mitchell v. Graval, 338 Mich. 81 (1953).

A special exception is an exception to the general rule pro-
vided by the terms of ordinance which can be authorized if specified
conditions are met. A variance is a deviation from the terms of the
ordinance which is not mentioned in the text, but which is authorized
by the enabling legislation upon finding that practical difficulties

or unnecessary hardships exist.

Lygn Sand and Gravel Co. v. Oakland Twp., 33 Mich. App. 614 (1971).
An ordinance imposed permit requirement for mineral extraction
was held invalid for lack of standards to guide an administrative de-

cision.

109
Lakewood Estates,,Inc. v. Deerfield Twp. Zoning Board of Appeals
37 Mich. App. 184 (1972).
The court ruled invalid the special use provision of an ordin-
ance where adequate standards for administrative decision were not

specified.

M. Company v. Detroit, 49 Mich. App. 136 (1973).

The court upheld a standard for exception to the terms of the

ordinance worded:
that such modification is necessary to secure an approp-
riate development of a specific parcel of land; provided,
that any such modification will not be inconsistent with
the spirit and purpose of this Ordinance, with public
safety, and with substantial justice.
Smith v. Plymouth Tpp,, 346 Mich. 57 (1956).

Where the zoning ordinance permitted special exceptions upon
approval of the township board, the court held that the board of
appeals is the proper body to make special exceptions, and that the
enabling statute does not authorize the township board to vary the
ordinance.

Additional cases discussing the need for standards guiding
administrative decisions include: Marathon Oil Co. v. Plymouth Twp.,

25 Mich. App. 399 (1970); Mobile Oil Corp, v. Clawson, 36 Mich. App.

46 (1971); Commercial Auto Wreckingty. Boyle, 20 Mich. App. 341 (1969);

110

Osius v. St. Clair Shores, 344 Mich. 693 (1956); Florka v. City of

Detroit, 369 Mich. 568 (1963).

Nonconforming Uses:

Planners and lawyers have long understood the problems which
nonconforming uses impose upon the effectiveness of zoning and a
city's ability to implement a master plan. However, for legal, as
well as political reasons, the true nature of the problem has never
been confronted head on. Rather, the philosophy from the beginning
of comprehensive zoning has been to permit the continuance of noncon-
forming uses, while limiting their right to expand or repair, antici-
pating that their life expectancy would be reduced and through attri-
tion they would vanish.54

In retrospect, early expectations as to the nonconforming use
problem have not been realized. Despite limits on extension and re-
pair, nonconforming uses have been notably tenacious. Numerous rea-
sons have been advanced for their resistance to extinguishment, in-
cluding the lack of enforcement, the unwillingness of cities to seek
termination through condemnation or purchase, and the attitude of the
courts. In this context, we are primarily interested with the legal

framework which has evolved in regard to nonconforming uses, and its

‘restraints, as well as potentials for resolving this problem.

111

As zoning developed, the right to continue a nonconforming
use seemingly rose to the dignity of being a constitutional principle.
While it was permissible for zoning to impair value in undeveloped
land where value was viewed as speculative, it was viewed as improper

55 While the distinction

to impair the value of improved property.
appears to be breaking down somewhat, the mainstream of judicial de-
cisions have moved toward protection of vested rights in property.
An ordinance which summarily seeks to destroy an existing use will
most likely be ruled invalid because it is retroactive and destroys
a vested right.56

While a consistent pattern of protecting existing buildings
and uses has developed in judicial decisions, it cannot be said that
the codrts have failed to recognize the problems created by noncon-
forming uses. Repeatedly, in a number of states the courts have
affirmed the need to discourage nonconforming uses.57 In South Cen-
tral Improvement Assn. v. St. Clair Shores, 348 Mich. 153 (1957),
the Michigan Supreme Court recognized the problem of nonconforming
uses, noting that zoning policy requires the gradual elimination and
not expansion of nonconforming uses. However, it appears that while
sympathetic to planning and zoning goals, the courts will insist that

the problem of nonconforming uses must be resolved within the limits

set by statute and such constitutional doctrines as due process.

112
Establishment of a Nonconforming Use

Since a nonconforming use is inconsistent with the land use
pattern established by the ordinance, most courts require the prop-
erty owner to prove that he is entitled to nonconforming status.58
In general terms, he must prove that his use existed prior to the
enactment of the ordinance. More specifically, this proof usually
is composed of the elements of time, legality, and the nature and
extent of the use.

The element of time requires that the use be in effect before
enactment of the ordinance. In some instances a date may be specified
in the ordinance; in other cases, varying by jurisdiction, the date
the ordinance was passed or the ordinance effective date may be the
deadline.59

The element of legality requires that the use be legally
established before enactment of the ordinance. While this require-
ment seems fairly straightforward, it has been the issue of extensive
litigation, revolving around such issues as valid permits and licenses
necessary for operation of a use.60

Finally, the extent of the use will be investigated to deter—
mine if it qualifies as a nonconforming use. Since the statutes fail

to define what constitutes an existing use, the courts have adopted

definitions on a case-by-case basis. Usually, the courts require

113

that the use must have been substantially established at the time the
ordinance was enacted. Thus not every use is entitled to nonconform-
ing status; only uses substantially established. And, in some cases
courts have added the criteria that eligibility depends upon whether
the termination would cause serious financial results.61
While the criteria of time, legality and substantialness may
be easy to describe, extensive litigation has proven they are not easy
to apply on a case-by-case basis. This is particularly true when a
race develops between the city attempting to gain ordinance adoption

and the landowner hastening to substantially establish a nonconforming

U586

Case Review--Michigan

Rodd v. Palmyra, 42 Mich. App. 434 (1972).

 

The landowner did not obtain nonconforming status by virtue of
the fact that substantial sums had been paid for plans, legal fees and

engineering fees when work had not commenced on the land.

Fruitport v. Baxter, 6 Mich. App. 283 (1967).

 

An individual who moved truckloads of parts onto his property
shortly before the effective date of the ordinance did not establish
a nonconforming use. The court held that it was necessary to establish

nonconformance in a reasonably substantial manner.

114

Dusdal v. Warren, 387 Mich. 354 (1972).

 

A landowner who had started construction on a cement block

building had established a vested interest.

Dingeman Advertising, Inc. v. Algoma Twp., 393 Mich 89 (1974).

 

Where the landowner had staked the site, erected a power pole,
completed an advertising contract and begun off-site construction of
a billboard, the Court ruled that nonconforming use status had been

acquired.

Detroit Edison v. Wixom, 382 Mich. 673 (1969). A utility had

 

acquired 40 miles of right-of—way and started construction on certain
portions when an ordinance took effect prohibiting the use on a four
mile segment where actual construction had not begun. The court ruled
that a vested interest had been acquired by the utility, strongly sug-
gesting that in multi-staged projects the dependency of one phase on
another will determine if a vested interest in a future phase has been

acquired.62

Wyoming Twp. v. Herweyer, 321 Mich. 611 (1948)

 

A vested interest was not obtained by the owner of a trailer

which was located on property in violation of a township ordinance.

115

Drysdale v. Beachman, 359 Mich. 152 (1960).

 

Where a use was lawful but operated in violation of county
health regulations prior to ordinance passage, the court permitted
a vested interest since the county had never complained of the vio-
lations and the owner had made prompt corrections when notified.
However, the court reiterated the point that if the use itself had

been illegal, a nonconforming use would not have been established.

Willingham v. Dearborn, 359 Mich. 7 (1960).

 

An owner applied for a building permit to which he was en-
titled under an existing zoning ordinance. He was refused on the
grounds that his plans showed inadequate setbacks. After he brought
suit, the city amended its ordinance to require the setback it had
demanded. The court refused to consider the new amendment since the
pre-trial conference had been held, and permitted the owner to build.
The result was that the owner obtained a nonconforming use without

actual construction being under way.

Franchise Realty v. Detroit, 368 Mich. 276 (1962).

 

The pre-trial conference had not been held when the amendment

to an ordinance had been passed in a situation similar to Willingham

 

and the court permitted consideration of the amendment. It indicated
that it was proper to consider the case in accordance with the law in

effect at the time the case is heard.

116
Restriction of Nonconforming Use

Commonly, statutes and ordinances restrict the expansion and
repair of nonconforming uses under the assumption they will eventually
fade away. Not only has this assumption generally been proven false,
but without the ability to make repairs or remodel, the nonconforming
use has the propensity to become increasingly disreputable, further
damaging the area in which it is situated.63

The basic notion of nonconforming use precludes a change to

64 However,

another use and most ordinances prohibit such a change.
some ordinances will permit a change in use, if the change is in the
direction of conformity. While this approach may improve a situation,
it has been pointed out that if it is economically feasible to change,
the new use, which may still be nonconforming, will likely be in ex-
istence for a substantially longer time than the original use.65

When the issue of a change in use is litigated, the focus
generally is on whether the change contemplated is sufficient to con-
stitute a change under the terms of the ordinance. Occasionally,
questions of use volume or intensity are brought into change of use
litigation. However, these issues can lead to questions of expansion
or structural changes.66 In the absence of specific ordinance pro-
visions, the courts generally will not permit the expansion of a non-

. 67
conforming use.

117

The restrictions on expansion do not normally preclude altera-
tion or repair of a nonconforming use. However, ordinance provisions
on this point can vary greatly from a complete prohibition except where
necessary to secure health and safety, to the more common provision
which establishes a maximum amount which can be spent on alteration
or repair.68

The issue of nonconforming use repair is difficult, for if the
objective is to eliminate the use, a prohibition on repair will speed
the result. However, while waiting for this process of attrition to
run its course, the effects of dilapidation may endanger attempts to

create viable neighborhoods.

Case Review—-Michigan

Dustin v. Older, 283 Mich. 667 (1938).

 

The court upheld an ordinance preventing expansion of a non-
conforming use even though the addition was necessary for the use to

remain competitive.

Fredal v. Forster, 9 Mich. App. 215 (1968).

 

In considering a nonconforming gravel pit, the court held that
the existing holes could be worked and expanded as long as they re-

mained productive, but no new diggings could be started.

118

Cole v. Battle Creek, 298 Mich. 98 (1941).

 

The court upheld ordinance provision forbidding structural al-
terations where the owner proposed to tear down some dilapidated
buildings and build new additions. This project would have freed

land for conforming uses and not increased size of nonconforming use.

Paye v. Grosse Pointe, 279 Mich. 254 (1937).
The installation of a new store front across two adjoining
stores was held not to be a structural alteration and in violation of
the ordinance since it didn't change the form, character or size of

the building.

Madison Heights v. Manto, 359 Mich. 244 (1960).

 

The court permitted the owner of a nonconforming trailer park
to replace a worn out septic tank field since this constituted normal

maintenance.

Horowitz v. Dearborn Twp., 332 Mich. 623 (1952).
The owner of a nonconforming carnival building was permitted

to replace the canvas covering with aluminum.

White Lake Twp. v. Lustig, 10 Mich. App. 665 (1968).

 

Where owner had expanded a five-car, part-time junk yard to a

ZOO-car full time operation and introduced new processing procedures,

119

it was held that the owner had waived his defense of a nonconforming

USE.

Hillsdale v. Hillsdale Iron and Metal Co., 358 Mich. 377 (1960).
The court held that an area used for the storage of scrap
metal could not be used for the crushing and processing of the metal

even if it was necessary to remain competitive.

Hanson v. Huetter, 339 Mich. 130 (1954).

 

The court held that a conforming addition could be added to a

nonconforming structure which was a conforming use.

Termination of Nonconforming Uses

A nonconforming use generally can be terminated through de-
struction, the act of the owner, or by action of the city.
Normally, the right to a nonconforming use includes the right

69 However, this right is

to restore the use in event of destruction.
qualified when an ordinance provides otherwise. Many ordinances re-

strict the right to rebuild a nonconforming use by providing that the
use cannot be rebuilt if substantially destroyed. The term substan-

tially is often defined in terms of a percentage of the value of the

use. It is the percentage formula which is often the subject of

litigation.70

120

Since a nonconforming use qualifies only if it is lawfully
established when the ordinance becomes effective, logic follows that
the nonconforming use can remain valid only if continued in an un-
broken sequence. Accordingly if the continuation of the use is in-
terrupted by a voluntary act of the owner, the right to continue is
ended.71 Many ordinances recognize this logic and provide for termin-
ation of the nonconforming use upon "abandonment" or "discontinuance"
for a prescribed period of time. While this appears to be a simple
approach to termination, the courts usually require that the owner's
action be voluntary and that the intent to abandon be present.72
Litigation often centers upon the proof of intent to abandon, and on
the conditions which may have created involuntary abandonment such as
war, mortgage foreclosure or depression.73

While it seems established as public policy that nonconforming
uses are injurious to the objectives of zoning, the enabling acts
often fail to address the termination issue adequately. The answer
provided by the statutes in many states, including Michigan, is to
permit termination through condemnation or purchase by the city.74
Since this technique may be distasteful because of cost, many units
of government have sought their own devices. Most notably, the tech-
nique of amortization has been tried in many jurisdictions.

Amortization provisions have become common in ordinances

throughout the United States, with varying degrees of complexity.

121

Its use is based upon the assumption that nonconforming uses are con-
trary to public health, safety and welfare and must cease; but, sum-
mary termination is unlawful. A middle ground is adopted where the
use is permitted for a specified period of time, then required to
cease. This is based on the notion that the owner can use the speci-
fied time period to amortize his investment, thus dulling the econ-
omic shock.75

Amortization has been used since 1929 when the Louisiana
Supreme Court upheld this technique in State ex rel. dema Realty Co.
v. Jacoby, 1235014 (La. 1929). However, other jurisdictions have not
been as receptive, often expressing disapproval except where the use
constituted a nuisance.76 Of course, where a use constitutes a nui-

77 While

sance, the courts generally will uphold summary termination.
amortization has gained increasing approval in recent years, it is
still not universally accepted. Those jurisdictions approving the
technique usually focus upon the reasonableness of the power as
applied, using such tests as whether the hardship to the owner over
balanced the benefit to the public.78 When the technique has been
struck down the decisions are usually based on a lack of statutory

authority or the unreasonableness of the amortization period.79

122

Case Review--Michigan

DeMull v. Lowell, 368 Mich. 242 (1962).
The court voided a 3-year amortization period because it was

not authorized by statute.

Dusdal v. City of Warren, 387 Mich. 354 (1972).

In ruling that there had not been an abandonment of a noncon-
forming use, the court stated that abandonment can only be shown where
there is nonuse combined with an intention to abandon the right to
nonconforming status. The burden of proof is on the city to prove

abandonment.

Rudink v. Mayers, 387 Mich. 379 (1972).

In ruling that there had not been an abandonment, the court
construed the term "discontinued,“ used in the ordinance, to mean
abandoned, and found that the facts did not indicate that the owner
had willfully abandoned his nonconforming status. The necessary ele-
ments of abandonment are "intent and some act or omission on the part
of the owner or holder which clearly manifests his voluntary decision

to abandon."

Fredal v. Forster, 9 Mich. 667 (1938).

The court held that nonuse does not constitute abandonment.

123

Austin v. Older, 283 Mich 667 (1938).

 

An ordinance requiring an immediate cessation of a nonconform-
ing use may be held to be unconstitutional, but an ordinance prohibit-

ing the enlargement of a nonconforming use is proper.

Howell v. Kaal, 341 Mich 585 (1954).

 

The court noted approval of an ordinance provision providing
for the termination of a nonconforming use after a l-year period of

abandonment.

Case Review-~United States

State ex rel. Dema Realty Co. v. Jacoby, 123 So 314 (La. 1929).

The court upheld an amortization period of one year.

City of Los Angeles v. Gage, 274 P2d 34 (Cal. 1954).
The court upheld a 5-year amortization period on a plumbing

business.

Grant v. Baltimore, 212 Md. 301 (1957).

 

In upholding an amortization provision the court stated that
the difference between restricting past use and future use is one of

degree and not of a kind.

124

Edmonds v. Los Angeles County, 255 P2d 772 (Cal. 1953).

 

An amortization provision whereby the period was set by agree-

ment between the county and the owner was upheld.

The Reasonable Application of the Zoning Power

 

In Euclid v. Ambler Realty Co., 272 US 365 (1926), the United

 

States Supreme Court upheld the constitutionality of zoning in prin-
ciple, but admitted that while valid on its face, an ordinance could
be unconstitutional as applied in a specific situation. The court at
395 stated:

It is true that when if ever, the provisions set forth in

tedious and minute detail come to be concretely applied

to particular premises . . . some of them, or even many

of them, may be found to be clearly arbitrary and unrea-

sonable.
In this statement, the court forecast cases where specific provisions
could be examined for constitutional defects or challenged for unrea-
sonableness as they affect specific property.

In 1928, the prediction in Euclid became reality when in Neg;

tow v. Cambridge, 277 US 183 (1928), the court held that an ordinance

 

which rendered a plaintiff's land of ”little value" and did not bear
a substantial relationship to public health, safety and welfare was

unconstitutional as applied. The Nectow case represented the last

125

time, until recently, that the United States Supreme Court became
heavily involved in zoning litigation. However, the effect of the
Negtgw_case was to initiate a great volume of litigation at the state
level which continues today, challenging the constitutionality of
specific ordinance provisions and their application to specific par-
cels of property. The volume of this type of litigation would seem
to indicate a high probability of success for the landowner.80

Zoning to be valid must represent a reasonable exercise of the
police power. As a consequence, the pivotal question in this type of
litigation is whether the ordinance is a reasonable exercise of police
power. If the objective is beyond the scope of the police power, the
courts will generally invalidate, even if the impact of the regulation
is slight. In cases where the objective is within the police power,
but its relationship is slight, the courts may also invalidate. How-
ever, where a regulation substantially advances the public interest,
bearing a strong relationship to the police power, the court will up-
hold the regulation, even where it imposes a severe limitation.8]

In making decisions on the reasonableness of a zoning regula-
tion, the courts often become implicitly involved in balancing public
and private interests, although few courts will admit that this is the

case. Exceptions include the courts in Illinois and New York.82

126

In LaSalle National Bank v. County of Cook, 208 NE2d 430

 

(1965), at 436, the Illinois Court described the factors to be de-

scribed in balancing public and private interests:

The validity of each zoning ordinance must be deter-
mined on facts applicable to the particular case, but
certain general lines of inquiry have been regarded
as relevant, to wit:

1.
2.

3.

existing uses and zoning of nearby property;

the extent to which property values are dimin-
ished by particular zoning restrictions;

the extent to which the destruction of the
property values of the plaintiffs promotes the
health, safety, morals or general welfare of

the public.

the relative gain to the public, as compared to
hardship imposed on the individual property owner;
the suitability of the subject property for the
zoned purposes; and

the length of time the property has been vacant as
zoned, considered in the context of land develop-
ment in the area in the vicinity of the property.

In determining reasonableness and balancing the public and pri-

vate interests, the courts generally have indicated appreciation of

the need to bring order to chaotic community development. However,

while hesitating to deny communities the right to zone and plan, they

have insisted that the rights of the property owner be respected. Thus,

it is not surprising in reviewing court decisions to find the courts

83

attempting to accommodate both interests.

In Michigan, it is the general policy of the courts to refrain

from invalidating an ordinance where there is a debatable question as

127

to reasonableness. A clear showing of unreasonableness must be madef34

In line with this policy, Michigan courts have generally attempted
to resist deep involvement in zoning issues, assuming the role stated

in Brae Burn Inc. v. Bloomfield Hills, 350 Mich. 425, at 430 (1957):

 

this Court does not sit as a superzoning commission. Our
laws have been wisely committed to the people of a commun-
ity themselves the determination of their municipal destiny

. with the wisdom or lack of wisdom of the determina-

tion we are not concerned. The people of the community

. govern its growth and its life.

The role defined for the courts in Brae Burn coincides nicely with the
principle generally accepted in Michigan and other states that a zon-
ing regulation is presumed valid. The burden of proof rests with the
plaintiff to show that the regulation is unreasonable. Once the
plaintiff has made an adequate showing the burden then shifts to the
municipality to rebutt the evidence.85 Of course, the objective of
proof is to demonstrate that the ordinance or its specific application
is unreasonable.

The principles of presumed validity and burden of proof, de-
scribed in the previous paragraph, have recently been challenged in
Michigan and other states. As Crawford points out, the courts will
on occasion require the governmental unit to show that the ordinance
bears a substantial relationship to public health, welfare and safety.
Consequently, he points out that burden of proof principles may be

86

unimportant in actual practice. The courts have also upset the

128

normal allocation of litigation responsibility. Until recently over-

turned in Kropf v. City of Sterling Heights, 319 Mich. 139 (1974), the

 

preferred use doctrine, established in Bristow v. Woodhaven, 35 Mich.

 

App. 205 (1971), shifted the burden of proof under certain circum-

stances to the unit of government. The case of West v. City of Por-

 

tage, 392 Mich 458 (1974), also has raised issues regarding presumed
validity and burden of proof, taking the position that rezonings of
specific property should be heard in an administrative forum with

each side presenting its case as to the reasonableness of the rezoning
request. A similar conclusion was reached in Fasano v. Board of County

Commissioners of Washington County, 507 P2d 23 (Or. 1973) and Oregon's

 

zoning enabling legislation was amended to comply. Recently, in de-
cisions handed down on August 19, 1975, the Michigan Supreme Court in
Sabo v. Monroe Township, Smookler v. Wheatfield Township, and Nickola

v. Grand Blanc Township, used the administrative theory of rezonings

 

advanced in We§t_and trgpt_to invalidate refusals to rezone land for
mobile home parks.

While these disagreements over traditional concepts of pre-
sumed validity and burden of proof do not affect the essence of the
reasonableness requirement, they do involve changes in the way we
judge the validity of zoning. Particularly with regard to Wegt,

Fasano, and more recently Sabo, Smookler, and Nickola, under certain

 

129

circumstances, the traditional perspectives used to adjudicate reason-
ableness would be changed and the actual mechanisms for determining
validity would be altered accordingly. In rezoning matters considered
administrative actions, the traditional presumption of validity en-
joyed by units of government would fall, the court would determine
whether the zoning decision was supported by the evidence presented
in the record and according to Michigan Supreme Court Justice Levin
the question would change from whether the present zoning is reason-
able to whether the proposed use is reasonable.87

Returning to traditional concepts of presumed validity and
burden of proof, the question can be asked: What degree of proof is
required to show that a zoning regulation is unreasonable? As pre-
viously stated, Michigan courts generally will not set aside an ordin-
ance if there is a fairly debatable question as to the reasonableness
of the regulation. There must be a clear showing that it is unreason-
able.88 However, the "fairly debatable question" rule does not pro-
vide an adequate test for determining the adequacy of proof. Feeling
this inadequacy, the Court in Alderton v. Saginaw, 367 Mich. 28 (1962),
stated that there must be more than just a "difference of opinion."
Yet, this test seems hardly an improvement. Perhaps the recommenda-
tion offered by Crawford offers the most practical solution to the

degree of proof question. Noting that the courts decide each case

130

on its own merits, and a reasonableness proof can be very complicated,
he suggests that cases containing similar factors should be consulted
to determine the degree of proof necessary.89 Crawford observes that
the justices seem to look at the record presented and form their opin-
ions without regard to standards of proof.

If they find the zoning unreasonable they say that the

City has failed to show that the ordinance restriction

bears a substantial relationship to the public health,

safety, and welfare. If they reach the opposite con-

clusion, they mention that the person attacking the

ordinance has the burden of proof and that the ordin-

ance is presumed to be reasonable.90

In considering the reasonable application of zoning power,

there are two areas in which reasonableness may be judged: l) the
reasonableness of a regulation in general; or 2) the reasonableness
of a regulation as it is applied to specific property. For the pur-
poses of this discussion, the emphasis will be placed on the reason-
ableness of regulations in general, defined in two categories: 1)
according to such community objectives as aesthetics and floodplain
control; and 2) in relation to zoning techniques such as site plan
approval and PUD's. The reasonable use of zoning as applied to spe-
cific property will be given brief attention, except in relation to

the requirement of uniformity, confiscation, spot zoning, and the

impact of a master plan.

131

According to Communicty Objectives

Exclusion

Exclusion can be thought of in two respects: 1) the total ex-
clusion of a lawful use from a jurisdiction; or 2) the use of zoning
regulations to implicitly exclude a race or class of individuals from
living within a governmental unit. The judiciary generally looks with
disfavor on both types of exclusion.

While Michigan courts have not ruled that total exclusion of a

legitimate use is unreasonable, the Supreme Court in Kropf v. Sterling

 

Heights, 391 Mich. 139 (1974) at 155, stated:

an ordinance which totally excludes from a municipality

a use recognized by the Constitution or other laws of

this state as legitimate also carries with it a strong

taint of unlawful discrimination and a denial of equal

protection of the law as to the excluded use.
Trailer parks and multiple dwellings are two uses which governmental
units often seek to exclude. As the court suggests, such practices
enjoy a high probability of being declared invalid in the absence of
compelling arguments.

While the courts recognize that the objective of zoning is to

control development, they will not condone its use to exclude people
seeking a place to live. Such a purpose is not within the police

power.91 However, since the court is reluctant to examine the moti-

vations of public officials, zoning which obtains exclusionary

132

objectives is often accomplished.92 Yet, courts are becoming increas-
ingly aware of this impact of zoning, and particularly in states other
than Michigan, exclusionary ordinances using such techniques as large
minimum lot sizes have been struck down. Additionally, the State of
Massachusetts has recently enacted an "anti-snob" law to effect more
balanced communities, and the New Jersey Supreme Court has voided an
ordinance which failed to promote a reasonably balanced community,

93 The issue of exclusion in this

recognizing regional housing needs.
context poses difficult problems for zoning for it pits the right of
a community to chart its destiny against the rights of a larger public

to travel and settle in a community of a citizen's choice.

Case Review--Michigan

Green v. Lima, 40 Mich. App. 655 (1972).

 

The right of citizens to suitable housing within their means
in aesthetic areas is basic to a free people and encompassed within
the general welfare phrase. Yet, an ordinance which excludes popula-
tion may still be in furtherance of the general welfare, where the
exclusion is the undesirable side effect of a legitimate community
policy, such as where evidence establishes that construction would
constitute a health hazard. There is no economic justification for

exclusionary zoning. "To allow the first 600 people in an area to

133

exclude all but certain kinds of people . . . subverts the idea of

zoning promoting the general welfare."

Tocco v. Atlas Twp,, 55 Mich. App. 160 (1974).

 

The court invalidated an ordinance whichprovided for mobile
homes but had not zoned any land for such a use; had no mobile home
parks in the township; and had denied a request for a mobile home

park.

Smookler v. Wheatfield Township, 46 Mich. App. 162 (1973).

 

The court rejected an economic justification for excluding
mobile homes. The Michigan Supreme Court on August 19, 1975, affirmed
the Court of Appeals decision on the grounds that the proposed use was

reasonable.

Bristow v. Woodhaven, 35 Mich. App. 205 (1971).

 

In speaking of general welfare, the court stated

that term is not a mere catchword to permit the transla-
tion of narrow desires into ordinances which discriminate
against or operate to exclude residential uses deemed
beneficial. Citizens of the general community have a
right to decently placed, suitable housing within their
means and such right must be a consideration in assess-
ing the reasonableness of local zoning . . . .

This case went on to establish the preferred use doctrine which

was recently invalidated in Kropf v. Sterling Heights.

134
Case Review--United States
Southern Burlington CountnyAACP v. Township of Mount Laurel,
decided March 24, 1975, New Jersey Supreme Court.
The court held that the township zoning ordinance was invalid
to the extent that it failed to provide a realistic Opportunity for

the development of a variety and a choice of housing for its regional

fair share of all classes of persons wishing to live in the township.

Warth v. Seldin, 95 S. Ct. 2197 (1975).

 

The United States Supreme Court ruled that certain residents
and organizations of Rochester, New York, who had brought suit against
an adjacent town claiming that its zoning ordinance was exclusionary
lacked standing to bring the suit. The Court stated that to have
standing, the plaintiffs must show that they personally have been
injured, and not that the injury has been suffered by other, uniden-

tified members of a class to which they belong.

Aesthetics

Evident throughout the history of zoning has been the general
recognition by the courts that general welfare includes more than
health, safety and morals. It is this gradual broadening of what

constitutes the general welfare which provides the basis for

135

aesthetics becoming a legitimate purpose of zoning. Without recogni-
tion that aesthetics can be encompassed within the general welfare
aspect of the police power, courts will continue to strike down purely
aesthetic controls.

Judicial endorsement of aesthetics as a legitimate end of the
police power has been infrequent. Where it has been validated, the
regulation is usually rationalized because it also relates to public
health, safety or welfare.94 A good example of this reasoning is the
setback requirement which has an aesthetic purpose, but is also re-
lated to public safety.

Recently, optimism has been expressed that aesthetic purposes
will be recognized as a reasonable exercise of the police power. This

otpimism occurred in the wake of Berman v. Parker, 348 US 26 (1954),

 

an eminent domain case which established that it was within the power
of the Legislature to determine that a city should be beautiful, and

People v. Stover, 191 NE2d 272 (NY 1963), which held that land uses

 

could be regulated for solely aesthetic purposes. However, this opti-

95
mism has been tempered by the lack of precedents in most jurisdictions.

Case Review-~Michigan

Wolverine Sign Works v. Bloomfield Hills, 279 Mich. 205 (1937).

“Aesthetics may be incident, but cannot be the moving factor."

136

Jourden v. WyomingyTpp,, 359 Mich. 496 (1960).

 

The Court upheld the refusal of the township to permit a junk-

yard near a residential area because of appearance, noise and smell.

Superior Twp. v. Reimel Sign Co., 362 Mich. 481 (1961).
The court held valid a provision which did not permit the

painting of a sign on a barn in an agricultural zone.

McClain v. Hazel Park, 357 Mich. 459 (1959).

 

The court upheld an ordinance provision that a 30 foot set-
back must be beautiful and landscaped against the argument that it

was aesthetic in nature.

Edison CO. v. Wixom, 382 Mich. 673 (1969).

 

The court reiterated the rule stated in Wolverine Sign Works

 

v. Bloomfield Hills.

 

Sun Oil Co. v. City_of Madison Heights, 41 Mich. App. 47 (1972).

 

The court upheld a restriction on freestanding signs not
only for traffic safety reasons but also because it prevented visual
pollution, noting that aesthetic well-being is a valid part of public

welfare.

137

Case Review--United States

Welch v. Swasey, 214 US 91 (1909).

 

The court suggested that aesthetic controls may lie outside

the police power.

State ex rel. Saveland Park Holding Corp, v. Wieland, 69 NW 2d
217 (Wis. 1955).

 

The court upheld an ordinance provision that a building permit
could not be issued for a building so at variance with surrounding

structures that a depreciation in property values would result.

Maher v. City of New Orleans, La. (1974).

 

The state supreme court upheld an architectural control ordin-
ance against challenge that it bore no relationship to the police

power.

Mineral Extraction

The Michigan Supreme Court has taken the position that the re-

moval of valuable mineral deposits should be given special considera-

. . 96
tion unless serious consequences are shown.

138

Case Review--Michigan

N. Muskegon v. Miller, 249 Mich. 52 (1929).

 

The court stated that an ordinance cannot forbid mineral ex-

traction unless serious consequences can be shown.

Certain—Teed Products Corp. v. Paris Twp., 351 Mich. 434 (1958).

 

Even where there are potential surface manifestations of
underground Operations which are not compatible with surface land

uses, such uses can be conducted unless they create a nuisance.

Buckley v. Bloomfield Hills, 343 Mich. 83 (1955).

A city can prevent the operation of a sand and gravel business
in a residential zone. Where sand and gravel are being removed to
prepare for residential use it is reasonable to set a time limit on
gravel removal.

Lyon Sand and Gravel Co. v. Oakland Twp., 33 Mich. App. 614
(1971).

The court ruled invalid performance standards and depth limits
so strict that they prevented removal Operations. Court noted appro-
val of the principle that where needed natural resources are known to
exist in usable quantities, their utilization should be permitted in

a manner compatible with adjacent uses of land.

139

James v. Shelpy_Twp., 41 Mich. App. 461 (1972).
The court refused to permit a sand and gravel Operation where
testimony did not establish the existence or amount of sand and

gravel, or how it could be removed without injury.

Floodplains

While floodplain zoning has been invalidated as confiscatory,
it is generally felt that floodplain zoning can be validated where
the risk of flooding is substantiated and reasonable use of the land

is permitted.97

Case Review--Michigan

Keller v. Farmington Twp., 358 Mich. 106 (1959).
In a case where the floodplain was zoned residential, the
court permitted the owner to fill his site in order to make it usable

despite the argument that this action would cause flooding elsewhere.

Sturdy Homes, Inc. v. Bedford Twp,, 30 Mich. App. 53 (1971).
A floodplain regulation restricting use to single family and
allowing no human habitation was regarded as unreasonable with regard

to land where flooding had never occurred, although the area had

140

suffered from 2 floods. However, the court did not hold that flood-

plain regulations were unreasonable per se.

Adequacy of Services, Facilities
and Tax Revenues

In recent years, units of government have increasingly tried
to use zoning to arrest development which would overtax its services
and facilities. This purpose was recognized in the Standard Zoning
Enabling Act and the courts have been willing to validate this use of
zoning when clearly related to public health, welfare and safety.
However, the courts have noted that cities cannot assume that present
levels Of service will remain unchanged forever. Problems usually
arise when such uses of zoning become exclusionary or new techniques
to control development are introduced which are so restrictive they

deny property owners a profit on their land.98

Case Review--Michigan

Stevens v. Royal Oak Twp., 349 Mich. 548 (1956).
The court upheld the exclusion of a trailer park in residen-
tial area which would have overburdened the school and overtaxed

sewer and water facilities.

141

See also Scholnick v. Bloomfield Hills, 350 Mich. 187 (1957);

 

Lamb v. Monroe, 358 Mich. 136 (1959); VanArodel v. Addison Twp., 37‘

 

Mich. App. 613 (1972).

Smookler v. Wheatfield, 46 Mich. App. 162 (1973).

 

Although a proposed trailer park would double the size of the
township and no police and fire protection was available, the court
held that the increase in burden on the township would not justify
its refusal to zone. Economic reasons cannot justify exclusion. The
Michigan Supreme Court on August 19, 1975, affirmed the decision of
the Court of Appeals on the grounds that the rezoning request was

reasonable.

Wilkins v. Birch Run, 48 Mich. App. 57 (1973).
Given the existence of a master plan, land zoned for mobile
homes, and the absence of an adequate water supply, the legislative
body was entitled to consider the impact of rapid growth. The refusal

to rezone was not unreasonable.

Cohen v. Canton Twp., 38 Mich. App. 680 (1972).
Where the jurisdiction had large areas zoned for mobile homes
and there were inadequate services in the area proposed, the refusal

to rezone was justified.

142

Mulias v. City of Trenton, 31 Mich. App. 535 (1971).

 

Where the refusal to grant a special use permit was based on
the desire to obtain more tax revenues from another use, the action

was declared unreasonable.

Case Review--United States

Molino v. Mayor and Council of the Borough of Glassboro, 281 A2d
401 (1972).

 

An ordinance which excluded children because more schools

would be needed was declared unconstitutional.

Golden v. Planning Board of Ramapo, 285 NE 2d 291 (1972).
Where the city combined a master plan, a zoning ordinance and
a capitol improvements program to phase growth in timing with the
availability of services, the court upheld the ordinance.
Construction Industry Association v. Petaluma; Case No. 74-2100,
U.S. Court of Appeals, August 13, 1975.
The court ruled that Petaluma, a city concerned with its
growth rate, may use zoning to limit the amount of development which

may be permitted each year.

143

Control Over Public Property

Case Review--Michigan

State Highway Commission v. Redford Twp., 4 Mich. App. 223 (1966).

 

The court held that local zoning of land owned by the State

of Michigan is invalid.

Haring Twp. v. Cadillac, 35 Mich. App. 260 (1971).

 

The court permitted a township to enforce its zoning ordinance
against the use of state-owned land by the City of Cadillac for a
sanitary landfill. The decision was based upon a statute requiring

compliance with local zoning ordinances.

Benshaw v. Coldwater Housing Commission, 381 Mich. 590 (1969).

 

The courts held that a housing commission created under the
authority of state statutes could ignore zoning ordinances in the

location of housing facilities.

Taber v. Benton Harbor, 280 Mich. 522 (1937).
The court held that the city could not erect a water tower on

land zoned for another use.

Detroit Edison v. Wixom, 10 Mich. App. 218 (1968).

 

The court held that a city can regulate the location of elec-

trical transmission lines, but the reasonableness of the regulation

144

would be considered in light of how service outside jurisdictional

boundaries would be affected.

Natural Areas

In order to protect agricultural land, and unique and valuable
natural areas, the use of zoning regulations is often proposed. How-
ever, the very nature Of the land to be protected precludes permitting
extensive or intensive use, and thus the problem with zoning controls
emerges. If use of the land is restricted to a great degree, as it
must be to preserve agricultural or natural areas, the issue of con-
fiscation becomes a reality. Zoning to preserve natural areas must
show a reasonable and substantial relationship to the police power
and specifically overcome questions of confiscation to be valid.

The Takipg Issue comprehensively discusses the confiscation
problem in relation to the preservation of natural areas, and while
admitting that it presents a serious problem for land use control,
states that "the popular fear of the taking clause is an even more

99 Particularly during

serious problem than actual court decisions."
the 70's the courts have been increasingly willing to recognize en-
vironmental purposes particularly where the regulations serve broad
multi-purpose goals.100 While new legislation, or a landmark court

decision would help clear the chaotic scene caused by the taking

145

issue, Bosselman feels that a great deal can be done now to use land

use controls to preserve natural areas by basing ordinances on "per-

suasive scientific evidence." Facts are important in any litigation,
but they are particularly important when a taking issue is involved.

The court becomes involved in a balancing test where it must weigh

public need against private 1055.101

In this situation a strong fac-
tual basis for the land use regulation in question can help immensely
in establishing a reasonable relationship to the police power and the

absence of a taking.

Case Review--Michigan

Van Arsdel v. Addison Twp,, 37 Mich. App 613 (1972).

 

The court upheld agricultural zoning as reasonable.

Sturdy Homes Inc. v. Township of Redford, 3O Mich. App. 53 (1971).
The court refused to uphold a floodplain zoning ordinance
where the township failed to prove that the land was subject to flood-

ing.

146

Case Review--United States

Potomac Sand and Gravel Co. v. Governor of Maryland
293 A2d 241 (1972).

 

In upholding an environmental regulation, the court exten-
sively summarized the scientific evidence upon which the control

was based.

Zoning_Techniques

 

Anderson, in The American Law of Zoning, believes that the

 

extensive amount of zoning litigation over the years has resulted
because of three factors: 1) the willingness of the courts to de-
cide each case on its merits and hold a regulation invalid as applied
to a specific parcel; 2) the innovation of planners and lawyers in
developing new zoning techniques which raise arguable questions; and
3) the fact that zoning restrictions place a rigid pattern of land
use on a dynamic community.102 It is quite probable that the bulk

of litigation has resulted because Of the first factor in response

to the effects Of the third, while a smaller proportion has involved

the innovative efforts of planners and lawyers. It can also be rea-

sonably concluded that the efforts of innovative planners and lawyers

147

have been directed toward inducing greater flexibility into a rigid
system, recognizing the problems presented to the courts under Ander-
son's first factor. The merits and deficiencies of such techniques
deserve detailed discussion. However, in the context of this paper,
review will be limited to the court's viewpoint on the use of various
new zoning techniques. An understanding of the legal framework into
which innovation in zoning must fit should assist in reducing the

propensity of each of Anderson's three factors to generate litigation.

Contract and Conditional Zoning

It has been generally held by the courts that when a munici-
pality enters into a contract to zone property in a certain manner
in exchange for valuable consideration, the contract is invalid as
being against public policy.103 The most obvious form of contract
zoning appears when a city provides in its ordinance that in return
for a property owner recording a specific deed restriction the prop-
erty will be rezoned. This type of ordinance provision is declared
invalid on the theory that a unit Of government cannot contract away
its future use of the police power.104

The issue of contract zoning becomes mixed with conditional

zoning as a result of the increasing tendency of local units of gov-

ernment to grant rezonings in return for certain actions by the

148

petitioner, such as roadway improvement or a grant of open space.
Situations such as these raise the question of whether such actions
constitute contract zoning. Additionally, where such requirements
are imposed, which are not stated in the zoning ordinance, a chal-
lenge based on uniformity may be valid.

Rathkopf states that conditions such as the grant of an ease-
ment or the posting of a bond are not permissible as a condition of
site plan approval. However, if the ordinance sets forth standards
which development must comply with, it would not be inappropriate for
a planning board to suggest conditions which should be imposed by the
enforcing authority.105 Since Michigan courts have not definitively
ruled on this question, Crawford advises units of government to re-
frain from granting approval in return for certain actions by an

applicant. Such procedures have been invalidated in other states.106

Case Review--Michigan

Genessee Land Corp. v. Allen, 50 Mich. App. 296 (1973).

 

The court invalidated an ordinance amendment which changed
the classification of a parcel of land subject to a construction and

use restriction.

149

Case Review-—United States

Battaglia v. Wayne Township_P1anningtBoard, 236 A2d 608 (N.J.
1957).

 

The court held that a planning board could not impose condi-
tions on the approval of a site plan because of lack of statutory

authority.

Site Plan Approval

It is common for zoning ordinances to provide for systems of
site plan review and approval. Rathkopf finds that where site plan
review is required by statute or zoning ordinance, the requirement is
mandatory and failure to comply will invalidate the action contem-

p1ated.107

However, a site plan is not the same as a subdivision
plat, and in the absence of specific statutory authority, it is in-
valid to grant a planning board the power to approve a site plan.
The recommendations derived from review can be advisory only, for
consideration by the enforcing authority.108
Again, Michigan courts have not ruled on the validity of site
plan review procedures. It is Crawford's opinion that as an admini-
strative technique used to ensure compliance with the provisions of

the zoning ordinance, it would be upheld in the courts. However,

when site plan approval is used as a lever to gain concessions from

150

the applicant, the courts may consider the technique contract zoning

109 Of course, in the absence of court rulings we are

and illegal.
also lacking a determination as to who may finally pass upon site

plan approval. The case of Smith v. Plymouth Twp. suggests that

 

while the planning commission may perform a preliminary review, it
is the prerogative of the board of appeals to make the final deci-

sion.”0

Case Review-~Michigan

Keating v. Orion Twp., 51 Mich. App. 122 (1974).
The court held that a property owner was entitled to super-
intending control to compel issuance of building permits where rejec-
tion of a site plan was not based on competent and substantial evi-

dence.

Planned Unit Development

Planned unit development provisions of zoning ordinances have
proliferated greatly in recent years. Since this technique varies
significantly from the traditional theory and practice of zoning,
concern has been expressed over its legality. Early commentators had

serious reservations that planned unit development provisions lacked

151

statutory authority, represented an invalid delegation of power to
administrative bodies, would violate uniformity provisions of state
enabling acts, and be subjected to challenge as contract or condi-
tional zoning.]]] To overcome these problems, several states en-
acted enabling legislation for planned unit development ordinances
or amended their zoning enabling acts. Yet, it was found that even
in the absence of these actions designed to validate PUD's, local
units of government continued to add PUD provisions to their ordin-
ances. This lack of hesitation can be explained by the popularity
of PUD and the fact that the basic validity of the PUD concept is
rarely litigated; not for lack of issues, but for lack of willing
plaintiffs.]]2

In retrospect it is now acknowledged that the theoretical
objections to PUD's have not been a major obstacle to successful
implementation. While specific enabling acts can be very helpful,
they are not considered a prerequisite for legality. The greatest
problems, and the bulk of litigation, arise in respect to the pro-
cess element of PUD approval. Indeed, the aspects of PUD's which
have drawn the greatest disapproval from the courts have been pro-
visions which vest unfettered discretion in the approving body, or
actions by the approving body which violate the discretion allowed

by the ordinance or the principles of due process.]13

152

Michigan appears to have followed the pattern set nation-
wide: PUD's have increased greatly in the absence of statutory
authority without challenge as to concept. Crawford had expressed
confidence that if the issue arises, Michigan courts will find an
argument to validate the use of PUD's. Yet, specific statutory

authorization would certainly eliminate speculation and confusionJ14'

Case Review--United States
Orinda Homeowners Committee v. Board of Supervisors
11 Cal. App. 3d 786 (Cal. 1970).
The court upheld a PUD provision against the challenge that

it violated the uniformity requirement of the enabling act.

Floating Zones

This technique where a zone is provided for in the ordin-
ance, but not mapped until approved, has been generally approved by
the courts in other states, but remains controversial. Perhaps the

most noteworthy rejection occurred in the case of Eves v. Zoning

 

Board of Adjustment, 401 Pa 211, 164 A2d7 (1960), where the Pennsyl-

 

vania Supreme Court invalidated the floating zone technique for fail-

115

ing to be based on the comprehensive plan. Since this decision,

153

116 The floating

Pennsylvania courts have softened their viewpoint.
zone technique has also been challenged as spot zoning.

In Michigan, floating zones have not been specifically vali-
dated by the courts. In addition to the arguments of spot zoning and
noncompliance with the comprehensive plan, Michigan courts are highly
suspicious of this technique because of its tendency to be used for

. 117
exc1u51onary purposes.

Case Review--Michigan

Prevost v. Macomb Twp,, 6 Mich. App. 462 (1967).

The court indirectly approved the floating zone technique.

Anderson v. Highland Twp., 21 Mich. App. 64 (1969).
The court disapproved a floating zone in a situation where

it was used to exclude mobile homes.

Case Review--United States

LaRue v. East Brunswick, 172 A2d 691 (NJ).
The court upheld an amendment which had been characterized
as a "floating use“ since it permitted development of multiple dwell-

ings in five of a township's eleven zoning districts.

154

Rodgers v. Village_of Tarrytown, 96 NE2d 731 (NY).

 

In a case where an ordinance which established the boun-
daries of a zone upon application by a landowner, was challenged
as not being in accord with the comprehensive plan, the court upheld

its validity.

Rogers v. North American Philips Co., 236 NY 52d 744 (1962).

 

The court upheld two-step zoning which is sometimes re-

ferred to as a floating zone.

As Applied to Specific Property

 

Since Nectow v. City of Cambridge, 277 US 183 (1927),

which struck down an ordinance as it applied to a specific parcel,

a large percentage of the zoning litigation has involved the unrea-
sonableness of an ordinance as it affected a single piece of prop-
erty. Since generally the ordinance enjoys presumed validity, it is
the plaintiff's responsibility to present proof of unreasonableness.
In regard to a specific parcel this has been accomplished in a number
of ways, with the most common being the charge of confiscation. Other
arguments include spot zoning, relationship to the plan and factors
unique to the property in question. Since the courts hear cases in

this type of litigation on their own merits, it is difficult to find

155

with similar facts to form precedents. Often it is only possible to

discern trends in judicial opinion.

Factors Influencing Unreasonable Zoning

Since it is outside the sc0pe and intent of this thesis to
describe in detail the many factors and related cases which have
affected the reasonableness of a zoning classification, only a curs-
ory examination will be presented. Certain common factors which seem
to reappear with appropriate case citations are summarized. It is
also noteworthy to mention that often more than one factor must be
present to make a zoning classification unreasonable as applied to

a parcel.

Traffic

White v. Southfield Twp,, 347 Mich. 548 (1956).

 

Lamb v. Monroe, 358 Mich. 136 (1959).

 

Burrell v. Midland, 365 Mich. 136 (1961).

 

Nuisances--Noise, Smoke, Odors

Grand Trunk W. R. Co. v. Detroit, 326 Mich. 387 (1949).

 

156

West Bloomfield Twp. v. Chapman, 351 Mich. 606 (1958).

 

N. Muskegon v. Miller, 249 Mich. 52 (1929).

 

Nearby Uses

Pringle v. Shevnock, 309 Mich. 179 (1944).

 

Janesick v. Detroit, 337 Mich. 549 (1958).

Site Suitability

N. Muskegon v. Miller, 249 Mich. 52 (1929).

 

Keller v. Farmington Twp., 358 Mich. 106 (1959).

 

Jurisdictional Boundaries

Commerce v. Bayberg, 5 Mich. App. 554 (1967).

 

Population Density

Krause v. Royal Oak, ll Mich. App. 183 (1968).

 

Lot Size, Shape

Korby, v. Redford Twp., 349 Mich. 193 (1957).

157
Improvement Costs

Baker v. Algpnac, 39 Mich. App. 527 (1972).

Building Restrictions

Northwood Properties Co. v. Royal Oak, 325 Mich. 419 (1949).
Abrams v. Shugar, 336 Mich. 59 (1953).

Lamb v. Monroe, 358 Mich. 136 (1959).

Property Values

West Bloomfield Twp. v. Chapman, 351 Mich. 606 (1958).
Senefsky v. Huntington Woods, 307 Mich. 728 (1943).

Moreland v. Armstropg, 297 Mich. 32 (1941).

Availability of Services

Jamens v. Shelby Twp., 41 Mich. App. 461 (1972).

Stevens v. Royal Oak Twp., 342 Mich. 105 (1955).

Lack of Demand

Frendo v. Royal Oak Twp., 342 Mich. 105 (1955).

Wenner v. Southfield, 365 Mich. 563 (1962).

158

Discriminatory Enforcement

Blackman Twp. v. Koller, 357 Mich. 186 (1959).

 

Unreasonable Grouping

Shell Oil v. Livonia, 3O Mich. App. 454 (1971).

Mobile Oil Corp. v. Clawson, 36 Mich. App. 46 (1971).

 

Reliance on a Zoning Classification

June v. Lincoln Park, 361 Mich. 95 (1960).

Raabe v. Walker, 383 Mich. 165 (1970).

Uniformity

The zoning enabling statutes generally require that the
regulations within a district must be uniform. The intent of such
provisions is to ensure that the zoning power will not be applied
in a discriminatory manner, ensuring that all citizens will receive
equal protection of the laws. The uniformity rule can become an
issue in spot zoning, conditional zoning, or in regard to the planned
unit development provisions of an ordinance. In each of these in-

stances, zoning regulations may be established which do not apply

159

uniformly throughout the zoning district and thus become the object
of a uniformity challenge.

The question of what uniformity refers to has been raised.
Some argue that the uniformity rule means that all uses within a
district must be the same. However, it has been substantiated that
the real point of the uniformity provision is to ensure that property

“8 Thus,

owners having similar circumstances will be treated equally.
under this interpretation, different uses as well as different regu-
lations could be permitted within a district without violating the
uniformity requirement.

This reasoning appears to be supported by Crawford, who
points out that while site plan approval could violate the uniform-
ity rule, conditional uses are valid since they are established by
ordinance and the regulations applicable to that use apply uniformly

throughout the zoning district.119

Case Review--Michigan

Pennipgs v° Owens, 340 Mich. 355 (1954).

 

The court invalidated the spot rezoning of two lots stating

that it was a means of circumventing the uniformity rule.

160

Spot Zoning

The term "spot zoning" appears frequently in zoning law; how-

120 Anderson has de-

ever, it is infrequently litigated in Michigan.
fined spot zoning as generally an amendment which reclassifies a small
parcel in a manner inconsistent with existing zoning patterns, for the
benefit of the owner and to the detriment of the community.121 While
the size of the parcel frequently comes to mind when spot zoning is
mentioned, the courts frequently point out that size alone is not a
controlling factor.122 The decision as to whether spot zoning has
occurred can be complex, involving such factors as:

l. compliance with a master plan;

2. size of the parcel;

3. the development and classification of adjacent land;

4. relationships to existing zoning patterns;

5. the history of the amendment; and

6. the benefits or detriments which may accrue to the owner,
neighbors and the community.123

Crawford has pointed out the spot zoning issue illustrates a
basic problem in attempting to regulate land use through zoning. It
may be beneficial in residential areas to permit a small commercial
establishment for the benefit of the residents. However, this may be

challenged as spot zoning. Even if such an action is found reasonable,

161

then the unit of government runs the risk that another property owner
may request commercial rezoning and to refuse would subject the city

124

to charges of discrimination. The spot zoning problem seems to

indicate yet another aspect of zoning where the technique has pre-

cluded a flexible response to the realities of living patterns.

Case Review——Michigan

Penning v. Owens, 340 Mich. 355 (1954).

 

In a case where a parcel in a residential area was rezoned
commercial, the court stated that any spot zoning is to be regarded
with suspicion, closely scrutinized and sustained only under rather
unusual facts. The court noted that a zoning ordinance or amendment
creating a small zone of inconsistency in land use within a larger

zone is commonly designated spot zoning.

Case Review—-United States

Jones v. Zoning Board of Agjustment, 108 A2d 498 (NJ 1954).
The court stated that spot zoning was the singling out of a
small parcel for a totally different use classification for the bene-

fit of a landowner. Spot zoning is the antithesis of planned zoning.

162

Wiley v. Town Council of Barrington, 261 A2d 627 (1970).
The validity of spot zoning does not turn on size but on con-

sistency with the plan.

Confiscation

The United States Constitution in Amendment V contains the
words "nor shall private property be taken for public use without just
compensation." It is these words which have formed the basis for the
argument that a zoning regulation has resulted in a "taking" of prop-
erty and thus is unlawful, and an unreasonable exercise of the police

power. Based upon the rule set down by Justice Holmes in Pennsylvania

 

Coal Company v. Mahon, 260 US 393 (1922) the courts are agreeable to

 

this argument when they find that the regulation is so severe that
reasonable use, and thus the property value, of the land has been sig-
nificantly lowered. The rule established by Justice Holmes is stated
as:

The general rule at least is, that while property may

be regulated to a certain extent, if regulation goes

too far it will be recognized as a taking.125

In line with the reasoning set forth by Justice Holmes, the

courts have used a balancing test in determining when a taking has
occurred. The public benefit is weighed against the extent of loss

126

of property values. Since this process is less than precise and

163

can vary immensely from court to court and case to case, the decisions

‘27 The

involving the taking issue have been described as "chaotic."
interpretations vary from state to state and the thresholds at which
takings occur do not follow a discernible pattern. Yet, it has been
pointed out that the courts show a general tendency to be more~suppor-
tive of regulations with a strong factual basis which serve multi—
purpose goals.128

The situation in Michigan is no different. An ordinance
which renders property valueless will be invalidated. However, if
the property retains value the question is how much can that value

be reduced as a result of zoning before a taking occurs. There are

no monetary guidelines.

Case Review--Michigan

Reibel v. Birmingham, 23 Mich. App. 732 (1970).

 

The court upheld a residential zoning classification despite
the fact that the land value would be ten times higher for office use.
The fact that a zoning regulation confiscates a segment of the value
of property does not make it confiscatory. Zoning of a particular
property, though rational, which prevents any reasonable use is con-

fiscatory and invalid.

164

Industrial Land Co. v. Birmingham, 346 Mich. 667 (1956).
The court struck down residential zoning where the land value

was 3 times higher for business use.

Drummer v. Avon Twp,, 51 Mich. App. 21 (1973).

 

The court did not accept confiscation argument where owners
had paid more for the land than it was worth under existing zoning
hoping to have it rezoned. When property is being used and is of
substantial value when4put to that use, the confiscation argument

is not valid.

Patchak v. Lansing_Twp,, 361 Mich. 489 (1960).

 

A showing of highest and best use for a parcel may not be
sufficient to establish reasonableness. The test of reasonableness
is not the fact that property would be worth more under another zon-

ing classification.

Impact of the Plan
As discussed in a previous section, the enabling statutes re-
quire zoning to be accomplished in accord with a comprehensive plan.
This requirement would appear to reveal a legislative intent to limit
the freedom of units of government to arbitrarily establish districts
129

and regulations. Since the plan requirement exists in statute it

would appear probable that a logical challenge as to the reasonableness

165

of zoning as applied to specific property would be lack of, or in-
consistency with a plan.

Anderson finds that as a general issue, the plan has not
assumed the importance in litigation that the statutory authority
would suggest. Usually the courts recognize that communities are
constantly changing and the plan may well be out of date or inap-
propriate. Rather than consider whether an amendment is consistent
with a plan, the courts will inquire whether the proposed change
will serve the public health, safety and welfare. If they are sat-
isfied that the amendment meets this test, they consider it adopted
in accord with the plan.130

In Michigan, several court cases have considered the plan in
determining the reasonableness of a zoning classification. Particu-
larly noteworthy in this state is the “present use“ rule established
in Gust v. Canton Twp., 337 Mich. 137 (1955), where the court held
that zoning must be reasonable under present conditions. The court
stated:

The test of validity is not whether the prohibition may
at some time in the future bear a real and substantial
relationship to the public health, safety, morals, or
general welfare, but whether it does so now.1
The decision in Gget has been interpreted as greatly restrict-

ing a unit of government's ability to base zoning on a plan. Yet, a

number of court decisions have subsequently used the plan as a basis

166

for finding zoning reasonable, specifically when the plan has been
adopted by the units of government. Crawford suggests that the de-
cision in Padover v. Farmington Twp., 374 Mich. 622 (1965) signaled
the beginning of greater attention by the courts to the existence

of an adopted plan as a test of reasonableness. And, while the figgt.
rule still remains in effect, the courts are willing to consider the
plan as evidence of reasonableness, provided they find the plan accu-
rate and realistic. Crawford speculates that a future test used by
the courts in determining the reasonableness of a plan may be evi-

dence of its implementation.132

Case Review--Michigan

Gust v. Canton Twp., 337 Mich. 137 (1955).

 

The court held that zoning must be reasonable under present

not future conditions.

Padover v. Farmington Twp, , 374 Mich. 622 (1965).
In upholding large lot zoning, the court placed great weight

on an adopted master plan as evidence of reasonableness.

Bisek v. Troy, 381 Mich. 611 (1969).
The court found that an unadopted master plan was too specu-

lative to support a zoning decision.

167

Baker v. Algonac, 39 Mich. App. 527 (1972).
In approving a contested rezoning, the court made mention

that the rezoning was in accord with a master plan.

FOOTNOTES

1Donald G. Hagman, Urban Planning and Land Development Control

 

Law (St. Paul: West Publishing Company, 1971), p. 68.

2Ibid., p. 71.

3State of Michigan Executive Office, Michigan Planning_end
Zoning Survey (Lansing, Michigan: State Planning Division of the
Executive Office, 1972).

 

 

4Ib'id.

5Robert M. Anderson, American Law of Zoning, I (Rochester,
New Yorki The Lawyers Co-operative Publishing Company, 1968), p. 45.

6Hagman, p. 68.
7
Anderson, p. 46.

8Hagman, p. 68; zoning through eminent domain was used in
Minnesota and some parts of Kansas City are still zoned in this
manner. The approach used in Kansas City was recently upheld in
City of Kansas City_v. Kindle 446 SW2d 807 (MO 1969).

 

9Anderson, p. 47; cases upholding zoning prior to 1926 in-
cluded State ex rel. Carter v. Harper 196 NW451 (1923), State ex.
rel. Beery v. Hougton 204 NW 569 (1925), Aurota v. Burns 149 NE 784
(1925), Ware v. Wichita 214 P 99 (1923).

 

 

 

1OEuclid v. Ambler Realty Co. 272 US 365 (1926), at 387.

HIbid., at 388.

168

169

12Ibid.. at 395.

13R. s. D'Amelio, Origin of City and Village Zoningyin Michi-
gan_(unpublished report, n.d.), p. l.

MAnderson, p. 140.

15Clan Crawford, Michigan Zoning and Planning(Ann Arbor:
Institute of Continuing Legal Education, 1967), p. 1—2.

 

16Anderson, p. 133.

17Ibid., p. 158; see Ellison v. City of Ft. Lauderdale 183
SoZd 193 (1966).

18Hagman, p. 81; see Albrecht Realty_Co. v. Town of New

Castle 167 NYS 2d 843 (1957).

19Anderson, p. 155.

201bid., p. 159.

21Ibid., p. 230.

22Ibid., p. 233.

23Ibid.. p. 234.

24Arden H. Rathkopf, The Law of Zoning and Planning (New York:
Clark Boardman Company Ltd., 1974), p. 9-2.

 

ZSIbido 9 pa 9-90

26Crawford, p. 8-51.

27Ipid., 1974 Supplement, p. 66.

170

28Anderson, p. 168.

29Anderson, p. 170.

30Anderson, p. 182.

31Ibid., p. 175.

321bid., p. 175.

33Hagman, p. 82; other states include Arizona and Ohio.

34Hagman, p. 82; see Hurst v. City of Burlinghame (Cal) 277 P
308 (1929).

 

3516id.. p. 83; see Johnson v. Oaremont (Cal) 323 P2d 71 (1958).

 

36Ibid., p. 83; see Aller v. Humboldt County Bd. of Supervisors

(Cal) 50 Cal Rptr 444 (1966).

 

37Ibid., p. 85; see Alexander v. City of Minneepolis, 125 NW

2d 583 (1963), and State ex rel. Kramer v. Schwartz (Mo), 82 SW2d63
(1935).

 

 

3816id., p. 85; see Miller v. Board of Public Works (Cal),
234 D 381 (1925), Mettu v. County Commissioners Of Howard County
(Md) 129 42d 136 (1957), Rockaway Estates v. Rockaway Twp, (NJ)
ll9A2d 461 (1955).

 

 

 

39Anderson, p. 284.

40Crawford, p. 6-8.l

411bid., p. 6-8 1

42Crawford, p. 6-15.

171

43Anderson. II, p. 608.

44Ibid., p. 613.

4516id.. p. 668.

46Hagman, p. 197.

47Ibid., p. 197.

48Crawford, 1974 Supplement, p. 6-11.

49Mitchell v. Graval, 338 Mich 81 (1953).

50Smith v. Plymouth Twp. 346 Mich S7 (1956), Shulhan v. Ham-
tramck, 5 Mich App 399 (1966), Burch v. Bloomfield Hills, 30 Mich App
246 (1971).

 

51Clan Crawford, remarks at Conference on Zoning and Planning
sponsored by the Institute for Continuing Legal Education, January
24-25, 1975, Southfield, Michigan.

52William R. McTaggart, Handbook of Michigan Zoning and Plan-
ning (Lansing, Michigan: Michigan Township Association, 1970), sec.
21.11.

53Hagman, pp. 207-208.

54Anderson, p. 308.

55Hagman, p. 154.

56Anderson, p. 323.

57Anderson, p. 326.

58

59

6O

61

62

Ibid., p.

Ibid., p.

Ibid., p.

Ibid., pp.

Crawford,

63Anderson,

64

65Hagman, p.

66

67Hagman, p.

Ibid., D.

Anderson,

68Anderson,

69

OHagman, p.

71

2Hagman, p.

73

74

Ibid., p.

Anderson,

Anderson,

Ibid., p.

172

327.

328.

341.

343-344.

1974 Supplement, p. 5-10.

p. 376.

377.

150.

p. 381.

149.

pp. 419-420.

429.

152.

p. 434.

153.

p. 437.

446.

173

7516id.. pp. 446-447.

76Ibid., p. 447.

77Hagman, p. 160.

78Seattle v. Martin, 342 P2d 602 (1959).

 

79Anderson, p. 450.

801bid., p. 60.

811bid.. pp. 80-81.

82Ibid., p. 82.

83Anderson, p. 60.

84Crawford, p. 7-2.

85Anderson, p. 70, 71.
86Crawford, p. 7-6.

87Kropf v. City of Sterlinngeights 391 Mich 139, 147, con-
curring opinion 6y Justice Levin.

88Brae Burn, Inc. v. Bloomfield Hills 350 Mich 425 (1957).

89Crawford, p. 7-5.

901bid., p. 7-7.

91Anderson, p. 552.

174

921bid.. p. 552.

93"Should the Courts Control Growth." Planning. November,
1974, p. 17.

94Anderson, p. 498.

95Ibid., p. 499.

96Crawford, p. 8-105.
97Hagman, p. 115.

98Anderson, p. 543.

99Fred Bosselman, The Taxingylssue (Washington, D.C.: U.S.
Government Printing Office, 1974), p. 328.

 

100Ibid.. p. 323.

101Ibid., p. 284.

102Anderson, p. 31.

103Crawford, p. 2911.

104Hagman, p. 174.

105Rathkopf, pp. 30-18 and 30-19.

106Clan Crawford; remarks at Conference on Zoning and Planning
sponsored by the Institute for Continuing Legal Education, January
24-25, 1975, Southfield, Michigan.

107Rathkopf, pp. 30-8 and 30-9.

175

10816id.. pp. 30-13 and 30-15.

109Clan Crawford; remarks at Conference on Zoning and Planning
sponsored by the Institute for Continuing Legal Education, January
24-25, 1975, Southfield, Michigan.

noIbid.

HlFrank S. So, David Mosena, and Frank S. Bangs, "Planned
Unit Development Ordinances," The Planning Advisory Service, Report
No. 291 (May, 1973), 45.

112Ibid., p. 47.

1]31616., p. 54.

H4Clan Crawford; remarks at Conference on Zoning and Planning
sponsored by the Institute for Continuing Legal Education, January
24-25, 1975, Southfield, Michigan.

115Anderson, pp. 285-287.

H650, p. 49.

H7Clan Crawford; remarks at Conference on Zoning and Planning
sponsored by the Institute for Continuing Legal Education, January
24-25, 1975, Southfield, Michigan.

n850, p. 48.

HgClan Crawford; remarks at Conference on Zoning and Planning
sponsored by the Institute for Continuing Legal Education, January
24-25, 1975, Southfield, Michigan.

120Crawford, p. 8-55.

12lAnderson, p. 242.

176

1221616.. p. 255.

123Ihid., p. 244.

124Crawford, p. 8-56.

125Pennsylvania Coal Company v. Mahon, 260 US 393 (1922). at

415.

126Bosselman, p. 321.

127Ibid., p. 322.

1281616.. p. 323.

129Crawford, p. 8-51.

130Anderson, p. 237.

13IGust v. Canton Twp., 337 Mich. 137 (1955), at 442.

 

132Clan Crawford; remarks at Conference on Zoning and Planning
sponsored by the Institute for Continuing Legal Education, January
24-25, 1975, Southfield, Michigan.

THE VALUE OF THE LEGAL PERSPECTIVE IN ZONING

Chapter IV

THE VALUE OF THE LEGAL PERSPECTIVE IN ZONING

As the preceding review of Michigan court cases related to

zoning indicates, failure to understand the case law relating to zon-
ing leaves the planner with only a partial picture of how the zoning
power may be used. The planner who reads the enabling statute and
attempts to use zoning, applying planning perspectives unenlightened
with knowledge of applicable legal doctrines, runs the risk of either
not using zoning to its full potential, or abusing the use of the
power in a manner which may be invalidated in a legal proceeding,
or go unchallenged, but violate principles of fairness and equity.
An awareness of the case law related to zoning is just as important
to the creative use of this power, as a sensitivity to the planning
Objectives which give the power meaningfulness, purpose, and useful-
ness.

Case law in a dynamic sense provides guidelines for the use
of zoning, derived on a case specific basis, which sets contemporary
parameters defining a balance between public needs and individual
rights, as well as limits on how the power may be exercised, achiev-
ing this balance in an equitable manner. The planner should be

177

178

interested in these guidelines not only because he wants to ensure
that his actions will be legally valid, but also because he recog-
nizes that his Objectives will only have meaning if reached within
an atmosphere of fairness and justice.

The question can now be asked, how does the planner incorpor-
ate a knowledge of case law on zoning into his planning practice?
Quite Obviously, the most overt manner occurs when a planner is in-
volved in the most rudimentary aspects of zoning--the adoption, amend-
ment, and administration of a zoning ordinance. During these most
basic zoning activities the planner must know how to properly perform
a series of procedural functions in order to validly complete a zoning
action. Failure to complete the basic procedural requirements con-
tained in the enabling statute and relevant court cases will invali-
date the zoning activity. For example, how many public hearings on
the amendment of the zoning ordinance must be held? Should notice
of the public hearing be given? How should the notice be given?

Who should it be given to? What information should be contained in
the notice of public hearing? In Michigan, a planner confronted with
these elementary questions would have to be cognizant of a number of
variables. He would first have to know which enabling act to consult
--city-village, county, township. The proper act would tell him how
many hearings are required, and how and to whom notice should be

given; except if he were Operating in a city or village. The

179

City-Village Enabling Act is not clear as to how many hearings are
required. Thus, to avoid an error with respect to public hearing,

an awareness of the Supreme Court Decisions in Bingham v. Flint,

 

Haven v. City of Troy, and Boron Oil v. Southfield would be necessary.

 

 

These decisions require cities and villages to hold two public hear-
ings-~a practice different from that required for Michigan counties
and townships. With respect to what must be contained in the notice
of public hearing, the enabling acts would not offer answers to the
planner. However, were he simply to make up a notice he would run
the risk of improper notification. The courts are very concerned
that citizens receive an Opportunity to be heard and have been care-
ful to insure that adequate notification has been given. The planner
would benefit from an awareness of various court decisions which taken
together indicate the need for a proper notice to indicate: 1) the
type of zoning action contemplated; 2) the geographic area affected
by the zoning proposal; and 3) the date, time, and place of the
hearing.

Thus, it is evident that with regard to such a basic function
as holding a public hearing On a zoning matter, the planner must have
more than the desire to use zoning effectively and a copy of the zon-
ing ordinance. In the situation described above, he would be required

to consult the appropriate enabling statute, and have a knowledge of

180

relevant case law. No matter how noble his planning objectives may
be, in the absence of adequate legal knowledge his actions might not
only fall short of their potential effectiveness, they could be 1e-
gally invalid.

While the procedural concern expressed above appears very
fundamental and of little consequence, it is important to the valid-
ity of zoning actions and cannot be overlooked or improperly accom-
plished. These procedural concerns also become more important and
more difficult to deal with when the planner becomes involved in
more sophisticated zoning techniques such as planned unit development,
site plan review and approval, bonus zoning, and special use approval.
New zoning techniques, such as those mentioned, Often lack a statutory
basis to define if they can be legitimately used, or how they may be
used. Thus the planner involved in implementing such techniques
shoulders a heavy responsibility not only to insure that they support
planning objectives, but that the actions of the governmental unit
will be conducted in a lawful manner and will be safe from legal
challenge. It would be extremely unfortunate for worthwhile develop-
ment goals to be blocked by an avoidable legal infraction.

By way of example, let's look at the planned unit development
technique--a zoning procedure used extensively in Michigan zoning

ordinances. Aside from the fact that there is no specific

181'

authorization for the use of this approach to zoning in the enabling
acts, there are several legal pitfalls which could result in invali-
dation of planned unit development approvals. Potential legal prob-
lems for planned unit development approval systems involve the prin-
ciples of substantive and procedural due process, and equal protection,
which spawn arguments such as uniformity, spot zoning, floating zones,
contract zoning, improper delegation of administrative authority, and
lack of relationship to a plan. Assuming that a PUD can be legiti-
mized under existing enabling acts, each of the legal arguments men-
tioned above could be used to seek invalidation of PUD provisions.
And, while each of these legal arguments connote a slightly different
objection, and thus a different factual situation for support, they
all deal with the manner in which PUD provisions are structured in
the zoning ordinance, and, as a consequence, exercised in response
to specific deve10pment requests. A planner with a knowledge of these
potential legal pitfalls would be able to construct ordinance provi-
sions for PUD's with a high degree of effectiveness, and a lower prob-
ability of legal challenge.

For example, it is not uncommon in Michigan ordinances to find
that the PUD stands as a separate zoning district which is not mapped
on the zoning district map. A developer seeking to build a PUD requests

that his land be zoned as a PUD district. Upon approval of his request,

182

a PUD zoning district is placed on the zoning map, geographically de-

fined by the boundaries of the applicant's property. This approach

to PUD's requiring rezoning of property, runs the risk of potential

legal challenge based on the charge that it is:

1)

spot zoning, if the development encompasses a small area of
land, is inconsistent with surrounding land use patterns,
and was approved for the benefit of one landowner without

necessarily being in the public interest; or

a floating zone, where the zoning district is only mapped upon
the request of a landowner, and lacks a basis in a predeter-

mined zoning plan as required by statute; or

violative of the uniformity rule which requires similarly
situated land uses of the same type within a zoning district

to be subject to the same requirements; or

contract zoning, where the legislative body bargains away
future law-making powers by granting a rezoning-~a legislative
act--in return for certain concessions given to the govern-

mental unit by the landowner, such as parks or streets.

As an alternative, ordinances which permit PUD's as special

uses within predetermined and mapped zoning districts defuse the legal

183

arguments raised above, and provide an administrative basis for deci-
sion which is less likely to violate the principles of due process,
and equal protection, or raise the arguments of contract zoning, and
improper delegation of administrative authority. This assumes of
course that legally correct administrative procedures, complete with
decision criteria, have been built into the zoning ordinance.

In addition to the ability to complete zoning procedures and
design zoning techniques with a greater assurance of legal validity,
a knowledge of the legal perspective of zoning permits this tool to
be applied more effectively to resolve specific development problems.
For a planner adopting the problem-specific model of planning, this
capability is a vitally important ingredient to the creative and
effective use of zoning to support planning objectives.

The problem-specific focus in the use of zoning may result
because of the need to react to a specific development request, or
in response to an Observed community development problem and the de-
sire to use zoning, either alone or in concert with other tools, to
resolve the dysfunction. The use of zoning in a problem response
situation requires an ability to interrelate the characteristics of
the problem, solution objectives, community planning policies, the
capabilities of the zoning power, and the legal parameters on use

of zoning into a strong and effective solution strategy. Of course,

184

this strategy, or strategy alternatives, would be plugged into the
problem-specific model of planning utilizing other appropriate forms
of professional synthesis, impact analysis and solution evaluation
and realignment.

The manner in which knowledge of the legal perspective of
zoning can assist in developing a strategy to confront a deve10pment
problem can best be illustrated by considering a situation which
occurred in southwestern Michigan. In this instance, zoning did not
represent the total solution to the problem, but it did provide one
element of a strategy to prevent further aggravation of an unfortun-
ate situation.

A parcel of property near Lake Michigan was platted during
the 1920's into over 1200 residential lots measuring 20 by 100 feet.
Over the intervening years scattered development of substandard sea-
sonal homes occurred in this plat. At the present time, growth pres-
sures from the adjacent metropolitan area are being felt in the town-
ship and there is concern among public Officials that this plat, un-
served by sewer and water, will become densely populated with greater
numbers of substandard structures. The question posed is can zoning
be used to encourage more suitable housing development in this area.

Of course there are a number of other tools which could be

used to resolve this problem, including building codes, health codes,

185

acquisition, community renewal, and plat revision. However, when you
consider the fact that this previously rural township has limited fin-
ancial resources, such costly approaches as acquisition or community
renewal become rather unrealistic. Since a diverse ownership pattern
is present in the plat, and those large areas which are in single
ownership are being held for speculation, plat revision would require
great township initiative and should there be resistance, extremely
high legal fees could result. Thus, it is understandable why the
township would resort to zoning as a solution, although other t0015
such as building codes should not be neglected. They should be posi-
tively arrayed in complementary roles.

In looking at zoning as a method to ameliorate the problems
this plat may cause for the township, several characteristics should

be isolated:

1) Which, and how many parcels of property have already been

developed?

2) What are the ownership patterns; single lot or several lots;

contiguous or scattered?

3) Are public utilities serving the plat?

4) What is a suitable type and intensity of development, consid-

ering natural determinants, as well as the presence of

186

adjacent development, and the capability of existing public

facilities and services serving the plat?

5) What land use needs are present in the township and surround-
ing area? Are housing opportunities for a wide range of

socio-economic groups available in the township?

6) What land use is recommended for the platted area in light of

township plans and future development objectives?

In this situation the existing residential use of the plat
was appropriate. The question of desirable and reasonable residen-
tial density requirements had been faced by the planners dealing with
the township after considering housing needs, the diversity Of hous-
ing types permitted by the zoning ordinance, the lack of public util-
ities, and the environmental character of the area. The remaining
question was how can zoning be legally applied to promote better de-
velopment.

After a review of releuant court cases, the following legal
guidelines were uncovered to help shape a strategy which would not

only be effective, but rest on sound legal ground:

1) Existing developed lots must be considered nonconforming.
This principle is established in the enabling acts. Provi-

sions can be built into an ordinance requiring conversion

187

to a conforming use and structure upon abandonment or destruc-
tion. Meanwhile, building and health codes must be relied

upon to insure healthful living conditions.

2) Where zoning provisions leave the owner of a lot with a build-
able area which is impossible to use, the ordinance provision
is unreasonable and invalid. Bassey v. Huntington Woods, 344
Mich. 701 (1956); Ritenour v. Township_of Dearborn, 326 Mich.

242 (1949).

3) Where several contiguous lots are owned, it is reasonable to
expect the landowner to combine them to meet zoning ordinance
requirements. Korbyyv. Redford Township 348 Mich. 193 (1957);
Highland Oil Corporation v. Lathrup Village, 349 Mich. 650

(1957); Roberts v. Three Rivers, 352 Mich. 463 (1958).

 

4) Where the owner of contiguous lots is situated in an area
already developed on substandard lots, it would be unreason-
able to force compliance with the zoning ordinance. This
practice would be analogous to spot zoning. SBS Builders v.

Madison Heights, 389 Mich 323 (1973).

With these legal parameters in mind, it is possible to recom-

mend a zoning strategy which will require the owners of contiguous

188

lots to build in compliance with the zoning regulations, except where
there has already been extensive development on substandard lots.
Where there are single lots, or even several lots involved which
cannot meet the requirements of the ordinance, the township will have
to declare these nonconforming and permit their development. To en-
force ordinance provisions with regard to these lots would prohibit
their use and justify a legal challenge on the grounds that reason-
able use of the property was forbidden. Of course, health and build-
ing codes can be used with regard to the nonconforming lots, and in
many cases, lacking public utilities, building a dwelling unit may

be an impossibility.

The zoning ordinance can also provide an incentive to a more
complete resolution of the problem. In addition to the ordinance
provisions described above, planned unit development by special use
approval could be built into the ordinance for the district encompass-
ing the plat. Thus, provision is made for the undeveloped portions
of the plat to be developed as a complete unit. In this manner the
plat would be revised to meet contemporary standards, with the bur-
den of plat revision transferred to the developer.

As the example described above illustrates, a knowledge of
zoning law combined with planning perspectives and specifically

applied to the factual situation surrounding a problem, can result

189

in a sound resolution strategy. To attempt to resolve this problem
without consideration for the characteristics of the problem an un-
derstanding of how zoning can properly be applied to the problem as
defined, and an awareness of future development objectives, would
invite either a less than effective solution, a legally invalid
approach, or undesirable results. All too often, when zoning is
applied as a solution to a problem these considerations are not ana-
lyzed and a proper approach constructed. It is much easier to adopt
model language that has been used elsewhere. Yet, the effort saved
may only bring short-term benefit when it comes time to pay the costs
associated with this approach which come due in legal fees, invalida—
tion and unsatisfactory or unexpected results.

Zoning should be conceived as a problem resolution strategy.
It may be used in a comprehensive sense to implement a range of plan-
ning objectives and avert anticipated problems expressed in a develop-
ment plan, or in a focused sense to resolve specific problems. In
either case it represents a tool to be applied, and it can only be
applied well if particular attention is concentrated on the fine tun-
ing of the various elements which contribute to successful use. This
means the planner must isolate the characteristics of the problem in
question, determine the relative impact of future development objec-

tives, relate legal guidelines to specific problem characteristics,

190

and develop a strategy accordingly. To perform this task well, and
achieve beneficial results requires the planner to sharpen his tools
not only in terms of being able to specifically determine and de-
scribe the impacts of problems, but also in terms of his ability to
design implementation strategies recognizing legal principles. An
understanding of the legal parameters on use of the zoning power
illustrates in a specific sense how strategy-oriented planning,
applied to specific problems, can assist the planner in deveToping

relevant responses to community dysfunctions.

WEST V. CITY OF PORTAGE

 

THE JUDICIARY PROVIDES PROVOCATIVE

THOUGHTS ON ZONING PRACTICE

Chapter V

WEST V. CITY OF PORTAGE--THE JUDICIARY

PROVIDES PROVOCATIVE THOUGHTS ON ZONING PRACTICE

The time has come . . . to cast aside old slogans and catch-
words . . . zoning as long range planning based on general-
ized legislative facts without regard to the individual
facts has proven to be a theoretician's dream, soon dis-
solved in a series of zoning map amendments, exceptions

and variances--ref1ecting, generally, decisions made on
individual grounds--brought about by unanticipated and
often unforeseeable events: social and political changes,
ecological necessity, location and availability of roads
and utilities, economic facts, governmental needs, and,

as important as any, market and consumer choice.

Reality is not what a master plan shows, but how it is
implemented.

--Justice Levin in Kropf v. Sterling
Heights (concurring Opinion) 391
Mich 139 (1974), at 168.

 

As the courts consider and resolve specific controversies, the

doctrine of stare decisis operates to build a body of interpretative

 

reasoning defining rights and responsibilities, and establishing con-

straints, as well as directions, for public and private action. Since

American courts are not strictly bound by the rule of precedent, the

perspectives adopted by the court's change slowly over time in tune

191

192

with the needs and desires of society. Theoretically, the dynamics
of the American system of justice are such that judicial digression

from strict compliance with stare decisis occurs in a well reasoned

 

atmosphere of stability and recognition of social need. As a result,
it is possible to ascertain the direction of American law and deter-
mine the limits of rights, responsibilities and power, while permit-
ting change in accord with new social interests.

In Michigan, zoning law appears to be divergent from the the-

oretical. In Turkish v. Warren, 61 Mich App 435 (1975), at 438, a

 

judge of the Michigan Court of Appeals observed:

The law of zoning is a hodgepodge of confusion. It is

possible to find authority in support of practically any

position one desires to take in a given fact situation.
Clear legal direction is difficult to chart on the basis of zoning
litigation in Michigan. The immense diversity in factual situations
which can arise contributes to this dilemma. However, this character-
istic of zoning litigation is compounded by the inconsistent perspec-
tives adopted by the judiciary and the lack of direction imparted by g
the statute. The presence of this situation is of course contrary
to the theory and spirit of our legal system. Equally important,
the performance of zoning, as a legitimate instrument of government,
suffers.

Although this observation may evoke frustration--particularly

in a thesis which advocates a closer relationship between law and

193

planning--a basic point can be emphasized again. The practice of zon-
ing and planning can increase in effectiveness and relevancy through
more concise attention to, and understanding of the legal perspective
and the stance of our courts. And, where the courts appear unsettled
on a direction——cases point in varying directions--the responsibility
becomes heavier for the positive planner. Rather than express the
same uncertainty exhibited by the courts, the planner should seek to
understand the reasoning behind the conflicting legal Opinions, and
form a strategy for attainment of planning objectives which will
seize the lead and lend support and direction for one or both of the
opinions in conflict. Quite basically, planners must learn to under-
stand that while the courts represent the final word on the validity
of an action, their rulings react on a case-by-case basis and their
decisions have a definable basis in reason and precedent. It is ad-
vantageous for the planner to learn to recognize legal constraints
and most importantly their reasons for existence, while fostering

the ability to perceive opportunities and formulate strategies which
will create the interface between law and planning; a synthesis which
will creatively and positively apply law as a framework for effective
and sensitive planning. In the immediacy of day-to-day decision mak-
ing such an approach involves the use of zoning strategies which are

legally defensible, equitable and responsive to public goals. In the

194

long run, a closer relationship between law and planning will necessi-
tate involvement in litigation and concerted efforts to structure
statutory reform.

The recent Michigan court case of West v. City of Portage, 392
Mich. 458 (1974) serves to illustrate the dynamics involved in effec-
tuating a planning and law synthesis. In this instance it is a syn-
thesis which suggests new directions for planning and zoning, as en-
visioned by a member of the Michigan Supreme Court. Justice Levin,
breaking from traditional assumptions in zoning law, has examined the
nature of the rezoning process and quite logically reached certain
conclusions which though at variance with common Opinion, have sup-
port in law, as well as common sense. Since the Levin reasoning does
depart from the known and accepted, it is to be expected that a seg-
ment of the legal and planning professions, and many public officials
will voice opposition, even though the Levin observations support
what has been apparently known about the rezoning process by planners
for years. Additionally, the lack of majority concurrence in the
Levin viewpoint, tempts the observer to express frustration and
prompts him to ignore the decision for lack of a concise and clear
mandate. However, for the planner who reads the decision closely
and understands the interface between planning Objectives and the

problems inherent to the zoning process, this decision may indicate

195

new directions and potentials. The opportunity may be present for
planners and attorneys, working in concert, to forge a new and im—

proved process of regulating land usage.

Background

 

In March of 1971, the City Commission of Portage, Michigan,

a home rule community of 33,590 residents, adopted an amendment to
their zoning ordinance, rezoning 150 acres of single family residen-
tial property to permit construction of commercial, multiple family
and Office structures.1 In considering and approving the rezoning
amendment, the City Commission complied with the procedures specified
in the City-Village Zoning Enabling Act, including the 3/4 vote re-
quirement when the amendment was challenged by abutting property
owners.

Following adOption Of the rezoning amendment, landowners ad-
jacent to the prOperty rezoned filed a petition with the Portage City
Clerk seeking repeal of the amendment or a referendum. The petition
also requested Commission adoption or initiative passage of a new zon-
ing proposal. The petition was based upon the City of Portage Charter

.3

which grants the right of initiative or referendum on "any ordinance.I

196

Subsequently, the City Commission failed to take the steps requested
by the landowners and, as a consequence, the petitioners filed suit
in April of 1971.4

The suit asked the court to enjoin the issuance of building
permits for the project and order a referendum held on the rezoning
amendment, if it was not repealed. The plaintiffs also asked the
court to require the defendant to accept the initiative request for
rezoning the property, and declare the present rezoning invalid. On
March 6, 1972, the trial court granted a summary judgment to the de-
fendants, holding that the plaintiffs did not have a right to refer-
endum or initiative on a rezoning amendment. The Michigan Court of
Appeals on March 2, 1973, in an unreported opinion affirmed the trial
coart's decision.5 In reaching their decision, both the trial court

and the Court of Appeals based their decisions on the holding in the

case of Elliott v. Clawson, 21 Mich. App. 363 (1970), where the Court

 

of Appeals ruled that provisions Of a home rule charter allowing
referendum on legislation do not apply to zoning ordinance amendments.
The Michigan Supreme Court in Korash v. City_of Livonia, 388 Mich.
737 (1972), has also ruled that a city zoning ordinance cannot be
amended by initiative, as this would be incompatible with adoption
procedures specified in the enabling act.

Following adverse rulings in both the trial court and the

Court of Appeals, the plaintiffs appealed to the Michigan Supreme

197

Supreme Court. Having heard the arguments on both sides, the Supreme
Court issued its opinion in the case of West v. City of Portage on

March 4, 1974.

The Decision

 

West v. Portage resulted in two written opinions: one written

 

by Justice Levin, signed by Justices Fitzgerald and Thomas G. Kavanaugh,
and the other written by Justice Williams and signed by Justices Swain-
son and Thomas M. Kavanaugh. When the court's decision was originally
issued, Justice Coleman's signature appeared on the Levin decision,
making it, by a 4-3 vote, the opinion of the court. Subsequently,
Justice Coleman removed her signature, simply indicating her concur-
rence in the result indicated by the Levin decision. As a result of
this chain of events, a 3-3 tie occurred, and Michigan missed by one
vote having the Levin doctrine become law.

Before looking at the Levin decision in detail, it is note-
worthy to consider the findings of Justice Williams. The Justice
addressed the issue of whether there was the right to referendum on
a zoning ordinance in a home rule city. Finding that the power of
referendum did not conflict with the intent Of the zoning enabling

act, and in the absence of statutory prohibitions, Justice Williams

198

decided that the right of referendum on zoning amendments existed.
However, in this specific case, since a referendum had been combined
with initiative, which is invalid in regard to zoning ordinances by

virtue of Korash v. Livonia, the petition submitted by the plaintiffs

 

to the City Clerk was not legal. Thus, Justice Williams affirmed the
lower court in part, and reversed the lower court in part.6

Justice Levin in his opinion also addressed the question of
whether the right to referendum a zoning ordinance existed in a home
rule city. However, in reasoning distinctly different from that ex-
hibited by Justice Williams, Justice Levin held that a zoning ordin-
ance amendment rezoning specific property is not subject to referen-
dum, since the right of referendum extends only to legislative acts.
A rezoning, traditionally thought of as a legislative action, is in
substance an administrative act. It is in this distinction between
legislative and administrative actions drawn by Justice Levin with
regard to rezonings that raises the possibility of fundamental change
in zoning practice extending beyond the original issue of referendum.
The question of the right to referendum has simply become the precip-
itator of more basic and sweeping reform.

After briefly considering the history of initiative and refer-
endum in Michigan and discussing the opinions of courts in other

states, Levin concluded that the powers of initiative and referendum

199

apply only to legislative actions, and not to the administrative,
executive or even judicial functions a local legislative body may

exercise. Quoting from American Jurieprudence, and the Stanford

 

Law Review, Levin supported his conclusion pointing out:

 

Actions of a legislative body which are administrative
or executive in nature are generally not subject to ini-
tiative and referendum. The question arises generally
in connection with municipal assemblies whose enactments
may be either legislative or executive. Resolutions and
ordinances of municipal bodies if not in fact legislative,
are not subject to referendum.

--42AmJur 2d, Initiative and

Referendum, 659

Another major limitation on initiative and referendum
arises from the distinction drawn by the courts between
administrative and legislative action. Only legislative
action is subject to initiative and referendum.. This
exception applies only to actions of local governments
in which the administrative and legislative functions
are combined in one body. The courts look to the sub-
stance Of the matters passed by the governing units and
not to the form in which they are passed. An "ordinance“
might be either legislative or administrative.
--Limitations on Initiative
and Referendum, 3 Stan L
Rev 497, 502-503 (1951)

 

 

Levin also pointed to Rollingwood Homeowners Corp., Inc. v.

City_of Flint, 386 Mich. 258 (1971) where the Court stated: "There

 

is nothing inherently legislative about a decision to acquire real
estate." And, to Brazell v. Zeigler, 26 Okla. 826, llOP1052 (1910),
where an Oklahoma court held that the action of a county board of
commissioners ordering its clerk to advertise for bids for the con-

struction of a bridge was administrative and not subject to referendum.

200

Upon this basis, Levin concluded that:

For reasons historical and practical and in implementa-
tion of the apparent intent of the Legislature, the
rights of initiative and referendum . . . are limited
to legislative measures.

With this premise in hand, Levin moved on to tackle the ques-
tion of zoning ordinances and their amendment. Drawing upon Rathkopf,
Levin quoted:

Some states provide for legislation through referendum.
The question arises as to the propriety of enacting
zoning ordinances or amendments thereto by such means.
The general rule is that such referendum provisions
apply only to the question of whether a comprehensive
zoning ordinance should be enacted, i.e., whether the
legislative body is to be permitted to zone the com-
munity at all and has no reference to the detailed
manner in which it is to be zoned nor to the modifi-
cations or amendments thereof.

—-1 Rathkopf, The Law of Zoning and

Planning, 31

Levin then discussed the various jurisdictions which are in
agreement with Rathkopf that zoning ordinance amendments should not
be subject to referendum. Specifically he noted:

. zoning decisions may be either administrative

or legislative depending upon the nature of the act.

--Fleming_v. Tacoma, 81 Wash. 2d 292,
298-299; 502 P 2d 327, 331 (1972)

 

. ordinances laying down general policies without
regard to a specific piece of property are usually an
exercise of legislative authority . . . . On the other
hand, a determination whether the permissible use of a

201

specific piece of property should be changed is usually
an exercise of judicial authority . . . . .
--Fasano v. Board of County Commis-
sioners of Washington County,
264 Or. 574, 580-581; 507 P 2d
23, 26 (1973)

 

 

An ordinance changing the classification of property
from residential to business use after the adoption of
a comprehensive zoning plan is an administrative or
executive matter, and not subject to referendum laws
applicable to municipalities. . . . [in] carrying out
the purposes of the comprehensive zoning ordinance [and]
in putting this ordinance into effect the city council
acts administratively.
--Bird v. Sorenson, 16 Utah 2d 1, 2;
394 P 2d (1964)

On the basis of the reasoning that administrative acts of a
local legislative body are not subject to referendum, and that the
rezoning Of property or amendment of the zoning ordinance, is an ad-
ministrative action, Levin concluded that the rezoning action by the
City of Portage was not subject to a referendum.7

However, it is not the referendum issue which draws our
attention to Justice Levin in West v. City of Portage. It is his
reasoning. By defining a rezoning as an administrative action by
a local legislative body, Levin Opens the doors for basic change in
not only the law of zoning, but its practice as well. It is this

distinction between legislative and administrative actions as applied

to rezonings, and its implications which is of interest to planners.

202

The Impact of the Levin Reasoning

Justice Levin in the We§t_opinion does not expand upon the
ramifications of his determination that the rezoning of a specific
parcel of property is an administrative rather than a legislative
determination. However, in observing that the City of Portage
amended its zoning map 128 times in 8-1/4 years, Levin quotes his

concurring Opinion in Kropf v. Sterling Heights, 391 Mich 139, at

 

169 (1974):

When a local legislative body decides to grant a change
in zoning, it has in fact determined the merits of the
individual grounds. So, too, unless the local body in
fact rejects all applications for a change in zoning
without reaching the merits, when it denies an applica-
tion after entertaining the merits, it also in fact de—
cides the merits of the individual grounds advanced.

Such a determination on individual grounds is administra-
tive, not legislative.

Thus, in Krgpf, in an opinion written by Levin and signed by
Justice T. G. Kavanagh, the administrative-legislative distinction
with regard to rezonings was also drawn. It is in tropt_that Levin
discussed the nature of the rezoningiprocess and reveals the outline
of the impact inherent in a shift to an administrative connotation
for rezonings.

Justice Levin asserts that "the typical zoning ordinance

represents particularized applications of administrative power,

203

reflecting choices made over an extended period of time between par-
ticular properties and proposed development, ad hoc . . . ." He
concludes that it is time to face reality and acknowledge the zoning
process for what it is, not for what it was supposed to be. Levin
states:

. zoning as long range planning based on general-

ized legislative facts without regard to the individ-
ual facts has proved to be a theoretician's dream,
soon dissolved in a series of zoning map amendments,
exceptions and variances--reflecting, generally, de-
cisions made on individual grounds--brought about by
unanticipated and often unforeseeable events: social
and political changes, ecological necessity, location
and availability of roads and utilities, economic facts
(especially costs of construction and financing), gov-
ernmental needs, and, as important as any, market and
consumer choice.

There are many in the planning profession who would not disa-
gree with the Levin assessment. In many instances, only a few years
need elapse before the actual pattern of development in a dynamic
community begins to digress from the well reasoned recommendations
of the original zoning ordinance or master plan. While the reasons
for this phenomenon result from the interplay of many factors--
economic, public policy, human nature and otherwise--they manifest
themselves in rezoning decisions based on individual considerations
and cumulatively can negate even the best ordinances and master

plans. As Levin notes quite accurately, with the passage of time

and the advent of development pressure the basis for a rezoning

204

decision by the legislative body subtlely changes from the reason-
ableness of the use permitted in the ordinance and p1an--the original
consideration--to whether the applicant proposes a better, more rea-
sonable use.9 Thus, on an ad hoc, case—by-case basis, the develop-
ment pattern of a community becomes formed through reactive decision
making, occurring behind the guise of comprehensive, uniform zoning
and long-range master planning.

On the basis of his analysis of the realities of the rezoning
process, Levin concludes in firgpf_that the vast majority of rezoning
decisions are administrative in nature; they are based on individual
and not general grounds as required for an act to be deemed legisla-

10 As such, the traditional assumptions in zoning law accorded

tive.
zoning decisions are negated. Specifically, the presumption of
validity which surrounds a legislative action placing the burden

of proof upon the property owner to prove that legislation is irra-
tional is forfeited.

As stated in the Zoning Diges , the practical effect of this
presumption of validity has been that "municipalities have been able
to sit comfortably behind . . . [a] judicially-created wall, . . .
safe in the knowledge that the disappointed applicant for a rezoning
or the irrate neighbors of a rezoned tract would have a difficult

11

time sealing the presumption.“ In other words, the zoning

205

classification could only be challenged on such constitutional
grounds as being violative of procedural or substantive due process,
or contrary to equal protection principles. Such challenges, with
the burden of proof placed on the property owner, represent a very
difficult way to challenge rezoning decisions for either the prop-
erty owner or the neighbors of a rezoned tract. Justice Levin, by
deeming rezonings administrative in nature, removes the significance
of this "wall" which normally protects legislative actions. Al-
though he does indicate that the plaintiff must still bear the
burden of proving that the use he proposes is reasonable.

In addition to removing the presumption of validity, an ad-
ministrative label attached to rezonings requires that they comply
with procedures legally mandated for administrative decisions.
Levin noted in Krgpt, at 171, that:

Proceedings based on individual grounds are quasi-
judicial. The local authority must grant a hearing.
The determination of the local authority must be based
on evidence. The determination, granting or denying
alike, is subject to judicial review on the record
made at the hearing . . . .

Thus, we can extrapolate from Justice Levin's comments the
elements of the procedure which would be required under administra-
tive rezonings:

1) a formal hearing on rezoning requests;

2) the opportunity for all applicants to be heard;

206
3) the opportunity for the applicant to present and rebut
evidence;
4) an impartial decision-making body;
5) a record of the proceedings;
6) a statement of the findings at the hearing.12

In many governmental units in Michigan the imposition Of such
procedures would not increase the procedural burden or represent a
drastic change from existing practice, for many local rezoning pro-
cesses already contain the elements described above. In other units
of government. particularly in rural, less populous areas, such
changes could impose financial burdens and create a severe departure
from their present rezoning procedures--a procedure derived from en-
abling act requirements and local convenience which utilizes one
public hearing, ex parte contacts, and a vote of the legislative
body which may or may not be based on factual information and sup-
ported by evidence.

In addition to the mechanics of a formal hearing, the keep-
ing of a record, the presentation of evidence and the statement of
findings, administrative rezonings would involve certain decision-
making dynamics required by Michigan's Constitution and further
described by Levin. Under the provisions of Michigan's Constitution:

All final decisions, findings, rulings and orders of

any administrative Officer or agency . . . which are
judicial or quasi-judicial and affect private rights

207

or licenses, shall be subject to direct review by the
courts as provided by law. This review shall include,
as a minimum, the determination whether such final de-
cisions, findings, rulings and orders are authorized
by law; and, in cases in which a hearing is required,
whether the same are supported by competent, mgterial
and substantive evidence on the whole record.
[emphasis supplied]

 

In accord with this constitutional requirement, Levin has
asserted that an administrative rezoning would be subject to direct
judicial review on the record made at the hearing. Hence, the im-
portance of an accurate record and a complete statement of findings
is very evident. Upon review by the courts, the question would no
longer be whether the rezoning was constitutional--as is currently
the case with legislative rezonings--but "whether the grant or de-
nial is 'supported by competent material and substantial evidence.”14
Levin further states that the question in judging the evidence would
be whether the proposed use is reasonable.

It should be noted that the test of validity suggested by
Levin-~whether the proposed use is reasonable--is a crucial part of
the Levin approach and does not necessarily follow from the conclu-
sion that a rezoning is an administrative action and subject to the
previously mentioned Constitutional requirements. The determination
that rezonings are administrative does require procedural modifica-

tions recognizing due process principles, and upon judicial review

a decision would be scrutinized to determine whether it was supported

208

by competent, material and substantial evidence on the record. It
could also be argued that as administrative actions, the decisions
must be consistent with specific standards explicitly stated either
in enabling legislation or the zoning ordinance. The test advanced
by Levin regarding the reasonableness of the proposed use is not
necessitated by an administrative view of rezonings, although some
test or criteria must be articulated.

The total effect of Levin's repsoning is a strong shift in
the mechanics and dynamics involved in making a rezoning decision.
The removal of the presumption of validity restricts a governmental
unit's ability to approve or deny a rezoning on the basis of politi-
cal considerations secure in the knowledge that challenge will be
difficult. The hearing requirement with its attending provisions
for the presentation of evidence, a record, and statement of find-
ings, helps insure the opportunity for fair consideration of a
property owner's request and focuses the decision—making on the
factual evidence supporting or opposing a proposal. The fact that
direct review by the courts is possible on the basis of the facts
presented, and not abstract constitutional questions, generates
pressure to insure that the local rezoning decision is correct in
light of the evidence presented. The use of an impartial decision-
making body, free from ex parte contacts, could reduce the incidence

of political bias entering the basis for rezoning decisions.

209

Justice Levin, in shifting to administrative rezonings,
attempts to generally insure that the zoning process will be fair
and equitable through emphasizing procedural due process and de-
cisions based upon the applicable facts revealed. These objectives
are laudable and worthy of support by planners, attorneys and all
parties to the zoning process. The element of the Levin reasoning
which represents an unknown variable is the test of validity--

whether the proposed use is reasonable.

Departure from Current Rezoning Practice

Having reviewed the Levin decision, we can ask whether the
process envisioned by Levin is different from our current rezoning
practice. Most certainly. Current rezonings, considered as legis-
lative amendments to the zoning ordinance, are adopted in much the
same manner as the original ordinance. In fact, enabling acts com-
monly contain language such as this extracted from the Michigan
County Rural Zoning Enabling Act:

Amendments or supplements to the zoning ordinance may
be made from time to time in the same manner provided
in this act for the enactment of the original ordinance.

In accord with this statutory requirement, or similar require-

ments in other enabling acts, a rezoning amendment is normally referred

210

to the planning or zoning commission for recommendation, subjected to
a public hearing and acted on by the legislative body. There are no
requirements as to the basis for the decision, and as a consequence
it may or may not be based upon the recommendations of the planning
commission, be congruent with the master plan of the community, or
even be sensitive to the impacts it may generate.

Admittedly, the current rezoning procedures are vague enough
that the process depicted by Levin could be initiated, although statu-
tory revision would be preferrable. The question of the reasonable-
ness of the proposed use is apparently already the implicit basis for
decision, despite our emphasis on the reasonableness of the ordinance;
thus Levin's conclusion that rezonings are administrative. However,
for economic and political reasons we have not always, in the absence
of compulsion, conducted the rezoning process in an atmosphere of
factual rationality. The Levin decision, by applying new legal in-
terpretations to the rezoning process, requires the process (1) to
enter a structured forum where each case will be heard on its merits;
and (2) to base its decision on supporting facts and evidence. While
current rezoning procedures do not prevent these characteristics from
being present, there is little assurance that they will be consistently
present. The Levin approach would greatly assist in insuring consis-

tently rational decisions.

211

Of course, the reasoning applied by Levin imposes costs on
both parties: the municipality and the applicant. To the munici-
pality, administrative rezonings could impose greater financial
burdens resulting from increased administrative procedures. For
example, the production of hearing minutes and the addition of per-
sonnel to administer rezoning cases. It also removes that I'wall"
of validity and may require the municipality to expend greater
effort justifying its decisions. Communities with master plans may
argue that they now will have their planning efforts attacked on a
case-by-case basis, making it more difficult to follow the recommen-
dations of 20-year master plans, particularly in the absence of a
definition for the phrase "reasonableness of the proposed use."
Incremental and piecemeal decisions may result in random rather than
well planned development patterns. The community without a planning
staff may find itself unable to counter the rezoning arguments ad-
vanced by well-prepared developers, and thus find themselves in a
position of being forced to grant all rezoning requests.

The applicant may complain that the Levin reasoning would
make it more difficult to obtain a rezoning, since he can no longer
rely on negotiation. He may protest the added expense of obtaining
detailed factual information to support his proposal. The admini-

strative process may create a greater time lag to obtain approval

212

for a rezoning, raising the argument that the economic costs to start
development are being increased, hurting the consumer. To the small,
individual property owner, the administrative process may appear for-
midable, creating a reluctance to initiate legitimate rezoning re-
quests.

Each of these concerns is legitimate to some degree, and
would certainly be appropriate to consider in deciding whether the
innovations suggested by Levin should be implemented. Of course,
the basis for such a judgment would vary depending upon the observer's
perspective. To the lawyer, the validity of Levin's reasoning hinges
on questions of law. To the municipal official, procedural efficiency
may be the crucial question. But, in the context of this paper, we
must ask what impact does the Levin reasoning have on the planning
profession and its objectives. What are the costs and what are the
benefits? More importantly, returning to the original premise of
this paper, does Levin through his interpretations of the law offer
directions of constraints which should be analyzed, understood and
seized by the planner? Has the legal issue of the right to referen-
dum on a zoning ordinance amendment revealed an opportunity where a
synthesis between law and planning could creatively and positively

contribute to more effective and sensitive planning?

213
The Levin Decision and Planning

In many instances the reaction of the planning profession to
a court decision is quiet adaptation. Duly recognizing new require-
ments, the planner may rejoice and continue on his way if his objec-
tives were supported; or express disgust and negatively adapt if an
adverse decision was the result. As previously pointed out, the
planners' reaction in the wake of all court decisions should be one
of positive strategy. What are the constraints? What are the direc-
tions? What was the basis for the reasoning? Are there discernable
trends? How can planning strategies be developed to use these deci-
sions to advantage in solving development problems and achieving
planning objectives? How can public goals be fairly and equitably
achieved?

/

Traditionally, planners have argued tha//zoning should be

 

Fun—n..._~_o

viewed as one implementing tool used to bring reality to the recom-

mehw-w ‘hwr -W t”.
W ' 'ivut 7W flth- _..-

 

mendations of a community' 5 master plan. Apparently, with this ob-

. _ ‘”W”“ ,_

jective in mind the majority of states contain the requirement in

16 In

their zoning enabling acts that zoning be based upon a plan.
Michigan's County Rural Zoning Enabling Act the requirement takes
this form:

The provisions of the zoning ordinance shall be based

upon a plan designed to promote the public health,
safety, morals and general welfare, to encourage the

214

use of lands in accordance with their character and
adaptability and to limit the improper use of land,
to avoid the overcrowding of population, to lessen
congestion on the public roads and streets, to reduce
hazards to life and property, to facilitate adequate
provision for a system of transportation, sewage dis-
posal, safe and adequate water supply, education,
recreation and other public requirements and services
to conform with the most advantageous uses of land,
resources and properties . . .

However, in spite of this link between planning and zoning,

planners have seen their attempts to use zoning to implement a master

WW

wan. 0-» Ww- nwh—wm‘m" ’“ ””‘M Whammy

 

m ('5 «I r

 

—r—- w
.. .-

plan frustrated by two positions taken by the courts in Michigan: 1)

 

 

the plan referred to in the zoning enabling acts is not the tradi-
tional master plan but can be the ordinance itself; and 2) zoning
cannot be speculative.

The first position is typified by the words of a New Jersey
court which defined a plan, as required by the zoning enabling act,
as:

. . . an integrated product of a rational process re-
vealing a physical partition of the municipality rea-
sonably designed to produce a homogeneous pattern of
location and uniform development of variant land uses.
The zoning ordinance itself may bespeak the scheme,
there need be no extrinsic guide.
-—Ward v. Montgomery Twp,, 147 A2d
248 (1959), at 252.
Michigan courts have not digressed from this viewpoint, as evidenced

by the recent decision in Sabo v Monroe Twp., 394 Mich. 531 (1975).

In Raabe v Walker, 10 Mich App 383 (1968), reversed 383 Mich 165

 

215

(1970), the court stated that while the statute calls for a plan, it
does not require a written plan. Yet, while Michigan courts have

not required a plan, they have indicated a willingness to rely on it
as evidence of reasonableness in recent years. In reversing Beebe,
the Michigan Supreme Court stated that while the absence of an adopted
plan does not invalidate zoning, it does weaken substantially the pre-
sumption of validity which attends any ordinance. The case of

Padover v Farmington Twp., 374 Mich 622 (1965), is often pointed to

 

as an example of the court's positive attitude toward a plan. In
this case the Michigan Supreme Court upheld large lot zoning, placing
great weight on an adopted master plan as evidence of reasonableness.
Michigan courts have also been cautious in regard to the
speculative nature of plans as a basis for zoning. The case of §g§t_

v Canton Twp,, 337 Mich 137 (1955) is cited as damaging to the use

 

of plans as a basis for zoning. The Supreme Court held that zoning
must be reasonable under present conditions. Specifically, the Court,
at 442, stated:

The test of the validity is not whether the prohibition

may at some time in the future bear a real and substan-

tial relationship to the public health, safety, morals,

or general welfare, but whether it does so now.

Thus, the raison d'etre of the planning profession-—the master

plan-~was apparently dealt a death blow, or at least given an immobil-

izing wound.

216

To summarize, in spite of statutory wording calling for a
plan, the courts generally will not require such a document to sub-
stantiate zoning. Additionally, the courts appear to view plans as
speculative and a weak basis for substantiating current regulations
on the use of property. Yet, there appears to be a crack in the
door indicating the beginning of a rennaissance in judicial thinking.
Decisions such as Padover and Beebe indicate a willingness to look
at plans and their relationship to zoning.

As a consequence of these decisions, including wept, it is
imperative that the planner critically review the legal perspective
of his plan. For, if his desire is to promote the plan as a strong
instrument for beneficial public decision-making, we§t_and the other
decisions may reveal the essence of a strategy which can assist in
promoting this most basic planning objective. In terms Of the
problem-oriented planning model described earlier in this thesis,
the wept approach to rezonings holds many important implications,
even if the term "plan" may have a different connotation.

For the planner, the essence of we§t_lies in its requirement--
derived from the administrative view of rezonings--that zoning deci-
sions be based on the facts presented. The fact that the possibility
of court review of the local decision based on the facts of the case

looms, places great pressure on local officials to deemphasize

217

political reasoning and individual motivations in zoning decisions in
favor of factual objectivity. Is this not what planners have com-
plained of for years? Zoning has not resulted in the urban form de-
sired by planners for many reasons, but a primary complaint is that
individual zoning decisions are not based on the plan for the commun-
ity, and often are made for political reasons, ignoring factual real-
ity and long-term repercussions. In we§t_the opportunity for change
appears. Justice Levin has laid bare the real nature of the rezoning
process, and advocated a decision-making structure stressing impar-
tiality and factual rationality. The planner, if he desires to take
the initiative, could find his words assuming a new posture in muni-
cipal government. Because of the necessity for reasons behind each
zoning decision, the information provided by the planner could be
elevated from an advisory role to that of an essential ingredient

of a community's development strategy. Of course this legal recog-
nition of the value of information not only reduces the tolerance

for arbitrary, unsubstantiated decisions by members of local legis-
lative bodies, it also forces planners to back up their intuition
with competent evidence. For the planner interested in a problem-
oriented approach, rezonings would indicate the need for exacting
impact assessments, with sophisticated application of professional

synthesis in situations requiring rechnical analysis.

218

In Michigan, court decisions would appear to indicate that
planners operating within the we§t_framework would want to reevaluate
the substance of their plans and planning studies, including defini-
tion of what a plan is. Such planning documents create the founda-
tion for zoning decisions within the We§t_guidelines, and in any com-
munity where there was the desire to pursue effective strategies in-
tent upon shaping the future development of the community, the con-
tent of planning documents would assume a critical role. While the
advocacy setting envisioned in we§t_does not require the presence of
plans and planning information, it is these very elements which would
contribute to a positive zoning process, and a community would be re-
miss if it did not develop a strong planning capability. Certainly,
builders, developers, and real estate interests will foresee the ele-
ments of success with a development approval system based on the weet
decision, and they will be prepared to offer the evidence necessary
to justify their development requests. Perhaps, it is this fact
which presents the greatest argument against the we§t_approach. No
longer safe behind the wall created by the presumption of validity,
cities and planners must sharpen their tools and be prepared in an
impartial setting to justify their decisions and actions. The equity
involved in theoretically placing the city and developer on equal

grounds to argue the reasonableness of a request could result in an

219

ill prepared party suffering defeat because they could not factually
reveal the merits of their proposal. Yet, despite this initial ten-
dency for the we§t_system to work against the unprepared party,
either the city or the developer, it does represent a fairer system
for adjudicating public versus private interests in land development
decisions. And, it does represent an opportunity for the planner to
assume a leadership role in influencing the outcome of individual de-
cisions.

Following the reasoning exhibited by Michigan courts in ngt,

Raabe, Padover, and other cases, the planner would be well advised to

 

critically review the reasonableness of his plans, planning studies,
and recommendations. It is critically important in carrying out a
planning and implementation strategy that the plans and recommenda-
tions have a strong realistic relationship to the factual evidence
which has been assembled to describe problems and opportunities fac-
ing a community. Secondly, implementation devices, such as zoning,
should be directly tied to this information. Lastly, a consistent
decision-making pattern should be built which indicates a commitment
by the legislative body and the community to implement the planning
recommendations upon which zoning and other development control tech-
niques are based.

In the problem-oriented model of planning, the term "plan"

could denote a document or set of documents, probably short-range

220

in nature, which describe the development objectives of the commun-
ity, indicate environmental constraints and potentials for develop-
ment; locate the existing and anticipated infrastructure; describe
growth trends; and identify development dysfunctions. Such a docu-
ment would thus form the policy framework--a plan-~for specific
problem resolution strategies, as well as a base for analysis of
rezoning requests consistent with the we§t_doctrine.

With this strategy as a foundation it will then be possible
for a community to use its plan and planning program as a rational
basis for making decisions within the setting envisioned in Weet,
The plan, based on a reasonable assessment of current and expected
community conditions with its reasonableness further evidenced by
actual implementation, establishes the reasonableness of the zoning
regulations. Thus, a plan is created for a community which is more
than an advisory dream, it is a realistic assessment of community
condition with future directions charted and community commitment
visible through a record of implementation. When such a plan is
tied to zoning regulations, or other development control techniques,
the public as well as the individual citizen can be assured that the
regulatory control being exerted is founded on a factual objective
assessment of community need. In the eyes of the court, the regula-

tions are reasonable and not arbitrary or capricious.

221

With initial regulatory control through zoning based upon a
realistic plan, be it traditional or problem-oriented in a policy
framework, a basic framework or a set of guidelines for future growth
is created. As requests for rezoning are received and deliberated
within a West setting, the basic plan grants a sense Of direction,
while current and immediate impacts Of a proposal are measured and
assessed in light of contemporary community circumstances and needs.
Such assessments may take into account specific planning studies com-
pleted as a basis for the development of a problem-resolution strategy
developed and applied to a previously identified dysfunction—-such as
a scarcity of agricultural land. The planner for a city operating in
the setting being described here may find a number of decision possi-
bilities when faced with a rezoning request:

1) The deve10pment proposal may be coincident with the provisions
of the plan, and its impact compatible with the immediate sur-
roundings and the community as a whole. Approval would be
forthcoming.

2) The development proposal may not be consistent with the plan,
and its impact detrimental to surrounding areas and the com-
munity as a whole. Disapproval would result, with the rea-
sons documented both in terms of specific inconsistencies
with the plan and the detrimental impacts which would result.

3) The development proposal may not be consistent with the plan;
however, its impact is beneficial to the surrounding area and
the cOmmunity. Such a finding would create strong indications
that circumstances have changed indicating a public need for

a change in the plan. If there is a public need present for
change in the plan, approval would be forthcoming with plan

222

adjustments made supported by the factual data which indi-

cated the need for a change.

4) The development proposal may be consistent with the plan,

but, its'impact is detrimental to the surrounding area.

Again, there may be a public need present arguing for a

change in the plan. Or, it could conversely mean that

some incompatibility can be tolerated if conditions are

attached to approval which will safeguard the integrity

of surrounding land uses.

Of course, the four decision possibilities described above are
indicative of generalized situations. Great variations in consistency
with a plan and degrees and scope of impact could be experienced. And
while these same decision possibilities are experienced in current
zoning practice, they are not usually considered as would be required
under.west. Within the dynamics of zoning decisions in accord with
West, the realization that the factual arguments presented by the
property owner supporting the reasonableness of his proposal will
be given official recognition must be contended with. Accordingly,
the planner for a community must be sure that (l) the current zoning
regulations have a sound factual basis which is relevant to current
conditions, and (2) that he has formulated a position on the develop-
ment proposal, be it approval or disapproval, which can be factually
justified. It is in the attainment of this posture that the planner
for a community needs a planning strategy based on a realistic, fact-

ually supported planning framework, linked to development regulations

and a capability for development impact assessment both in relation

223

to the plan and contemporary community circumstances. The assessment
capability is not only important to measure the impact of individual
development requests but also to build currency into the plan, insur-
ing that independent impact analyses will maintain interdependent in-
tegrity within a common development framework which is maintained in
a context reflective of current community circumstances.

Thus, in response to a rezoning request, the planner for a
community would commence an iteritive process of evaluation, beginning
with reference to the zoning regulations and the plan. Having noted
points of consistency and inconsistency, the focus of the planner
would narrow to the specifics of the proposal and its impact on im-
mediate surroundings. Such an impact analysis would be comprehensive
in terms of social, economic, physical and environmental effects.
However, to avoid extraneous study, concentration should be quickly
centered on specific benefit and conflict points. The promulgation
by a community of social, economic, physical, and environmental
effect guidelines for development would assist in focusing the im-
pact analysis, and would provide developers with advance knowledge
of a community's development policies used in decision-making. The
impact analysis should also be extended to consideration of the de-
velopment request in relation to current community-wide needs and

objectives. In the case of large developments, it would be wise to

224

extend this analysis beyond jurisdictional boundaries, considering
the region within which the community is located.

Once the analysis of the relationship of the request to the
plan and zoning regulations, as well as its impact has been completed,
the planner can concisely and systematically recommend disapproval,
approval, approval with conditions on the basis of specific, concrete
facts. It is these facts, revealing the effect of the deve10pment
proposal on current community circumstances, and the future inten-
tions of the community embodied in a plan designed to promote the
health, safety and welfare of its residents, that must stand as the
reasonable basis for approving or denying the rezoning request.

Since the basis for decision under HEEE is the reasonableness of the
use requested in light of the facts presented, and since obviously
the applicant will certainly build a favorable case supporting his
request, the information gathered by the planner cannot be ignored;
it must stand on its merits in relation to the request and a decision
rendered accordingly.

Of course, a favorable view of Justice Levin's concepts re-
garding rezonings, presumes the presence of planners and adequate
financial resources in communities using the zoning power. It is
also anticipated that the judiciary, in applying the "reasonableness

of the proposed use test," will view favorably the plans and impact

225

oriented evidence submitted by planners. The previous strategy sug-
gestions are advanced to prepare the planner to positively use the
administrative forum for rezonings, assuming that properly conceived
and adopted plans will be accorded great weight by the judiciary as
they further define what is meant by the reasonableness of the pro-
posed use. These assumptions could prove to be fatal in small com-
munities which lack a planning staff, or have an inadequate planning
capability. In the battle of expert witnesses within the courtroom,
the ill-equipped governmental unit could easily become a consistent
loser. Also, in the absence of strong Michigan Supreme Court recog-
nition of the merit of planning documents in administrative rezonings
and an expedient, corresponding definition of the reasonableness of
the proposed use test, the ability to rationally and effectively use
planning and zoning powers in coordination may be subjected to pro-
longed lower court battles and an extended period of uncertainty.
Thus, in spite of the fact that weet does provide a framework for
zoning practice within which the planner can take the initiative

and forge a more equitable and effective zoning and planning prac-
tice, it is incumbent upon planners to proceed with the next step.
Based upon an understanding of the merits of the administrative
approaches to rezonings, stimulated by thoughts advanced by Justice

Levin, planners in concert with attorneys, citizens and public

226

Officials should take the initiative and develop a reformed zoning

process.

Rather than wait for additional judicial intervention and

definition, efforts should be commenced to amend the zoning enabling

statutes based upon the concepts brought to light in Kropf, West,

 

Sabo, Smookler, and Nickola. The following elements should form the

 

framework for statutory revision:

1)

The land development requests which should be considered in

an administrative context should be defined.

Administrative hearing procedures should be established.
Such procedures should delineate proper notification,
parties eligible to participate in the proceeding, the
necessity of a verbatim hearing record, and the preparation
of written decisions for each request which (a) summarize
the case including evidence presented, (b) state findings
and conclusions, and (c) render a decision. The procedures
should establish the principle that the parties to develop-
ment request may present and rebut written and verbal

testimony.

A hearing examiner should be authorized for the purpose of
conducting administrative hearings and rendering decisions

on development requests.

4)

227

An appeal process should be established which permits parties
to the hearing to appeal the decision of the hearing examiner
to the legislative body of the government unit, followed by

appeal to circuit court.

The tests or standards upon which the development request
should be judged by the hearing examiner, and the legislative
body and courts upon appeal should be defined in order to
avoid the uncertainty involved in a test such as "the reason—
ableness of the proposed use." The standards for decision

should include:

a) consistency with the development policies and plans
adopted by the legislative body of the governmental
unit; except when evidence appearing on the hearing
record reveals a public need for change in the policies
or plans, and the request under consideration would meet

the need identified; and

b) the presence of a conclusionary relationship between the
decision and the evidence appearing on the hearing

record.

228

The approach to rezonings embodied in the opinion of Justice
Levin in West v. City of Portage, should it become the basis of zon-
ing practice in the future, presents an opportunity and a challenge
to the planning profession. The opportunity reveals itself in legal
recognition that the facts surrounding a rezoning request must logic-
ally support the resulting decision. A community cannot exercise
power over the property and well-being of its residents on the basis
of intuition, personal favor or political bias, it must rely on
impartial, factual analyses of its problems and opportunities, as
well as sensitivity to the desires and objectives of its residents.
This is the decision-making process planners have advocated with
mixed SUCCESS'fOF years. Legal recognition Of this process based
on factual rationality recognizes the position advocated by planners,
and creates the need in every community for systems which will trans-
late information concerning the character of a community into problem
descriptions, solution strategies and statements of future aspira-
.tions and goals. And, here emerges the challenge. Should the wept
concept become reality, can the planning profession meet the need
created by the rezoning system envisioned by Justice Levin? Will
planners be capable of providing the development strategies, impact
analyses and specific factual information which can withstand assault

in a rigorous advocacy setting? Can planners become a community's

229

agent in a decision-making process for zoning which is based on
factual rationality, or will other professions assume leadership
roles, or will such a process completely put the community at a
disadvantage? And, lastly, can planners take the initiative and
translate the concepts of Justice Levin into legislation creating

a workable, effective and fair zoning process. As they consider
we§t_and questions posed above, they should remember that the ob-
jectives of planning must coincide with the promotion of public
health, safety and welfare objectives, and the process of planning
must be directed to this objective in a manner respecting the proper
balance between public and private rights and privileges. Thus, the
ultimate question posed by the opinion of Justice Levin, is not only
whether we§t_offers opportunities to enhance the stature and effec-
tiveness of-planning, but whether it enables planning, as a tech-
nique, to pursue valid objectives in a more effective and equitable

manner.

The Lessons of West

The opinion of Justice Levin in West v. City of Portege has
brought to the surface in Michigan judicially suggested changes in

zoning practice which were originally discussed in Kropf v. Sterling

230

Heights, and recently presented as the grounds for decision in Sabo

v. Monroe Township, Smookler v. Wheatfield Township, and Nickola v.

Grand Blanc Township,18 The discussion of this decision in detail

 

 

has illustrated how law and planning in a zoning context inevitably
interface. In this situation, a court case regarding referendum
powers with regard to zoning ordinances has spawned a train of legal
thought-—a perspective of the zoning process--with profound implica-
tions for planning practice and an ability to determine the future
course of community development. For the planner, three courses of
action are available. He may ignore the decision and its impacts,

and continue to practice his trade as before. Or, he may recognize
the problems the We§t_approach could cause to ill-prepared communi—
ties and long-range master plan techniques and attempt to reverse

this judicial train of thought through compelling arguments in future
court cases or statutory revision. The third alternative is to recog-
nize the merits as well as problems inherent in the position advanced
by Justice Levin, and attempt to develop a constructive planning
strategy which capitalizes on the positive aspects of the doctrine,
decreases adverse impacts, and hopefully gives birth to planning
techniques which will effectively promote attainment of public welfare
Objectives. It is the intent of this thesis to create a sensitivity
for the need to reach for the third alternative--an option of open-

mindedness and constructive response.

231

The synthesis of law and planning presents the opportunity
for planners to create more effective strategies for specific problem
solutions, as discussed earlier, as well as improved planning tech-

niques, as demonstrated by an analysis of West v. Portage, which will

 

lead to relevant confrontation and resolution of societal problems.
Not only does professional synthesis--as illustrated here by a '
planning-law interface--permit planners to insure that they are
addressing problems in the proper way--in this case a legally valid
manner--but, also it allows a planner to view his activities from a
different perspective, analyzing the relevancy of his approach,
techniques and end-products. In an age of rapid change and complex
decision-making, planners to fulfill their Objectives need the ad-
vantages of additional perspectives, and a willingness to adapt

techniques to needs of society and the nature of problems.

FOOTNOTES

1west v. Portage, 392 Mich. 458 (1974), at 473.

2Ibid., at 473; the necessary 3/4 vote by the City Commission
was achieved by votes of 7-0, 6-1, 6-1 on the three properties in-
volved in the rezoning; see section 4 of Public Act 207 of 1921,
MCLA 125.584.

3Ibid., at 476.

4Ibid., at 473.

51bid., at 473.

6Ibid., at 479.

7Ibid., at 472.

8Kropf v. Sterling_Heights, 391 Mich 139 (1974). at 168.

 

9Ibid., at 168.

101616.. at 169.

H25 Zoning Digest 48

12Memorandum to writer from Avern Cohn, Attorney, Detroit,
Michigan, entitled "Some Reflections on West v. City of Portage,
February 18, 1975, p. 5.

13Michigan Constitution of 1963, Article 6, Section 28.

232

233

‘14Kropf v. Sterling_Heights, 391 Mich. 139 (1974); at 170.

15Michigan Public Act 183 of 1943. Section 3.

16Robert M. Anderson, American Law of Zoning, I (Rochester,
New York: The Lawyers Co-operative Publishing Company, 1968), p.
230.

17Michigan Public Act 183 of 1943, Section 3.

18On August 19, 1975 the Michigan Supreme Court affirmed the
decisions of the Court of Appeals in Sabo v. Monroe Township, Smookler
v. Wheatfield Township, and Nickola v. Grand Blanc Township. These
actions voided attempts by the respective townships to maintain a
zoning classification which would prohibit the development of specific
mobile home parks which had submitted rezoning requests. The grounds
upon which the Supreme Court based its decision were presented by Jus—
tice Levin, and constituted a restatement of the doctrine expressed in
weet and Kropf-—the proposed use was reasonable and should be per-
mitted. The Opinion of Justice Levin became the majority opinion
apparently because only 5 members of the Court heard the cases. The
Levin Opinion contained 3 signatures. Those involved in zoning prac-
tice are left to speculate as to what impact these cases will have on
future zoning cases.

 

REFLECTIONS

Chapter VI

REFLECTIONS

The urban planner in the 20th century must lead people
from the world Of the practical into the realm of
dreams and then back again in a way that makes dreams
possible.

--John Alan Stock

The objectives which planning promote are necessary to a modern
society. The practice of planning is needed, and can contribute
greatly to the resolution of dysfunctions we currently face, as well
as promote the future welfare of all citizens.. The question planners
face is whether they can develop and apply skills which will make the
quality of life tomorrow better than that experienced today. Through-
out the spectrum Of environmental categories we use to describe our
existence--land use, health care, housing, transportation, employment,
recreation--can planners not only visualize what the future should be
like, but, creatively, actively and effectively Show us how to get
there?

In the opening chapter of this paper, one suggested perspective
for planners to adopt was presented. This approach called upon the
planning professional to build the bridges between reality and visions

234

235

of the future through a concerted focus not only on the identifica-
tion of problems, real and anticipated, but also on the development
of solution strategies to resolve these problems. The premise of
this approach is based on the observation that while grand plans may
be very effective in controlled environments where the scale and dura-
tion of an endeavor are such that all variables can be controlled
centrally, such is not the case in American society with regard to
public planning. American planners are faced with a diverse, decen-
tralized society composed of a complex array of variablesroperating
in an environment of rapid change and resistance to comprehensive
manipulation. To Operate effectively in such a society, it was sug-
gested that planners reexamine the performance of the planning mode
which depended for success on all current activities and decisions
acting in concert to reach a detailed design for the future 20 years
hence. AS an option, the long-range future should be conceived in
terms of goals--future visions descriptive of desirable end-states
--while detailed plans focus on specific problem areas and assume
the characteristic of being solution-oriented and short-range. Such
Short-range plans would be supplemented by the ability to systematic-
ally formulate and carry out specific, immediate problem resolution
strategies guided by the objectives of relevant short—range plans

and long-term goals. The emphasis in this model of planning as

236

explained earlier, is on strategy formulation, evaluation and realign-
ment; Specific problem resolution; and comprehensiveness achieved
through impact analysis.

Of course such a planning methodology requires planners to pos-
sess more than a philosophy of (comprehensive sensitivity. They must
sharpen their tools and gain greater Specific knowledge in subject
areas particularly relevant to the resolution of public problems, as
well as the ability to bring professional disciplines together for
strategy formulation. The merits of greater professional synthesis
--one aspect of the problem-oriented planning approach--were demon-
strated in this paper with respect to law and planning within a zon-
ing context.

AS the review of Michigan court decisions illustrated, the
practice of zoning--a primary planning instrument--has been circum-
scribed by the law. For the law to control the practice of zoning
without the benefit of planning objectives and purposes simply in-
sures that it will be fairly applied. For planners to use zoning
without knowledge of legal parameters risks legal challenge, im-
proper use or ineffective use. Zoning, just one instrument avail-
able to the planner, can be used more effectively for public benefit
through a synthesis between law and planning—-a relationship which

Should be recognized by lawyers, as well as planners. As the

237

discussion in this thesis demonstrated, greater knowledge of legal
perspectives and principles relating to zoning can not only increase
the effectiveness of its use in terms of technique--the best methods
and procedures for equitably controlling land usage--but also in
applying zoning as an element of a strategy to resolve specific
problems. It is this creative use of zoning, or any other tool,
rather than the mechanistic adoption of a model ordinance with zon-
ing districts arranged to match future land use categories, which
makes the difference between static and dynamic planning.

The synthesis illustrated in this paper should serve as an
example of other professional and technical areas where greater re-
ciprocal awareness of perspectives and principles, and willingness
to cooperatively work toward solutions of public problems would re-
sult in greater common benefit both today and tomorrow. Planning
is but one aspect of the thought process guiding human activity.
Action, or implementation is the other. Planners should recognize
that the two are inseparable if progress toward an improved quality
of life is the desired goal. By working in close contact with other
professionals seeking answers to specific problems and imparting an
awareness for comprehensive impact, perhaps those realities of today
which will spawn the more complex dysfunctions of tomorrow can be
effectively addressed, making our future visions tomorrow's reali-

ties.

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