Opinion
Docket No. 1,954.
Decided March 14, 1967.
Appeal from Muskegon; Van Domelen (Harold), J., presiding. Submitted January 5, 1967, at Grand Rapids. (Docket No. 1,954.) Decided March 14, 1967.
Complaint by the Township of Fruitport, a municipal corporation, against Leonard Baxter and Luella M. Baxter to restrain violation of plaintiff's zoning ordinance. Judgment for plaintiff. Defendants appeal. Judgment modified as to form and affirmed.
Poppen, Street Sorensen, for plaintiff.
Hathaway, Latimer, Clink Robb, for defendants.
Plaintiff filed this action to restrain defendants from using their property in violation of plaintiff's zoning ordinance. Trial of the action resulted in judgment for plaintiff. Defendants appeal and claim the record establishes a nonconforming use prior to the effective date of the ordinance, and if this is not the fact, the trial court erred in the scope of the injunction granted.
Plaintiff's zoning ordinance became effective August 22, 1959, and defendants' property lies in the area zoned residential. Although the ordinance prohibits the use of property zoned residential for junkyard purposes, it does permit continuance of a nonconforming use existing at the time the ordinance became effective. Shortly before the effective date of the ordinance, defendants moved several truckloads of used automobile parts onto the premises for storage and now contend this established a nonconforming use. In refusing to adopt this contention, the trial court ruled that to establish a nonconforming use it was essential to show nonconformance in a reasonably substantial manner, and he found that defendants' nonconforming use of the premises prior to the effective date of the ordinance was not in a reasonably substantial manner.
While we have found no Michigan authority sustaining the trial court in its holding that nonconformance must be shown in a reasonably substantial manner, and no such authority has been cited by counsel, we do find such authority elsewhere. See Mayor and City Council of Baltimore v. Shapiro (1947), 187 Md. 623 ( 51 A.2d 273); Ashline v. Bristol Township Zoning Board of Adjustment (1962), 408 Pa. 245 ( 182 A.2d 531). The object of the residential classification in the ordinance before us and the restricted use prescribed for property in the residential area is to maintain that area residential. A reasonable construction with regard to that object (see Fass v. City of Highland Park, 320 Mich. 182) requires that we affirm the trial court's test that to establish a nonconforming use it is essential to show nonconformance in a reasonably substantial manner.
The finding of fact by the trial judge that nonconformance in a reasonably substantial manner was not shown here is not disturbed for the reason that a reading of the record does not persuade us we would have reached a different result had we been the trial judge. Wait v. City of Sturgis (1966), 2 Mich. App. 614.
Defendants contend the following language of the judgment: "and said defendants, their agents and employees are specifically enjoined and restrained from using said premises as and for a junkyard and/or any allied or similar use," is too broad in scope. With this we agree. It is beyond plaintiff's prayer for relief and the proofs in the case. Defendants should only be restrained from using their premises as a junkyard as defined by the ordinance, and the language "and/or any allied or similar use" should be stricken from the judgment.
Affirmed except for the form of judgment. Remanded for amendment of the judgment in accordance with this opinion. No costs allowed, since neither side fully prevailed.
FITZGERALD, P.J., and T.G. KAVANAGH, J., concurred.