CONCERNED CITIZENS OF CHESANING V VILLAGE OF CHESANING
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STATE OF MICHIGAN
COURT OF APPEALS
CONCERNED CITIZENS OF CHESANING,
UNPUBLISHED
June 10, 2004
Plaintiff-Appellant,
v
No. 246564
Saginaw Circuit Court
LC No. 01-038988-AV
VILLAGE OF CHESANING,
Defendant-Appellee.
Before: Hoekstra, P.J., and O’Connell and Donofrio, JJ.
PER CURIAM.
Plaintiff appeals by right from the trial court’s order denying plaintiff’s motion to reopen
proofs and upholding an amendment to defendant’s zoning ordinance. Because the offered
proofs, even if accepted, do not address the basis for the trial court’s decision, and the zoning
amendment was a reasonable means of achieving a legitimate governmental purpose, we affirm.
The facts of the case are undisputed. Defendant amended its zoning ordinance on May 1,
2001 to allow temporary outdoor recreation and entertainment by special permit in areas zoned
M-1 (manufacturing.) The amendment stated:
Temporary Outdoor Recreation and Entertainment: An area of land use
for the following on a temporary basis, but which may recur annually to: county
fairs, animal shows and judging, carnivals, circuses, community meetings or
recreational buildings and uses, concerts, food booths and stands, games, rides,
rodeos, flea markets, tractor pulls, craft shows, antique shows, car shows, storage
and theaters. Temporary campgrounds are permitted as an accessory use to any of
the principal uses mentioned previously. Agricultural related office buildings
may be occupied on a permanent basis as part of the use.
Principal uses permitted by right in areas zoned M-1 included manufacturing, freight terminals,
laboratory and research facilities, and storage and processing of agricultural products. Other
uses permitted in M-1 districts by special permit included junkyards, landfills, metal foundries,
electrical power plants, and chemical manufacturing plants.
Defendant issued a special permit to the Saginaw County Agricultural Society (the
Society) on June 12, 2001, allowing it to hold the Saginaw County Fair on two parcels of
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property zoned M-1 owned by McDonagh Amusements, Inc., and Bernard and Georgina
Coonrod, respectively. The Society had arranged a lease with the property owners to conduct the
fair. Plaintiff filed suit alleging the amendment was unconstitutional, violated the village master
plan, and was a nuisance. Plaintiff challenged the issuance of a special use permit to the Society
in a separate action. Plaintiff filed a third action to appeal a decision of defendant’s zoning board
of appeals granting a special exception permit to McDonagh that allowed its employees to
temporarily live in trailers on its property during certain months of the year. The trial court
consolidated all three cases, but this appeal concerns only the action challenging the validity of
the zoning amendment.
Plaintiff claims the trial court erred in refusing to reopen proofs because the evidence
plaintiff sought to admit proved that the zoning amendment was passed purely for the benefit of
McDonagh Amusements, Inc. and the Saginaw County Agricultural Society. We disagree.
We review a trial court’s denial of a motion to reopen proofs for an abuse of discretion.
Fabrini Foods v United Canning, 90 Mich App 80, 91; 280 NW2d 877 (1979). We note first
that the trial court was obliged to evaluate the validity of the amendment without reference to
defendant’s motives in adopting it. Pythagorean, Inc v Grand Rapids Twp 253 Mich App 525,
527; 656 NW2d 212 (2002) quoting People v Gibbs, 186 Mich 127, 134-135; 152 NW 1053
(1915). The court examined the amendment in light of the village zoning act, MCL 125.581(1),
which provides that a legislative body of a village may regulate the use of land to provide places
of recreation for residents. The trial court found that the recreational opportunities and revenue
generated from a county fair and other specially permitted uses under the amendment would
benefit the community as a whole. Thus, further proof on plaintiff’s point was unnecessary. The
trial court’s decision was not so “grossly violative of fact and logic” as to amount to an abuse of
discretion. Spalding v Spalding, 355 Mich 382, 384-385; 94 NW2d 810 (1959). Therefore, the
trial court did not err in refusing to reopen proofs.
Next, plaintiff challenges the validity of the amendment. To invalidate a zoning
ordinance, a plaintiff must meet a heavy burden of proof. The ordinance is accorded every
presumption of validity. Kropf v Sterling Heights, 391 Mich 139, 162; 215 NW2d 179 (1974).
The party attacking the ordinance bears the burden of proving affirmatively that it is “‘an
arbitrary and unreasonable restriction upon the owner’s use of his property’” about which “‘there
is no room for a legitimate difference of opinion concerning its reasonableness.’” Id., quoting
Brae Burn, Inc v Bloomfield Hills, 350 Mich 425, 432; 86 NW2d 166 (1957). The trial court
found that plaintiff failed to meet this burden. This Court gives considerable weight to the
findings of the trial court in equity cases. Kropf, supra at 163, quoting Christine Building Co v
City of Troy, 367 Mich 508, 518; 116 NW2d 816 (1962).
Plaintiff argues that the failure of the planning commission to declare a valid purpose for
the amendment under the village zoning act demonstrates that no legitimate government interest
was advanced by the amendment. Plaintiff’s argument lacks merit because defendant had no
burden to establish a relationship between the amendment and a legitimate government interest.
Rather, the burden was on plaintiff to show the absence of such a relationship. Northwood
Properties Co v Perkins, 325 Mich 419, 422-423; 39 NW2d 25 (1949). As already discussed,
the amendment furthers legitimate interests by providing places of recreation for the citizens of
Chesaning and generating revenue for the village.
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Plaintiff claims the amendment was an unreasonable means of advancing a legitimate
government interest because only some M-1 land was actually suitable for the special uses
permitted under the amendment. However, the very rationale for the existence of specially
permitted uses is that only certain properties within a district are suitable for such uses. 83 Am
Jur 2d, Zoning and Planning, § 859, p 710. Obviously, all parcels of property in the M-1 district
would not be suitable for landfills, junkyards, or power plants, which are also specially permitted
uses in M-1 districts. Furthermore, plaintiff has failed to demonstrate that no other M-1 property
is suitable for hosting community meetings, concerts, flea markets,craft and antique, or car
shows, which are other special uses permitted under the amendment. Defendant’s amendment
was not constitutionally deficient merely because only a few property owners had parcels large
enough to host a carnival or county fair.
Plaintiff claims the amendment was unreasonable because there was no rational
relationship between the regular uses allowed in M-1 districts and special uses allowed under the
amendment. Plaintiff contends that there was no rational basis for excluding carnivals, rodeos,
and county fairs from other districts. And plaintiff argues that allowing temporary campgrounds
on M-1 land conflicts with the zoning ordinance, which prohibits residential uses on M-1 land.
We disagree.
Substantive due process does not require a relationship between uses permitted by special
permit and uses permitted by right. Rather, substantive due process requires a reasonable
relationship between a zoning enactment and a legitimate government interest. Kropf, supra at
158. Selection of the M-1 district for temporary outdoor recreational activities was reasonable
because the M-1 district was zoned for the most intensive land uses. Plaintiff has not
demonstrated that any other district was more reasonable or appropriate for such activities. And
allowing campgrounds on M-1 land neither conflicts with the zoning ordinance because
campgrounds are not typically recognized as residential uses, nor has plaintiff shown the facts to
be otherwise in this case. E.g., Cook v Bandeen, 356 Mich 328, 332; 96 NW2d 743 (1959);
Genesee Land Corp v Leon Allen and Associates, 50 Mich App 296, 303-304; 213 NW2d 283
(1973).
Plaintiff next argues that the amendment is arbitrary and capricious because it adversely
affected the public welfare by displacing a preferred use of M-1 land – an air park or industrial
park – with a use beneficial only to McDonagh and the Society. This argument must fail because
the amendment does not displace preferred uses. The amendment allows for temporary outdoor
recreation and activities by special permit. The amendment does not provide for recreational
uses on a permanent basis, nor does it permanently preclude the use of the land for other zoned
purposes. The trial court noted, and we concur, the amendment does not benefit only McDonagh
and the Society, it benefits the community as a whole by providing recreation and potential
revenue. Therefore, the amendment is not arbitrary and capricious.
Similarly, plaintiff’s claim that the amendment is an invalid exercise of the police power
fails. Although it is true that “rezoning should not be approved to merely benefit a single
property owner,” it is equally true that where the public interest is furthered, the fact that an
individual will profit is immaterial. Baker v Algonac, 39 Mich App 526, 535; 538; 198 NW2d
13 (1972). “Someone always profits by the development of land . . . .” Id.
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Relying on Raabe v City of Walker, 383 Mich 165, 178-179; 198 NW2d 13 (1970),
plaintiff argues that the amendment is invalid because it violated the village’s master plan.
However, Raabe does not support plaintiff’s position. First, Raabe concerned the rezoning of
agricultural land (least intensive use) to industrial land (most intensive use) in the middle of a
residential area. In the instant case, the zoning amendment did not rezone the land in question; it
remained zoned M-1. Second, the land in this case was already zoned for the most intensive
uses. So allowing carnivals, fairs, and rodeos on the land was not “contradictory” or “a pig in
the parlor,” like the attempted rezoning in Raabe, supra at 179. Finally, the master plan refers to
a survey in which more than half of the respondents indicated that limited recreational
opportunities was a moderate or serious problem. The plan mentioned the need to enhance
tourism. The zoning amendment allows appropriate special uses by permit that addresses and in
part ameliorates citizen concerns. Therefore, the amendment is congruent with the master plan.
Plaintiff’s final claims are disposed of in summary fashion. We reject the argument of de
facto spot zoning because as plaintiff acknowledges, no actual spot zoning occurred. We reject
plaintiff’s nuisance argument because the harm contemplated by plaintiff is purely speculative
and highly doubtful. “‘Equity, as a rule, will not interfere in advance of the creation of a
nuisance where the injury is doubtful or contingent, and anticipated merely from the use to which
the property is to be put.’” Brown v Shelby Twp, 360 Mich 299, 311; 103 NW2d 612 (1960)
(citations omitted.) Finally, plaintiff’s argument concerning a conflict of interest was not raised
below, so we decline to review it here. Fast Air, Inc v Knight, 235 Mich App 541, 549; 599
NW2d 489 (1999).
Affirmed.
/s/ Joel P. Hoekstra
/s/ Peter D. O’Connell
/s/ Pat M. Donofrio
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