BRUCE KEEN V OAK SHORES LLC
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STATE OF MICHIGAN
COURT OF APPEALS
BRUCE KEEN, SUE KEEN, and PAUL TOTH,
UNPUBLISHED
May 15, 2008
Plaintiffs-Appellants,
and
RONALD D. BROOKS TRUSTEE, a/k/a
RONALD D. BROOKS, and KRISTINE EB.
YARED TRUSTEE, a/k/a KRISTINE EB. YARED
TRUST,
Plaintiffs,
v
No. 273105
Leelanau Circuit Court
LC No. 05-007004-CH
OAK SHORES, LLC,
Defendant-Appellee.
Before: Jansen, P.J., and Zahra and Gleicher, JJ.
PER CURIAM.
In this property dispute over access to Lake Michigan, plaintiffs appeal from the trial
court’s August 17, 2006 order on the litigants’ cross-motions for summary disposition under
MCR 2.116(C)(10). Plaintiffs filed a four-count complaint seeking preliminary and permanent
injunctions to prevent defendant’s members from using defendant’s lake front land. The
Leelanau County Circuit denied plaintiffs’ motion for summary disposition and granted
defendant Oak Shore, LLC’s motion on Counts I and II of their complaint. The litigants later
stipulated to the dismissal of the remaining counts without prejudice and plaintiffs appeal as of
right from the trial court’s order granting defendant’s motion for summary disposition. We
affirm.
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I. Facts
Plaintiffs are owners of water front residences on Lake Michigan in Glen Arbor, each
having 100 feet of lake front land. Defendant is a limited liability company (LLC) consisting of
nine couples1 that are non-riparian property owners in Oak Hollow Condominiums. A portion of
the Oak Hollow Condominiums is adjacent to the property owned by plaintiffs Bruce and Sue
Keen. In May 2005, defendant purchased the residential parcel located between the parcel
owned by the Keens and the parcel owned by plaintiff Paul Toth.2 Defendant’s parcel also has
100 feet of lake front land.
All of the parcels at issue are zoned “Residential I” under the then existing Glen Arbor
zoning ordinance. Around the time that defendant purchased its parcel there was local
controversy about use of riparian parcels by multiple non-riparian owners, which the Glen Arbor
ordinance labels as “keyholing.” Two of defendant’s members contacted Glen Arbor Zoning
Administrator Robert Hawley concerning whether the zoning ordinance allowed use of the parcel
in question by residents in Oak Hollow Condominiums. Hawley acknowledged that defendant’s
proposed lot and waterfront use by multiple families for recreational activities and lake access
was not prohibited by the Glen Arbor Ordinance. Hawley concluded that a land use permit was
not necessary for defendant’s proposed use of the parcel.3
In the summer of 2005, defendant’s members began using the parcel for various
recreational activities, including swimming, sunbathing, walking, kayaking, and picnicing. They
accessed the parcel through a walking path on the Oak Hollow Condominium property.
Plaintiffs became concerned about the foot traffic between the condominiums and the beach and
whether defendant’s use would increase as the number of condominiums in Oak Hollow
increased. Plaintiffs also became concerned that defendant’s use would affect their property
value.
In September 2005, plaintiffs filed a complaint against defendant seeking to enjoin
defendant’s use of the property, alleging, among other things, that the use violated the zoning
1
The contribution agreement for defendant limits its membership to no more than 15 couples.
2
Defendant’s parcel is between the parcels owned by plaintiff Toth and plaintiffs Keen.
Plaintiffs Brooks, Yared, and their respective trusts are not participating in this appeal.
3
On April 19, 2005, the township planning commission issued a 180-day moratorium “on the
issuance of any land use permits and/or other zoning approvals for the use, construction, and/or
operation, by a non-riparian, of a recreational facility of any type on any navigable water
frontage within a residential frontage district.” Glen Arbor Township Planning Commission
Resolution No.7-2005. In this same time period, the township clerk informed a lakefront
property owner that the township would not be taking any action regarding defendant’s property
use.
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ordinance. In November 2005, Glen Arbor significantly amended its ordinance, deleting
recreation facilities as a permissible use in Residential I districts and adding other restrictions to
multi-family use.
II. Analysis
Plaintiffs first argue that use of lakefront property in residential areas is limited to those
uses expressly authorized in the applicable zoning ordinance. Multiple family use of lakefront
property in residential areas is not authorized by the zoning ordinance. Specifically, defendant’s
use of the property does not qualify as a recreational facility under the ordinance. Absent
authorization, plaintiffs argue, defendant’s use of the property is prohibited. Plaintiffs maintain
that when the zoning ordinance is read as a whole it is clear that defendant’s use of the parcel is a
zoning violation.
For purposes of this appeal, plaintiffs concede that the controlling version of the zoning
ordinance is version 3.7, which was in effect at the time defendant purchased the property. The
applicable provisions of this ordinance are:
SECTION IV.14 LAKE ACCESS
Easement to lake front requirement is thirty (30) feet per residence.
SECTION IV.15 KEYHOLING
***
B. Definition: When two (2) or more families/legal entities/parties share access
on navigable water without residing on said frontage, such common usage and/or
ownership of the waterfront shall be governed by this Section. The provisions
herein shall apply regardless of whether access to the waterfront is gained by
easement, common or joint ownership, single fee ownership, lease, license, site
condominium unit, stock or membership in a corporation, or any other means.
1. No more than one watercraft slip, mooring, boat hoist, raft, or any other
means of anchorage will be developed per twenty-five feet of water frontage.
2. No more than one dock per one hundred feet (100') of frontage shall be
allowed on the water and shall otherwise comply with all state and federal statutes
and regulations pertaining thereto.
3. Boat launch facilities shall not be permitted.
***
SECTION V.5 RESIDENTIAL I - USES PERMITTED
No building, nor structure, nor any part thereof, shall be erected, altered or used,
or land or premises used in part or in whole, for other than one or more of the
following specific uses:
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A. Single family dwelling.
B. Home occupation, including Bed & Breakfast establishments, provided
that there be no external evidence of such occupation except a non-illuminated
name sign and that said occupation does not require nor effect any changes in the
external character of the building.
C. Churches, Temples
D. Schools.
E. Recreation facilities (non-commercial).
F. Building Lot Area - Each dwelling or other main building hereafter
erected in the Residential I District shall be located on a building lot or parcel of
land having an average width of not less than one hundred (100) feet and
containing not less than fifteen thousand (15,000) square feet of area . . . . [Glen
Arbor Zoning Ordinance, arts IV, V, version 3.7, 1/3/05.]
The trial court found that the ordinance did not prohibit defendant’s use of the parcel,
because the residential use provision permits use as a noncommercial recreation facility and
because nothing in the keyholing proscriptions prevented defendant’s activities on the parcel.
Plaintiffs maintain that the trial court erred by finding that defendant’s use of the parcel
constitutes a permissible “recreation facility” within the meaning of § V.5(E) of the ordinance.
According to plaintiffs, the parcel cannot be a “facility” because it is an undeveloped piece of
land. Plaintiffs offer a dictionary definition of the term “facility” and argue defendant’s use of
the property does not meet that definition.
Plaintiffs’ argument is without legal merit for two reasons. First, a necessary precursor to
use of a dictionary definition is a determination that the ordinance requires judicial construction.
Judicial construction of an ordinance is appropriate only when reasonable minds can differ with
respect to the meaning of the ordinance. Yankee Springs Twp v Fox, 264 Mich App 604, 608;
692 NW2d 728 (2004). Here, the applicable portions of the ordinance are plain and clear: “No .
. . land or premises [shall be] used in part or in whole, for other than the listed uses[.]” The
listed uses include “[s]ingle family dwelling[s and] . . . [r]ecreation facilities (noncommercial).”
Glen Arbor Zoning Ordinance, art V, § V.5(A), (E) (emphasis added). Thus, the ordinance
indicates that land may be used as a recreation facility. Absent any ambiguity in the ordinance,
no judicial construction is necessary or permissible.
Second, even if judicial construction of the ordinance were necessary, the plaintiffs’
proffered dictionary definition would encompass defendant’s use of the property. According to
plaintiffs, a recreation facility would be a facility that is “built, installed, or established to serve a
particular purpose.” (Emphasis added.) Defendant established the parcel for the particular
purposes of sunbathing, swimming, walking, kayak launching and similar recreational activities.
The parcel thus falls within the dictionary definition of “facility.” Moreover, as the trial court
found, the ordinance neither references nor requires the presence of a physical structure for use
of land as a noncommercial recreation facility.
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Plaintiffs next argue that § V.5(E) of the ordinance must be construed in pari materia
with the lake access provision in § IV.14 and with the keyholing proscription in § IV.15(B) of
the ordinance. As noted above, the lake access provision of the ordinance requires that there be
30 feet of lake front property per residence for each lake access easement. According to
plaintiffs, defendant’s members have no lake access except by easement expressly or impliedly
granted by the LLC. If access is by easement, plaintiffs continue, the easement must be at least
30 feet per residence to comply with § IV.14.
Plaintiffs’ argument ignores two basic aspects of the in pari materia doctrine: first, the
doctrine applies only when provisions relate to the same subject matter; and second, provisions
must be construed to avoid conflict when possible. Michigan Elec Co-op Ass’n v Michigan
Public Service Comm, 267 Mich App 608, 616; 705 NW2d 709 (2005). Nothing in the lake
access provision relates to the uses permissible for residential properties, so the two provisions
neither relate to the subject matter nor do they conflict. Further, even if the provisions were in
conflict, plaintiffs are incorrect in their assertion that defendant’s members access the lake by
easement. The ordinance defines “easement” as “a right or privilege that a person or persons
may use another’s land.” Glen Arbor Zoning Ordinance, Definitions. Here, defendant’s
members own the land through their membership in defendant, an LLC. The members’ rights to
lake access are not granted by easement.
In sum, defendant’s use was consistent with the zoning provisions applicable at the time
defendant purchased and began using the property. The use is thus a lawful nonconforming use.
See Heath Twp v Sall, 442 Mich 434, 439; 502 NW2d 627 (1993).
Affirmed.
/s/ Kathleen Jansen
/s/ Brian K. Zahra
/s/ Elizabeth L. Gleicher
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