EDWARD C LEVY COMPANY V METAMORA TOWNSHIP
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
EDWARD C. LEVY COMPANY d/b/a LIBERTY
SAND & GRAVEL COMPANY,
UNPUBLISHED
January 22, 2009
Plaintiff-Appellant,
and
DETROIT AREA COUNCIL OF BOY SCOUTS
OF AMERICA,
Plaintiff-CounterdefendantAppellant,
v
No. 279431
Lapeer Circuit Court
LC No. 06-037672-CZ
METAMORA TOWNSHIP,
Defendant-CounterplaintiffAppellee,
and
METAMORA LAND PRESERVATION
ALLIANCE and LANDEX, INC.,
Intervening DefendantsCounterplaintiffs-Appellees.
Before: Murphy, P.J., and K.F. Kelly and Donofrio, JJ.
PER CURIAM.
Plaintiffs appeal as of right the trial court's order granting summary disposition in favor
of defendants. Plaintiffs challenge a number of the court’s rulings, including its denial of a
motion seeking leave to amend the pleadings. We reverse and remand for further proceedings in
regard to the summary disposition ruling, but affirm the court's denial of the request to amend the
pleadings.
Plaintiff Detroit Area Council of Boy Scouts of America (Boy Scouts) own
approximately 1,573 acres of land known as the “D-Bar-A Scout Ranch” in Metamora
Township. The property is zoned for recreational use. In the 1980s, the Boy Scouts entered into
-1-
a lease agreement with Ajax Paving Industries (Ajax) that envisioned Ajax mining sand and
gravel deposits on the property. However, an application for a mining permit submitted by the
Boy Scouts and Ajax was rejected by defendant Metamora Township (township). Following an
unsuccessful suit in federal district court challenging the township's permit denial, the Boy
Scouts and Ajax filed an appeal in the United States Court of Appeals for the Sixth Circuit.
While the appeal was pending, the parties entered into a settlement agreement in 1991.
As part of the settlement, the Boy Scouts agreed that it would not apply for a mining
permit that would “propose or result in the use of Dryden Road within the Township or within
the Village of Metamora . . . as a haul route for commercial quantities of sand, gravel or topsoil
prior to January 1, 2011, unless a substantial change in conditions shall have occurred.” The
settlement agreement expressly provides that a “substantial change in conditions” means:
(1) widening of Dryden Road to four travel lanes within one half mile of
Gardner Road;
(2) new development or use of property, subsequent to the date of this
Agreement, within the Township or Village for manufacturing, commercial, or
extractive uses which generate an aggregate annual average of 50 or more heavy
trucks per weekday or an aggregate seasonal average of 25 or more gravel trains
per weekday on Dryden Road, as determined by traffic counts conducted at the
east boundary of the Village;
(3) use of Dryden Road in the vicinity of the D-Bar-A Scout Ranch by an
annual average of 100 or more heavy trucks per weekday, or a seasonal average
of 50 or more gravel trains per weekday, as determined by traffic counts
conducted at the east boundary of the Village; or
(4) other changes in the use and occupancy of property in Metamora
Township along Dryden Road east of the Village and/or in the volume and
composition of traffic on Dryden Road, as measured at the east boundary of the
Village, which have an effect similar to those described in the preceding subparagraphs.
In 2004, the Boy Scouts and plaintiff Edward C. Levy Company (Levy) signed a lease
covering a portion of the property. Under the lease, Levy was given permission to conduct
mining operations for sand, stone, and gravel on the property, and the Boy Scouts were entitled
to monthly royalty payments on mined minerals.
In late 2005, plaintiffs submitted an application to the township for the rezoning of the
leased land from recreational to agricultural, as mining is permitted as a special land use only
with respect to land zoned as agricultural. The township planning commission recommended
denial of the rezoning application, and subsequently the township board denied the application.
Plaintiffs then filed their complaint, alleging that the township's action violated their due process
rights under the Michigan Constitution. They asked the court to enjoin the township from
interfering with plaintiffs’ lease and the mining of minerals on the land. The township filed a
counterclaim for breach of contract and later filed a motion for summary disposition, arguing
-2-
that the settlement agreement bound the Boy Scouts and its successors and assigns. The trial
court granted the township's motion, entering judgment in favor of the township on its
counterclaim and summarily dismissing plaintiffs' complaint. The trial court ruled that there had
been no substantial change in conditions since the 1991 settlement agreement, opining that
conditions 1 through 3, as outlined above, needed to all be satisfied as a single unit or condition
to effectuate a substantial change in conditions, or that condition 4, standing alone, had to be
satisfied. The trial court's reasoning rested on the fact that the word "or" followed the semicolon
after condition 3 and before condition 4, but “or” was not similarly used between conditions 1
and 2 and between conditions 2 and 3, where only semicolons were present.
Plaintiffs argue that the trial court’s decision constituted an erroneous construction of the
settlement agreement. Plaintiffs maintain, and we agree, that the four conditions stood separate
and independent from each other and formed four alternate scenarios under which a substantial
change in conditions would exist.
This Court reviews de novo a trial court's ruling on a motion for summary disposition.
Kreiner v Fischer, 471 Mich 109, 129; 683 NW2d 611 (2004). "[Q]uestions involving the
proper interpretation of a contract or the legal effect of a contractual clause are also reviewed de
novo." Rory v Continental Ins Co, 473 Mich 457, 464; 703 NW2d 23 (2005). "In ascertaining
the meaning of a contract, we give the words used in the contract their plain and ordinary
meaning that would be apparent to a reader of the instrument." Id. "If the language of [a]
contract is unambiguous, we construe and enforce the contract as written." Quality Products &
Concepts Co v Nagel Precision, Inc, 469 Mich 362, 375; 666 NW2d 251 (2003). A contract is
ambiguous if its provisions are capable of conflicting interpretations. Klapp v United Ins Group
Agency, Inc, 468 Mich 459, 467; 663 NW2d 447 (2003).
We conclude that the contract language at issue clearly and unambiguously described
four independent and alternative scenarios under which a substantial change in conditions is
established. In general, the "disjunctive term 'or' refers to a choice or alternative between two or
more things." Yankee Springs Twp v Fox, 264 Mich App 604, 608; 692 NW2d 728 (2004); see
also Auto-Owners Ins Co v Stenberg Bros, Inc, 227 Mich App 45, 50; 575 NW2d 79 (1997);
Root v Ins Co of North America, 214 Mich App 106, 109; 542 NW2d 318 (1995). Each of the
four conditions, separated by semicolons, can stand on its own, and the use of the term "or"
between the third and fourth conditions shows an intent that the string of conditions constitute
four separate alternative scenarios, with satisfaction of any one of the four establishing a
substantial change in conditions. The four conditions are separately spaced, in paragraph form,
and independently numbered. And conditions 1 through 3 do not reflect a continuing thought
pattern or sequence.1 The trial court's insistence that the term "or" had to be used between each
of the four conditions in order to show that four alternatives existed lacks grammatical
justification. By simple analogy, if a person informed a painter in writing to paint one's house
"red, black, blue, or white," clearly four alternative colors are contemplated, and not a choice
1
It is argued that use of the semicolons alone shows an intent to connect the conditions together,
unifying the first three conditions as a single condition or test. A supposed supporting example
in an attached grammatical guide is: "Jim is a good typist; he makes few mistakes." The
example is inapposite. We are addressing conditions that are numerically, substantively, and
spatially separate and independent.
-3-
between painting the house red, black, and blue, or, in the alternative, white. While it might
make it more emphatically clear to state, "paint the house red or black or blue or white," using
the single disjunctive “or” between the third and fourth choices also clearly communicates four
alternative choices and is the conventional manner in doing so. Here, had the word "and"
appeared after the semicolon as to condition 2 and before condition 3, it would have reflected an
intent that conditions 1 through 3 must all be shown in order to establish a substantial change in
conditions. But the word "and" is not used anywhere between any of the conditions.
We agree with plaintiffs' argument that "it is counter-intuitive to suppose that the parties
would have written subparagraphs (C)(1), (C)(2), and (C)(3) in three different paragraphs joined
by semicolons, rather than using a single paragraph, if they wanted to express a single test of
substantially changed conditions." (Emphasis omitted.) Accordingly, the trial court erred in its
interpretation of the settlement agreement and thus erred in summarily dismissing the case with
respect to plaintiffs' complaint and in entering judgment in favor of the township on the
counterclaim. Although plaintiffs contend that there is no dispute that condition 3 was
established, we believe that the best procedural course is to allow the trial court to first address
the issue on remand, either at trial or on another motion for summary disposition.
Given our ruling, we see no need to address many of the other arguments presented by
plaintiffs on appeal. However, some issues still require addressing as they may arise again on
remand. Should plaintiffs on remand again argue that Levy was not bound by the settlement
agreement because of its status as a lessee, the argument is to be rejected. Plaintiffs' contention
to the contrary is wholly lacking in merit. The settlement agreement bound the Boy Scouts and
its assigns, and the lease not only pertained to possession of certain land but additionally
constituted an assignment of the Boy Scouts' general rights as property owners to mine any
mineral deposits located on or beneath the land. See Burkhardt v Bailey, 260 Mich App 636,
654-655; 680 NW2d 453 (2004). Plaintiffs' contrary reading of Burkhardt with respect to
assignments is flawed and misplaced. It is nonsensical to read the settlement agreement as
allowing the Boy Scouts to contract with any and all mining companies, except for Ajax, and to
then immediately seek township permission to mine the property regardless of the application
waiting period (January 1, 2011). Moreover, a lessee's property interest rights are limited to the
rights possessed by the lessor as it is "fundamental property law that a lessor can transfer no
greater rights than he possesses." Adams Outdoor Advertising v East Lansing (After Remand),
463 Mich 17, 24; 614 NW2d 634 (2000). Thus, because the Boy Scouts' rights to use the land
were limited by the settlement agreement, any rights acquired by Levy under the lease were
similarly limited by the settlement agreement. Even if Levy's mining operation was going to
affect different acreage than that sought to be mined by Ajax, Levy is still bound by the
settlement agreement. This is because the agreement makes clear that the use of Dryden Road as
a haul route for sand, gravel, or topsoil is the problematic activity and the obstacle to overcome
and because Levy indisputably wishes to use Dryden Road for just such purposes.
Next, plaintiffs suggest that even if there has not been a substantial change in conditions
under the settlement agreement, which would preclude submission of a mining permit
application, it still does not defeat their complaint alleging violation of due process. This
argument does not stand scrutiny. If, because of the settlement agreement, the Boy Scouts and
Levy are not presently entitled to seek permission to mine the property, and therefore cannot
mine the property, there can be no due process violation in the township's refusal to rezone the
-4-
property so as to allow for mining. By executing the settlement agreement, the Boy Scouts and
its assigns essentially waived any claim of a constitutional deprivation related to denial of a
mining application by the township, as long as the denial was in accordance with the agreement.
See Whispering Pines AFC, Home, Inc v Dep't of Treasury, 212 Mich App 545, 550; 538 NW2d
452 (1995)(constitutional rights may be waived by contract even if such constitutional rights are
not specifically referenced in the language of the contract). Any other ruling would render the
settlement agreement meaningless and nugatory.
Finally, we address plaintiffs' arguments pertaining to amendment of the answer to the
counterclaim. The Boy Scouts desired to add the affirmative defenses of waiver, estoppel by
acquiescence, and estoppel by laches in order to defeat application of the settlement agreement.
The underlying premise of each of these defenses concerns the manner in which the township
handled the rezoning application. Plaintiffs' position is that the township should have
immediately and firmly rejected the rezoning application on the basis of the 1991 settlement
agreement, consistent with the township’s interpretation of the agreement in the litigation,
instead of allowing plaintiffs to needlessly spend time and money in the lengthy rezoning
process. We hold that the trial court did not abuse it discretion in denying the motion to amend
the pleadings. Weymers v Khera, 454 Mich 639, 658; 563 NW2d 647 (1997).
Leave to amend a party's pleadings is properly denied if amendment would be futile.
Miller v Chapman Contracting, 477 Mich 102, 105; 730 NW2d 462 (2007). The record reflects
that throughout the township's proceedings relative to the rezoning application concerns about
compliance with the 1991 settlement agreement were at the forefront and presented an obstacle
to rezoning. There were demands by the township that plaintiffs show that there had been a
substantial change in conditions. The township board's meeting minutes indicated that plaintiffs
had "failed to demonstrate a substantial change in conditions to justify an application which
proposed to use, or results in the use, of Dryden Road as a haul route." There is simply no record
support for plaintiffs' contention that waiver occurred, that estoppel by acquiescence took place,
and that estoppel by laches was shown. Accordingly, any amendment would be futile, and the
trial court did not abuse its discretion in denying the motion seeking leave to amend the
pleadings.
We reverse and remand for further proceedings consistent with this opinion in regard to
the summary disposition ruling, but affirm the court's denial of plaintiffs' motion seeking leave to
amend the pleadings. No costs are awarded under MCR 7.219 as no party fully prevailed on
appeal. We do not retain jurisdiction.
/s/ William B. Murphy
/s/ Kirsten Frank Kelly
/s/ Pat M. Donofrio
-5-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
