CRYSTAL LAKE PROPERTY RIGHTS ASSN V BENZIE COUNTY
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STATE OF MICHIGAN
COURT OF APPEALS
CRYSTAL LAKE PROPERTY RIGHTS
ASSOCIATION,
FOR PUBLICATION
September 11, 2008
9:00 a.m.
Plaintiff-Appellant,
v
No. 272587
Benzie Circuit Court
LC No. 04-007095-CE
BENZIE COUNTY and DEPARTMENT OF
NATURAL RESOURCES,
Defendants-Appellees.
Advance Sheets Version
Before: Markey, P.J., and Meter and Murray, JJ.
METER, J.
This case involves a proposal by defendant Department of Natural Resources (DNR) to
construct a public-access boat launch on Crystal Lake in defendant Benzie County. Plaintiff,
Crystal Lake Property Rights Association, is composed of owners of property in the vicinity of
the proposed boat launch, and it sued to stop the construction of the boat launch. The trial court,
in granting the DNR’s subsequent motions for summary disposition, rejected plaintiff’s attempt
to stop the construction. Plaintiff appeals as of right, and we affirm in part, reverse in part, and
remand for further proceedings. We hold that the DNR’s project is subject to the county zoning
ordinance, despite the DNR’s compliance with MCL 324.78114, a provision of the waterways
commission act, MCL 324.78101 et seq., contained in part 781 of the Natural Resources and
Environmental Protection Act (NREPA), MCL 324.101 et seq. We also hold that an earlier
settlement involving a trail running adjacent to Crystal Lake does not prohibit the proposed boat
launch.
I. Background Facts
In October 1996, a settlement was reached in a class action brought by certain property
owners against the Michigan Department of Transportation (DOT) with respect to their claim of
title to a railroad right-of-way running along the south shore of Crystal Lake. Under the
settlement, the DNR was entitled to a permanent easement for a ten-foot-wide public trail,
subject to limitations and restrictions set forth in the settlement and the DOT’s superior right to
resume rail use within the easement. The trail, a segment of a larger trail known as the Betsie
Valley Trail, was to be “operated and used in a manner that does not disrupt the lives of the
adjoining property owners or diminish their opportunity to use and enjoy the waterfront or place
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unreasonable restrictions on use of the trail by the public.” In November 1996, the trial court
entered a judgment based on the settlement.
In late 2001 and early 2002, the DNR took steps to acquire property fronting Crystal
Lake for a public-access boat launch on land that abuts the Betsie Valley Trail. Under the
DNR’s plan, boaters would drive to the property, back up their vehicles and trailers to launch
their boats into the lake, and then park the vehicles and trailers in a parking lot. The plan
provided for four launch ramps and 100 parking spaces. Other planned features included a
staging area with benches, toilets, and bicycle racks. It was anticipated that some individuals
using the Betsie Valley Trail would stop at the planned facility, but the intent was to have the
planned facility serve as a boat launch.
In May 2002, the state acquired 20 acres of property to be used for the boat launch.
Earlier, between December 2001 and February 2002, the Benzie County Board of
Commissioners and the Benzonia Township Board expressed approval of the development, but
had no interest in acquiring the land. In May 2004, the Michigan Department of Environmental
Quality (DEQ) issued a permit to the DNR to allow construction of a “public boat launch.” The
permit specified, in part, that it did not waive the necessity of seeking “federal assent [and] all
local permits or complying with other state statutes.”
In June 2004, plaintiff filed the instant action for declaratory and injunctive relief against
Benzie County and the DNR. Plaintiff alleged in counts I and II of its amended complaint that
Benzie County violated the former County Zoning Act, MCL 125.201 et seq.,1 and due process
and equal protection rights by allowing property acquired by governmental units to be rezoned to
district “G,” a designation that permits the governmental unit to determine the appropriate land
use without a public hearing. Count III alleged that the DNR violated the earlier settlement.
Count IV alleged that the DNR violated a Betsie Valley Trail ordinance adopted by Benzie
County in 2002. Count V alleged that the proposed public boating access site would violate the
Michigan environmental protection act, MCL 324.1701 et seq., but conceded that an
administrative proceeding on this claim was pending.2
1
Effective July 1, 2006, the County Zoning Act and other zoning acts were repealed by 2006
PA 110 and replaced by the Michigan Zoning Enabling Act, MCL 125.3101 et seq. MCL
125.3702 lists the repealed acts, but provides in subsection 2:
This section does not alter, limit, void, affect, or abate any pending
litigation, administrative proceeding, or appeal that existed on June 30, 2006 or
any ordinance, order, permit, or decision that was based on the acts repealed
under subsection (1). The zoning ordinance need not be readopted but is subject
to the requirements of this act, including, but not limited to, the amendment
procedures set forth in this act.
2
Count V was dismissed without prejudice so that plaintiff could pursue administrative
remedies. It is not at issue in this appeal.
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The DNR moved for summary disposition before the filing of the amended complaint. It
argued that plaintiff’s challenge to the district “G” provisions in Benzie County’s zoning
ordinance was baseless and, in any event, it was not subject to the zoning ordinance pursuant to
MCL 324.78114. Further, the DNR argued that it did not violate the earlier settlement or the
Betsie Valley Trailway ordinance. Benzie County later joined in the DNR’s motion, but
declined to stipulate that the DNR is not subject to county zoning ordinances.
Plaintiff then moved for partial summary disposition with respect to whether the DNR’s
proposed public-access boat launch is subject to local zoning control. The trial court determined
that the evidence established that the DNR had complied with MCL 324.78114. It mentioned, in
dicta, that Benzie County’s zoning ordinance was unconstitutional with respect to district “G,”
but held that the zoning ordinance simply did not apply to the DNR as long as it complied with
MCL 324.78114. It granted the DNR’s motion with respect to counts I and II. During later
proceedings, it also granted summary disposition to the DNR with respect to counts III and IV.
II. The DNR’s Project is Subject to Local Zoning
Plaintiff argues that the trial court erred in ruling that the DNR was exempt from local
zoning ordinances. We review a trial court’s decision to grant summary disposition de novo and
do the same for the interpretation and application of a statute. Wayne Co v Wayne Co Retirement
Comm, 267 Mich App 230, 243; 704 NW2d 117 (2005).
In Burt Twp v Dep’t of Natural Resources, 459 Mich 659, 661, 664; 593 NW2d 534
(1999), the Supreme Court held that the DNR was required to comply with the local zoning
ordinance, which had been adopted pursuant to the former Township Rural Zoning Act (TRZA),
MCL 125.271 et seq., in constructing a public-access boat launch. It declined to hold that the
NREPA exempted the DNR from local zoning laws. Burt Twp, supra at 671. In the present
case, the trial court held that 1998 PA 210, which enacted MCL 324.78114, a provision of the
NREPA, “implicitly overruled” Burt Twp.3 The trial court concluded that as long as the DNR
complied with MCL 324.78114, it could construct a public-access boat launch without being
subject to the local zoning ordinance.
In Burt Twp, supra at 663, the Court, quoting Dearden v Detroit, 403 Mich 257, 264; 269
NW2d 139 (1978), indicated that “‘the legislative intent, where it can be discerned, is the test for
determining whether a governmental unit is immune from the provisions of local zoning
ordinances.’” The Court ultimately concluded:
In sum, the NREPA and the TRZA appear to provide coextensive statutory
rights concerning the protection of natural resources in general and the
development of recreation facilities and other waterfront developments in
particular. Moreover, nothing in the NREPA establishes a clear expression of
3
1998 PA 210 was enacted before Burt Twp was decided. However, the amendments were not
applicable to Burt Twp because of their effective date. See Burt Twp, supra at 668 n 9.
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legislative intent to exempt the DNR’s activities in this case from the Burt
Township zoning ordinance. Accordingly, for all the reasons stated, we hold that
the DNR, in the construction of its public-access boat launch, is subject to Burt
Township’s zoning ordinance. The decision of the Court of Appeals is affirmed.
[Burt Twp, supra at 671.]
1998 PA 210 added the following language to the NREPA:
(1) Prior to acquiring a public boating access site, the department shall
obtain a 90-day option on the land proposed for acquisition. In obtaining this
option, the department shall attempt to negotiate an option that may be transferred
to a local unit of government. Upon placing the option on the land, the
department shall notify the municipality and the county in which the land is
located of the option and whether the department plans to hold a public hearing on
the proposed purchase and development of the land as a public boating access
site. The municipality or county in which the proposed public boating access site
is located may hold a public hearing on the proposed purchase and development
of the land as a public boating access site. If a municipality or county holds a
public hearing under this subsection, the municipality or county shall notify the
department, and a representative of the department shall attend the public hearing.
(2) During the 90-day period in which the department holds an option
under subsection (1), the municipality or county in which the land is located may
do either of the following:
(a) Notify the department that it intends to operate a public boating access
site on that land. If the department receives a notice pursuant to this subdivision,
the department shall transfer the option, if possible, to the municipality or county
so that it may exercise the option and purchase the land. If the municipality
exercises the option and purchases the land, the exercise of the option shall be
contingent upon the municipality or county and the department entering into a
legally enforceable agreement that specifies how the public boating access site
will be operated. The agreement shall provide that the public boating access site
will be operated in the same manner as a public boating access site that is
operated by the department, unless the department agrees to alternative terms.
The agreement shall also provide that if the municipality or county violates the
agreement, the department may operate the public boating access site in
compliance with the agreement.
(b) Identify another suitable location on the lake that the department could
acquire for a public boating access site. The public boating access site shall be
comparable for development as the one proposed by the department. [MCL
324.78114.]
The DNR argues, and the trial court held, that this amendatory language evidences a
legislative intent to exempt the DNR from local zoning laws. We disagree. It is true that in Burt
Twp, supra at 669, the Court stated that it was not necessary that the Legislature use “any
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particular talismanic words to indicate its intent [with regard to a zoning exemption]. The
Legislature need only use terms that convey its clear intention that the grant of jurisdiction given
is, in fact, exclusive.” However, we find no language within MCL 324.78114, or, for that matter,
within the rest of 1998 PA 210, indicating that the DNR has exclusive jurisdiction in the
placement of public-access boat launches. Significantly, MCL 324.78114(2)(a) does not purport
to exempt the DNR from local zoning requirements, but only requires that the site be operated in
a manner agreed to by the parties. Zoning ordinances are concerned with the use of property.
Dearden v Detroit, 403 Mich 257, 267; 269 NW2d 139 (1978). Further, there is nothing in MCL
324.78114 that requires the DNR to exercise the option to purchase property, regardless of what
the local unit of government elects to do. However, at the end of the 90-day option process, the
DNR should know how its proposal is viewed in the municipality or county and what steps
would be necessary for it to pursue the matter further. MCL 324.78114 can be reasonably
construed as merely requiring that the DNR, in creating a public-access boat launch, follow
specific procedures to involve local government.
In addition, the Legislature, when passing laws, is presumed to be aware of judicial
interpretations of existing law. Ford Motor Co v Woodhaven, 475 Mich 425, 439-440; 716
NW2d 247 (2006). There is nothing in the amendatory act that establishes a clear expression of
legislative intent to modify this Court’s conclusion in Burt Twp (before it was affirmed by the
Supreme Court)4 that the NREPA did not serve to exempt the DNR from the local zoning
ordinance.
This case differs from Byrne v Michigan, 463 Mich 652, 657-658, 660; 624 NW2d 906
(2001), in which the Supreme Court found that legislation enacted after a judicial decision to
enjoin the Michigan State Police from constructing a communications tower clearly expressed a
legislative intent to exempt the Michigan State Police from local zoning ordinances. Similar to
the amended act at issue in this case, under MCL 28.282 (the statute at issue in Byrne) a local
unit of government is entitled to notice of the site selection. Byrne, supra at 660. However,
unlike in this case, the Legislature in MCL 28.282 required that the local unit of government
have zoning authority and specified a clear outcome, namely, that the Michigan State Police
“may proceed with construction” in the event that the local unit of government does not grant a
special use permit or propose an alternative, workable site. Byrne, supra at 660-661.
The present case also differs from Dearden, supra at 265-267, in which our Supreme
Court determined that the Legislature’s use of language in the corrections code, MCL 791.201 et
seq., such as “exclusive jurisdiction,” MCL 791.204, and the broad vesting of powers in the
Michigan Corrections Commission over “all matters related to the unified development of the
penal institutions,” former MCL 791.202, were evidence that “the Legislature intended to grant
the Department of Corrections immunity from local zoning ordinances when establishing state
penal institutions.” Similarly, in Northville Charter Twp v Northville Pub Schools, 469 Mich
285, 290-291 (Taylor, J., joined by Corrigan, C.J., and Young, J.), 298-299 (Cavanagh, J., joined
4
See Burt Twp v Dep’t of Natural Resources, 227 Mich App 252, 258-260; 576 NW2d 170
(1997).
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by Kelly, J.), 302 (Weaver, J.); 666 NW2d 213 (2003), there was “sole and exclusive
jurisdiction” language in MCL 380.1263; the Supreme Court considered this language in holding
that the state superintendent of public instruction has sole and exclusive jurisdiction over school
construction and site plans and is not subject to local zoning ordinances. Also, in Pittsfield
Charter Twp v Washtenaw Co, 468 Mich 702, 703, 711; 664 NW2d 193 (2003), the Court, in
determining whether the defendant was required to comply with local zoning ordinances in
selecting the site of a homeless shelter, emphasized that MCL 46.11 empowers a county board of
commissioners to determine the site of county buildings, with only one limitation, relating to
“any requirement of law that the building be located at the county seat.” The Court concluded
that the Legislature intended no other limitation. Pittsfield Charter Twp, supra at 711. A similar
situation is not present in the instant case.
There is simply no basis for concluding that the DNR is exempt from local zoning
ordinances if it complies with MCL 324.78114, and therefore we reverse the trial court’s ruling.5
III. The Earlier Settlement Does Not Prohibit the Proposed Boat Launch
Plaintiff next contends that the trial court erred in granting summary disposition with
regard to its claim that the final judgment in the earlier lawsuit prohibits construction of the
DNR’s proposed boat launch. Specifically, plaintiff asserts that the proposed boat launch would
violate the settlement reached in that lawsuit by allowing non-boaters to enter the trail from the
boat launch, by having bicycle racks and other amenities in anticipation that trail users will be
present, and by creating a new public access area to the lake from the trail. The DNR counters
that because it acquired property adjoining the trail, its use of that property to provide a boat
launch is protected under the portion of the settlement governing “adjoining property owners.”
We affirm the lower court’s decision. Settlement agreements are generally construed in
the same manner as contracts. Michigan Mut Ins Co v Indiana Ins Co, 247 Mich App 480, 484;
637 NW2d 232 (2001). “The primary goal of contract interpretation is to enforce the parties’
intent.” Chestonia Twp v Star Twp, 266 Mich App 423, 432; 702 NW2d 631 (2005) (citation
and quotation marks omitted).
The settlement provided that “all adjoining property owners, their guests and invitees
shall at all times have free and direct access over the trail easement on their respective
properties.” It further provided that property owners could use their property in any way “not
inconsistent with said easement.”
5
We remand this case for further proceedings. Although the trial court expressed disapproval of
the portion of Benzie County’s zoning ordinance relating to district “G,” we conclude that it did
not conclusively render declaratory relief with respect to the constitutionality of the ordinance; it
essentially concluded that the issue was moot. This conclusion is bolstered by the fact that the
parties do not address the substance of this issue in their appellate briefs. Presumably, this will
be an issue the parties will revisit on remand.
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The settlement also included a “Special Trail Use and Law Enforcement Plan” (the Plan)
to govern the use by any person of the trail easement; the Plan was to be enforced by the DNR,
Benzie County, and local organizations. The settlement acknowledged that the DNR’s
enforcement duty lay “primarily in controlling usage by the general public and not the usage of
adjoining property owners, their guests or invitees.” The Plan’s stated purpose was to ensure
that the trail would be used in a manner that “does not disrupt the lives of the adjoining property
owners or diminish their opportunity to use and enjoy the waterfront or place unreasonable
restrictions on use of the trail by the public.” The Plan set forth a series of special restrictions on
the trail, two of which are pertinent to this appeal:
Except for adjacent property owners, trail users must stay on the trial
surface and shoulders. Entrance to this portion of the trail by non-resident trail
users shall be only at the trail-heads at Benzie Boulevard/Spring Valley Drive in
the Village of Beulah on the east, at Mollineaux Road on the west, or other
designated public access areas. Trailhead parking will be designated, with
appropriate signage, at the two trailheads.
***
There will be no toilet facilities, drinking fountains, telephones, picnic
tables, no hunting, fishing, camping, picnicking or vending and no public access
to the Crystal Lake waterfront or docks except as specifically allowed in
designated public areas.
Plaintiff contends that construction of the boat launch would violate these two restrictions
by essentially creating a new public access area, without any amendment of the agreement. In
ruling on this argument below, the trial court found that the special restrictions in the Plan
applied only to the trail and not to adjacent land. The court acknowledged that although the
DNR was not prohibited by the settlement from constructing a boat launch on its property, it
would still have to control public use of the trail from the launch. The court presumed that
public officials would perform that responsibility properly.
We agree with the trial court’s analysis that the settlement does not preclude the DNR
from building the proposed boat launch. By acquiring property that abuts the trail, the DNR
became an adjoining property owner under the settlement and is entitled to the same rights as
other property owners, because the settlement provides no exception for governmental entities
that become landowners. As an adjoining landowner, the DNR may allow its own guests and
invitees to access that part of the trail located on its property and use its property in any way that
does not conflict with the trail easement. The restrictions within the Plan apply only to the trail
itself, and not to the activities of adjoining landowners.
Also, we do not find that the DNR’s boat launch would create a new “designated public
area.” According to the Plan’s use of the term, designation occurs when an area is specified for
particular uses and signage is authorized to communicate the designation to trail users. There is
simply no evidence that the proposed boat launch will be marked by the DNR for any use
associated with the trail. Plaintiff does question whether the DNR will be able to control trail
usage associated with the boat launch so that it does not interfere with the rights of neighboring
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property owners. However, “[i]t is presumed that public officers perform their official duties.”
Glavin v State Hwy Dep’t, 269 Mich 672, 675; 257 NW 753 (1934).
The trial court correctly determined that the earlier settlement does not prohibit the
proposed boat launch.
Affirmed in part, reversed in part, and remanded for further proceedings in accordance
with this opinion. We do not retain jurisdiction.
Markey, P.J., concurred.
/s/ Patrick M. Meter
/s/ Jane E. Markey
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