Docket No. 19353.
Decided December 3, 1975. Leave to appeal denied, 396 Mich. 850.
Appeal from Kent, George V. Bouchee, J. Submitted April 10, 1975, at Grand Rapids. (Docket No. 19353.) Decided December 3, 1975. Leave to appeal denied, 396 Mich. 850.
Complaint by Clarence M. Werkhoven and Lois Werkhoven against the City of Grandville for an injunction prohibiting enforcement of a zoning ordinance. Injunction granted. The Court of Appeals reversed, 61 Mich. App. 200. Plaintiffs applied for leave to appeal to the Supreme Court. Remanded to the Court of Appeals for reconsideration in lieu of grant of leave to appeal, 395 Mich. 753. Remanded to circuit court.
Freihofer, Hecht, Oosterhouse Deboer, P.C. (by Walter B. Freihofer and Bruce A. Barnhart, Fred N. Searl, of counsel), for plaintiffs.
Varnum, Riddering, Wierengo Christenson (by Thomas J. Heiden), for defendant.
Before: T.M. BURNS, P.J., and McGREGOR and D.F. WALSH, JJ.
Previously, we ruled that plaintiffs had failed to sustain their burden in rebutting the presumption of constitutionality to which the defendant's zoning ordinances were entitled. In doing so, we relied heavily upon the majority opinion in Kropf v Sterling Heights, 391 Mich. 139; 215 N.W.2d 179 (1974).
Following our decision, plaintiffs filed an application for leave to appeal to the Supreme Court. While this application was still pending, the Supreme Court decided three cases, all of which, like the present case, involved zoning restrictions on mobile home parks. The Supreme Court, in lieu of taking any action on plaintiffs' application, remanded the matter to us "for reconsideration in light of the opinions of the Justices of this Court" in the Sabo, Smookler and Nickola cases.
Sabo v Monroe Township, 394 Mich. 531; 232 N.W.2d 584 (1975), Smookler v Wheatfield Township, 394 Mich. 574; 232 N.W.2d 616 (1975), Nickola v Grand Blanc Township, 394 Mich. 589; 232 N.W.2d 604 (1975).
In Sabo, Justice LEVIN, with Justices KAVANAGH and FITZGERALD concurring, stated that the proper test to be applied in the majority of zoning cases should not be the Kropf test of whether or not the present zoning is unreasonable or confiscatory, but instead, should be whether or not the proposed use is reasonable under all the circumstances. However, Justice WILLIAMS, in concurring, and Justice COLEMAN, in dissenting, both continued to adhere to the Kropf test in which they had originally concurred. The remaining members of the Court, Justices SWAINSON and LINDEMER, did not participate in any of the three decisions.
The Smookler and Nickola cases were affirmed for the reasons stated in Sabo.
Justice LEVIN'S approach in Sabo originates from his concurring opinion in Kropf, supra, wherein he distinguished between legislative and administrative official action. It follows from this distinction that where the official action taken in respect to zoning is legislative in nature, then the Kropf test should still be employed. Where, however, the official action taken is administrative in nature, as presumably is the case in most instances, then the "reasonableness of the proposed use" test should be applied.
It is evident from the foregoing that there has been no agreement by a majority of the Supreme Court to adopt Justice LEVIN'S approach regarding zoning cases. Under these circumstances, constitutional rules of construction would normally preclude us from considering Sabo as precedent for the application of Justice LEVIN'S test. As stated in People v Anderson, 389 Mich. 155, 170; 205 N.W.2d 461 (1973):
"The clear rule in Michigan is that a majority of the Court must agree on a ground for decision in order to make that binding precedent for future cases. If there is merely a majority for a particular result, then the parties to the case are bound by the judgment, but the case is not authority beyond the immediate parties." See Ettinger v Avon Township, 64 Mich. App. 529; 236 N.W.2d 129 (1975), In re Curzenski Estate, 384 Mich. 334; 183 N.W.2d 220 (1971).
Thus, our Court, which must follow the authoritative precedents of the Supreme Court, would, in the usual case, still be bound to apply the test set forth in Kropf, supra. See Ettinger, supra, Turkish v City of Warren, 61 Mich. App. 435; 232 N.W.2d 732 (1975), Palmer v Township of Superior, 60 Mich. App. 664; 233 N.W.2d 14 (1975).
However, the present case does differ significantly from the usual case. Here, the Supreme Court has ordered us to reconsider our previous decision in light of the opinions expressed in Sabo and its companion cases. While we are extremely tempted to hold that Kropf still controls since Sabo is not binding as precedent, we nevertheless believe that the Supreme Court's order left us with no other choice than to apply Sabo. Our Court is bound by the dictates of the Supreme Court and we must follow those dictates in the utmost good faith. The Supreme Court's remand order is, in our view, express and unambiguous in directing us to apply Sabo rather than Kropf to the present case. It would be illogical to assume that the Supreme Court intended otherwise since our original opinion had already decided this case on the basis of Kropf.
We believe that this approach would be preferable. If the instant case were before us now for the first time, we would unquestionably be bound to follow Kropf, and not Sabo. As a result, we would be applying the same test in the instant case that should properly be applied to all post- Sabo zoning cases. By applying Sabo instead, we are ignoring binding Supreme Court precedent and, in effect, deciding this case on the basis of the wrong law. In addition, it is this writer's personal belief that Kropf represents better law. See Sabo, supra (dissenting opinion) and Ettinger, supra (concurring opinion).
Consequently, we order the following action to be taken:
(1) We remand to the circuit court for the determination of whether the defendant, in fact as well as in theory, exercises legislative rather than administrative powers in respect to zoning. See Kropf, supra, 167-172 (concurring opinion). In making this determination the court shall consider the following questions: (a) Has the legislative body of the defendant adopted, on general not individualized grounds, a plan of general application to all the lands in the community? (b) Does the defendant's zoning authority reject all applications for a change in zoning without reaching the merits? (c) Does the defendant have a history of granting variances to individual property owners only when constitutionally necessary?
(2) If, after applying these standards, the circuit judge finds that the defendant does, in fact, exercise legislative power in respect to zoning, then he shall return his findings to this Court where our previous decision will be affirmed.
(3) If the circuit judge finds, however, that the zoning authorities of the defendant act administratively, then he shall remand to the City of Grandville for an administrative hearing on the question of whether plaintiffs' proposed use is reasonable under all the circumstances. At this hearing, the factors listed in Kropf, supra (concurring opinion), 172-173, shall be considered along with all other pertinent factors. We will not retain jurisdiction should this situation arise.
(4) Judicial review of this hearing, if sought by any aggrieved party (see Kropf, supra [concurring opinion], fn 6), shall be restricted to the determination of whether the record evidence supports the administrative findings. Const 1963, art 6, § 28.
Remanded to the trial court for proceedings not inconsistent with this opinion.