#### LYON CHARTER TOWNSHIP v LAZECHKO

Docket No. 130786.

Submitted June 15, 1992, at Detroit.

Decided December 29, 1992, at 9:35 a.m.

Lyon Charter Township brought an action in the Oakland Circuit Court against junkyard owners Harry and Connie Lazechko, seeking to enjoin them from using part of their property in the junkyard operations that was within three hundred feet of Griswold Road. The plaintiff alleged a violation of a municipal ordinance that prohibits such use. The court, Barry L. Howard, J., found immediate aijd irreparable harm unlikely and refused to grant an injunction, but subjected the defendants’ use to certain restrictions. The plaintiff appealed.

The Court of Appeals *held:*

The trial court abused its discretion in denying an injunction. In failing to determine the constitutionality of the setback requirement in the ordinance, the trial court essentially sanctioned a nonconforming use without the benefit of proceedings in the township planning department and zoning board. Such action was beyond the court’s equitable powers.

Reversed.

Jansen, P.J., dissenting, stated that, although it was unclear which of two ordinances the plaintiff sought to enforce against the defendants, neither was applicable because the first and former ordinance did not require a three-hundred-foot setback and the second and current ordinance requires a three-hundred-foot setback in residential districts only, not in general agricultural districts such as that abutting the defendants’ junkyard. Denial of the injunction should have been affirmed.

*Terrance E. Klump,*for the plaintiff.

*Maddin, Hauser, Wartell, Roth, Heller & Pesses*(by *C. Robert Wartell*and *Julie Chenot Mayer),*for the defendant.

Before: Jansen, P.J., and Michael J. Kelly and Corrigan, JJ.

*682Michael J. Kelly, J.

Plaintiff, Charter Township of Lyon, appeals as of right from a June 25, 1990, Oakland Circuit Court order denying its request for injunctive relief against defendants, junkyard owners Harry and Connie Lazechko.

On appeal, plaintiff contends that the trial court-erred in striking, ad hoc, the township’s three-hundred-foot-setback requirement that prohibits the use of property as a junkyard within three hundred feet of any residential district. Plaintiff asserts that the trial court erred in denying its request for an order enjoining defendants from utilizing that portion of their property that is located within three hundred feet of Griswold Road as a junkyard. We agree with plaintiff.

Granting injunctive relief is a matter committed to the discretion of the trial court. *Jeffrey v Clinton Twp,*195 Mich App 260, 263-264; 489 NW2d 211 (1992); *Ins Comm’r v Michigan State Accident Fund Advisory Bd,*173 Mich App 566, 578; 434 NW2d 433 (1988). Injunctive relief, an extraordinary remedy, is granted only when (1) justice requires it, (2) there is no adequate remedy at law, and (3) there exists a real and imminent danger of irreparable injury. *Jeffrey, supra.*

We hold that the trial court abused its discretion in refusing to enjoin the defendants’ encroachment.

We do not believe that the confusion engendered by the township commission’s apparent misapprehension of the applicability of its amended ordinance should have determined the outcome in this case of the question whether the three-hundred-foot setback, which existed from the defendant’s move on May 6, 1983, until the court’s order of April 24, 1990, was such an onerous imposition on the defendants as to "constitute abuse of the discretion of the zoning board.” The trial court erro*683neously implied that the defendants may use, i.e., have the right to use, the three-hundred-foot setback simply because it was not an expressly mandated perimeter in the ordinance. The 1983 ordinance provided in part:

> The Planning Commission and Township Board may impose such conditions or limitations in granting approval as may, in its judgment, be necessary to fulfill the spirit and purpose of this ordinance.

Obviously, the township authorities later codified that a three-hundred-foot setback for such an undesirable use as a junkyard was appropriate and in fact compelling, but that action does not establish a corollary that a three-hundred-foot setback was inappropriate under the earlier ordinance. Certainly, the defendants consented to and acquiesced in a three-hundred-foot setback requirement as a condition of the board’s approval. They constructed a solid wood fence three hundred feet from Griswold Road, and at various times between 1983 and 1989, when they were ticketed for storing parts of junk vehicles in front of the fence, they satisfied the tickets and removed the offending parts.

The conflict between the competing interests of the parties should have been decided by resolving whether the three-hundred-foot setback requirement was unconstitutional as a *condition*in view of the fact that it had been agreed to by the parties, or at least acquiesced in by defendants for several years. The court overturned the status quo that had existed for five years, permitting the defendants to extend the junkyard use from their fence over an open space or greenbelt between residential dwellings without deciding the larger *684question whether the three-hundred-foot setback, if imposed as a condition precedent to the granting of the use, was a constitutional and proper exercise of the zoning authority of the township under its police power to regulate the health and welfare of the community.

According to the stipulated statement of facts, defendants, in their application, agreed to the three-hundred-foot setback and agreed to erect a fence thereon. They erected such a fence and largely abided by the setback requirement between 1983 and 1989. On October 10, 1988, they sought expansion and applied for a variance to permit them to extend the junk vehicle use into the three-hundred-foot setback area. The application was denied, but in 1989, defendants again encroached in the setback area. The township filed suit, and on September 20, 1989, the court entered a temporary injunction restraining defendants from use of the setback area. Ultimately, trial on the merits was set for April 24, 1990. On that date, the court heard arguments, the parties submitted briefs, exhibits, and the stipulated statement of facts, and the court’s order simply determined "that there is no immediate and irreparable harm” and then proceeded to set out site plan requirements, including fences and gates, with the admonition that if defendants failed to comply, their use "may be restricted.” The court did not strike down the ordinance, but in effect made an end run around it. Essentially, the court sanctioned a nonconforming use without the benefit of proceedings in the appropriate township planning department and zoning board and the appropriate local appellate mechanisms. This was beyond the court’s powers. A court of equity may not abrogate procedural due process. The court held as follows:

> *685The Court finds that, in fact, that there is no immediate and irreparable harm and that, in fact, the use of the 300 feet should be allowed. That to do otherwise under these facts and circumstances would constitute abuse of the discretion of the Zoning Board and also the ordinance [sic].

> However, the Court is mindful that the Township has a legitimate right to ensure the safety and welfare of its community.

> Accordingly, it is the decision of this Court that the Defendants may use and have the right to use that 300 feet conditioned on the following. If they do not satisfy those conditions, they will be in violation of the order.

There follows three paragraphs of topographical, engineering, access, planning, and site restrictions. We are not enlightened with respect to the source of these engineering refinements, and we do not find the court’s inherent equity powers so extensive as to permit it to function as a judicial zoning appeal board. *Farmington Twp v Scott,*374 Mich 536; 132 NW2d 607 (1965).

Reversed.

Corrigan, J., concurred.

Jansen, P.J.

*(dissenting).*I respectfully dissent. I cannot conclude that the trial court abused its discretion in refusing to enjoin the conduct of defendants as requested by plaintiff. The trial court noted that there was "some question as to what [ordinance] is applicable to this property owner [defendants].” The court, mindful of the health, safety, and welfare of affected citizens, then balanced the legitimate needs of plaintiff and those of a property owner "to be able to do and to conduct business and to have the use of his property.” The court concluded that "there is no immediate and irreparable harm and that, in fact, the *686use of the 300 feet should be allowed. That to do otherwise under the facts and circumstances would constitute [an] abuse of the discretion of the Zoning Board and also the ordinance.”

I first note, as acknowledged by the trial court and the parties, that there exists a dispute concerning whether the planning commission reviewed and approved defendants’ site plan under the "old” 1968 ordinance or under the "new” 1983 ordinance. I am of the opinion that approval was granted pursuant to the old ordinance. This conclusion is supported by the stipulated statement of facts and the minutes of the June 20, 1983, commission meeting, which state that defendants applied for site plan approval under the old ordinance rather than the new ordinance. However, such an opinion is not determinative, because I conclude that defendants’ use of their property, as alleged by plaintiff, is not violative of either the old or the new ordinance.

The rules governing construction of statutes also govern construction of ordinances. *Albright v City of Portage,*188 Mich App 342, 350-351, n 7; 470 NW2d 657 (1991); *Settles v Detroit City Clerk,*169 Mich App 797, 808; 427 NW2d 188 (1988). A word or phrase in a statute, or in this case an ordinance, is to be given its plain and ordinary meaning. *Nat’l Exposition Co v Detroit,*169 Mich App 25, 29; 425 NW2d 497 (1988). When the language is clear and unambiguous, judicial construction is neither required nor permitted. *Id.*Such an ordinance must be applied, and not interpreted, because it speaks for itself. *Id.*

As stated in the stipulated statement of facts, the "old” ordinance provided, in pertinent part, that the junkyard be enclosed by an eight-foot obscuring fence and that no property line of the junkyard form the exterior boundary of an M-2 *687district. It is patently clear that the "old” ordinance contains no three-hundred-foot setback requirement. The township represented to defendants, before their initial application for site plan approval on May 16, 1983 (and before the May 27, 1983, effective date of the "new” ordinance), that "the erection of the fence three hundred (300) feet from Griswold Road was required by the applicable ordinance.”

In reliance on this representation, defendants agreed to, and did in fact, erect a fence three hundred feet from Griswold Road. It is clear that in agreeing to construct the fence, defendants relied on the township’s representation that the law required the erection of such a fence. Clearly this was not the case, because the "old” ordinance contained no such requirement. I am of the opinion that defendants were not required to abide by the three-hundred-foot setback requirement pursuant to the "old” ordinance.

Plaintiff points to two additional sections of its ordinance as authority for imposing the three-hundred-foot setback condition on defendants. However, after reviewing these sections, I conclude that they do not grant plaintiff the authority it claims. The first section merely states what the "purpose of Site Plan and Development approval is . . . .” The second section allows the planning commission and township board to "impose such conditions or limitations in granting approval as may, in its judgment, be necessary to fulfill the spirit and purpose of this ordinance.” I am of the opinion that this section is invalid, because it fixes no standard for the appróval or disapproval of a site plan. There exists no reasonable standard for the imposition of such conditions and limitations, except for necessity as determined by the "judgment” of the planning commission and the town*688ship board. See *Osius v St Clair Shores,*344 Mich 693, 698; 75 NW2d 25 (1956); *Orion Twp v Weber,*83 Mich App 712, 719; 269 NW2d 275 (1978).

Turning to the "new” ordinance, I again conclude that defendants’ use of their property was not in contravention of the ordinance. The "new” ordinance provides, in part, that the usage of property as a junkyard shall not be allowed within three hundred feet of any "residential district,” and the storage area of a junkyard must be obscured from public view and entirely enclosed by an eight-foot obscuring wall.

It is undisputed that the area across the street from defendants’ property is zoned "ag” or "General Agricultural District.” Pursuant to the clear, unambiguous terms of the "new” ordinance, defendants are not subject to the three-hundred-foot setback requirement because their property is not within three-hundred feet of a "residential district.” The language of the ordinance is clear and unambiguous and, therefore, judicial construction . is neither required nor permitted. *National Exposition Co, supra.*I would apply the ordinance as written. *Id.*

I also find without merit plaintiffs argument that the general agricultural district is a holding pattern for residential development. Section 400 of the ordinance provides that "[t]he ag General Agricultural District is applicable to those areas of the Township which are not expected to be developed for urban uses in the foreseeable future.” Given the clear, unambiguous character of the "new” ordinance, it is my conclusion that the three-hundred-foot setback requirement is inapplicable to these defendants.

I would hold that the trial court did not abuse its discretion in denying plaintiff the injunctive *689relief it sought. Additionally, the trial court’s resolution of this case, given the existing facts, was fair and equitable. I would affirm the order of the lower court.