JAMES SOUPAL V SHADY VIEW INC
Annotate this Case
Download PDF
Michigan Supreme Court
Lansing, Michigan 48909
Chief Justice
Maura D. Corrigan
Opinion
Justices
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
FILED DECEMBER 11, 2003
JAMES SOUPAL, GERI SOUPAL,
ALAN HAY AND SANDRA HAY,
Plaintiffs-Appellants,
v
No. 123698
SHADY VIEW, INC.,
Defendant-Appellee.
_______________________________
PER CURIAM
The
question
association
access
to
ordinance
of
multiple
Higgins
that
before
Lake
permits
the
families
Court
may
association’s
communal
use
of
the
single-family
property owned by the association.
the
whether
provide
notwithstanding
only
is
a
communal
local
uses
an
zoning
on
the
We conclude that the
property
violates
the
zoning ordinance.
We vacate the judgments of the lower
courts
the
and
remand
matter
to
the
circuit
court
for
further proceedings consistent with the zoning ordinance
and this opinion.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs are the owners of the riparian properties
that are adjacent to lot 139 of Woodlawn Subdivision on
Higgins Lake.
Lot 139 is zoned “Residential District 1”
(R-1) according to the Gerrish Township Zoning Ordinance.
Defendant, a nonprofit association of numerous families,
owns lot 139.
stock,
It was authorized to issue twenty shares of
nineteen
of
which
were
sold
to
individual
shareholders who are owners of other nonlakefront lots in
the subdivision.
Defendant bought lot 139 specifically to
provide
access
communal
nonriparian shareholders.
to
the
lake
for
use
by
its
Among the modifications to the
property made by the defendant was the construction of a
dock that was 160 feet long with twenty boat slips.
A
cabin on the lot, which had been used by prior titleholders
as
a
single-family
function
as
a
seasonal
cottage,
community
center
was
for
converted
to
defendant’s
shareholders.
In June 1996, plaintiffs sought to enjoin defendant’s
construction of a dock and operation of a marina on lot
139.
Plaintiffs alleged (1) that such use of lot 139 was
in violation of the zoning ordinance, which designates lot
139 as R-1, and (2) that such use was a nuisance per se
2
that disturbed the peace and reasonable uses of plaintiffs’
property.1
Following a bench trial, the circuit court ruled that
defendant’s use constituted a “marina” as defined by the
zoning ordinance,2 that the zoning ordinance did not allow
that use, and that defendant’s use was unreasonable, and
constituted a nuisance in fact and a nuisance per se.
The
court enjoined defendant from placing a dock longer than
seventy-five feet, from mooring more than five boats, and
from having more than two families at any time use the
facility.
In
a
divided,
unpublished
decision,
the
Court
of
Appeals reversed the decision of the circuit court, and
ruled
that
the
zoning
ordinance
does
not
prohibit
the
operation of marinas on property classified as R-1, that
1
This case has had an extensive procedural history.
The initial trial judge denied plaintiffs’ request for
injunctive relief based on the zoning ordinance violation
theory, but he retained jurisdiction over the nuisance per
se claim pending completion of related administrative
proceedings before the Department of Environmental Quality
concerning defendant’s application with that agency for a
formal marina operation permit.
Eventually, the DEQ
granted defendant’s application for a 160-foot dock and
mooring for twenty pleasure boats, but it acknowledged that
it lacked jurisdiction over plaintiffs’ claims under the
zoning ordinance.
The case then returned to the circuit
court for further proceedings.
2
The ordinance defines “marina” as “[a] facility which
is owned or operated by a person, extends into or over an
inland lake or stream and offers services to the public or
members of the marina for docking, loading or other
servicing of recreational watercraft.” Art III, § 3.1.
3
defendant’s marina is not a commercial enterprise,3 and that
the dock is neither a nuisance per se nor a nuisance in
fact.4
The majority held in part that the circuit court’s
issuance
of
the
injunction
was
error
requiring
reversal
because “it was based on an erroneous finding that the dock
was a nuisance.”
The Court of Appeals dissenter would have held that
defendant’s combination of uses of the property (“forming a
corporation,
soliciting
corporation,
marina,
using
community
marina
purchasing
the
center,
and
the
funds,
land,
existing
and
constructing
structure
charging
community
selling
yearly
center”)
on
stock
a
violated
the
twenty-slip
the
dues
in
land
to
as
use
the
a
the
zoning
ordinance, and that the “noise,” “unsightly condition,” and
“excessive traffic” amounted to a nuisance per se.
The
dissenter concluded that “[a]ll marinas are commercial in
some respect” and that “[c]learly not every resident on
Higgins Lake would be permitted to turn their property into
a marina for multiple families and watercraft.
That is
precisely the situation zoning laws protect against and the
very definition of a nuisance.”
3
The ordinance prohibits “[a]ll enterprises of a
commercial nature, excepting home occupation and rental of
buildings . . . .” Art VI, part A, § 6.7(d).
4
Unpublished opinion per curiam, issued February 28,
2003 (Docket No. 231443).
4
II.
This
Court
STANDARD OF REVIEW
reviews
de
novo
matters
of
statutory
construction, including the interpretation of ordinances.
Gora v Ferndale, 456 Mich 704, 711; 576 NW2d 141 (1998).
III. THE ORDINANCE
Article
IV,
§
4.1
of
the
Gerrish
Township
Zoning
Ordinance provides in part:
Except
as
is
hereinafter
provided,
no
buildings shall be erected, altered, or moved and
no lands or buildings shall be used for any
purpose other than the types and uses permitted
in the respective District in which such lands or
buildings are located. [Emphasis added.]
Article VI of the ordinance governs “Residential Districts,”
and art VI, part A, § 6.1 governs the R-1 classification,
which applies to lot 139.
As is relevant here, the R-1
classification permits “dwellings,” “[a]ccessory buildings
or structures,” and “[a]ccessory uses and activity related
to principal use.”
It is apparent from the trial testimony
that the cabin on lot 139 was designed to be a singlefamily
dwelling
and
was
so
used
until
purchased
by
defendant.
The zoning ordinance’s definitions are contained in
article III, § 3.1. “Dwelling, One-Family,” is defined as
"[a] detached building designed for or occupied by one (1)
family and so arranged as to provide living, cooking, and
5
kitchen accommodations for one (1) family only.
as a single-family dwelling.”5
Id.
Also known
“Family” is defined as:
a.
One (1) person or two or more persons
living together in one (1) dwelling unit and
related by bonds of marriage, blood, or legal
adoption (may include up to a total of three (3)
additional persons not so related who are either
domestic servants or servants or gratuitous
guest), comprising a single housekeeping unit,
or;
b.
A group of not more than four (4)
persons not related [by] blood, marriage or
adoption,
living
together
as
a
single
housekeeping unit. [Id.]
Article VI, part A, § 6.1 of the ordinance is entitled
“Buildings
and
Uses
Permitted.”
Section
6.1(b)
permits
accessory buildings or structures such as “[g]arage[s], and
storage buildings,” but only if “used . . . as an accessory
to the main dwelling."
“[s]tructures
such
as
Section 6.1(b) additionally permits
steel
towers,
antenna
masts,
antennas, [and] flagpoles,” as well as “[a]ccessory uses
and activity related to principal use.”
(Emphasis added.)
The ordinance defines “Principal Building or Use” as “the
principal or primary purpose for which a building or parcel
of land may be designed, arranged, intended, maintained or
occupied.”
Art III, § 3.1.
Article VI, part A, § 6.8,
“Parking Storage,” provides that “[t]he owner or owners of
boats may park or store such boats on his or their property
5
Multiple-family
dwellings
are
allowed
in
R-2
districts, a classification that does not include lot 139.
6
providing that said property is zoned for residential use
and occupied by residential dwellings.”
IV.
In
considering
the
ANALYSIS
alleged
violation
of
the
zoning
ordinance, the threshold issue is whether defendant’s use
is consistent with the uses permitted in an R-1 district.
Those uses are limited under art III, § 3.1, and art VI,
part
A,
§
6.1
to
activities
single-family use.
this
threshold
and
buildings
is
issue,
focusing
inconsistent
immaterial
to
The Court of Appeals failed to address
instead
on
“commercial” aspect of plaintiff’s marina.
use
related
whether
with
the
“commercial” purpose.
is
alleged
If the proposed
single-family
property
the
use,
being
it
used
is
for
a
Because we conclude that defendant’s
use of the property is inconsistent with its single-family
designation, we hold that the circuit court correctly ruled
that the use constituted a nuisance per se.
Even
assuming
that
the
Court
of
Appeals
correctly
ruled that defendant’s marina is not commercial, the marina
nevertheless
is
in
violation
of
the
zoning
ordinance
because of the prohibition in art IV, § 4.1 of the use of
land
“for
permitted
any
in
purpose
the
other
respective
than
the
Districts
types
.
.
.
and
uses
."
The
occupation of the lot by a multiple-family association and
the operation of an oversized marina containing twenty boat
7
slips are not permitted uses in an R-1 district.
The use
of the former cottage as a community building is not a
permitted use under the ordinance.
The ordinance provides
that a “Dwelling Unit” must be “occupied exclusively as the
home,
residence
. . . .”
Art
defendant
nor
or
sleeping
place
III, § 3.1.
its
nineteen
of
one
(1)
family
It is clear that neither
shareholders
qualify
as
a
“family” as defined by the ordinance.
Furthermore,
operation
of
a
twenty-boat-slip
marina
and a community house is not an “[a]ccessory use” that is
“related
to
§ 6.1(b)3.
Use”
as
building
[the]
use”
of
the
R-1
lot
under
The ordinance defines “Principal Building or
“the
or
principal
principal
parcel
of
or
primary
land
may
intended, maintained, or occupied.”
be
purpose
for
designed,
Art
which
a
arranged,
III, § 3.1.
It
is clear from the testimony that the cabin on lot 139 was
designed to be a single-family dwelling.
The lot, with its
seventy-seven
was
feet
support that use.
of
lake
frontage,
intended
to
Operating the marina, irrespective of
its commercial or noncommercial nature, is not “related” to
the property’s permitted use as a single-family dwelling.
MCL 125.587 provides in relevant part that a “building
. . . converted, or a use carried on in violation of a
local ordinance . . . is a nuisance per se.
shall order the nuisance abated . . . .”
8
The court
Because the
circuit court correctly ruled that defendant’s use violated
the zoning ordinance, it was also correct in ruling that
such use was a nuisance per se.
The Court of Appeals
majority erred in reaching a contrary conclusion.
However, the circuit court’s ruling, which allowed the
families of two of defendant’s shareholders at any time to
use a seventy-five-foot dock on which up to five boats
could
be
ordinance
moored,
is
provisions
inconsistent
concerning
with
the
township’s
single-family
dwellings.
We therefore vacate that portion of the circuit court’s
judgment and remand for further action consistent with this
opinion.
Maura D. Corrigan
Michael F. Cavanagh
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
9
STATE OF MICHIGAN
SUPREME COURT
JAMES SOUPAL, GERI SOUPAL,
ALAN HAY AND SANDRA HAY,
Plaintiffs-Appellants,
v
No. 123698
SHADY VIEW, INC.,
Defendant-Appellee.
_______________________________
WEAVER, J. (concurring).
I
concur
in
the
result
of
the
opinion
per
curiam
because defendant’s use of the property is not consistent
with
the
buildings
and
uses
permitted
in
R-1
under the Gerrish Township zoning ordinance.
Elizabeth A. Weaver
Marilyn Kelly
districts
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.
