City of East Lansing v. Smith

Sharpe, J. Defendants own a piece of property in the city of East Lansing on the corner of Grand *496 River avenue and Bailey street across from the campus of Michigan State College. On June 29, 1935, defendants commenced building a filling station on their property without first obtaining a building permit. On July 3, 1935, plaintiff secured a temporary injunction against defendants and now brings this action to permanently enjoin them from proceeding with the construction of a filling station in violation of the zoning ordinance of the city. The property comes within zone “D” of the zoning ordinance of the city of East Lansing which provides that: “Sec. 6. ‘D’ retail district. “In the ‘D’ retail district all buildings and premises except as otherwise provided in this ordinance may be used for any purpose permitted in the ‘O’ multiple dwelling district or for any other use except the following: * * * “17. Gasoline filling stations or any public station where oil or fuel of any kind is sold and dispensed for propelling motor vehicles: Provided, that before a permit is issued to build, occupy or construct a public gasoline, oil, or motor fuel filling station, or either of them, to supply motor vehicles on any site where 80 per cent, of the buildings within a radius of 400 feet of any part of the proposed site are used exclusively for residence purposes, there are on file in the office of the building inspector the written consent of 60 per cent, of the property owners according to total frontage on any public street within a radius of 400 feet of any part of the premises whereon this gasoline filling station is to be occupied or constructed and not separated therefrom by more than one street or one alley and the location and plans have been submitted to and approved by the board of appeals created by this ordinance.” It is conceded by the defendants that they did not file in the office of the building inspector the written *497 consent of 60 per cent, of the property owners according to the total frontage on any public street within a radius of 400 feet, nor did they secure a building permit as required by the ordinance. After a hearing in which evidence was taken the trial court granted plaintiff a permanent injunction. Defendants appeal and contend that the above zoning ordinance of the city of East Lansing is unconstitutional because it deprives the defendants of their property without due process of law in that it is arbitrary and discriminatory and is a delegation of legislative and judicial powers to city officials. The ordinance above referred to was enacted pursuant to Act No. 207, Pub. Acts 1921 (1 Comp. Laws 1929, §§ 2633-2641). This act empowers municipalities to enact ordinances of the character of the one in issue. We do not think the ordinance is unconstitutional. In Harrigan & Reid Co. v. Burton, 224 Mich. 564, 569 (33 A. L. R. 142), we said: “The generally accepted rule is that a presumption prevails in favor of the reasonableness and validity in all particulars of a municipal ordinance unless the contrary is shown by competent evidence, or appears on the face of the enactment.” One of the specific claims made against the constitutionality of the ordinance is that the board of appeals may reject or approve the application for a permit, but it is presumed that such a board of appeals will act fairly, with reason, and not arbitrarily. It was said in Merrick v. N. W. Halsey & Co., 242 U. S. 568, 590 (37 Sup. Ct. 227), in discussing a similar question: “The contentions based on the exemption and provision are a part of that which accuses the law of conferring arbitrary discretion upon the commission and committing to its will the existence or extinction *498 of the business. The accusation is formidable in words but it is the same that has been made many times. # * * We repeat, there is a presumption against wanton action by the commission, and if there should be such disregard of duty a remedy in the courts is explicitly given, and if it were not given it would necessarily be implied. ’ ’ However, in the instant case defendants have no specific complaint to make-against the board of appeals as their application was not properly before the board for its consideration by reason of their failure to secure the required number of signatures of property owners as required by the ordinance. We quote from 43 C. J. p. 348: “When applicant complies with all the requirements for a building permit and the permit is refused, he may invoke the aid of the court to prevent the unreasonable refusal and to compel the granting of the necessary permits, regardless of whether provision is made for such remedy in a statute or ordinance. ’ ’ It is next said that the ordinance is invalid in that there is a delegation of legislative and judicial power to city officials. As is said in 6 R. C. L. p. 179: “There are no constitutional objections arising out of the doctrine of the separation of the powers of government to the creation of administrative boards empowered within certain limits to adopt rules and regulations, and authorizing them to see that the legislative will expressed in statutory form is carried out by the persons or corporations over whom suplff, board may be given administrative power. Boards and commissions of this character do not exercise any of the powers delegated to the legislature. They do not make any laws. They *499 merely find the existence of certain facts, and to these findings of fact the law enacted by the legislature is applied and enforced. As in the case of other executive officers administrative boards may be given the power to perfect the details of a plan the general outlines of which have been laid down in a statute of the legislature.” In the case at bar the purpose of the ordinance is in the main the promotion of the general welfare of the citizens of East Lansing. Such powers as may be found in the ordinance must necessarily vest in some person or persons whose duty it is to interpret the provisions of the ordinance in connection with their finding of facts in each case that may be presented to them. They do not legislate. They merely apply the provisions of the ordinance to the finding of facts. Their duties are purely administrative. From an analysis of section 6 of the ordinance we find that it provides for the prohibition of certain uses such as gasoline filling stations, it also provides that special permits may be issued upon two conditions: namely, the consent of certain property owners and the approval of the board of appeals. “If there be any rule that may be pronounced, it is that if the action of the property owners has the effect of legislation, then it is deemed to fall within the forbidden delegation of legislative power. “On the other hand, if the consents are used for no greater purpose than to waive a restriction which the legislative authority itself has created and in which creation it has made provision for waiver, then such consents are generally regarded as being within constitutional limitations.” Metzenbaum, The Law of Zoning, p. 277. We do not pass upon the constitutionality of the fire zone ordinance of the city of East Lansing as *500 there was no relief granted to plaintiff by virtue of any of its provisions. The decree of the lower court is affirmed. Plaintiff may recover costs. Fead, J., concurred with Sharpe, J.