Michigan Supreme Court
Lansing, Michigan 48909
Chief Justice Justices
Opinion
Maura D. Corrigan 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 before the Court is whether an
association of multiple families may provide a communal
access to Higgins Lake notwithstanding the local zoning
ordinance that permits only single-family uses on the
property owned by the association. We conclude that the
association’s communal use of the property violates the
zoning ordinance. We vacate the judgments of the lower
courts and remand the 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. It was authorized to issue twenty shares of
stock, 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 communal access to the lake for use by its
nonriparian shareholders. 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 seasonal cottage, was converted to
function as a community center for 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 funds, selling stock in the
corporation, purchasing land, constructing a twenty-slip
marina, using the existing structure on the land as a
community center, and charging yearly dues to use the
marina and the community center”) violated 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. STANDARD OF REVIEW
This Court 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 single-
family 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. Also known
as a single-family dwelling.”5 Id. “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." Section 6.1(b) additionally permits
“[s]tructures such as 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. ANALYSIS
In considering the 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 and buildings related to
single-family use. The Court of Appeals failed to address
this threshold issue, focusing instead on the alleged
“commercial” aspect of plaintiff’s marina. If the proposed
use is inconsistent with single-family use, it is
immaterial whether the property is being used for a
“commercial” purpose. 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 any purpose other than the types and uses
permitted in the respective Districts . . . ." 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 or sleeping place of one (1) family
. . . .” Art III, § 3.1. It is clear that neither
defendant nor its nineteen 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 [the] principal use” of the R-1 lot under
§ 6.1(b)3. 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. 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 feet of lake frontage, was intended to
support that use. 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. The court
shall order the nuisance abated . . . .” Because the
8
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 moored, is inconsistent with the township’s
ordinance provisions concerning 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 districts
under the Gerrish Township zoning ordinance.
Elizabeth A. Weaver
Marilyn Kelly