Order Michigan Supreme Court
Lansing, Michigan
February 4, 2011 Robert P. Young, Jr.,
Chief Justice
140685 Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
Mary Beth Kelly
CAROL DRAKE and CLELLEN BURY, Brian K. Zahra,
Plaintiffs-Appellants, Justices
v SC: 140685
COA: 287502
Berrien CC: 2008-000247-CE
CITY OF BENTON HARBOR and HARBOR
SHORES COMMUNITY REDEVELOPMENT
CORPORATION,
Defendants-Appellees.
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On January 21, 2011, the Court heard oral argument on the application for leave to
appeal the January 21, 2010 judgment of the Court of Appeals. On order of the Court,
the application is again considered, and it is DENIED, because we are not persuaded that
the questions presented should be reviewed by this Court.
MARKMAN, J. (dissenting).
The only issue in this case concerns whether a “championship Jack Nicklaus”
privately-owned golf course constitutes a “park use,” consistent with J. N. and Carrie
Klock’s deed to the City of Benton Harbor of property to be designated as Jean Klock
Park in memory of their daughter who had died in infancy. The City, having previously
sold a portion of Jean Klock Park to a private developer for a residential housing
development, now attempts to justify the use of a remaining portion of the park for a golf
course on, among other grounds, “underutilization” of the park, “economic
development,” “jobs,” and the establishment of a “tourist destination.” However
admirable these objectives, it is J. N. and Carrie Klock’s intentions that control here, not
those of the current city government, and the Klocks’ intentions must control even if they
are now viewed by the City as inconvenient to the pursuit of objectives preferred by the
City. In my judgment, and for reasons that require little more than resort to the
customary understanding of the term “park” by ordinary users of our language, I believe
that the City’s use of Jean Klock Park, by leasing portions of it for 105 years to a private
commercial entity, the Harbor Shores Community Redevelopment, Inc., for its use as a
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golf course, constitutes a breach of faith with the Klocks, and should be enjoined.
Although the City prevails today, it, and other communities throughout our state, may
well come out losers tomorrow as later generations of philanthropists look at the legacy
of J. N. and Carrie Klock and come to question the faithfulness of government in
upholding their intentions after they too have passed. I respectfully dissent.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
February 4, 2011 _________________________________________
s0201 Clerk