PARAGON PROPERTIES CO V CITY OF NOVI
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STATE OF MICHIGAN
COURT OF APPEALS
PARAGON PROPERTIES, INC,
UNPUBLISHED
December 1, 2000
Plaintiff-Appellee,
v
CITY OF NOVI and NOVI ZONING BOARD OF
APPEALS,
No. 209233
Oakland Circuit Court
LC No. 95-494243-AA
Defendants-Appellants.
Before: Fitzgerald, P.J., and Holbrook, Jr. and McDonald, JJ.
PER CURIAM.
Defendants appeal by leave granted the order reversing a decision of defendant Zoning
Board of Appeals and ruling that plaintiff is entitled to a variance to use its seventy-five acre
parcel for a mobile home development on the grounds of exceptional circumstance, undue
hardship, and the inability to use the property as zoned. We reverse.1
Plaintiff, Paragon Properties, Inc., owns a seventy-five acre parcel of land located in the
city of Novi. This matter arises out of plaintiff’s request for a variance to use the property for a
mobile home park. Plaintiff’s earlier constitutional challenge against the zoning ordinance was
before our Supreme Court in Paragon Properties Co v Novi, 452 Mich 568; 550 NW2d 772
(1996). In that case, the Court found that the Novi city council’s denial of Paragon’s request to
rezone its property was not a final decision appealable to the circuit court and that Paragon’s
constitutional claim was not ripe for review. Id. at 581-583. The Court made no determination
regarding the correctness of the decision to deny the rezoning request.
While the earlier action was still in the appellate courts, the city rezoned plaintiff’s land
from A-R1, large lot, single family residential to OS-2/PD-4, planned office service district.
Shortly thereafter, plaintiff filed an application for a use variance2 pursuant to § 3104(b) of the
Novi city zoning ordinance seeking to use its seventy-five acre parcel for a mobile home park
1
The history of the nearly fifteen years of legal wrangling is well-presented in the Supreme Court
opinion.
2
As opposed to the earlier rezoning request.
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instead of the commercial uses permitted by its OS-2/PD-4 classification. At the January 3,
1995, Zoning Board of Appeals (ZBA) hearing on plaintiff’s petition, plaintiff asserted that the
parcel could not be used for office space because the presence of a gravel pit across the street,
two mobile home parks, and an asphalt plant nullified the potential placement of a mental health
clinic, hospital, restaurant, or bank. Brandon Rogers, Novi’s planning consultant, disagreed. He
testified that the property was well-suited for OS-2/PD-4 future land use, noting that an iron
works, steel plant, and car dealership are in the immediate neighborhood. Rogers indicated that
the adjacent gravel pit would soon be closed and would have little effect on the parcel in the
future. Rogers indicated that the parcel had good access from both Grand River and I-96, and
that its present zoning allowed for broad possibilities. Board member Harrington opined that
plaintiff failed to support its variance request with the facts needed and that neither plaintiff’s
oral statements nor information packet established exceptional difficulties using the parcel for its
zoned use. Board members Harris and Pfeffer indicated that plaintiff failed to meet its burden to
produce evidence that would lead a reasonable person to believe that the property could not be
used for any of the uses permitted by the zoning ordinance. The board voted unanimously to
deny the use variance based on plaintiff’s failure to demonstrate exceptional practical difficulty
or undue hardship.
Following this denial, plaintiff filed a revised application for a variance that the ZBA
treated as a request for reconsideration. Plaintiff attached the affidavit of Joel Feldman, a senior
vice president of a commercial real estate firm hired by plaintiff to review the feasibility of using
the parcel under the present zoning. Feldman opined that the zoning posed practical difficulties
and exceptional hardship because the land could not be developed because of its lack of frontage
on a major thoroughfare, its close proximity to a cement plant, Novi’s lack of need for premium
office space, the lack of city water or sewer, and the inability to get financing based on these
conditions.
In response, Rogers indicated that the parcel abutted two major paved thoroughfares and
that the area within one mile of plaintiff’s parcel was filled with research offices, industrial
parcels, and general businesses. According to Rogers, sewers could be extended to the land or,
in the alternative, an on-site treatment facility could be created. In discussion of the matter, ZBA
member Harrington noted that Feldman’s affidavit was the only germane evidence plaintiff
provided and noted that the positions of Feldman and Rogers were in stark conflict but that most
of Feldman’s statements were conclusions. The board voted unanimously to deny the variance.
Plaintiff filed a petition for review in the circuit court, arguing that the parcel was
unsuitable for any use other than a mobile home development and that the board’s decision to
deny either rezoning or a variance was clearly erroneous and against the great weight of the
evidence and constituted a taking. Defendants responded by arguing that the ZBA may grant a
use variance only when it can be clearly shown that the parcel cannot be used as zoned.
According to defendants, the parcel’s zoning allowed for a broad range of uses and plaintiff had
failed to show that the parcel could not be used for any of these permitted uses.
On January 7, 1998, the court issued a written opinion, noting that plaintiff asserted that
the property could not be used as zoned, that the city previously admitted that there was a
demand for manufactured housing, and that the ground does not percolate. The court also noted
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that the city’s planning consultant, Rogers, indicated that current zoning permits numerous uses
and that the property had good access routes. The court ruled that the ZBA’s decision was not
supported by competent, material, or substantial evidence and did not constitute the reasonable
exercise of discretion. The court found that plaintiff established that the property cannot be used
as zoned because of the two mobile home parks to the south, the gravel pit to the west, the nearby
concrete plant, the abutting dirt road, the lack of location on a prominent thoroughfare, lack of
sewer system, the substantial distance to the nearest highway connection, and the soil’s inability
to percolate. The court concluded that plaintiff’s evidence presented a compelling case that the
parcel could not be used as zoned, that plaintiff would suffer practical difficulties, and that
failure to grant a variance would result in undue hardship. The court stated that Rogers conceded
that the parcel was only suited for OS-2/PD-4 use in the future, ruling that Rogers’ testimony
implicitly supported plaintiff’s position that the parcel could not presently be used as zoned. The
court found that Rogers’ testimony regarding alternative water sources and water treatment
systems was irrelevant because there was no evidence that these alternatives were feasible for
plaintiff. According to the court, the ZBA’s decision rested on nothing more than a scintilla of
evidence, did not represent the reasonable exercise of discretion, and was not supported by
competent, material, and substantial evidence.
On appeal, defendants argue that the circuit court grossly applied the substantial evidence
test and applied incorrect legal principles by failing to recognize that the burden of proof for the
variance was on plaintiff. This Court reviews the circuit court’s review of an agency action to
determine whether the circuit court applied correct legal principles and whether it
misapprehended or grossly misapplied the substantial evidence test to the agency’s factual
findings. York v Wayne Co Sheriff’s Dep’t, 227 Mich App 514, 516-517; 576 NW2d 436 (1998).
This latter standard is indistinguishable from the clearly erroneous standard of review. Boyd v
Civil Service Comm, 220 Mich App 226, 235; 559 NW2d 342 (1996). A finding is clearly
erroneous when, on review of the whole record, this Court is left with a definite and firm
conviction that a mistake has been made. Id.
A. General law of zoning
The zoning of land is a reasonable exercise of government police power. Village of
Euclid, Ohio v Ambler Realty Co, 272 US 365; 47 S Ct 114; 71 L Ed 303 (1926). Zoning
regulations are a legitimate means to protect important property interests and accommodate
competing uses of property within a community. The Jesus Center v Farmington Hills Zoning
Bd of Appeals, 215 Mich App 54, 67; 544 NW2d 698 (1996). However, because zones
established by ordinance will not always reflect the realities of all land controlled by a zoning
ordinance, the City and Village Zoning Act provides a process by which a property owner may
seek a variance from the application of an ordinance. MCL 125.585(9); MSA 5.1935(9). A land
use variance is, in essence, a license to use property in a way that would not be permitted under a
zoning ordinance. Paragon, supra at 575 n 3; Fredericks v Highland Twp, 228 Mich App 575,
582; 579 NW2d 441 (1998). Variances should be sparingly granted so that the award of one
variance in an area where many parcels are similarly situated does not result in a material change
to the zoning district. Puritan-Greenfield Improvement Ass’n v Leo, 7 Mich App 659, 671; 153
NW2d 162 (1967). Variances fall within one of two broad categories: use variances or non-use
variances. Nat’l Boatland, Inc v Farmington Hills Zoning Bd of Appeals, 146 Mich App 380.
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387; 380 NW2d 472 (1985). Use variances permit a use of the land that the zoning ordinance
otherwise proscribes. Id. Non-use variances are not concerned with the use of the land, but
rather, with changes in a structure’s area, height, and setback. Plaintiff sought a use variance by
seeking to use the property for a purpose other than those the zoning ordinance allowed.
B. The Novi zoning ordinance and the zoning of plaintiff’s property
The preamble to the Novi Code of Zoning Ordinances states that its purpose is to regulate
the use of land to ensure, inter alia, the health and safety of residents. It provides:
Pursuant to the authority conferred by the Public Acts of the State of
Michigan in such case, made and provided and for the purpose of promoting, and
protecting the public health, safety, peace, morals, comfort, convenience, and
general welfare of the inhabitants of the City of Novi, by protecting and
conserving the character and social and economic stability of the residential,
commercial, industrial and other use areas; by securing the most appropriate use
of land; preventing overcrowding of the land and undue congestion of population;
providing adequate light, air and reasonable access; and facilitating adequate and
economical provision of transportation, water, sewers, schools, recreation and
other public requirements, and by other means, all in accordance with a
comprehensive plan [this city adopts this ordinance]. [§ 125.13, Novi Zoning
Ordinance.]
Plaintiff’s property has been zoned OS-2, planned office service district since 1994. This
classification provides:
The OS-2 Planned Office Service District is designed to provide for
various types of office uses performing administrative, professional and personal
services and for businesses which provide a service as opposed to selling a
product. These districts are intended to be located and planned so as to provide
convenient customer parking and pedestrian movement within the District and a
minimum of conflict with traffic on abutting major thoroughfares. To assure
optimum site planning relationships with minimum internal and external traffic
conflict, each use will be reviewed as it relates to its site and abutting properties.
[§ 2301.]
The use of property in an OS-2 district is limited to:
1. Office buildings, offices and office sales and service activities for any of the
following occupations: Executive, administrative, professional, accounting,
writing, clerical, stenographic, drafting, sales and engineering and data
processing; corporate offices and headquarters and office support functions, such
as conference rooms, dining facilities, photographic facilities and record storage
facilities.
2. Medical offices, including laboratories and clinics.
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3. Facilities for human care, such as hospital, sanitariums, convalescent homes,
hospice care facilities and assisted living facilities subject to the requirements of
subsection 1101.3.
4. Off-street parking lots.
5. Accessory structures and uses customarily incident to the above permitted uses.
6. Publicly owned and operated parks, parkways and outdoor recreational
facilities. [§ 2301.]
However, the property is also zoned PD-4, which provides for a number of other uses subject to
the approval of the planning commission. These uses are accessory to the principal used of the
OS-2 district:
1. One or more of the following secondary uses which is accessory to and located
in the same building as a principal use authorized by Section 2301: A pharmacy
or apothecary shop, medical supply store, optical services, restaurants, barber
shops or beauty shops, gift shops, travel agencies, health studios and related
services for employees of offices[.]
2. Sit down restaurants, except those possessing the character of a drive-in, drivethrough, fast food, or fast food carry out or delivery facility[.]
3. Public owned buildings, telephone exchange buildings, and public utility
offices, but not including storage yards, transformer stations, substations or gas
regulator stations.
4. Banks, credit unions, savings banks, savings and loan associations and other
types of financial institution uses with drive-in facilities as an accessory use only.
5. Public or private indoor recreational facilities, including, but not limited to,
health and fitness facilities and clubs, swimming pools, tennis and racquetball
courts, roller skating facilities, ice skating facilities, soccer facilities, baseball and
softball practice areas, indoor archery ranges and similar indoor recreational uses,
and private outdoor recreational facilities, including, but not limited to, play
fields, playgrounds, soccer fields, swimming pools, tennis and racquetball courts
and ice skating facilities. [§ 2302, Principal Uses Permitted Subject to Special
Conditions.]
C. The variance procedures
The ordinance further provides that a landowner may seek a variance if a zoning
requirement causes an undue hardship when coupled with unique circumstances related to the
land. The ordinance defines a variance as:
A modification of the literal provisions of the Zoning Ordinance granted
when strict enforcement of the Zoning Ordinance would cause undue hardship
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owing to circumstances unique to the individual property on which the variance is
granted. The crucial points of variance are: (a) undue hardship, (b) unique
circumstances, and (c) applying to property. A variance is not justified unless all
three elements are present in the case. A variance is not an exception. [Novi
Zoning Ordinance, Definitions, emphasis added.]
The ordinance also directs a landowner’s method for seeking such a variance:
1. The Zoning Board of Appeals shall not have the power to alter or change the
zoning district classification of any property, nor to make any change in the terms
of this Ordinance but shall have the power to authorize a use in a zoning district
in which it is not otherwise permitted, provided it is clearly shown that the land
cannot be used for a zoned use, and shall be further empowered to act on those
matters where this Ordinance provides for an administrative review,
interpretation, exception or special approval permit and to authorize a variance as
defined in this Section and laws of the State of Michigan. Said powers include:
***
b. Variance. To authorize, upon an appeal, a variance from the strict application
of the provisions of this Ordinance where by reason of exceptional narrowness,
shallowness, shape or area of a specific piece of property at the time of enactment
of this Ordinance or by reason of exceptional topographic conditions or other
extraordinary or exceptional conditions of such property, the strict application of
the regulations enacted would result in peculiar or exceptional practical
difficulties to or exceptional undue hardship upon the owner of such property
provided such relief may be granted without substantial detriment to the public
good and without substantially impairing the intent and purpose of this
Ordinance. In granting a variance, the Board may attach thereto such conditions
regarding the location, character and other features of the proposed uses as it may
deem reasonable in furtherance of the purpose of this Ordinance. In granting or
denying a variance, the Board shall state the grounds upon which it justifies the
granting or denying of a variance. The decision shall be in writing and delivered
to the applicant by registered or certified mail. [Novi Zoning Ordinance, § 3104,
emphasis added.].
D. Does the zoning ordinance provide different standards for an award of
a use variance as opposed to a non-use variance?
Defendants argue that the wording of the ordinance differentiates between property
owners seeking use variances and those seeking non-use variances. The ordinance itself does not
use the terms “use variance” and “non-use variance.” However, the trial court ruled that the
property could not be used as zoned without suffering from exceptional practical difficulties and
that failure to grant a variance would result in an undue hardship. Defendants contend that a use
variance may be granted only when the property may not be used as zoned, and that it is a nonuse variance that may be granted when the strict application of the regulations would result in
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peculiar or exceptional practical difficulties or exceptional undue hardship. Defendants assert
that the court merged the standard for a use variance with the standard for a non-use variance and
that it was improper for the court to consider exceptional practical difficulties and undue
hardship.
The zoning ordinance is confusing because it defines as crucial to a variance both an
undue hardship and unique situation. At the same time, the ordinance states that the ZBA may
permit an otherwise unauthorized use in a district if the property cannot be used as zoned. The
ordinance also provides that when property is narrow, shallow, oddly shaped, or has some other
exceptional condition and the zoning caused the landowner exceptional practical difficulties or
exceptional undue hardship, a variance may be granted if it would create no substantial detriment
to the public good or the intent of the ordinance. While this latter language seems to be directed
at the award of a non-use variance, that same paragraph provides that the ZBA may attach
conditions to an award of a variance in relation to the proposed uses. While the ordinance is not
a model of clarity, the key aspect for a variance from a use restriction is in § 3104(1), which
provides that the board may authorize an otherwise prohibited use if it clearly shows that the
property may not be used as zoned. Even if the ordinance can be read to include the exceptional
difficulty or undue hardship language when a use variance is considered, the plain language of
the ordinance mandates that first it must be shown the land is not useable as it is currently zoned.
E. Did the circuit court use the proper standard of review?
The circuit court’s review of ZBA decisions is limited to whether the decision is
authorized by law and supported by competent, material, and substantial evidence on the whole
record. Dowerk v Oxford Twp, 233 Mich App 62, 72; 592 NW2d 724 (1998). “Substantial
evidence” is evidence that a reasonable person would accept as sufficient to support a conclusion.
Tomczik v State Tenure Comm, 175 Mich App 495, 499; 438 NW2d 642 (1989).
Here, the circuit court did not limit itself to this review. In its written opinion, the court
acknowledged that defendants presented testimony that the property had good access and that its
zoning permitted a number of uses. The court nonetheless found that competent, material, and
substantial evidence did not support the ZBA’s denial and that the property could not be used as
zoned because of the adjacent mobile home parks to the south, the gravel pit to the west, the
nearby concrete plant, the abutting dirt road, the lack of a prominent thoroughfare, lack of sewer
system, the substantial distance to the nearest highway connection, and the soil’s inability to
percolate. According to the court, plaintiff and its expert, Joel Feldman, presented a compelling
case that the parcel could not be used as zoned, that plaintiff would suffer from exceptional
practical difficulties, and that failure to grant a variance would result in undue hardship. The
court also based its decision on Brandon Rogers’ testimony that the parcel would only be suited
for OS-2/PD-4 in the future.
The court’s opinion makes clear that the court exercised nearly a de novo standard of
review, and with regard to the water and sewage issues actually shifted the burden of proof to
defendants to show that alternative methods were feasible for plaintiff. The city presented
testimony that the property could be used for research and office development, had good access
routes, was close to other commercial office developments, that plaintiff could use other methods
of receiving water and had the potential of using alternative methods of receiving water and
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sewage treatment. At the very least, the testimony of Rogers and Feldman was a draw. In such
an instance, it cannot be said that plaintiff met its burden of proof. Davenport v Grosse Pointe
Farms Bd of Zoning Appeals, 210 Mich App 400, 402; 534 NW2d 143 (1995).
F. Is the zoning based on existing conditions?
Another basis for the trial court’s ruling was its finding that the zoning classification for
plaintiff’s property was not grounded in the current status of the land and area, but directed at
future potential. The court based its finding on a comment by Rogers that the gravel pit would
soon be closed and therefore in the future would not cause a problem for plaintiff’s property. Id.
While speaking before the ZBA, Rogers specifically stated:
[F]rom a planning standpoint and looking beyond just the limits of the
City of Novi, looking at Lyon Township, looking at Wixom, looking at Milford
and even getting into Brighton, this is a developing corridor, because the area to
the east is in Farmington[,] in Southfield[,], in Farmington Hills, is getting
occupied and the movement is to the west. So I see the value to retain the OS2/PD-4 classification for the subject property. I think its reasonable and I think in
the foreseeable future it will be reasonable.
A zoning ordinance is subject to a rebuttable presumption of validity. A & B Enterprises v
Madison Twp, 197 Mich App 160, 164; 494 NW2d 761 (1992). The validity of a zoning
regulation must be tested by existing conditions. Troy Campus v City of Troy, 132 Mich App
441, 457; 349 NW2d 177 (1984). In Gust v Canton Twp, 342 Mich 436, 442; 70 NW2d 772
(1955), the Court stated:
The extent of the owner’s right to the free use of his property in the
manner deemed best by him is not to be determined by such speculative standards.
The test of validity is not whether the prohibition may at some time in the future
bear a real and substantial relationship to the public health, safety, morals or
general welfare, but whether it does so now.
The reasonableness of a zoning regulation must be gauged against existing facts and
conditions and not conditions that might exist in the future. Comer v Dearborn, 342 Mich 471,
477; 70 NW2d 813 (1955). In this case, the trial court seized on Rogers’ statement as an
admission that the property could not currently be used as zoned. However, Rogers’ statement
followed nine transcript pages in which Rogers discussed all the development in the areas
adjacent to plaintiff’s land, the highway and street access sites, and the possibility of alternative
water and sewer systems. The circuit court’s interpretation of Rogers’ statement is strained in
light of Rogers’ extensive testimony about the amount of commercial development occurring in
the area surrounding plaintiff’s lot. In light of the surrounding commercial uses, the zoning bears
a real and substantial relationship on the current status of the property, not merely its status in the
future. Gust, supra at 442.
F. Plaintiff’s taking and substantive due process arguments
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Plaintiff claimed that the zoning ordinance constituted a taking and that the ZBA’s denial
of a variance violated its right to substantive due process. A land-use regulation effectuates a
taking where the regulation does not substantially further a legitimate governmental interest, or
where the regulation deprives the owner of economically viable use of the land. K & K
Construction, Inc v Dep’t of Nat’l Resources, 456 Mich 570, 576; 575 NW2d 531 (1998). Here,
the city’s stated purpose for the zoning ordinance is, inter alia, to promote and protect the public
health, safety, peace, morals, comfort, and convenience, and facilitates adequate provisions of
transportation, water, sewers, schools, recreation, and other public requirements. This provision
for the public safety is clearly a legitimate governmental interest. Bevan v Brandon Twp, 438
Mich 385, 399-400; 475 NW2d 37 (1991).
Since the purpose of the zoning is permissible, the question becomes whether the
regulation denied plaintiff any economically viable use of its land. Dowerk, supra at 67. Our
Supreme Court has used two factors in determining whether zoning regulation effects a taking by
removing an economically viable use of land: whether the owner has shown that the property is
either unsuitable for use as zoned or that it is unmarketable as zoned. Bevan, supra at 403. Mere
diminution in value does not amount to taking. Bell River Associates v China Charter Twp, 223
Mich App 124, 133; 565 NW2d 695 (1997).
In Bell River, the plaintiff owned 292 acres in a rural township with 2,500 residents. The
property was zoned for agricultural use, but the plaintiff sought to develop some of the property
for use of a 454-unit mobile home park with a projected 1,000 residents. Id. at 126. The zoning
ordinance permitted a number of uses for the property: (1) one-family detached dwellings, (2)
farms and agricultural activities, (3) sales of agricultural products, (4) public parks, recreational
facilities, and schools, (5) garage sales, and (6) accessory buildings and uses customarily incident
to the above-mentioned uses. Id. at 130. A number of other uses were permissible with
permission of the township including airports, cemeteries, raising of livestock and farm animals,
large-scale recreation, kennels and animal clinics, mining and extraction, and commercial
composting facilities. Id. at 130. The property was not serviced by public water or sewer and the
closest connections were four miles away. Id. The township denied that rezoning request. Id. at
126. The plaintiff then sued to compel the township to change the zoning, but the circuit court
denied the rezoning and found that the township had properly denied the zoning change based on
the unavailability of public utilities, the proposed use’s incompatibility with the area, the
remoteness of the site, and the impact that the influx of a relatively large population would have
on township resources. Id. at 127. The circuit court further ruled that the plaintiff had not shown
that the existing agricultural zoning classification precluded use of the property for other
purposes. Id. The plaintiff appealed, emphasizing that leasing its property as farmland was not
economically viable, but this Court noted that the mere diminution in value alone cannot
constitute a taking. Id. at 133. This Court ruled that the plaintiff had not established that the
land could not be used for other adaptable purposes and failed that to show that the agricultural
zoning precluded use of the property for any purpose. Id. The plaintiff claimed that the circuit
court erred in focusing on the parcel’s lack of water and sewer services in affirming the denial,
contending that any large development would be subject to the same sewer and water
considerations. Id. at 134. This Court stated that a large development on plaintiff’s property,
given its remote location, would demand a costly and complex solution to the existing water- and
sewer-connection problem. Id.
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Here, the OS-2/PD-4 zoning classification permits plaintiff to use the property in a
multitude of ways, including office buildings; offices and office sales and service activities for
executive, administrative, professional, accounting, writing, clerical, stenographic, drafting, sales
and engineering and data processing; facilities for human care, such as hospitals, sanitariums,
convalescent homes, hospice care facilities and assisted living facilities; off-street parking lots;
publicly owned and operated parks, parkways and outdoor recreational facilities; corporate
offices and headquarters and office support functions, such as conference rooms, dining facilities,
photographic facilities and record storage facilities, medical offices, laboratories and clinics,
banks, credit unions, savings banks, savings and loan associations; indoor recreational facilities,
including, but not limited to, health and fitness facilities and clubs, swimming pools, tennis and
racquetball courts, roller skating facilities, ice skating facilities, soccer facilities, baseball and
softball practice areas, indoor archery ranges and similar indoor recreational uses; and private
outdoor recreational facilities, including, but not limited to, play fields, playgrounds, soccer
fields, swimming pools, tennis and racquetball courts and ice skating facilities. Further,
secondary uses accessory to and located in the same building as a principal use may be operating
on this property. These accessory uses include: a pharmacy, medical supply store, optical
services, restaurants, barber shops or beauty shops, gift shops, travel agencies, health studios; sit
down restaurants, publicly owned buildings, telephone exchange buildings, and public utility
offices. The broadness of the options open to a developer of this land is made clear by ordinance.
Even assuming Paragon showed that a premium office tower was not appropriate for the site,
plaintiff did not present any evidence or an argument that the land could not be used for the
myriad of other approved uses.
A substantive due process claim requires proof that there is no reasonable governmental
interest being advanced by the present zoning classification or that an ordinance is unreasonable
because of the purely arbitrary, capricious, and unfounded exclusion of other types of legitimate
land use from the area in question. Fredericks, supra at 594; Kropf v Sterling Heights, 391 Mich
139, 158; 215 NW2d 179 (1974). Here, the city presented evidence that the property’s location
was near the site of many industrial and high tech developments and that the area was envisioned
as being a high tech corridor. Plaintiff presented no evidence that the zoning was arbitrary or
capricious. The permitted uses under the OS-2/PD-4 classification are extremely broad.3
Accordingly, we reject plaintiff’s constitutional challenges.
3
A large portion of plaintiff’s factual statement and argument relates to findings made and
testimony taken in its original action in the Oakland Circuit Court arising out of its efforts to
have the land rezoned from single family residential to a classification allowing mobile homes.
The decision in that case was reversed by our Supreme Court in Paragon, supra, 452 Mich at
579-582, based on that Court’s ruling that plaintiff was obligated to seek a variance before filing
a circuit court action based on the alleged unconstitutionality of the ordinance as applied.
This Court has defined “reverse” to mean to overthrow, vacate, set aside, make void,
annul, repeal, or revoke; as to reverse a judgment, sentence or decree of a lower court by an
appellate court, or to change to the contrary or to a former condition. Hopkins v Michigan Parole
Bd, 237 Mich App 629, 642; 604 NW2d 686 (1999). To reverse a judgment means to overthrow
(continued…)
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Reversed.
/s/ E. Thomas Fitzgerald
/s/ Donald E. Holbrook, Jr.
/s/ Gary R. McDonald
(…continued)
it by contrary decision, make it void, undo or annul it for error. Id. In this instance, our Supreme
Court reversed the previous circuit court decision, and therefore its ruling can have no bearing on
this matter other than being of historical interest. Additionally, the testimony taken during the
trial in that use would also be of no efficacy because at the time it was taken, plaintiff’s land was
zoned single family residential. By the time plaintiff sought the variance that is the subject of
this appeal, its land was zoned for commercial use. This is a significant change in the zoning
scheme making that earlier trial testimony irrelevant.
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