Daily Development for
Monday, January 13, 1997

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

ZONING AND LAND USE; CONSTITUTIONAL LAW; EXCLUSIONARY ZONING: City may plan for single family residential use only, and parties challenging such plan have burden of showing that existing city traffic facilities would not be overburdened by multiple family zoning.

Countrywalk Condominiums, Inc. v. City of Orchard Lake Village, LC No. 93442929 CH (Mich. App. 1997)

In 1982, this relatively small Michigan community had adopted a master plan which provided only for single family, professional office, and local business zoning. There was no multiple family zoning. The community covers a total of 2562 acres, of which 52% is covered with water. The roads aree narrow and winding.

Plaintiffs alleged that the failure to provide for multiple family zoning rendered the master plan facially unconstitutional as a denial of equal protection. The court acknowledged that the plaintiffs had a point. It concurred that zoning authorities, concommitant with their power to zone, have a duty to provide opportunities for a variety of legitimate uses, including multiple family zoning. But this duty is not absolute. The zoning authority can defend its failure to provide for particular uses by pointing such uses would constitute a health and safety hazard.

In this case, the village provided some evidence that multiple family zoning would present a risk to safety by causing traffic congestion and increased liklihood of traffic accidents. Plaintiffs did not present any proof in rebuttal. Trial court entered summary judgment for city.

On appeal, Held: affirmed. Village's presentation of some justifying evidence for its zoning plan was sufficient, absent rebuttal. The plan is valid.

Comment 1: Note that Michigan is not dealing here with the question of "fair share" opportunities for low or moderate income housing. Some courts in New Jersey and elsewhere, under the Mount Laurel doctrine, would impose a higher standard of justification for such exclusion.

Here, therefore, the village was held to a rather broad standard of justification. And plaintiffs did not muster any evidence to contradict that justification. So the case is hard to criticize.

Comment 2: Of some, note, however, is the acknowledgement by the Michigan Court of Appeals of the concept that zoning authorities do have a broad duty to provide opportunities for various kinds of uses. The court, citing twenty year old cases, stated:

" [A]n ordinance which totally excludes a use recognized by the constitution or other laws of the state carries a strong taint of unlawful discrimination and a denial of equal protection of the law. . . . . Multiple-dwelling developments have been recognized as a legitimate use of land."

The court does not really tell us what land uses are "legitimate" or "illegitimate" under this test. Further, there does seem to be a dissonance between the description of a "strong taint of unlawful discrimination" that the court identifies in the above quote and the broad standard of review afforded the Village in the case.

The court tells us little about the Village's traffic analysis. But, on the surface, one would think that a few turn lanes and stop signs might adequately address the traffic impact of the 20 acre residential condominium development proposed by the plaintiff here. Instead, the court says that the existing zoning, with a minimum 15,000 square foot lot size (scaling up to 60,000) square feet, is an appropriate governmental response to traffic safety concerns.

Comment 3: The fundamental question appears to be whether a small residential community can "paint itself into a corner" by installing only sketchy infrastucture improvements and then use the inadequacy of those improvements as a justification for denying more intense development. The editor can ask the question, but isn't sure whether he can answer it.

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