DiPonio v. Cockrum

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¶2This case involves the validity and the construction of a township zoning ordinance.

¶3The parties are adjacent landowners, residents of Salem township, Washtenaw county. Plaintiff resides on approximately 100 acres. Defendant owns 27 acres on which he resides and on which he has maintained a produce stand since 1960.

¶4Plaintiff sought to enjoin defendant selling from a produce stand on defendant's land all produce not grown thereon, claiming it was in violation of the township zoning ordinance. Defense was submitted: (1) that the ordinance was invalid; and (2) that the produce stand operation did not constitute a violation of the ordinance.

¶5At close of plaintiff's proofs, defendant moved to dismiss. The trial court granted dismissal, holding that the ordinance did not prohibit defendant's operations, and that, this being the case, a ruling on the validity of the ordinance was not necessary.

¶6Since our disposition of this matter is different from that of the trial court, and since the question *117 of the validity of the ordinance was briefed and presented to this Court, it will be necessary to consider that question first. It provides that the "map, shall be as much a part of this ordinance as if the matters and information set forth therein were all fully described herein." Defendant contended that since there was no publication of the map there was no validly enacted ordinance. CL 1948, § 125.279 (Stat Ann 1958 Rev § 5.2963[9]), provides that prior to the enactment of a zoning ordinance there shall be 2 publications of a notice of public hearing on the same, together with a statement in said publications as to the time and place where zoning maps are available for public examination. (Section 15 of the same act [CLS 1961, § 125.285 (Stat Ann 1958 Rev § 5.2963[15])] pertaining to the enactment of an interim zoning ordinance provides that:

¶7"The publication of maps and other data pertinent to any such ordinance shall not be required to be made, but the publication of the ordinance shall state the place where the maps and other information are available for examination.")

¶8In this case notice of the proposed enactment of a zoning ordinance was given in accordance with the statute. The ordinance was adopted January 7, 1957, at a regular township board meeting and given "effect immediately upon the expiration of the existing interim zoning ordinance and be in force from and after the earliest date allowed by law." The interim zoning ordinance expired January 18, 1957. CLS 1961, § 125.281 (Stat Ann 1963 Cum Supp § 5.2963[11]), authorizes a township board to give a zoning ordinance immediate effect absent publication. Defendant cites CL 1948, § 41.191 (Stat Ann 1961 Rev § 5.6[1]), which sets forth the general requirements for publication of township ordinances, andVillage of Durand v. Love, 254 Mich. 538, neither *118 of which is controlling here. The specific procedure spelled out in the zoning ordinance statute takes precedence over the general statute.

¶9The second question is whether defendant's operation of a produce stand upon his property was in violation of the ordinance.^**119

¶10[EDITORS' NOTE: THIS PAGE CONTAINED FOOTNOTES.] *120

¶11The extent of the defendant's farming operations upon the 27 acres where the produce stand is located is not too clear upon the record in this case. There may or may not have been some farming on this tract. In any event, defendant was carrying on a considerable farming operation in an adjacent county some several miles distant where he was growing corn, cucumbers, and muskmelon that were taken in large trucks to the Farmer's Market in Detroit and to the warehouses of various supermarkets. Some of this produce was trucked to and sold at defendant's stand, as well as other produce — fruits and vegetables — out of season and not grown on his home premises.

¶12The trial court held:

¶13"Taking the ordinance as it is stated, there is no prohibition contained in said ordinance against the operation of a stand by a farmer, whose land is in the zone `AG agricultural district', from selling produce from the land that is farmed by the operator of the stand in 1 general farming operation. Certainly there is no prohibition of that. Farmers from time immemorial have had the right to sell the produce from their farms."

¶14Section 7.01(c) permits "bona fide agricultural enterprises or uses of land and structures." Was the trial judge correct in construing this to mean that a farmer should have the right to sell the produce from his farms wherever those farms might be situated and also, possibly, to truck produce from the Farmer's Market in Detroit back to his produce stand? A careful consideration of all of the pertinent sections of the ordinance does not permit this construction.

¶15Section 7.02 dealing with signs permits signs "advertising the bona fide use of the property or sale of the produce raisedthereon." Sections 4.01 and *121 5.01 are not limitations upon other uses permitted under 7.01, but it is significant that under 4.01, subd (e), where use of the land is allowed for gardening or agricultural products it is limited in use "for the sale of the products thus producedthereon." Section 5.01, subd (c), permits the sale only of goods"produced, on the premises" and 5.02 specifically provides for "advertising the … sale of the produce raised thereon."

¶16In reaching his decision, the trial judge was impressed with the fact that certain commercial uses are permitted in an AG agricultural district, such as public and private stables, riding academies, veterinary offices, animal clinics, dog kennels, raising of fur-bearing animals when approved by the board of appeals, airport landing fields, carnivals, outdoor circuses or migratory amusement enterprises. However, all of these uses are either of a rural or of a transitory character and are generally more in keeping with an agricultural than a commercial district.

¶17The zoning ordinance should be construed to permit the sale by a farmer of farm produce grown as a result of his farming operation carried on within that portion of the township zoned AG agricultural district.

¶18Remanded for entry of a new decree enjoining the defendant from the sale of agricultural produce upon his property except for such produce as may be grown by him as a result of his farming operations conducted within the AG agricultural district. Costs to appellant.

¶19KAVANAGH, C.J., and DETHMERS, KELLY, SMITH, and O'HARA, JJ., concurred with ADAMS, J.

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