holding that “[i]t is not for this Court to second guess the local governing bodies in the absence of a showing that that body was arbitrary or capricious in its exclusion of other uses from a single-family residential district”
How later courts described this case
- holding that “[i]t is not for this Court to second guess the local governing bodies in the absence of a showing that that body was arbitrary or capricious in its exclusion of other uses from a single-family residential district”
- adopting the above analysis in addressing “why the local zoning board could reasonably restrict multiple dwellings in a residential area”
- “On its face, an ordinance which totally excludes from a municipality a use recognized by the Constitution or other laws of this State as legitimate also carries with it a strong taint of unlawful discrimination and a denial of equal protection of the law as to the excluded use.”
- court declined to "second guess” local governing body absent showing that the body acted arbitrarily or capriciously
Written by the judges who cited it.
The opinion
Levin, J.
(concurring in reversal). Much of the law of zoning is premised on the assumption that zoning decisions of a local legislative body necessarily represent legislative action.
On that premise, the courts require a property owner dissatisfied with a zoning use restriction to prove that the "legislation” is irrational — the burden generally imposed when an act of the Legislature is attacked as unconstitutional. That approach is sound if maintenance of a use restriction truly reflects legislative action; the courts may then properly require a person attacking the restriction to prove that no use permitted is reasonable. Where, however, maintenance of a use restriction reflects administrative, not legislative, action, the guideline ought to be that generally followed by zoning authorities in granting or denying applications for a change in a use restriction as it affects particular property — the reasonableness of the proposed use.
*165 For most properties, there is a wide spectrum of potential reasonable uses; the choices many and varied. It is, therefore, of critical importance whether the correct inquiry on judicial review is the reasonableness of the use permitted under present zoning or the reasonableness of the proposed use.
I
The doctrine of separation of powers, a restriction on the exercise by one of the three major branches of state government of powers belonging to another, 1 does not bar the exercise of administrative power by a local legislative body. 2
*166 Whether official action is legislative or administrative depends on the nature of the decision and the process by which it is reached as well as the governmental authority that makes the decision.
When action is based on general grounds, the decision is ordinarily legislative. When it is based on individual grounds, it is ordinarily administrative. 3 *3
*167 When legislative, the governmental authority can act without a hearing and judicial review is limited to an inquiry whether the action is irrational (and thus a denial of substantive due process) or violates some other constitutional limitation.
When based on individual grounds — when administrative — there must be a hearing and the inquiry on review, under the Michigan Constitution, is whether the decision is "supported by competent, material and substantial evidence on the whole record.” 4 **4
II
Nothing is more specific, less general, than the zoning ordinance of most developed communities. While passed in the form of a law, the typical zoning ordinance represents particularized applications of administrative power, reflecting choices made over an extended period of time between particular properties and proposed developments ad hoc, ad hominen.
We intend no criticism; we impugn no motives. The purposes and motives of the persons and authorities wielding zoning power are as public *168 spirited as those of the persons and authorities which exercise judicial power.
The time has come, however, to cast aside old slogans and catchwords. For most communities, zoning as long range planning based on generalized legislative facts without regard to the individual facts has proved to be a theoretician’s dream, soon dissolved in a series of zoning map amendments, exceptions and variances — reflecting, generally, decisions made on individual grounds— brought about by unanticipated and often unforeseeable events: social and political changes, ecological necessity, location and availability of roads and utilities, economic facts (especially costs of construction and financing), governmental needs, and, as important as any, market and consumer choice.
Realty is not what a master plan shows but how it is implemented. There may be a few communities that have adopted a plan and steadfastly enforced the original zoning restrictions without significant change. They are most likely small bedroom communities walling themselves off from the rest of the metropolitan area — which provides employment, goods and services — or rural communities not yet subjected to the forces and demands which have required modification of most plans. In most communities, however, especially the larger ones, there have been dozens, hundreds and, in some cases, thousands of zoning map changes, exceptions and variances granted.
In deciding whether to grant a change of zoning, a local legislative body inevitably looks beyond the question whether the use presently permitted is reasonable to the merits, the individual grounds, of the applicant’s claim that the use he proposes is a better, more reasonable use.
*169 When a local legislative body decides to grant a change in zoning, it has in fact determined the merits of the individual grounds. So, too, unless the local body in fact rejects all applications for a change in zoning without reaching the merits, when it denies an application after entertaining the merits, it also in fact decides the merits of the. individual grounds advanced.
Such a determination on individual grounds is administrative, not legislative. 5 It is "quasi-judicial *170 and affect[s] private rights”. Const 1963, art 6, § 28 (see fn 4). It is not surrounded by the aura of an act of the Legislature. It is subject to direct review by the courts. The merits, the reasonableness of the proposed use — the standard in fact generally followed by a local legislative body when granting or refusing a change — is, under our constitution, subject to judicial review. The question on review is whether the grant or denial is "supported by competent, material and substantial evidence on the whole record.”
We do not question the power of the Legislature to legislate regarding land use, or that land use legislation is clothed with a presumption of constitutionality, subject to challenge only if irrational— individual property owners being entitled to variances only if they can show an unconstitutional appropriation of their property. Nor do we question the power of the Legislature to delegate to other public officials, e.g., local legislative bodies, the authority to make such legislative determinations. Their determinations, ordinances and plans are likewise clothed with a presumption of constitutionality; the scope of judicial review is limited and there should be relatively few judicial decisions finding zoning unconstitutional.
When in fact, as well as theory, zoning is legislative, the legislative body adopts on general, not individualized, grounds a plan of general application to all the land in the community and stops there — with variances granted only when constitutional necessity requires it — there are no determinations on individual grounds subject to art 6, § 28 judicial review and the zoning choices of the legis *171 lative body are clothed with a presumption of constitutionality.
However, local zoning authorities that in fact act on individual not on general grounds, that entertain applications for and grant changes in their zoning ordinances and maps, spot zone, approve and refuse planned unit developments, make exceptions and allow variances effecting a change in zoning without a showing of constitutional necessity, are exercising administrative, not legislative, power and cannot claim for such determinations the presumption which shields legislative action.
Proceedings based on individual grounds are quasi-judicial. The local authority must grant a hearing. The determination of the local authority must be based on evidence. The determination, granting or denying alike, is subject to judicial review on the record made at the hearing in accordance with the standard prescribed in the constitution. This issue on review is not whether "legislation” is constitutional; no constitutional question is presented. By the manner in. which they have exercised (frequently unavoidably) the power delegated to them under the zoning enabling acts, the zoning authorities have changed the question from whether the use permitted by present zoning is reasonable to whether the proposed use is reasonable. 6 *8
*172 Ill
There is no need to overrule Brae Burn. 7 *****7 Brae Burn assumes that the action of a legislative body is necessarily legislative. The reality of modern zoning is that most zoning decisions are administrative. However, for a community which adopted a zoning ordinance on general grounds and which does not have a history of granting, without regard to constitutional necessity, changes on individual grounds, the question on review may remain, as set forth in Brae Burn, whether the present use, the use permitted by the ordinance, is reasonable.
A property owner seeking a change would, in all events, continue to have the burden of establishing that the use he proposes for his property is reasonable in light of all the circumstances. He may properly be required to show what he intends to build, to present site, floor and exterior design *173 plans. Among the factors to be considered are the availability of utilities and roads, and the present and impending uses of nearby properties. Aesthetics may be relevant. Is the proposed use harmonious, compatible, appropriate, or would it impinge unreasonably on the value or use of nearby properties or impair sound communal development.
This case was tried on the assumption, based on existing precedent, that the question on review is whether the use of plaintiffs’ property permitted by the present zoning is reasonable. It is not possible, on the record before us, to determine whether the proposed use of this approximately ten-acre parcel for multiple dwellings is reasonable in light of the nearby single-family residences located across Clinton River Drive and other pertinent factors.
We would reverse without prejudice to an application to the legislative body of the City of Sterling Heights seeking an administrative hearing with regard to the reasonableness of the proposed use. A person aggrieved by such a determination could seek review in the circuit court under GCR 1963, 711 8 absent the enactment by the Legislature of an administrative procedure act providing for review of local agency action in contested cases like now provided for action of state agencies. 9
*174 Postscript: If the Legislature were to provide for review of local administrative decisions by a regional or state zoning review board, then judicial review would not be available until completion of the administrative review. Regional or state administrative review would reduce the role of the courts in the zoning process and would be most welcome.
T. G. Kavanagh, J., concurred with Levin, J.
J. W. Fitzgerald, J., did not sit in this case.
The Constitution provides for three separate branches of government, but in providing that "[n]o person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution” (Const 1963, art 3, § 2), the framers indicated that persons exercising the powers of one branch may, to the extent provided, exercise the powers of another branch.
The Constitution provides (art 7, § 8) that "[bjoards of supervisors [of counties] shall have legislative, administrative and such other powers and duties as provided by law”; and similarly, that the trustees of a township have "legislative and administrative powers and duties” as shall be provided by law. Art 7, § 18. While the Constitution does not expressly provide that the Legislature may confer administrative powers and duties or, indeed, legislative powers on the legislative body of a city or village, there being no constitutional prohibition against conferring such power and a state constitution being essentially a restriction on the power of the Legislature, the Legislature is free to confer administrative powers and duties on the legislative body of a city or village as well as upon the legislative body of a county or township.
"Certain agencies, officers, or bodies come within the term 'administrative agencies’ to some extent in regard to particular functions or for particular purposes although for most purposes they are not administrative agencies but are legislative, executive, or judicial officers or bodies. When such bodies or officers act in an administrative capacity they suffer the limitations of administrative agencies. This is true in regard to particular powers exercised by local governing bodies, such as boards of supervisors or county comlnissioners, city councils, and village commissioners; powers delegated by Congress to the President or a member of his cabinet, or by state legislatures to the governor of the state; and, where the law permits *166 this, to certain duties or powers reposed by the legislature in courts or judges.” 1 Am Jur 2d, Administrative Law, § 58, pp 856-857.
Cf. Avery v Midland County, 390 US 474, 482 ; 88 S Ct 1114 ; 20 L Ed 2d 45 (1968); State, ex rel Klostermeyer v City of Charleston, 130 W Va 490; 45 SE2d 7, 10 ; 175 ALR 637 (1947); Milwaukie Co of Jehovah’s Witnesses v Mullen, 214 Or 281 ; 330 P2d 5 ; 74 ALR2d 347 (1958).
The principle which should govern the disposition of this and most zoning cases was adverted to by Mr. Justice Holmes in a tax assessment case where he distinguished an earlier decision of the United States Supreme Court (Londoner v Denver, 210 US 373 ; 28 S Ct 708 ; 52 L Ed 1103 [1908]) saying that in the earlier case a relatively small number of persons "were exceptionally affected, in each case upon individual grounds.” Bi-Metallic Investment Co v State Board of Equalization of Colorado, 239 US 441, 446 ; 36 S Ct 141 ; 60 L Ed 372 (1915):
"Where a rule of conduct applies to more than a few people, it is impracticable that everyone should have a direct voice in its adoption. The Constitution does not require all public acts to be done in town meeting or an assembly of the whole. General statutes within the state power are passed that affect the person or property of individuals, sometimes to the point of ruin, without giving them a chance to be heard. Their rights are protected in the only way they can be in a complex society, by their power, immediate or remote, over those who make the rule. * * * In Londoner v Denver, 210 US 373, 385 [ 28 S Ct 708 ; 52 L Ed 1103 (1908)], a local board had to determine 'whether, in what amount and upon whom’ a tax for paving a street should be levied for special benefits. A relatively small number of persons was concerned, who were exceptionally affected, in each case upon individual grounds, and it was held that they had a right to a hearing. But that decision is far from reaching a general determination dealing only with the principle upon which all the assessments in a county had been laid.” Bi-Mettalic Investment Co v State Board of Equalization of Colorado, supra, pp 445-446.
In Bi-Metallic the United States Supreme Court affirmed a decision requiring the local taxing officer to make a 40% increase in the assessed valuation of all taxable property in the city and county of Denver.
Professor Kenneth Culp Davis states that the principle elucidated by Justice Holmes is that a party "has a right to be heard when *167 official action is based upon 'individual grounds’ but not necessarily when official action is based upon general grounds, that is, when the facts are adjudicative but not when they are legislative.” Professor Davis writes that this principle applies generally, not just in tax cases. 1 Davis, Administrative Law Treatise, § 7.04, p 421.s
"All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law. This review shall include, as a minimum, the determination whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record.” Const 1963, art 6, § 28.
"Zoning decisions may be either administrative or legislative depending upon the nature of the act. See Durocher v King County, 80 Wash 2d 139; 492 P2d 547 (1972). But, whatever their nature or the importance of their categorization for other purposes, zoning decisions which deal with an amendment of the code or reclassification of land thereunder must be arrived at fairly. The process by which they are made, subsequent to the adoption of a comprehensive plan and a zoning code, is basically adjudicatory.
"Generally, when a municipal legislative body enacts a comprehensive plan and zoning code it acts in a policy making capacity. But in amending a zoning code, or reclassifying land thereunder, the same body, in effect, makes an adjudication between the rights sought by the proponents and those claimed by the opponents of the zoning change. The parties whose interests are affected are readily identifiable. Although important questions of public policy may permeate a zoning amendment, the decision has a far greater impact on one group of citizens than on the public generally.” Fleming v Tacoma, 81 Wash 2d 292, 298-299; 502 P2d 327, 331 (1972).
"At this juncture we feel we would be ignoring reality to rigidly view all zoning decisions by local governing bodies as legislative acts to be accorded a full presumption of validity and shielded from less than constitutional scrutiny by the theory of separation of powers. Local and small decision groups are simply not the equivalent in all respects of state and national legislatures. * * *
"Ordinances laying down general policies without regard to a specific piece of property are usually an exercise of legislative authority, are subject to limited review, and may only be attacked upon constitutional grounds for an arbitrary abuse of authority. On the other hand, a determination whether the permissible use of a specific piece of property should be changed is usually an exercise of judicial authority and its propriety is subject to an altogether different test.
"With future cases in mind, it is appropriate to add some brief remarks on questions of procedure. Parties at the hearing before the county governing body are entitled to an opportunity to be heard, to an opportunity to present and rebut evidence, to a tribunal which is impartial in the matter — i.e., having had no pre-hearing or ex parte *170 contacts concerning the question at issue — and to a record made and adequate findings executed. Comment, Zoning Amendments — The Product of Judicial or Quasi-Judicial Action, 33 Ohio St L J 130-143 (1972).” Fasano v Board of County Commissioners of Washington County, 264 Or 574, 580-581, 588 ; 507 P2d 23, 26, 30 (1973).
Under existing precedent the question on judicial review varies depending on whether a change in zoning has been granted or denied: When a change is granted and an adjoining property owner (or the owner of the affected property) challenges the change, the question on review is whether the newly permitted use, the proposed use, is reasonable; when a change is denied and the owner of the property affected challenges the denial, the question on review is whether the present use is reasonable. Since the question on judicial review is in every case whether a proposed use should be permitted, it is anomalous for the scales to be weighted depending on who won or lost below. *172 As in our view a grant or denial both generally represent administrative, not legislative, action, we are of the opinion that the question on review should in every case be the same — whether the proposed use is reasonable.
(Of course, when a change in zoning is granted the newly permitted [proposed] use becomes, in a sense, the "present use”. Characterization should not, however, obscure correct analysis. The adoption of a change in zoning does not in fact change the use of the property; until judicial challenges are concluded — indeed, until the property is put to the newly permitted use — it is merely a proposed use.)
Brae Burn, Inc v Bloomfield Hills, 350 Mich 425, 430-432 ; 86 NW2d 166 (1957). In that case this Court stated that it "does not sit as a superzoning commission”; courts do not pass upon the "wisdom or desirability” of a zoning ordinance; "the remedy is the ballot box, not the courts”; "[w]e do not substitute our judgment for that of the legislative body charged with the duty and responsibility in the premises”; " 'the constitutional power of a law-making body to legislate in the premises being granted, the wisdom or expediency of the manner in which that power is exercised is not properly subject to judicial criticism or control’ ”; " 'unless it can be shown that the council acted arbitrarily or unreasonably, their determination is final and conclusive’ ”; " 'courts may not legislate or undertake to compel legislative bodies to do so one way or another’ ”; "we require more than a debatable question. We require more than a fair difference of opinion. It must appear that the clause attacked is an arbitrary fiát, a whimsical ipse dixit, and that there is no room for a legitimate difference of opinion concerning its reasonableness.”
Rule 711 provides that an order of superintending control may be used in any fashion necessary to implement the superintending or supervisory control power of the Court over inferior tribunals where another plain, speedy, and adequate remedy is not available to the party seeking the order.
Ordinarily a court action may be commenced only after exhaustion of the administrative remedy. If the local authorities deny a change in zoning then a writ of superintending control could be sought; similarly, a nearby property owner might seek superintending relief against a change granted. If the property owner also claims that the presently permitted use is unreasonable, he may, to avoid a multiplicity of actions, assert that additional ground for relief.
MCLA 24.203; MSA 3.560(103).