CAPITOL PROPERTIES GROUP LLC V 1247 CENTER STREET LLC
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STATE OF MICHIGAN
COURT OF APPEALS
CAPITOL PROPERTIES GROUP, LLC,
FOR PUBLICATION
April 16, 2009
Plaintiff/Counter-DefendantAppellant,
v
No. 281112
Ingham Circuit Court
LC No. 2007-000330-CZ
1247 CENTER STREET, LLC, and THOMAS
DONALL d/b/a X-CEL,
Defendants/Counter-PlaintiffsAppellees.
Advance Sheets Version
Before: Sawyer, P.J., and Servitto and M. J. Kelly, JJ.
M. J. KELLY, J. (concurring in part and dissenting in part).
Although I do not join in the majority’s reasoning, I agree with its conclusion that the
trial court properly granted summary disposition of plaintiff Capitol Properties Group, LLC’s
(Capitol), complaint to the extent that it stated claims based on an ordinance violation and public
nuisance. However, because I conclude that Capitol established a question of fact regarding
whether defendants’ operation of the club at issue substantially and unreasonably interfered with
Capitol’s use and enjoyment of its property, I must respectfully dissent from the majority’s
decision to affirm the dismissal of Capitol’s claim premised on private nuisance.
It is well-settled that a property owner’s unreasonable generation of noise can constitute a
nuisance. See Smith v Western Wayne Co Conservation Ass’n, 380 Mich 526, 537; 158 NW2d
463 (1968); Grzelka v Chevrolet Motor Car Co, 286 Mich 141, 146; 281 NW 568 (1938) (noting
that the trial court properly instructed the jury on the plaintiff’s theory that vibration and noise
constituted a nuisance). Generally, whether the generation of noise constitutes a nuisance is a
question of fact that must be determined after considering the totality of the circumstances:
No one is entitled, in every location and circumstance, to absolute quiet, or
to air utterly uncontaminated by any odor whatsoever, in the use and enjoyment of
his property; but when noises are unreasonable in degree, considering the
neighborhood in which they occur and all the attending circumstances, or when
stenches contaminate the atmosphere to such an extent as to substantially impair
the comfort and enjoyment of adjacent premises, then an actionable nuisance may
be said to exist; and in applying these tests the question presented is one of fact
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rather than law.
(1951).]
[deLongpre v Carroll, 331 Mich 474, 476; 50 NW2d 132
As the majority notes, Capitol adequately stated a claim for relief premised on private
nuisance. Nevertheless, the majority concludes that the trial court properly dismissed that claim,
given the trial court’s factual findings concerning the harm to Capitol and whether the level of
noise was reasonable. I do not agree that the trial court could properly grant summary
disposition based on its factual findings. Capitol presented evidence that, if believed,
demonstrates that defendants’ operation of the club caused both substantial and unreasonable
interference with Capitol’s use of the property. Hence, to the extent that there were factual
disputes, the trial court should not have resolved the disputes on a motion for summary
disposition. See Skinner v Square D Co, 445 Mich 153, 161; 516 NW2d 475 (1994) (“The court
is not permitted to assess credibility, or to determine facts on a motion for summary judgment.”);
MCR 2.116(C)(10).
Moreover, it appears that the trial court erroneously determined that Capitol failed to
make out a claim for nuisance based on noise because the noise did not interfere with its use, but
rather interfered with its tenants’ use. Capitol leases its property to commercial and residential
tenants—that is, its use and enjoyment is derived from its ability to make its property attractive
to potential and current tenants. Capitol presented evidence that its current tenants are not happy
about the volume of noise coming from defendants’ property and that this interfered with
Capitol’s ability to satisfy its tenants’ needs. Capitol also presented evidence that, because of the
noise, it cannot lease its property at the going market rate. Although it is true that a mere
depreciation in property value is insufficient to constitute a nuisance, this is because the
diminution in value does not normally constitute interference with the use and enjoyment of
property. See Adkins v Thomas Solvent Co, 440 Mich 293, 311-315; 487 NW2d 715 (1992)
(holding that depreciation in value caused by unfounded fears cannot, by itself, constitute an
actionable nuisance). In this case, Capitol has not relied on a mere depreciation in its property
value based on the existence of a club next door; rather, it has presented evidence that
defendants’ unreasonable operation of the club caused actual and substantial harm to its ability to
lease its property for commercial and residential purposes. The diminished revenue from the
property and complaints by tenants are evidence that Capitol’s use of the property has been
affected by the noise emanating from the club.
The trial court also appears to have erroneously determined that Capitol could not make
out a claim for nuisance because a club had existed at that location for some time and—
presumably—had always generated noise. Capitol presented evidence from which a trier of fact
could conclude that the noise generated by the club is excessive under the totality of the
circumstances. See deLongpre, 331 Mich at 476. Specifically, Capitol presented evidence that
the noise generated by the club causes vibrations on Capitol’s property, causes lights to flicker,
and physically affects Capitol’s tenants. The trial court apparently discounted the evidence
concerning the degree of disruption caused to Capitol’s property because the club and its
predecessor have generated noise for some years. But it does not follow from the fact that this
club or its predecessor has generated noise in the past—and may properly generate some level of
noise now—that it may generate noise whenever it wishes and to whatever degree that it wishes.
See Smith, 380 Mich at 537, citing Warren Twp School District No 7 v Detroit, 308 Mich 460;
14 NW2d 134 (1944) (noting that an airport is not a nuisance per se, but that it can be a nuisance
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if improperly operated); Waier v Peerless Oil Co, 265 Mich 398, 401; 251 NW 552 (1933) (“But
extraordinary or unnecessary noises or smells which introduce serious annoyances, above those
which arise from the ordinary and proper conduct of the business, are actionable.”); McMorran v
Cleveland-Cliffs Iron Co, 253 Mich 65, 69; 234 NW 163 (1931) (stating that whether a
business’s operations constituted a nuisance depended on whether the “dust, noise, and vibration
are more than merely incident to the proper and skilful operation of the business”). Defendants
only have the right to operate their club in a reasonable manner—not any manner that they deem
fit. Likewise, Capitol is not without redress merely because the club existed before Capitol
decided to lease its property. See McMorran, 253 Mich at 69 (stating that a plaintiff who comes
to the nuisance is not deprived of all redress—the plaintiff need only submit to the noise incident
to the proper operation of the business) (emphasis added). Hence, if the noise generated by the
club is in excess of that necessary to its proper operation, Capitol would be entitled to relief.
The trial court erred when it granted summary disposition of Capitol’s complaint to the
extent that it stated a claim based on private nuisance. Capitol has adequately alleged and
supported that claim and, for that reason, is entitled to have a trier of fact determine whether
defendants’ operation of the club has substantially and unreasonably interfered with Capitol’s
use of the property after a full trial on the merits. For these reasons, I would reverse the trial
court’s order granting summary disposition and remand for trial on the merits consistent with this
opinion.
/s/ Michael J. Kelly
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