Agenda - Planning Commission - 06/01/2006

Home

z.g. May 10, 2006--Page 3 dard of review when it determined that the decision against the rezoning peti- tion was arbitrary. An administrative ruling only could be found arbitrary if it was not sup- ported by substantial evidence. The appeals court found that, despite some conflicting evidence presented in the hearings, there was substantial evidence to support the commission's decision. Further, the decision before the commis- sion was only whether Centre Estates' proposal was an appropriate use of the land; Centre Estates had to prove that it was appropriate. The appeals court noted that, while it was:ambiguous for the commission to state that neither the proposed nor existing uses were appropriate, recommending that Centre Es- tates~ request not be ~anted was not arbitrary. see also: Fritz v. Lexington-Fayette Urban County Government, 986 & W..2d 456 (1998). Lots m Property under deed restriction limiting use to residential purposes Accepted use of lot as municipal park does not extend to adding dog park Citation: Bloomfield Estates Improvement Association Inc. v. City of Birmingham, Court of Appeals of Michigan, No. 255340 (2006) MICHIGAN (03/14/06) -- Bloomfield Estates Improvement Association Inc. was part of a subdivision within the city of Birmingharn. Lot 52 of the subdivi- sion was under a deed restriction that allowed only residential uses. However, Lot 52 had been used as a publicly accessible municipal park since 1930. The lot was eventually annexed by the city. In 2004, the city proposed putting a dog park on Lot 52. The park would be partially enclosed by a fence, and a fee would be required to access the park. This proposal was opposed by Bloomfield and other neighboring property owners. Bloomfield sued to enforce the deed restriction, and the trial court ruled in favor of the city. The court found that the park's 75-year existence showed that Bloomfield had acquiesced in Lot 52's use as a municipal park. Bloomfield appealed, arguing that a dog park would be a much more inten- sive violation of the deed restriction than a municipal park. DECISION: Reversed. Bloomfield could challenge the dog park. ~ When read as a whole, the deed restr/ction's intent was to ensure that Lot 52 would be used only for a single family to live on. Some amount of deviation from this use was permissible if Lot 52 was primarilyi'being used for residential purposes and the deviation was incidental and harmless. Here, Lot 52 was part of a municipal park that apparently included such features as a golf course, a baseball diamond, and other recreational facilities where the public could come onto the property for relatively short-lived enter- tainment purposes and then go home. Even though this was not a residential © 2006 Quinlan Publist~ing Group. Any reproduction is prohibited. For more information please call (617) 542-0048. 75