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12/18/75 KEATING INTERNATIONAL CORPORATION v. ORION

December 18, 1975

KEATING INTERNATIONAL CORPORATION
v.
ORION TOWNSHIP



J. W. Fitzgerald, J. T. G. Kavanagh, C. J., and Levin and Coleman, JJ., concurred with Fitzgerald, J. Lindemer and Ryan, JJ., took no part in the decision of this case. Williams, J. (to reverse and remand).

SYLLABUS BY THE COURT

Opinion of the Court

1. Zoning -- Ordinances -- Amendments -- Evidence -- Discretion.

The decision to admit or exclude an amendment of a zoning ordinance adopted during litigation over the ordinance rests entirely within the sound discretion of the trial court.

2. Zoning -- Ordinances -- Amendments -- Evidence -- Discretion.

A trial court properly exercised its discretion in ruling that evidence of rezoning of plaintiffs' land would be inadmissible at trial because defendant township's conduct demonstrated bad faith and unjustified delay where plaintiffs' land had been zoned multiple residential, they had submitted site plans for a multiple residential development and had complied with all the requirements of statutes and ordinances, including various special requirements imposed by the township planning commission, about 11 months after first submitting the plans they commenced an action for mandamus to compel approval, and after the action was filed the township rejected the plans and amended the zoning ordinance to rezone plaintiffs' land to single-family residential, and where the record is devoid of competent, material, and substantial evidence which would justify rejection of the site plans.

Dissenting Opinion

Williams, J.

3. Courts -- Legislative Bodies -- Constitutional Law -- Separation of Powers.

The judiciary may not encroach upon the functions of legislative bodies; while it is within the province of the courts to pass upon the validity of statutes and ordinances, courts may not legislate nor undertake to compel legislative bodies to do so.

4. Zoning -- Ordinances -- Presumptions -- Validity.

Enactment or amendment of a zoning ordinance is a legislative function, and such an ordinance is clothed with every presumption of validity; it is the burden of the party attacking the ordinance to prove affirmatively that it is an arbitrary and unreasonable restriction upon the owner's use of his property.

5. Zoning -- Ordinances -- Courts -- Constitutional Law -- Separation of Powers.

A court may not choose to disregard a properly enacted zoning ordinance just as it may not choose to disregard any other validly enacted statute; choosing to exclude evidence of an amendment to a zoning ordinance which rezoned a plaintiff's property in effect nullified that amendment and is just as improper as judicial interference in the passage of legislation.

6. Zoning -- Ordinances -- Amendments.

Excluding consideration of all evidence of an amendment to a zoning ordinance enacted before trial in an action seeking to compel approval under the ordinance before amendment of site plans for multiple development was erroneous.

7. Mandamus -- Discretion.

The writ of mandamus is one of grace and is awarded not by right but by discretion of the court.

8. Mandamus -- Duty to Act -- Controlling Law.

Mandamus lies only where a plaintiff has a clear legal right to performance of the specific duty sought to be compelled and the defendant must have the clear duty to perform the act; the law to be applied is that which is in effect at the time of hearing and decision.

9. Zoning -- Ordinances -- Controlling Law.

A court must apply to property in dispute the law of the zoning ordinance in effect at the time of decision.

10. Zoning -- Ordinances -- Nonconforming Use -- Vested Right.

A zoning ordinance is not effective for a particular piece of property if the landowner has a vested right in the prior nonconforming use through work done of a substantial character which has made a tangible change in the land itself by excavation or construction when the ordinance is enacted.

11. Zoning -- Ordinances -- Nonconforming Use -- Vested Right.

A vested property interest acquired before a zoning ordinance is enacted may not be destroyed by passage of that ordinance; owners of the property interest must make a showing that they have completed sufficient work on the land to create such vested rights, and mere investment in the acquisition of the land for an intended use is not sufficient to create a vested right.

12. Zoning -- Ordinances -- Validity.

A party must first challenge the validity of a zoning ordinance in a proceeding where the ordinance would affect the result and the court must resolve that issue on a fully developed record before it can hold that the ordinance is ineffective.

13. Zoning -- Ordinances -- Amendments -- Pleading.

A trial Judge may properly permit amendment of the pleadings in a suit for mandamus where a zoning ordinance amendment becomes an issue prior to trial to make the validity of the amendment an issue; after full development of the record if the trier of fact should find the amendment invalid, the law of the former valid ordinance controls.

The opinion of the court was delivered by: Fitzgerald

Keating International Corp, Igleheart, Inc., and Bing Construction Co. each own a parcel of land which was zoned multiple residential; the parcels are adjacent. Each filed a site plan for multiple development with the Orion Township Planning Commission, and after a series of meetings with the commission and changes in the plans to overcome objections, they commenced an action for an order of superintending control to compel approval of the site plans and for money damages. After the action was commenced, the commission rejected plaintiffs' site plans and arranged for a public hearing on a proposed rezoning from multiple to single-family residential, and plaintiffs' property was rezoned single-family residential. The Oakland Circuit Court, William R. Beasley, J., restricted the issue solely to the validity of defendants' denial of site plan approval, ruling that evidence of rezoning would be inadmissible at trial because the township's conduct demonstrated bad faith and unjustified delay. The court issued an order in the nature of mandamus compelling approval of the site plan. The Court of Appeals, J. H. Gillis, P. J., and R. B. Burns and R. H. Campbell, JJ., affirmed (Docket No. 16250). Defendants appeal. Held:

1. It was not error for the trial court to exclude the amended ordinance from this case. The decision to admit or exclude ordinance amendments during litigation is one which rests entirely within the sound discretion of the trial court. It was a proper exercise of discretion to refuse to admit the amended zoning ordinance at trial because the township's conduct was viewed as demonstrating bad faith and unjustified delay.

2. The record is devoid of competent, material and substantial evidence which would justify the township's rejection of ...


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