Supreme Court Vacates Appellate Court Judgment In Shady View
In a stunning reversal at the Michigan Supreme Court an earlier judgment by the Michigan Court of Appeals has been vacated and remanded to the 34th Circuit Court for further action. In short, "key holing" violates a local single-family residential zoning ordinance.
The Shady View, Inc. case dates back to 1996, when a group of non-riparians purchased a seventy-seven foot lake front lot, sold shares to twenty families, constructed a 160-foot dock with 20 boat slips and converted a single-family seasonal cottage to a community center at Higgins Lake . . . in a residential district zoned R-1 (single-family) within the Township of Gerrish in Roscommon County.
At that time Gerrish Township officials refused to consider an appeal by riparian property owners who were "impacted" by these activities and were forced to seek injunctive relief in the courts. The circuit court denied injunctive relief based on the alleged zoning ordinance violation but retained jurisdiction over the nuisance per se claim pending administrative proceedings before DEQ concerning a formal marina operating permit. The then director of the DEQ eventually granted the application for a 160- foot dock and the mooring of twenty watercraft, but acknowledged the DEQ lacked jurisdiction over plaintiffs' claims under the zoning ordinance. Subsequently, the circuit court held that only two defendant shareholder families could concurrently use the property and limited the dock length to 75 feet and limited mooring to five-watercraft. The adjacent riparian owners, supported by the HLPOA, filed application for leave to appeal with the Michigan Court of Appeals.
In a "split" decision issued in February of this year the Court of Appeals majority reversed the decision of the circuit court and ruled the local zoning ordinance does not prohibit the operation of a marina on property classified as R-1, that defendant's marina was not a commercial enterprise, and that a dock is neither a nuisance per se nor a nuisance in fact. The Court of Appeals dissenting posture held that defendant's combination of uses of the property . . . forming a corporation, soliciting funds, selling stock in the corporation, purchasing land, constructing a twenty-slip marina, using the existing structure on the land as a community center, and charging yearly dues to use the marina and the community center . . . violated the zoning ordinance, and the noise, unsightly condition, and excessive traffic amounted to a nuisance per se and further that not every resident on Higgins Lake would be permitted to turn their property into a marina for multiple families and watercraft . . . a situation that is precisely what zoning laws protect against and the very definition of a nuisance. Again, the adjacent riparian owners, with support of the HLPOA, filed application for leave to appeal to the Michigan Supreme Court.
The Supreme Court, acting on the record and without further hearing, framed the following question: Whether an association of multiple families may provide a communal access to Higgins Lake notwithstanding the local zoning ordinance that permits only single-family uses on the property owned by the association? The court ultimately decided that the association's communal use of the property does in fact violate the zoning ordinance . . . and thus, vacated the judgments of the lower courts and remanded the matter to the circuit court for further proceedings consistent with the zoning ordinance and its opinion.
The implications of this "landmark" case are far reaching . . . not only from the standpoint of protection from over utilization of our natural resource and impingement on riparian property owners at Higgins Lake, but certainly it sets a precedent for all inland lakes in Michigan. Essentially, the Supreme Court has said, " local zoning laws protect us from unwanted nuisances and must be respected." The HLPOA concurs and that's why this "key holing" issue was pursued to the highest court in Michigan.
Ken Dennings,
President Higgins Lake Property Owners' Association