Capitol Properties Group, LLC v. 1247 Center Street, LLC

770 N.W.2d 105 (2009) 283 Mich. App. 422

CAPITOL PROPERTIES GROUP, LLC
v.
1247 CENTER STREET, LLC.

Docket No. 281112.

Court of Appeals of Michigan.

Submitted February 3, 2009, at Lansing. Decided April 16, 2009, at 9:05 a.m.

Abood Law Firm, (by Andrew P. Abood), East Lansing, for the plaintiff.

The Gallagher Law Firm, PLC, (by Byron P. Gallagher, Jr.), Lansing, for the defendants.

Before: SAWYER, P.J., and SERVITTO and M.J. KELLY, JJ.

Opinion of the Court

SERVITTO, J.

Plaintiff appeals as of right the trial court's order granting summary disposition in favor of defendants. We affirm.

Defendant Thomas Donall is the president of defendant 1247 Center Street, LLC, a company that owns X-Cel, a nightclub located in the city of Lansing. Plaintiff owns a building containing residential and commercial units immediately adjacent to X-Cel. According to plaintiff, X-Cel plays music at levels that exceed those allowed by local ordinances and, among other things, constitutes a nuisance and interferes with plaintiff's right to the quiet enjoyment of its property. Plaintiff initiated this action seeking an abatement of the alleged nuisance or to enjoin defendants from operating X-Cel in violation of the applicable city ordinances. Defendant essentially denied the allegations and brought a counterclaim against plaintiff for tortious interference with a business expectancy. After an evidentiary hearing, the trial court denied plaintiff's motion to abate the alleged nuisance, taking judicial notice that the area concerned is zoned G-1 or "business." The trial court later granted summary disposition in defendants' favor, opining that defendants were not in violation of Lansing noise ordinances. The trial court stated that plaintiff's claims of nuisance are based on a violation of such ordinances and that, failing to establish a violation, plaintiff's claims fail as a matter of law. This appeal followed.

Although defendants' motion for summary disposition was premised on MCR 2.116(C)(8), the court looked beyond the pleadings in granting the motion. We will thus treat the motion as having been alternatively granted under MCR 2.116(C)(10). Sharp v. City of Lansing, 238 Mich.App. 515, 518, 606 N.W.2d 424 (1999).

A grant of summary disposition based on a failure to state a claim is reviewed de novo on appeal. Maiden v. Rozwood, 461 Mich. 109, 118, 597 N.W.2d 817 (1999). The pleadings alone are considered in testing the legal sufficiency of a claim under a MCR 2.116(C)(8) motion. Feyz v. Mercy Mem. Hosp., 475 Mich. 663, 672, 719 N.W.2d 1 (2006). It is well established that for purposes of a motion under MCR 2.116(C)(8), all factual allegations in support of the claim are accepted as true and viewed in the light most favorable to the nonmoving party. Maiden, 461 Mich. at 119, 597 N.W.2d 817. The motion should be granted only when the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify recovery. Beaudrie v. Henderson, 465 Mich. 124, 130, 631 N.W.2d 308 (2001).

"Summary disposition is appropriate under MCR 2.116(C)(10) if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law." West v. Gen. Motors Corp., 469 Mich. 177, 183, 665 N.W.2d 468 (2003). When reviewing a motion under subrule C(10), this Court considers the pleadings, admissions, affidavits, and other relevant record evidence in the light most favorable to the nonmoving party to determine whether any genuine issue of material fact exists warranting a trial. Walsh v. Taylor, 263 Mich.App. 618, 621, 689 N.W.2d 506 (2004).

Plaintiff first contends that the trial court erroneously dismissed its complaint in that it did not accept the factual statements in the complaint as true. Plaintiff specifically asserts that the trial court should have accepted as true that defendants were violating local ordinances as alleged in the complaint. However, whether defendants violated a local ordinance is not a "fact" or even a reasonable inference drawn from the facts; it is a conclusion of law. A statement of plaintiff's conclusions, unsupported by allegations of fact, does not suffice to state a cause of action. See Churella v. Pioneer State Mut. Ins. Co. (On Remand), 258 Mich.App. 260, 272, 671 N.W.2d 125 (2003). While plaintiff did allege that defendants produced more than 55 decibels of sound, a fact that must be accepted as true, whether defendants violated the noise ordinances is a legal conclusion based on the decibel levels and on interpreting where the local ordinance applies (see later discussion). The legal conclusion is insufficient to state a cause of action. Summary disposition with regard to an ordinance violation claim was thus proper, and any amendment of plaintiff's complaint concerning the violation would be futile.

Plaintiff also directs us to several paragraphs in its complaint, which it asserts, when taken as true, properly plead causes of action for nuisance. For example, plaintiff alleged in its complaint that "defendants' noise production at decibel levels above those [permitted] by law constitute[s] an act, occupation, and structure which [is] a nuisance at all times and under any circumstances." According to plaintiff the above demonstrates a nuisance per se. Again, however, whether defendants violated an ordinance proscribing certain decibel levels is a legal conclusion. Moreover, a nuisance per se is "an act, occupation, or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings," Ypsilanti Charter Tp. v. Kircher 281 Mich. App. 251, 269 n. 4, 761 N.W.2d 761 (2008). Here, plaintiff claimed that the noise was a nuisance solely because of the club's location (next to residential loft apartments) and surroundings. A club producing excessive noise only at certain hours, or in the middle of the desert would not necessarily be a nuisance and, as such, is not a nuisance at all times and under any circumstances. Summary disposition was thus appropriate with respect to the nuisance per se claims, and any amendment of plaintiff's complaint concerning nuisance per se would be futile.

Plaintiff also asserts that it stated a claim for public nuisance in alleging that "defendants are interfering with the public's health, safety, peace, comfort, and convenience by producing noise in excess of 55 decibels" and "defendants' noise pollution is known or should have been known to defendants to be of a continuing nature that produces a permanent or long-lasting, significant effect on the public's health, safety, peace, comfort, and convenience."

Public nuisance is defined in Cloverleaf Car Co. v. Phillips Petroleum Co., 213 Mich.App. 186, 190, 540 N.W.2d 297 (1995), as an "unreasonable interference with a common right enjoyed by the general public."

The term "unreasonable interference" includes conduct that (1) significantly interferes with the public's health, safety, peace, comfort, or convenience, (2) is proscribed by law, or (3) is known or should have been known by the actor to be of a continuing nature that produces a permanent or long-lasting, significant effect on these rights. A private citizen may file an action for a public nuisance against an actor where the individual can show he suffered a type of harm different from that of the general public. [Id. (citation omitted).]

We agree that plaintiff's complaint set forth sufficient allegations of fact that, when taken as true, constitute a public nuisance. As previously indicated, plaintiff alleged that defendant's production of noise at levels in excess of 55 decibels interfered with the public health and that plaintiff's tenants, who resided next to defendants' club, have suffered significant "physical, emotional and financial harms" as a result of the noise level. Plaintiff also alleged that defendants knew or should have known that its production of noise at the level that was produced would cause a significant, long-lasting effect on the public's health, safety, peace, comfort, or convenience. Contrary to defendants' argument otherwise, these allegations are not dependent on a finding that the noise level violated local ordinances. Plaintiff alleged, in generic terms throughout the complaint, that the noise level interfered with its tenants' rights and that they suffered harm as a result. Defendants have directed us to no law that requires a showing of an ordinance violation with respect to noise levels in order to state a cause of action for public nuisance. Regardless of the precise decibel level, the level of noise that constitutes a nuisance is largely a subjective matter. Plaintiff having sufficiently alleged an action for public nuisance, this claim survives summary disposition under MCR 2.116(C)(8).

The same is true with respect to plaintiff's claim of private nuisance. One is subject to liability for a private nuisance if

(a) the other has property rights and privileges in respect to the use or enjoyment interfered with, (b) the invasion results in significant harm, (c) the actor's conduct is the legal cause of the invasion, and (d) the invasion is either (i) intentional and unreasonable, or (ii) unintentional and otherwise actionable under the rules governing liability for negligent, reckless, or ultrahazardous conduct [Cloverleaf Car Co., supra at 193, 540 N.W.2d 297.]

Plaintiff alleged in its complaint that it owned property adjacent to defendants' property and that plaintiff and its tenants had rights and privileges with respect to the use and enjoyment of plaintiff's property. Plaintiff further alleged that it and its tenants suffered physical, emotional, and financial harm as a result of defendants' noise production. Plaintiff also alleged that defendants' conduct was intentional and reckless. Accepting these allegations as true, as we are required to do when considering a motion premised on MCR 2.116(C)(8), plaintiff properly pleaded a cause of action for private nuisance. Defendant has provided no authority suggesting that, absent an ordinance violation, a certain noise level could not be considered a nuisance. Thus, irrespective of an ordinance violation, plaintiff may claim the existence of a nuisance.

That plaintiff has sufficiently alleged claims of public and private nuisance does not, however, end our inquiry. In ruling on plaintiff's motion to abate the alleged nuisance, the trial court specifically stated:

There are elements of a public nuisance, and those have to be met. And one of them is, it significantly interferes with the public's safety, peace, comfort or convenience. And Plaintiff, at least in the Plaintiff's brief, points to all the other people who own residences or commercial property in the area.... But there is lack of any evidence as to other people in general being or having their safety, peace, comfort or convenience interfered with. Furthermore, because this is zoned G-1 for business, it's not evidence that loud music is going to interfere with other people's safety, peace, comfort or convenience in the area. I've heard about other businesses in the area, Brannigan's The Firm, Kelly's, Decker's ... it's not people trying to sleep."

In essence, the trial court determined that there were no questions of material fact concerning the existence (or, more accurately, the nonexistence) of a public nuisance. Before deciding defendants' motion for summary disposition, the trial court conducted a rather lengthy evidentiary hearing on plaintiff's motion to abate the alleged nuisance. The trial court, therefore, had already been presented with considerable evidence concerning whether the complained-of noise constituted a nuisance as a matter of fact. We agree with the trial court that the prior evidence, taken with the additional evidence offered in support of the summary disposition motion (and response), establishes no question of material fact concerning the claim of a public nuisance.

Nuisance-abatement proceedings brought in the circuit court are generally equitable in nature. MCL 600.2940(5). Equitable decisions are reviewed de novo, but the findings of fact supporting those decisions are reviewed for clear error. Yankee Springs Twp. v. Fox, 264 Mich. App. 604, 611, 692 N.W.2d 728 (2004). A finding is clearly erroneous if it leaves this Court with the definite and firm conviction that a mistake has been made. Jonkers v. Summit Twp., 278 Mich.App. 263, 265, 747 N.W.2d 901 (2008).

As stated previously, a public nuisance involves unreasonable interference with public rights and an unreasonable interference is conduct that (1) significantly interferes with the public's health, safety, peace, comfort, or convenience, (2) is proscribed by law, or (3) is known or should have been known by the actor to be of a continuing nature that produces a permanent or long-lasting, significant effect on these rights. Cloverleaf Car Co., 213 Mich.App. at 190, 540 N.W.2d 297. In this case, plaintiff did not demonstrate that its grievance extends to the public, beyond the walls of its building. There are many entertainment establishments, such as defendants', in this area that attract the public rather than harm it. There was no evidence demonstrating that the public has been adversely affected. Only the private claim of plaintiff and its tenants has been presented. The circuit court ruled that "there is [a] lack of any evidence as to other people in the area that would constitute the public in general being or having their safety, peace, comfort or convenience interfered with." This finding was not clearly erroneous.

The trial court also determined that defendant's actions did not constitute a private nuisance:

There is also an argument made that it's a private nuisance, and that also has elements that have to be met. One of them is the invasion resulting in significant harm.... Property depreciation alone is not enough to constitute a nuisance.... Now, I understand there are tenants, two of whom we have heard from, that are suffering as a result of the noise. But his is an action with the property owner, and the issue is whether there could be a private nuisance. So it's harm to the property owner for terms of a private nuisance, and not to tenants who testified ... again, having covered this is a business district, it is to be an expected noise that will occur late into the nighttime.... I can't find, on this record, that the requirement of a private nuisance is met.

The elements of a private nuisance are satisfied if (a) the other has property rights and privileges in respect to the use or enjoyment interfered with, (b) the invasion results in significant harm, (c) the actor's conduct is the legal cause of the invasion, and (d) the invasion is either (i) intentional and unreasonable, or (ii) unintentional and otherwise actionable under the rules governing liability for negligent, reckless, or ultrahazardous conduct. Cloverleaf Car Co., 213 Mich.App. at 193, 540 N.W.2d 297. To prove a nuisance, significant harm to the plaintiff resulting from the defendant's unreasonable interference with the use or enjoyment of property must be proven. City of Jackson v. Thompson-McCully Co., LLC, 239 Mich. App. 482, 490, 608 N.W.2d 531 (2000).

In the instant case, plaintiff has not proven either significant harm or unreasonable interference. The harms alleged are financial in nature: plaintiff has not been able to obtain rental rates at market prices for its property. However, evidence of the market rates for rental property connected to a nightclub were not established to show a loss of value. Secondly, the rental value of plaintiff's property had not been established because the nightclub was operating long before plaintiff converted a portion of the property into apartments. Consequently, it is difficult to discern if plaintiff's rentals had lost value. Further, our Supreme Court has held that property depreciation alone is insufficient to constitute a nuisance. Adkins v. Thomas Solvent Co., 440 Mich. 293, 312, 487 N.W.2d 715 (1992). Additionally, the circuit court found that, despite the playing of music next door, plaintiff had been able to rent its units. Finally, upon information and belief, plaintiff is converting part of the building at issue into a bar, which will likely produce some noise itself. This fact may also affect the rental rate of plaintiff's apartments.

The circuit court also found that the noise produced by defendant was intentional, but not unreasonable. In the context of nuisance, "unreasonable" does not refer to defendants' conduct; it means that the interference with plaintiff's rights must be unreasonable. Id. at 305, 487 N.W.2d 715. The court spoke of the nature of the area as a business district and plaintiff's knowledge that it was constructing apartments next to a nightclub. The court also remarked that it was expected that the businesses in this district would produce sound late into the night. These findings were not clearly erroneous and support a conclusion that defendants' intrusion of sound, to the extent shown by plaintiff, was not unreasonable.

Plaintiff next asserts that the trial court erred in ruling that Lansing Ordinances, § 654.07(h), is inapplicable to defendants. A trial court's interpretation of an ordinance is a question of law that is reviewed de novo. Brandon Charter Twp. v. Tippett, 241 Mich.App. 417, 421, 616 N.W.2d 243 (2000).

Section 654.07(h) of the codified ordinances of Lansing prohibits sound levels in excess of 55 decibels in certain circumstances:

Places of Public Entertainment. Operating or playing or permitting the operation or playing of any radio, television, phonograph, drum, musical instrument, sound amplifier or similar device which produces, reproduces or amplifies sound in any place of public entertainment so as to produce a maximum sound level of fifty-five dBA on a residential real property boundary[.]

Plaintiff asserts that defendants' music produced sound at prohibited decibel levels, as measured by its sound expert and a tenant, across the boundary between the dance club and plaintiff's apartments, a residential real property boundary. Defendants' position is, and the trial court agreed, that the residential real property boundary in the ordinance refers only to boundaries in areas zoned for residential use. As plaintiff and defendants are both located in a district zoned for business, defendants' music did not intrude upon a residential boundary. On its face the ordinance is equally susceptible to both meanings and, accordingly, is ambiguous. See People v. Gardner, 482 Mich. 41, 50 n. 12, 753 N.W.2d 78 (2008) (indicating that a statute is ambiguous if it is equally susceptible to more than one meaning).

The rules of statutory construction also apply to ordinances. Goldstone v. Bloomfield Twp. Pub. Library, 479 Mich. 554, 568 n. 15, 737 N.W.2d 476 (2007). The primary goal of judicial interpretation of statutes is to determine and effectuate the intent of the Legislature. People v. Williams, 475 Mich. 245, 250, 716 N.W.2d 208 (2006). The first factor in determining legislative intent is the specific language of the statute. People v. Lively, 470 Mich. 248, 253, 680 N.W.2d 878 (2004). Judicial interpretation is not necessary or permitted if the plain and ordinary meaning of the statutory language is clear. People v. Bell, 276 Mich.App. 342, 345, 741 N.W.2d 57 (2007). If a statute is ambiguous, however, judicial construction is appropriate. People v. Warren, 462 Mich. 415, 427, 615 N.W.2d 691 (2000).

Section 654 provides definitions for "real property" and "residential area":

Real property means an imaginary line along the ground surface, and its vertical extension, which line separates the real property owned by one person from that owned by another person, but not including intra-building real property divisions.

* * *

Residential area means any area designated as an A, A-1, B, C, DM-1, DM-2, DM-3 or DM-4 Zoning District, pursuant to the Zoning Code or upon any plan or district map promulgated there-under. [Lansing Ordinances, § 654.03.]

If the statute defines a term, that definition controls. Haynes v. Neshewat, 477 Mich. 29, 35, 729 N.W.2d 488 (2007). The circuit court relied on the definition of "residential area" in determining that § 654.07(h) did not apply to the subject properties, which are both located in a G-1 business district. Because the ordinance uses the term "residential" to refer to zoning areas by definition, we agree.

Further, the provisions of a statute must be read in the context of the entire statute so as to produce a harmonious whole. People v. Couzens, 480 Mich. 240, 249, 747 N.W.2d 849 (2008). In the findings of fact section of the noise ordinance, the city detailed its reasons for enacting such an ordinance as follows:

The making, creation or maintenance of such excessive, unnecessary, unnatural or unusually loud noises, which are prolonged, unusual and unnatural in their time, place and use, effect and are a detriment to the public health, comfort, convenience, safety, welfare and prosperity of the residents of the City. [Lansing Ordinances, § 654.01(b).]

The ordinance was intended to address noises that are unusual and unnatural in their time, place, and use. Certainly, a dance club playing loud music at night at an entertainment destination in a business district is an anticipated and expected time, place, and use of musical noise. In contrast, music played loudly at a party in a residential area, where the city residents would not naturally and usually expect it, is the type of harm that the ordinance seems to address.

Plaintiff also contends that defendants violated another section of the noise ordinances, 654.07(a), which provides:

Sound Production and Reproduction Systems. The playing, using or operating, or permitting the playing, using or operating, of any television or radio receiving set, musical instrument, phonograph or other machine or device for producing, reproducing or amplifying sound in such a manner as to create a noise disturbance, or at any time with a louder volume than is necessary for convenient hearing for the persons who are in the room, chamber, vehicle or other place in which such an instrument, machine, set or device is operated and who are voluntary listeners thereto. The operation of any such television or radio receiving set, instrument, phonograph, machine or device between 11:00 p.m. and 7:00 a.m. of the following day in such a manner as to be plainly audible at a distance of fifty feet from the building, structure, vehicle or other place in which it is located shall be prima-facie evidence of a violation of this section. This subsection shall not apply to noncommercial speech.

The circuit court, while not specifically stating findings regarding this ordinance provision, did state that "the applicable section is paragraph H, places of public entertainment, which is the very specific section that would apply to the more general warnings that come before that."

Arguably, the plain language of § 654.07(a) could be considered to apply to defendant's nightclub so that plaintiff would have stated a claim simply by indicating that defendants played music in the nightclub at a louder than necessary volume. Again, however, statutory language "`must be read in context with the entire act, and the words and phrases used there must be assigned such meanings as are in harmony with the whole of the statute....'" G.C. Timmis & Co. v. Guardian Alarm Co., 468 Mich. 416, 421, 662 N.W.2d 710 (2003), quoting Arrowhead Dev. Co. v. Livingston Co. Rd. Comm., 413 Mich. 505, 516, 322 N.W.2d 702 (1982). The existence of a specific ordinance provision for places of public entertainment (which obviously would include nightclubs), i.e., § 654.07(h), calls into question whether the more general provision of § 654.07(a) would apply to places of public entertainment even if the two provisions do not literally conflict.

Any ambiguity may be resolved by application of the principles that a statute should be construed in a manner that avoids an absurd result, Detroit Int'l Bridge Co. v. Commodities Export Co., 279 Mich.App. 662, 674, 760 N.W.2d 565 (2008), and that "a statute need not be applied literally if no reasonable lawmaker could have conceived of the ensuing result," id. at 675, 760 N.W.2d 565. It would seem absurd to literally apply § 654.07(a) to a nightclub to bar music from being played there at "a louder volume than is necessary for convenient hearing" for people in the nightclub given that as a matter of common knowledge (both presently and when § 654.07 was adopted on December 22, 1986) many nightclubs routinely play music at substantially louder than "necessary" levels as part of the entertainment they provide. In light of this consideration and the adoption of a particular provision in § 654.07(h) for places of public entertainment, we conclude that a reasonable lawmaker would not have expected § 654.07(a) to apply to a nightclub. The trial court did not err by ruling that § 654.07(a) is inapplicable to the instant matter.

Affirmed.

SAWYER, P.J., concurred.

Opinion by KELLY, J.

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 N.W.2d 463 (1968); Grzelka v. Chevrolet Motor Car Co., 286 Mich. 141, 146, 281 N.W. 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 rather than law. [De Longpre v. Carroll, 331 Mich. 474, 476, 50 N.W.2d 132 (1951).]

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 N.W.2d 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 N.W.2d 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 De Longpre, 331 Mich. at 476, 50 N.W.2d 132. 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, 158 N.W.2d 463, citing Warren Twp. School District No. 7 v. Detroit, 308 Mich. 460, 14 N.W.2d 134 (1944) (noting that an airport is not a nuisance per se, but that it can be a nuisance if improperly operated); Waier v. Peerless Oil Co., 265 Mich. 398, 401, 251 N.W. 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 N.W. 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, 234 N.W. 163 (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.