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Full Opinion
ROBINSON TOWNSHIP
v.
KNOLL
Supreme Court of Michigan.
Scholten & Fant (by R. Neal Stanton) for plaintiff.
Hoffman & Watts for defendants.
Amici Curiae:
Casey, Scott & Canfield (by Edward F. Canfield, *308 Andrew P. Murphy, Jr., and Robert E. Heggestad) for Manufactured Housing Institute, Inc.
Bauckham, Reed, Lang, Schaefer & Travis, P.C., for Michigan Townships Association.
LEVIN, J.
In this case we revisit the holding of Wyoming Twp v Herweyer,[1] and consider whether a municipality constitutionally may provide that mobile homes are to be sited only in mobile-home parks and exclude all mobile homes from other residential zones.
Robinson Township commenced this action against Donald and Merle Knoll, seeking removal of a mobile home from their 80-acre parcel of land.
Count I of the complaint alleged that the use of the mobile home was contrary to § 307.1 of the township's zoning ordinance,[2] which provides that mobile homes may be located only in mobile-home parks, and to § 1302.1 of the ordinance,[3] which requires that a building permit be obtained before *309 the erection of a building or structure on any property in the township. Count II alleged that because of violation of the same sections of the ordinance, the mobile home was a nuisance per se.
The answer raised affirmative defenses based on the unconstitutionality of the ordinance in that it arbitrarily and capriciously prohibits a proper land use, and is overbroad, failing to establish clear standards to be observed by property owners and citizens of the township.
Trial was had on stipulated facts, including: the home had been placed on the parcel; the parcel was not a mobile-home park; no building permit had been obtained; and the Knolls had dug a well, obtained a septic permit, applied for power from Consumers Power Company, cleared trees for a roadway and erected a rail fence around the site. No claim was made that the dwelling was not a mobile home within the meaning of the ordinance.
The trial judge, citing Wyoming Twp v Herweyer, held that "unless and until such decision is reversed", the provision that mobile homes are permitted only in mobile-home parks was valid, and accordingly ordered removal within 30 days.
The Court of Appeals reasoned that because 1) there was no existing mobile-home park in the community, and given the state of construction on a newly approved mobile-home park "the use of land for mobile homes is neither imminent nor a factual certainty" and 2) "[a]s a matter of law", "a single mobile home [is not] a nuisance per se or detrimental to public health, safety, morals or general welfare, either", the township had totally excluded a legitimate use from the entire township.[4] The Court found no justification for this *310 total exclusion, and held the ordinance unconstitutional. The Court found its conclusion reinforced in that the Knolls' land was so zoned that it could be licensed as a mobile-home park, commenting that "if the existence of such a park on that site poses no threat to `public health, safety, morals or general welfare', it is difficult to perceive how the existence of one mobile home could do so".
We agree with the Court of Appeals that the ordinance is unconstitutional, but on other grounds.
We hold:
(1) The per se exclusion of mobile homes from all areas not designated as mobile-home parks has no reasonable basis under the police power, and is therefore unconstitutional.[5]
The reasoning on which the rule of Wyoming Twp v Herweyer was based is no longer valid in light of improvements in the size, quality and appearance of mobile homes, and that decision and cases to the same effect are overruled as to housing that is not a "trailer".
We add, however, that a municipality need not permit all mobile homes, regardless of size, appearance, quality of manufacture or manner of on-site installation, to be placed in all residential neighborhoods. A mobile home may be excluded if it fails to satisfy reasonable standards designed to assure favorable comparison of mobile homes with site-built housing which would be permitted on the site, and not merely because it is a mobile home.
The Robinson Township ordinance embodies a per se rule segregating mobile homes from residential zones that are not mobile-home parks, and is therefore unconstitutional.
(2) The complaint also alleged violation of the *311 provision of the zoning ordinance relating to building permits. A building permit could not have issued because of the per se rule confining mobile homes to mobile-home parks. It necessarily would have been futile for the Knolls to apply for one. For this reason, the township is entitled to no relief based on the Knolls' failure to apply for a building permit.
(3) We intimate no opinion whether building code provisions may now be invoked against the Knolls, leaving that question for consideration by the circuit court should the township seek further relief on that basis.
We vacate the judgment of the Court of Appeals, and remand to the circuit court for further proceedings not inconsistent with this opinion.
Municipalities throughout the state have assumed the continuing validity of the rule of Wyoming Twp v Herweyer in drafting their ordinances. We reserve the question whether our decision overruling that opinion as applied to housing other than "trailers" should be applied retroactively in other pending cases or to other ordinances and, if so, whether retroactivity should be conditioned upon compliance with reasonable standards designed to assure favorable comparison of the mobile home in question with site-built housing which would be permitted on the site.[6]
I
In Kropf v Sterling Heights,[7] this Court said *312 that "[a] plaintiff-citizen may be denied substantive due process by the city or municipality by the enactment of legislation, in this case a zoning ordinance, which has, in the final analysis, no reasonable basis for its very existence".
A "reasonable basis" must be grounded in the police power,[8] which this Court has defined as including "protection of the safety, health, morals, prosperity, comfort, convenience and welfare of the public, or any substantial part of the public".[9]
The township's argument based on the land planning principle that like uses should be grouped and incompatible uses kept separate begs the question raised by the appeal: do mobile homes differ from other single-family dwellings in any constitutionally cognizable manner which would justify their per se classification as a different use? If not, then the ordinance limiting mobile homes to mobile-home parks has "no reasonable basis for its very existence".
In Kropf, we reaffirmed the principle that "`[w]hile an ordinance must stand the test of reasonableness, the presumption is in favor of its validity and courts may not invalidate ordinances unless the constitutional objections thereto are supported by competent evidence or appear on their face'".[10]
*313 The Knolls, having failed to produce any evidence in the circuit court, can succeed only if the rule that no mobile home may be located outside a mobile-home park is invalid on its face.
We believe that it is.[11]
II
Wyoming Twp v Herweyer, holding that a municipality may constitutionally limit trailers to trailer parks, would seem to be dispositive of this case, and was so treated by the trial judge. We conclude, however, that it does not control.
That case, decided over 30 years ago, dealt with trailers. Today, we consider the per se exclusion not of trailers, but of mobile homes and more than the label has changed with time. The mobile home today can compare favorably with site-built housing in size, safety and attractiveness. To be sure, mobile homes inferior in many respects to site-built homes continue to be manufactured. But the assumption that all mobile homes are different from all site-built homes with respect to criteria cognizable under the police power can no longer be accepted.
A
Section 203 of the township's zoning ordinance defines "mobile home" as "[a] movable or portable dwelling constructed to be towed on its own chassis, connected to utilities and designed without a permanent foundation for year-round living as a single-family dwelling".
If mobile homes are to be excluded from all residential zones in Robinson Township other than *314 mobile-home parks, it cannot be because they are "movable or portable". Site-built homes are "movable or portable", although they are rarely moved.
We note in this regard that § 500.2 of the township's building code[12] specifically provides for the issuance of moving permits to allow the relocation of one- or two-family dwellings from outside the township or from another location within the township. Any dwelling covered by § 500.2 is, by the township's definition, movable. It would be arbitrary to discriminate against mobile homes on that basis.
Nor do the criteria "constructed to be towed on its own chassis" and "designed without a permanent foundation" identify characteristics which justify the exclusion and segregation of mobile homes.
One can agree that a community has a legitimate interest in safeguarding residents against, for example, windstorm damage, justifying a requirement that a mobile home be firmly attached to a solid foundation on the site. And a municipality may reasonably conclude that a dwelling the wheels and chassis of which are exposed is unsightly *315 or is likely to lead to transience and should not be tolerated alongside site-built homes. These and similar considerations would justify requirements that certain on-site modifications be made as a condition to placement of a mobile home in an area not a designated mobile-home park. The ordinance governing moving permits, discussed above, employs such a mechanism.[13]
The ordinance defining "mobile home", however, reflects no such concerns. To say that a dwelling was "constructed to be towed on its own chassis" or "designed without a permanent foundation" speaks only to its origin and not to its present characteristics.
Just as "the reasonableness of a zoning restriction must be tested according to existing facts and conditions and not some condition which might exist in the future",[14] so must an ordinance restricting the placement of mobile homes be directed to the dwelling as it will exist on the land, *316 and not, as here, to its characteristics when delivered to the site.
B
While the characteristics specified in the ordinance are not themselves a basis for the disparate treatment of mobile homes, they do serve to identify "the mobile home". If that label implies the existence of other (but unspecified) characteristics which provide a basis for restricting mobile homes to mobile-home parks, there is a valid purpose for the ordinance.
We are unable to identify any inherent characteristics of mobile homes that justify the per se rule of the ordinance.
Amicus curiae Michigan Townships Association argues that the segregation of mobile homes is justified on aesthetic grounds.
It appears that mobile homes can be designed or modified to compare favorably in appearance to many site-built homes. There is no longer reason to presume that mobile homes will fail to live up to a community's aesthetic standards. Reasonable requirements to assure favorable comparison with those standards, of course, can be imposed by a municipality.
Concerns based in health and safety are also illusory. A municipality, again, is free to deal with concerns of this type in a reasonable code. Standards to assure that mobile homes compare favorably to other housing in, for example, insulation, adequacy of plumbing, and size of the living space exist[15] or can be imposed. And, as we have noted, a *317 community may impose requirements to assure protection from windstorm damage.
Another concern that has been voiced is that mobile homes are given to transient use. The practical necessities attending the installation of a single mobile home in an area in which site-built housing is allowed, along with conditions (such as those discussed above) that a township might reasonably attach to such mobile-home use, vitiate this cause for concern. A parcel of land of sufficient size to meet community standards probably will have been purchased by the mobile-home owner. Utility lines may be installed to the site; the municipality may require that a foundation to which the home will be firmly attached be laid, and other on-site modifications may be made to bring the mobile home and the parcel on which it is located into conformity with community aesthetic standards. In light of the investment required to so install a mobile home as a single-family dwelling, it is unreasonable to assume the mobile-home dweller will stay only a short time.[16]
*318 The disparate treatment of mobile homes seems to be based on attitudes which once had but no longer have a basis in fact:
"Community fear of blight can be traced to the low quality of both the early trailers and their parking facilities. Economic conditions of the `thirties, followed by wartime housing shortages and rapid relocations of the labor force, pressed many thousands of unattractive trailers into permanent use. Often these units were without running water or sanitary facilities. There were no construction standards to insure even minimum protection against fire or collapse. They were parked in areas which were usually crowded, poorly equipped, and generally unsuited to residential use. As a result, conditions in these parks seldom exceeded minimum health and sanitation standards. The specter of such parks teeming with tiny trailers made community apprehension understandable. But substantial improvements in the quality of both mobile homes and park facilities may have undermined the bases for this antipathy today. The mobile home currently produced is an attractive, completely furnished, efficiently spacious dwelling for which national construction standards have been adopted and enforced by the manufacturers' associations."[17]
*319 Decisions from other jurisdictions, while not directly on point, support the view that per se discrimination against mobile homes can no longer be legitimized.
In holding that mobile homes intended to be used as permanent dwellings are taxable as real property, the New Jersey Supreme Court explained that "[t]he early house trailers, which originated a half century ago, have been described as makeshift contraptions `not really fit for permanent human habitation.' * * * That they were then viewed as personal property can have little relevance when dealing with modern mobile homes * * *. These modern homes not only have all of the facilities of conventional homes, including sewage, water, lighting, heating and air conditioning, but also are more and more being constructed to look like and be used as conventional homes".[18]
The Nebraska Supreme Court, holding that mobile homes cannot be taxed as motor vehicles, observed that "[t]he evidence in this case discloses that the mobile homes in question resemble in all respects a residence. * * * The evidence in this record further discloses that the interiors of these mobile homes resemble a residence in every respect, and one looking at the exhibits disclosing the interior of these mobile homes, if not advised that in fact they were mobile homes, would not be able to distinguish them from any other residence".[19]
The New Mexico Supreme Court recently held that the mobile home there in question was "substantially the same as a conventional one-family dwelling" and therefore "does not violate the letter *320 or the spirit" of a subdivision's restrictive covenant prohibiting trailers.[20] The description of that mobile home demonstrates that mobile homes are not inherently incapable of achieving the aesthetic and comfort standards of conventional dwellings:
"Parker purchased two lots in the Deming Ranchettes subdivision in 1975 and 1977. He bought a double-wide mobile home and moved it on the lots. The wheels, axles, and running gear were removed and sold, and the home was placed on a concrete and slump stone foundation. The mobile home has three bedrooms, two full baths and contains 1,440 square feet of floor space. A patio, a 200 square foot porch, sidewalks, and a 672 square foot two-car garage were constructed. A water well was drilled and a septic tank was installed. Both were connected to the mobile home. A conventional style asbestos shingle roof and aluminum siding were added to the home. A garden was planted and 210 trees were obtained to be planted.
"Parker testified that he and his wife intended to reside in the home permanently. Photographs admitted into evidence showed that their home had the appearance of a conventional single-family dwelling. It compares favorably with other homes in the subdivision."[21]
The legislatures of various states have provided that mobile homes may be taxed as real property,[22] and one statute prohibits ordinances which, like Robinson Township's, discriminate against mobile homes.[23]
*321 Moreover, Robinson Township's building code allows for prefabricated housing which is assembled at the site.[24] There can be no reasonable basis for distinguishing between mobile homes and other prefabricated dwellings. Both are "movable or portable", and may be similar in appearance and constructed of similar materials. It is not a valid basis for distinction under the police power that one is not only prefabricated but also preassembled, and "constructed to be towed on its own chassis".
This is not to say that a municipality must permit all mobile homes, regardless of size, appearance, quality of manufacture or manner of installation on the site, to be placed wherever site-built single-family homes have been built or are permitted to be built. Nor do we hold that a municipality may no longer provide for mobile-home parks. We hold only that a per se restriction is invalid; if a particular mobile home is excluded from areas other than mobile-home parks, it must be because it fails to satisfy standards designed to assure that the home will compare favorably with other housing that would be allowed on that site, and not merely because it is a mobile home.
*322 We affirm the finding of the Court of Appeals that the ordinance is unconstitutional but vacate its judgment and remand to the circuit court for further proceedings not inconsistent with this opinion. No costs, a public question.
KAVANAGH, WILLIAMS, and FITZGERALD, JJ., concurred with LEVIN, J.
COLEMAN, C.J. (dissenting).
Leave to appeal was granted in this case to include consideration of the continuing validity of Wyoming Twp v Herweyer, 321 Mich 611; 33 NW2d 93 (1948), in which this Court upheld the constitutionality of an ordinance restricting the occupancy of mobile homes to mobile-home parks.[1]
In addition to the issue mentioned in the order granting leave to appeal, the parties also raise other issues, including whether the classifications in and the application of the zoning ordinances fall unconstitutionally upon defendants' property. Although this case could possibly have been resolved upon one of the more limited issues raised and relied upon by the Court of Appeals, my colleagues have reached out far beyond these issues and the perimeters of this case to strike down in general terms the mobile-home zoning classifications relied upon across this state and the nation.
A fundamental rule of judicial review is that a constitutional issue need not be reached when another ground exists for resolving the case, see MacLean v State Board of Control for Vocational Education, 294 Mich 45; 292 NW 662 (1940). A corollary to this rule is that if several constitutional issues are raised, the Court should not proceed to dispose of the case on the broadest *323 constitutional issues, if other more specific issues could dispose of it. However, despite these well-founded principles of judicial review, the majority opinion appears to have completely bypassed the more limited issues which may have provided a vehicle for resolving this matter. In the process of holding the mobile-home zoning classification unconstitutional on its face and concluding that mobile homes can be located anywhere in any type of residential neighborhood, subject to some as yet unresolved criteria, the majority's opinion has passed by the other questions raised. Also, while stating the facts of the case, the majority ignores them and by some broad generalizations, with no clear direction to bench, bar and parties to any suit, simply states that there is no reasonable governmental interest being advanced by classifying mobile homes as a use separate from other residential uses.
Although I would prefer to resolve the other issues raised by defendant before addressing the constitutionality of mobile-home zoning classification per se, the majority's opinion addresses the broadest issue first. Accordingly, I must also address the most sweeping issue first.
That issue is whether the classification of mobile homes as a separate use for zoning purposes is constitutional. Accordingly, the defendants have the burden of showing that no governmental interest is being advanced by the present classification. They have not sustained that burden.
I
Article III, § 307.1 of the Robinson Township Zoning Ordinance provides:
"Mobile Homes Where Permitted: Mobile homes are *324 considered as dwelling units and are not permitted as an accessory use to a permitted principal use and are permitted only in approved mobile home parks."
The ordinance does not restrict mobile-home parks (including mobile-home subdivisions) to any particular zone, but it does require approval of the location and plan by the Board of Appeals. It also places with the board the power to hear and decide applications for "special exceptions, special or conditional uses" and other special questions. Defendants did not apply for a variance or a special exception. They did not apply for a mobile-home park permit or a building permit. The property was not shown to be subject to a non-conforming use. The mobile home was not placed prior to the effective date of the ordinance.
Article II, § 203 of the pertinent zoning ordinance describes a mobile home as:
"A movable or portable dwelling constructed to be towed on its own chassis, connected to utilities and designed without a permanent foundation for year-round living as a single-family dwelling." (Emphasis added.)
At the outset, one should note that this case involves mobile homes, not modular or prefabricated homes.
Comparisons between mobile homes and modular homes or prefabricated homes are inapposite, if for no other reason, because of the definition of a mobile home.
Moreover, modular homes and prefabricated homes are designed to become parts of site-built residences for which building permits are required and which are subject to approval by the building inspector. No such permit was sought or granted *325 in this case. There is no dispute that the home in question is a mobile home by definition.
Likewise, the argument that other homes can be moved is inapposite. A site-built home is not constructed to be "towed on its own chassis" down a road. Some homes of appropriate size can be removed from their foundations and moved to another site. However, they are not built to be towed or to blend with the flow of traffic. On-site construction is not directed to that purpose. It serves no good purpose to belabor this point further.
II
In Kirk v Tyrone Twp, 398 Mich 429, 439-440; 247 NW2d 848 (1976), this Court summarized the appropriate standard for determining the constitutional validity of a zoning determination as follows:
"The principles and tests to use to determine whether the present zoning of plaintiffs' property is valid [were] detailed in Kropf [v Sterling Heights, 391 Mich 139; 215 NW2d 179 (1974)].
"The important principles require that for an ordinance to be successfully challenged plaintiffs prove:
"`[F]irst, that there is no reasonable governmental interest being advanced by the present zoning classification itself * * * or
"`[S]econdly, that an ordinance may be unreasonable because of the purely arbitrary, capricious and unfounded exclusion of other types of legitimate land use from the area in question.' 391 Mich 139, 158.
"The four rules for applying these principles were also outlined in Kropf. They are:
"1. `"[T]he ordinance comes to us clothed with every presumption of validity."' 391 Mich 139, 162, quoting from Brae Burn, Inc v Bloomfield Hills, 350 Mich 425; 86 NW2d 166 (1957).
"2. `"[I]t is the burden of the party attacking to prove *326 affirmatively that the ordinance is an arbitrary and unreasonable restriction upon the owner's use of his property * * *. It must appear that the clause attacked is an arbitrary fiat, a whimsical ipse dixit, and that there is no room for a legitimate difference of opinion concerning its reasonableness."' 391 Mich 139, 162, quoting Brae Burn, Inc.
"3. `Michigan has adopted the view that to sustain an attack on a zoning ordinance, an aggrieved property owner must show that if the ordinance is enforced the consequent restrictions on his property preclude its use for any purposes to which it is reasonably adapted.' 391 Mich 139, 162-163.
"4. `"This Court, however, is inclined to give considerable weight to the findings of the trial judge in equity cases."' 391 Mich 139, 163, quoting Christine Building Co v City of Troy, 367 Mich 508, 518; 116 NW2d 816 (1962)."
See, also, Ed Zaagman, Inc v Kentwood, 406 Mich 137; 277 NW2d 475 (1979).
Although my colleagues pay some attention to how the ordinance falls upon these defendants, the leap ultimately is made to the argument that because some mobile homes are improved in appearance and construction (defendant's is not described as within this context), all must be considered for placement in areas zoned for other residential uses despite not only Wyoming, but also Kirk, Kropf, Zaagman and all other Michigan precedent, old and new.
III
For the purposes of constitutional analysis, the ordinance comes to us with every presumption of constitutionality, which can be overcome only by finding that no governmental interest is served thereby.
Zoning restrictions are enacted pursuant to the *327 police power. This power encompasses regulations designed to advance the public's health, safety and welfare. MCL 125.273; MSA 5.2963(3) provides that a zoning ordinance designed to promote the public health, safety and welfare shall be made "with reasonable consideration, among other things, to [sic] the character of each district", the "conservation of property values" and the "general and appropriate trend and character of land, building and population development".
Although the construction of some modern mobile homes has improved and the area of some has been enlarged, basic differences between mobile homes and site-built homes remain. By definition, a mobile home is built without a permanent foundation and must be of a weight and dimensions that can be towed on a highway. They are more susceptible to windstorm and fire damage, which increases the possibility of injury to persons and property in the surrounding area. The police power extends to imposing reasonable regulations to safeguard residents and others against the dangers of such damage.
Plaintiff notes additional problems caused by a general lack of storage space in mobile homes. This lack of storage space may result in personal property being stored outside or the addition of lean-tos. Plaintiff notes that various practical problems result from these conditions.
Also, because a mobile home is designed to be towed on its chassis, they may lead to transience. Increased transience may also result in unsightly and possibly dangerous conditions in the land when the mobile home is removed. Even if the mobile home remains in one spot, it is generally subject to more rapid deterioration than a site-built home. Further, it would be unreasonable to *328 assume or take judicial notice of the conclusion that all mobile homes compare favorably with site-built homes.
As provided in the statute, classifications may take into consideration the preservation of property values.[2] Accordingly, one widely acknowledged, reasonable governmental interest is the preservation of property values. The value of a piece of property or of property in a zone is dependent not only on the intrinsic nature of the property but also upon the nature and uses of neighboring property. For the most part, even the best of mobile homes (e.g., double-width homes towed in two parts, mobile homes with bay windows on the ends, a porch attached or decorator steps, etc.) are significantly different from site-built homes or are so perceived by many. This perception can have a significant effect on property values if mobile homes are scattered throughout any residential district. Regardless of whether the perception is valid, restricting mobile homes to designated areas furthers governmental interests by furthering the safety, sanitary and recreational needs of the occupants and others, and by grouping like uses together.
With only these surface considerations, it becomes apparent that the defendants have not overcome the burden of proving that there is no room for a legitimate difference of opinion concerning the reasonableness of this classification. The defendants have not overcome the presumption of constitutionality.
*329 IV
While the zoning authorities might have been able to advance similar objectives by less restrictive means, they were not constitutionally required to do so if there exists some reasonable basis for the classifications chosen. In O'Donnell v State Farm Mutual Automobile Ins Co, 404 Mich 524, 542; 273 NW2d 829 (1979), this Court stated:
"`If the classification has some "reasonable basis", it does not offend the Constitution simply because the classification "is not made with mathematical nicety or because in practice it results in some inequality". * * * "The problems of government are practical ones and may justify, if they do not require, rough accommodations * * *"'.
"`If it be said, the law is unnecessarily severe, and may sometimes do injustice, without fault in the sufferer under it, our reply is: these are considerations that may very properly be addressed to the legislature, but not to the judiciary they go to the expediency of the law, and not to its constitutionality.'"
In Village of Euclid v Ambler Realty Co, 272 US 365, 388-389; 47 S Ct 114; 71 L Ed 303 (1926), the Supreme Court stated:
"Here, however, the exclusion is in general terms of all industrial establishments, and it may thereby happen that not only offensive or dangerous industries will be excluded, but those which are neither offensive nor dangerous will share the same fate. But this is no more than happens in respect of many practice-forbidding laws which this Court has upheld although drawn in general terms so as to include individual cases that may turn out to be innocuous in themselves. Hebe Co v Shaw, 248 US 297, 303; 39 S Ct 125; 63 L Ed 255 (1919), Pierce Oil Corp v City of Hope, 248 US 498, 500; 39 S Ct 172; 63 L Ed 381 (1919). The inclusion of a reasonable *330 margin to insure effective enforcement will not put upon a law, otherwise valid, the stamp of invalidity. Such laws may also find their justification in the fact that, in some fields, the bad fades into the good by such insensible degrees that the two are not capable of being readily distinguished and separated in terms of legislation. In the light of these considerations, we are not prepared to say that the end in view was not sufficient to justify the general rule of the ordinance, although some industries of an innocent character might fall within the proscribed class. It cannot be said that the ordinance in this respect `passes the bounds of reason and assumes the character of a merely arbitrary fiat.' Purity Extract & Tonic Co v Lynch, 226 US 192, 204; 33 S Ct 44; 57 L Ed 184 (1912)." See, also, Cady v Detroit, 289 Mich 499; 286 NW 805 (1939).
Zoning classifications designed to group like uses together while at the same time separating incompatible uses necessarily involve generalizations and rough accommodations. If all zoning classifications are now subject to constitutional attacks on the basis that the per se exclusion of certain uses from a zone is unreasonable when the municipality could have adopted more detailed, less restrictive, requirements which would have adequately served the public interest, then it is unlikely that most zoning classifications would survive constitutional scrutiny. For example, a multiple dwelling apartment developer might argue that single-family residence zones are unconstitutional because a zoning ordinance could be drafted imposing more detailed, less restrictive, requirements which would adequately serve the same public interest. Minimum floor space and set-back restrictions based on a family unit could be drafted to assure that the multiple-family apartment building is in a comparable situation with other single-family buildings.
*331 The number of similar hypotheticals that could arise is almost infinite. The Constitution does not impose such restrictions on the zoning authorities. Rather, so long as there is a reasonable basis for the classification chosen, the landowner's remedy lies with the local zoning authorities either through seeking a variance or attempting to change the classification itself.
V
For these reasons, we continue to adhere to the holding in Wyoming Twp that mobile homes may constitutionally be treated differently from site-built homes for zoning purposes. Although many developments have taken place since Wyoming Twp was decided, this same issue has recently been considered in other jurisdictions, and these cases have consistently upheld the constitutional validity of the classifications being considered.[3] None of the cases cited in the majority's opinion or *332 the parties' briefs hold that a zoning regulation may not constitutionally treat mobile homes differently from site-built homes. While this absence of authority is not dispositive, it does lend support to the conclusion that this ordinance is not unconstitutional.
VI
We also conclude that defendants cannot prevail on their de facto exclusion argument on the record presented in this case. The ordinance in issue speaks of mobile-home parks as including not only traditional parks in which lots are occupied on a rental basis but also mobile-home subdivisions in which lots are subdivided and sold.[4] The zoning ordinance generously provides for mobile-home parks and the zoning authorities have approved an area in the township for a mobile-home park. The mere fact that the park has not been developed (and that others have not applied) is insufficient to prevail on a de facto exclusion claim.
Defendants have not introduced any evidence that the land zoned for a mobile-home park is unsuitable for this use, or that the zoning authorities have consistently denied permits to develop such a park or have acted in any arbitrary or capricious manner. Defendants did not introduce any evidence that they ever sought variance or requested any kind of a permit.
Defendants have failed to show that there is no governmental interest in a mobile-home zoning classification as a separate use.
Therefore, on the record presented, we would *333 hold that defendants have failed to overcome the presumption of constitutionality and would uphold the constitutionality of the ordinance.
Finally, the majority's opinion does not settle the question of retroactivity. Because the state (and nation) has to this date relied upon the constitutionality of mobile-home classifications, I would, at a minimum, provide that the opinion take effect prospectively.
RYAN, J., concurred with COLEMAN, C.J.
BLAIR MOODY, JR., J. (dissenting).
FACTS
This case, tried upon a stipulation of facts, involves the question of whether defendants should be enjoined from using their property in violation of a local zoning ordinance. Subsequent to the effective date of zoning ordinance amendments,[1] defendants placed a 14-foot by 70-foot mobile home[2]*334 on their property located within the township. The amended ordinance provides that mobile homes are a permitted use only in approved mobile-home parks or mobile-home subdivisions.[3] Defendants stipulated that their land had not been approved for use as a mobile-home park or subdivision. Defendants also admitted that the mobile home was placed upon their property without first having obtained a building permit.[4]
The ordinance defines mobile-home parks and subdivisions[5] and sets forth standards relating to *335 approval of such developments. Mobile-home parks and subdivisions are a permitted use in all zoning districts within the township with the exception of recreational use districts.[6]
The stipulation of facts indicates that plans for a proposed mobile-home park have been approved by the township. The proposed park would cover 28 acres and offer facilities for approximately 100 mobile homes. However, at the date of trial no work had commenced on the park. Although it is unclear from the record how defendants' land is presently zoned, there is nothing to indicate that defendants' property could not be used to develop a mobile-home park or subdivision.
Robinson Township brought suit seeking to enjoin defendants' use of their property as violative of township zoning ordinances. The trial court granted the desired injunctive relief. The Court of Appeals reversed. 70 Mich App 258; 245 NW2d 709 (1976).
DISCUSSION
Defendants present a broadside challenge to the constitutionality of the ordinance. The issue, squarely presented, is whether any and all local zoning ordinances which do not totally exclude mobile homes from a community but which restrict the location of mobile homes to mobile-home parks and subdivisions within the community are invalid. In view of the procedural posture of this case, the facial validity of the ordinance, and the insufficient factual development of this record, the *336 ordinance survives defendants' constitutional challenge.
I
Prior to placing a mobile home on their property, defendants not only neglected to obtain the requisite building permit but also failed to seek a variance from existing zoning provisions pertaining to their land. Under these circumstances it is questionable whether the Knolls should be permitted to raise constitutional challenges to the ordinance at issue. See State v Larson, 292 Minn 350, 356; 195 NW2d 180, 183 (1972); Napierkowski v Gloucester Twp, 29 NJ 481, 489; 150 A2d 481, 485 (1959).[7] Further, in r