Michigan Court of AppealsJun 28, 1984
135 Mich. App. 729 (Mich. Ct. App. 1984)
135 Mich. App. 729355 N.W.2d 667

Docket No. 70624.

Decided June 28, 1984.

H. James Telman, for plaintiffs. Warner, Norcross Judd (by Patrick E. Mears and H. Terrence Smith), for Cascade Acres, Inc.

Victoria Helton, for Michigan National Bank-Central.

Before: BEASLEY, P.J., and ALLEN and M.B. BREIGHNER, JJ.

Circuit judge, sitting on the Court of Appeals by assignment.


Plaintiffs, Randall L. and Noelle C. Yager, appeal as of right from a judgment of no cause of action awarded defendants after a bench trial.

Plaintiffs, owners of a residential home in Cascade Acres No. 6, a residential subdivision in Cascade Township, Kent County, sought an injunction to compel defendants to demolish or reconstruct a residential dwelling that was being constructed on an adjacent lot in the same subdivision, claiming violations of the zoning ordinance and the property owners restrictions. Defendants' plans were approved by an officer of the subdivision association, and a building permit was issued by the township building inspector. After a three-day trial and a visit to the premises, the trial judge denied plaintiffs' request for a permanent injunction.

In this case, defendants contracted for a house to cost $110,500.

Since plaintiffs sought injunctive relief which is equitable in nature, our appellate review is de novo, with appropriate deference given to the trial court's findings of fact. We also note that the trial judge visited the premises and accord his findings special weight insofar as they rest upon those observations.

Marconeri v Village of Mancelona, 124 Mich. App. 286; 335 N.W.2d 21 (1983); Ed Zaagman, Inc v City of Kentwood, 406 Mich. 137; 277 N.W.2d 475 (1979).

Emerald Valley Land Development Co v Diefenthaler, 35 Mich. App. 346; 192 N.W.2d 673 (1971), lv den 386 Mich. 770 (1971); Kustarz v Janesick, 347 Mich. 223; 79 N.W.2d 613 (1956).

Plaintiffs claimed that defendants violated the minimum square footage requirements of both the property owners restrictions (1500 square feet for a single story and 1750 square feet for a two-story dwelling) and the zoning ordinance (1600 square feet). The gist of plaintiffs' claim is that in the so-called passive solar, earth-bermed structure planned by defendants, over 1000 square feet of the main living area of the home is a "basement" or "walk-out", the square footage of which cannot be counted toward the minimum under either the property owners restrictions or the zoning ordinance. This assertion rested upon the part of the restriction agreement that provides:

"c) Furnished basement areas and/or `walk-out' levels shall be in addition to the minimum square footage requirements of ¶¶ a) and b) above."

Two "berms" of earth were pushed against the main level of the structure to insulate it and to reduce energy costs. In general, defendants sought to more or less conform the grade of the main level to the surrounding terrain.

While there were conflicts in the testimony, the president of the developer-owner of the subdivision and drafter of the restrictions testified:

"Q. Now, within the meaning of ¶ 2(c), what is a basement?

"A. A basement is a full story area below the main level of a home either partially or completely below the original grade of the surrounding earth. "Q. And within the meaning of ¶ 2(c) of the plat restrictions, what is a walk-out?

"A. A walk-out is a basement level with a penetration through the foundation wall opening up onto the surrounding grade. * * *

"Q. [I]s the main level a basement or a walk-out?

"A. No.

"Q. Why isn't it?

"A. It is not a basement because it is above the level of the existing grade. It does not have a full story above it. This is a tri-level or one and a half story home with a slab on grade. It is not a walk-out, number one, because it is not a basement. Number two, it is not dug into the side of a hill and to me this was the lower level of the story and a half or tri-level home. It was built at the existing grade and within the plat restrictions, and the requirements of the plat restrictions, it meets them. * * *

"The lower level is built at the existing grade. The only difference between that home and what we will quote call a conventional home is that the Wrights have elected to berm earth against the exterior of the lower level for insulation purposes. I might say they have elected to berm earth on basically the two sides because the third side of a tri-level is going to be automatically below grade anyway, so they have elected to berm the earth on basically two sides of the lower level and that is the only difference."

In holding with defendants, the trial judge said:

"I am of the opinion that the dwelling here involved does not violate the restrictions here involved. It is true that a portion of the living room, the living area is below grade. It is also true that there are two berms on either side, but I am of the opinion that this does not make it a basement nor does the mere fact that there are sliding doors from, I think, both the living room and the dining area onto what is eventually going to be a terrace is sufficient to make it what is known as a `walk-out' so that it would be considered, as such, in violation of the restrictions."

The trial judge also said:

"There has been much testimony relative to the definitions of many of the things here involved. The first question is, what is a basement? And I have had many definitions given to me. We all have our own thoughts of what a basement is. BOCA has one, BOCA has another definition of a cellar which is different than a basement, but in one respect a basement can be a cellar. There are many definitions in various dictionaries. There are also many definitions of a basement that we all have in our own minds of what is a basement. There apparently is no standard definition of walk-out. When you look in the dictionary, I understand you don't find it when you try to find something that is used as a walk-out. Each of the people here involved have given their own definitions and I won't try to define it, but it is an opening onto a ground level from an established lowest level construction which has earth around it to more than one-half of its height."

We see no reason to interfere with the trial judge's opinion.

There are various definitions of a basement. One dictionary definition of basement is:

Webster's New World Dictionary (William Collins World Publications Co., Inc., 1974), p 116.

"2. the lowest story of a building, below the main floor and wholly or partly below the surface of the ground."

As indicated by appellees, the key element of this definition is that a basement is an area below the main floor. The "lower level" of defendants' home is the main floor containing the living room, dining room, kitchen, bath, and bedroom-den. It is not a basement because it is not below the main floor. We agree with a witness who described it as a one-and-a-half story slab home without a basement.

The term "walk-out" is less readily susceptible of accepted dictionary definition. As previously quoted, the drafter of the restrictions defined a "walk-out" and testified unequivocally that defendant's construction was not a "walk-out". Thus, we are satisfied that there was ample evidence in support of the trial judge's conclusion that the disputed living area was neither a basement nor a walk-out.

Our search does not reveal a dictionary definition of "walk-out" as such.

Neither do we believe that the trial court erred in holding that the proposed residence did not violate the zoning ordinance, the court stated:

"There is also evidence that a strict interpretation of the zoning law might be involved here. I am of the opinion that if just because you put the berms on both sides of the house and because it may be a foot or two feet, or even up to three feet, lower than the existing grade does not make it a basement to violate the zoning laws of the township."

We do not interpret the zoning ordinance in question to mean that this use of "berms" creates a basement within the language of the ordinance. It may be that the township should give attention to including in its ordinance definitions more apropos and timely for the type of construction contemplated here, but in the interim, we are not inclined to strain the meaning of the ordinance by filling in missing definitions.

"Grade" and "basement" are not defined in the ordinance.