*1 (cid:127)550 439 Mich
HESS v WEST BLOOMFIELD TOWNSHIP 5, (Calendar 10). Argued Docket No. 90773. December No. 22, May Decided 1992. 1977, petitioned In the Pine Bluff Association Estates the West Township permission special Bloomfield Charter board for to commonly a convert lot in the owned Pine Bluff Estates Subdi- (outlot a) fronting private park vision Pine Lake into a and beach, including construction of facilities to moor and dock Approval granted 1978, including permission boats. was to provide mooring for the two boats In of at the dock. the sought mooring association the to the amend increase capacity from two to eleven boats. After the board denied the petition amend, C. Hess Charles and ten other backlot brought owners within the subdivision an action the Oak- others, against township seeking land Court Circuit the and regulation docking privileges by township invalidate through application court, board of a ordinance. The J., Templin, granted partial disposition L. summary Robert plaintiffs, determining the board acted had without authority, certify but refused to decision as final order. Appeals, Jr., P.J., The Court of Holbrook, D. E. and McDonald Neff, JJ., interlocutory appeal by and (Docket denied an the defendants 132634). appeal. No. The defendants opinion joined In an Brickley, Justice Chief Justice Cavanagh, and Justices Boyle, Riley, Griffin, and Mallett, Supreme Court held: township Township A has the under the Rural Zoning regulate riparian rights, dockage Act to such as boats, part zoning power. of its enabling provision 1. Zoning Rural Act permits by zoning board to ordinance land development and the establishment districts that of land use and in order structures to ensure that the use References 2d, 51-53, 260-280, 388-391; Am Zoning Jur Waters Planning §§ 46, 122. §§ Riparian See the Index Annotations under and Littoral Owner- ship Rights; Watercourses; Zoning. Waters and Bloomfield Hess v West relationships. appropriate locations and is situated in land development of land While the refers to enabling expressly referring provision without within its prohibit expressly riparian rights, it does not water *2 riparian rights. uses of The term of water-related "land,” enabling provision, liberally when con- as used the fairly township, implies the of of inclusion strued in favor the by dockage. Interpretation the Const of trza is aided boat provides granted 7, §34, powers that the to town- art which by fairly ships by and include those the constitution law prohibited by This implied the constitution. mandate and not statutory employed conjunction of with the rule must 8.3; concerning by MCL MSA 2.212 construction established interpretation of terms enumerated in statutes unless certain Legislature. intent with the manifest of the inconsistent 2.212(9), 8.3i; "Land,” by as MCL MSA includes all 2. defined rights interests are associated with or attached to and that piece property. real Land bounded a natural watercourse of riparian enjoy riparian, certain is as and landowners defined right rights, including and the to erect maintain exclusive right permanently off the to anchor boats the own- docks and Thus, "land,” trza, within the term as used the er’s shore. ownership rights those or interests that attach includes rights, including mooring riparian the of of and extends to case, clearly riparian fits In this outlot the definition boats. a piece property it abuts a natural in that is a land that watercourse. Including riparian rights within "land” it is 3. the term trza is with the manifest intent of
used in the not inconsistent regulate Legislature. permits townships The to the activi- public protect promote general the and to welfare to ties township community, the and resources of a character natural Regulation paramount the of ri- concerns under constitution. compati- parian rights necessary is to ensure land uses are properties surrounding ble to conserve water re- the sources. The trza allows tageous to balance most advan- lands, resources, properties their uses of within and to districts and ordinances in boundaries create could not be with such evaluations. Such a balance accordance any zoning riparian rights were from achieved if excluded township. control Levin, concurring separately, provi- stated Justice township zoning on sion of the ordinance relied the town- rights dockage boats; regulate riparian ship such as does not rather, regulates park for it the use of land as a outdoor 439 Mich [May- Thus, concluding recreation. the circuit court erred in that the township attempting regulate dockage was boat and that Fox Hayes Twp, (1987), & App Associates v 162 Mich barred the township denying plaintiffs special permit. from Entirely apart from township whether the trza authorizes a regulate riparian rights, township clearly water use or has authority regulate provide under the act to land use and to by zoning park that use of land as a for outdoor recreation is рermitted only impair to the extent that it does not the natural appearance produce of the land or tend to unreasonable noise annoyance surrounding properties. appropriate Supreme It is decide, not for the Court to seek to truly in a regarding case where there is no authority issue township riparian rights, water use or question Legislature delegated whether the authority has such township. to a riparian of a rights docking properly only of boats can be decided in a zoning provision regulates case where the at issue docking or the validity of boats and the of such a regulatory provision truly is at issue. Supreme Court principle should adhere to the under- lying refusal, parties its after the controversy resolved the *3 underlying Associates, provide Fox & advisory opinion to an regarding applicable the law in the factual situation there presented by declining opine to so in this case where the issue рresented. was not even may regulate While it eye reasonable to land use with an use, especially to water body where the entire of water is completely township, questions within a different will arise where the water is bordered land located in several town- ships not, township may practical matter, and one as a be able to water use. require Local expansion communities do not an power to confront the need to control overuse of waters developments. backlot owners in funnel The solution is for local communities, power use, in the exercise of their to zone land proscribe the recreational property except use of lakefront for single family multiple family residences residences with a density limitation frontage. determined on the basis of lake Reversed.
Zoning Township — Zoning Dockage. — Rural Act authority A has Township Zoning under the Rural regulate ripariаn rights, Act dockage boats, such as the (MCL part zoning power seq.; its 125.271 et MSA et 5.2963[1] seq.). Bloomfield Hess West v Opinion the Court plaintiffs. for the H. Golden
Robert Hampton Lynch, Wardle, & Secrest, Clark Kohl, Fisher) Hampton A. (by Gerald and P. William (by Cummings, McClorey, Acho, PC. & David Rosati), for the defendants. Carol Curiae: Amicus (by Sparks, Thomsen, P.C.
Bauckham, & Rolfe Bauckham), Lynda H. E. and John Thomsen Michigan Townships Association. opportunity presents an J. This case Brickley, township has the to determine whether
for us docking pursuant of boats Zoning Township Act MCL Rural (trza). 5.2963(1) Contrary seq. seq.; et 125.271 et Appeals opinion in Fox & of the Court App Twp, Hayes 647; 162 Mich Associates, Inc v (1987), does we find 413 NW2d authority, such with in fact vest court, remand the trial the decision of reverse proceedings with consistent case for further our decision. background
i. factual August 30, 1977, Bluff Estates Associa- Pine On petition the West Bloomfield filed a tion1 approval of a site Board for Charter commonly special plan for a and for a lot, to as outlot hereinafter referred owned A, *4 Bluff Subdivision. the Pine Estates within pie-shaped seeking this to convert association was private park Lake, and into a abuts Pine lot which 1 represents twenty-two the the lot owners within all The association only plaintiffs in this case are involved The individual subdivision. backlot owners of the subdivision. Mich [May- Opinion op the Court petition
beach for its members’ use. The was filed require- the association in accordance with the ments of the West Bloomfield Charter Zoning necessity Ordinance. Neither nor the spe- under the ordinance for the permit docking privileges cial use for at outlot questioned by parties.2 has been plan approval required pursuant Site outlot was to the then existing Township Zoning West Bloomfield Ordinance. That provides: following R-10, may permitted The uses in an R-12.5 and one-family approval R-15 residential añer review and disfrict plan by planning the planning ble with provided site commission and that the incompati- commission finds that the use would not be already existing uses the area or would not inter- orderly development fere with of the area and will not be safety pedes- detrimental to the or convenience of vehicular or trafiic, subject imposed use, trian to the conditions for each
subject approval by to final board: (4) may privately operated Land be used for owned and parks, picnic groves or similar facilities for outdoor recreation . may operated profit; provided, which does not not be for that such use impair appearance or the natural of such or tend to produce annoyance surrounding prop- unreasonable noise erties, provided any further that no use shall be made of open bathing land or water for boat liveries or commercial Emphasis beaches. 26-73. [Section added.] special required A, pursuant was for оutlot ordinance, only fifty-eight frontage since it had feet of on Pine docking privileges Lake and were desired. parcel contiguous body Where a of land to a of water is presented body and enjoyed by plat and subdividing, park bordering a recreational on the may purposes of water swimming be dedicated for the picnicking, privileges reasonably of which are to be occupants owners and of lots included in plats parcel only or recorded within the such owners occupants provided park that the recreational is dedicated occupants at the time for the use of owners and of lots con- plat (20) plats tained in twenty such a recorded at least frontage (150) fifty lineal feet of water and one hundred feet in depth shall be reserved therein for the of each lot of the required by chapter; provided, however, size that no recre- park ational (300) so created shall have less than three hundred frontage. launching feet of water of boats from *5 555 Bloomfield Hess v West op Opinion the Court planning April 1978, commission 11, the On plan approve the site the board recommended special 3 permit a. The commission for outlot use a were not of outlot dimensions that the indicated in requirements zon of the with conformance regarding ing recreational subdivision ordinance frontage; however, it parcels lake land with allowed should be the association that determined long improve dock con as outlot to structed to launch was not used on that lot moor boats. ap- granted the 19, 1978, the board June On permit. plan special
proval use for the site contrary board, recommenda- However, commission, to be two boats allowed tion of the the dock. moored at plaintiffs acceptable to restriction was
The boat the subdivision within of the backlots few because developed However, on at time.4 had been June had 12, 1989, of the backlots after all eleven peti- developed, submitted the association been permit special outlot use tion to amend A mooring capacity from two of the dock to increase July 1989, 25, the commission boats. On to eleven board recommendation issued a petition denied should be the association filed to the re- not conform use would such because permitted parks boats be not nor shall shall recreational parks. 26-78. at recreational [Section to be docked allowed Emphasis added.] changed zoning on ordinance was The format of June however, language ordi- 1982; the relevant provisions not altered. nance was 3 analysis need for a wetland also made an The commission longer no This issue is permit the association. to be obtained fifty eventually feet created was the dock which was since relevant exemption ordinance length, requirement. to the wetland within an which falls ability the eleven lots special did not affect frontage upon own docks. moor boats at their Pine Lake to Mich op Opinion the Court quirements of the West Bloomfield Zon- ing 16, 1989, Ordinance. On October the board adopted the recommendation of the commission petition, despite being and denied the informed of Appeals supra, Fox, the Court of decision in which had held that does not vest regulate docking upon township governmental *6 units. plaintiffs 3, 1989,
On November filed a six-count complaint in the Oakland Circuit Court. Plaintiffs attempting regu- were to have the court invalidate docking privileges by lation of the as exercised regard board with count, to outlot a. The first relying upon supra, zoning regu- Fox, asserted the employed by lation the board was invalid because authority regulating docking there was no of boаts for through application of a ordi- through nance. Counts ii mandamus petition vi included: a claim for require accept the board to complaint superin- variance, for a a for tending control to reverse the decision of the appeal board, an from board, the decision of the allegation claim for inverse condemnation, and an respectively. 1983, of a violation 42 of USC brought partial summary Plaintiff a motion for disposition regard relying with iv, i counts alleged on the decision in Fox. Plaintiffs that there question was no of material fact in this case and they judgment that law with 2.116(0(10). were entitled to as a matter of
regard pursuant i, to count to MCR hearing arguments regard
After oral ing May 18, 1990, this issue on court, the trial relying upon Fox, determined that board had authority regulating mooring acted without of boats at outlot a.5 The trial court refused to light granting summary disposition In regard the court’s i, parties stipulated to count both thаt the issue raised in count iv Accordingly, presented was moot. by issue is not for review this Hess West Bloomfield v Opinion of the Court therefore, order; as a final the decision certify in the appeal interlocutory defendants filed an on which was denied Appeals Court application 1990.6 Defendants’ December granted. appeal to this Court was leave (1991). Mich 1047
ii
Ass’n v
In
Lake Hills Condominium
Square
310;
The states: township organized township board of an in provide may this state ordinance for the regulation ment of districts in the development of land and the establish-
portions
township
of the
villages
outside the limits of cities and
which
Additionally,
validity
Court.
raised in
we do not address the
of the other counts
plaintiff’s complaint
appeal
they
because
were not raised on
in this Court.
6
plaintiffs alleged preemption
Depart
the actions of the
Resources,
time,
responsive
in
ment of Natural
for the first
their
brief
Appeals.
preserved
filed with the Court' of
That
issue was not
for
review
this Court because it was not raised in the trial court. See
(1987).
Jacobs,
222;
Napier v
Mich
NW2d
and other service and requirements; promote public facility health, purposes, safety, and welfare. For these township township may board divide the into dis- number, shape, tricts such and area as it consid- carry township ers best suited to out this act. The organized township may board of an provide development use this act to regulation by ordinance for the of land
and the establishment of districts apply only which to land areas and activities special program which are involved specifiс to achieve management objectives and avert or specific problems, including solve land use regulation development of land and the establish- damage subject ment of districts areas from erosion, flooding purpose or beach may divide the into districts of a num- ber, shape, and area considered best suited to 125.271; accomplish objectives. those [MCL 5.2963(1). Emphasis added.] A Fox, supra, In the Court of found the Appeals of the enabling to be limited regulation of land activities "and does not extend regulation a land- owner, especially regulation attempts when such *8 navigable to limit access to waters or the number slips riparian of dock landowner build or may Hess v West Bloomfield Opinion op the Court possess.” presented 652. Id. at That case a situa- develop- proposed tion in which a ment, condominium frontage Charlevoix, which had on Lake was ap- rejected because of nonconformance with the plicable zoning ordinances. The ordinances regulated building in that involved structures case along the shoreline and also the space amount of dock which would have been available of the condominium owners. The Court Appeals Legislature held that the did not intend zoning regulation to allow such townships, pursuant to be exercised to the because lan- trza, guage within that act was limited to land use or development activity and did not mention water or riparian rights. panel employed interpre- despite tation of the trza a constitutional mandate township. of liberal construction in favor of the provi- Even with the liberal construction mind, sions of the constitution we do not believe grants authority townships that the trza regulate riparian dockage or limit boat construction rights. access After consideration of all statutory construction, applicable rules of we only Legislature, enacting can conclude that trza, granted authority to zone land use rights. but not water use or to at [Id. 656.] opined
The dissenter should not given interpretation been have as narrow an adopted by majority, especially light the constitutional mándate. summary, riparian rights In are not different rights
from
ship
other
that arise out of the owner-
Consequently
or an estate in land.
those
subject
regulation
are
and control of
under the
Zoning
Rural
Act.
at
[Id.
662.]
*9
439 Mich
Opinion of the Court
appeal
granted
Fox,
in
on
We
leave to
22, 1988.
B express The trza makes references to "land development” and "use of land” within its en- abling provision referring expressly without riparian rights. However, water or prohibit expressly also does not riparian rights. water-related uses or question "land,” becomes whether the term enabling provision as used in the trza when township, "liberally construed” in favor of the "fairly implies]” dockage. the inclusion of boat For the reasons that follow we think that it does.
III Interpretation of is aided Const provides: 7, 34,§ art which provisions of this constitution and law con- counties, cerning townships, villages cities and liberally shall be construed their favor. Powers granted townships by to counties and this constitu- fairly implied tion and law shall those include v Hess West Bloomfield Opinion of the Court prohibited [Emphasis and not this constitution. added.] employ must
We this constitutional mandate conjunction following statutory with the rule of interpretation enabling construction our provision of the trza. statutory 8.3; 2.212,
MCL MSA establishes rule interpreting of construction for certain enumer- provi- statutory ated terms found within various *10 sions. state,
In the construction of the statutes of this the rules stated in sections 3a to 3w shall be observed, unless such construction would be incon- legislature. sistent with the manifest intent of the [Emphasis added.] statutory A definition for the term "land” is in- 2.212(9), pro- 8.3i; cluded within MCL which vides: "land,” "lands,” The words "real estate” and lands, "real property” mean tenements and real
estate, rights and all thereto and interests therein. [Emphasis added.] Accordingly, statutory definition of land within rights includes all and interests piece which are associated or attached to of property. real
A
Land which includes or is
bounded
a natural
riparian.
watercourse is de&ned as
own an estate or have a
Persons who
possessory interest
riparian
enjoy
rights.
certain еxclusive
These
right
include the
to erect and maintain
docks
shore,
along right
owner’s
and the
to anchor
[May-
562
439 Mich
Opinion op the Coukt
v
permanently off the owner’s shore.
[Thies
boats
Howland,
287-288;
380 NW2d
Mich
(1985).
Emphasis
omitted.
Citations
added.]
riparian
of
fits the definition
clearly
Outlot
abuts a
it is a
of land which
property
piece
since
watercourse,
Riparian
rights
Pine Lake.7
natural
ownership
dependent
from and
on
are derived
are
water;
body
abuts
a natural
of "land” which
thus,
possessed
part
property
constitute
of the
they
property
their
landowners
and become
by riparian
Hills, supra
Square
Lake
rights.
See
(Cavanagh,
Enz, v
dissenting); Thompson
667;
C.J.,
Mich
(1967).
Therefore, the term we conclude that rights includes those used within trza, land, ownership interests attach rights. Mooring of boats riparian which extends exer- to outlot A constitutes an adjacent at a dock owners property cise of the piece property. B the tеrm "land” Including riparian rights within *11 with it is used in the trza is not "inconsistent legislature.” Legis- intent the the manifest the adopting indicated its intentions lature TRZA. upon plan based shall ordinance health, promote public safety, and designed to welfare; encourage
general the use of lands adaptability, with their character and accordance that each member of the association is considered We note 1/22 ownership possess a. This an undivided interest outlot interest ownership primary lot or alienable from the of the is not severable subdivision, inter therefore we consider the undivided within the 1/22 ownership permit of outlot A sufficient to the relevant est rights to attach to each member. Hess v West Bloomfield Opinion op the Court land; improper and to limit the use of to conserve ... to insure that energy; natural resources and appropriate uses of the land shall be situated in relationships; . locations and . . and to conserve expenditure public improvements of funds for and to conform advanta- services with the most land, resources, geous properties. The uses of zoning ordinance shall be made with reasonable consideration, among things, other to the charac- district; peculiar suitability ter of each particular its uses; property the conservation of val- general resources; and the ues and natural land, appropriate and building, trend and character of population development. 125.273; [MCL 5.2963(3). Emphasis added.] broadly This was written to townships promote activities to general public protect welfare and to character and natural community. Legislature resources of a accomplish goal, In order to impor- must have been aware of the riparian rights regard tance of to the overall Michigan, use of In land. a state such as with its way water, abundant bodies there would be no compatible to ensure that land uses are with sur- rounding properties unless water activities are Similarly, evaluated. the conservation of natural clearly resources, water, which includes cannot be regulating if undertaken there is no means for riparian rights. Finally, purpose stated is to allow to balance the most trza advantageous lands, resources, uses of the properties within their boundaries and to create zoning districts and ordinances in accordance with such Such a balance could not be evaluations. riparian rights if achieved zoning are excluded from township.
control development Review of the historical of the Legislature regulatory indicates the intended *12 564 439 Mich Opinion of the Court encompass possessed townships authority "dry located on more than activities which are land.” original of the trza was enacted version PA 184. first in the first section sentence provided tоwnships authority
of that act designate zoning they could
districts in which encourage, regulate, prohibit types of certain zoning or uses of the land within the activities agricultural, forestry, created, i.e., recre- districts ational, residential, of that etc. The remainder dwellings regulation or struc- section addressed zoning ture sizes within the districts created township. There was minimal discussion townships develop- authority of to control ment the several classifications. In within Legislature drastically 1978, the amended this crucial of the trza to address and correct inadequacy prior version.8 legislative An indication of the concern for the apparent environment is from the clause that was 5.2963(1) 125.271; added to MCL MSA providing authority shall have the "promote public to enact health, ordinances safety, and welfare.” This indicates that a grant much broader was intended Legislature when it amended the trza in 1978. Additionally, the constitution states that conserva- protection tion and of nаtural resources shall con- paramount stitute a concern the interest of the safety, general people health, welfare of the Michigan. the State of development
The conservation and
of the natu-
ral
hereby
resources of the state are
declared to be
adopted
The amended version has remained
since it was
unaltered
currently compiled
125.271;
in
IV. CONCLUSION permits townships We conclude that the 439 Mich Levin, J. Opinion Separate dockage rights, boats, regulate riparian as such interpretation zoning power. part This of their purpose underlying of the is consistent with subsequent amend- trza and its enactment ment, tionally light appropriate of the constitu- and is We reverse liberal construction. mandated disposition grant summary the trial court’s proceedings with consistent remand for further opinion. Cavanagh, C.J., Riley, Griffin, Boyle, JJ., J. Mallett, Brickley, concurred (concurring majority separately). J. Levin, *14 Township Zoning Act1 Rural declares that riparian rights, "permits to part dockage boats, of their as such power.”2 although provision3 majority so declares Zoning of the West Bloomfield Charter not—as Bloom- here at issue does West Ordinance 5.2963(1) seq. seq.; et MCL 125.271 et 2 Ante, pp 565-566. R-10, may permitted in an R-12.5 and following be "The uses one-family aрproval review R-15 residential district after and provided plan planning commission that the the site incompati not finds that the use would be planning commission existing already with uses in the area or would not inter ble orderly development fere with of the area and will not be safety pedes or or detrimental trian convenience vehicular traffic, use, imposed subject to the for conditions each township subject approval by the to final board: "(4) operated privately owned and may Land used for be parks, picnic groves or similar for recreation facilities outdoor provided, such use may operated profit; which not he impair appearance does not the natural of such land or tend annoyance surrounding prop- produce noise or unreasonable erties, provided further use shall made of that no bathing open for boat land or water liveries commercial [Ante, Emphasis opinion p n 2. in beaches. [Section 26-73.]” of the Court.] Hess v West Bloomfield Separate Opinion Levin, J. ácknowledged, stressed, field indeed in the circuit "regulate riparian rights.” court — issue, Outlot fronts on Pine Lake. A, plaintiffs apply special The permit did indeed for a use
to dock and launch boats from outlot a. provision But the ordinance here at not, substance, issue does either terms or in frontage seek to the use of lake or use of provision regulates, rather, the lake. The the use regard of land —without it whether fronts on a park stating recreation, lake —as a for outdoor may that land, board authorize use of park such as outlot as a for outdoor a, finding recreation on a that such use would not be "incompatible already existing uses in the " particular, and, area” impair 'that such use does not appearance
the natural of such land or produce annoyance tend to unreasonable noise or ”4 surrounding properties.’ provision zoning ordinance, Under this of its only issue, here at West Bloomfield de- plaintiffs special permit nied use to increase might from two to eleven the number of boats that special be docked at outlot a. That denial of a in was accordance with the terms of the impaired if ordinance the natural to such use would in fact have appearance of outlot A or have tended produce annoyance unreasonable noise or *15 surrounding properties. majority summary
The reverses the order of disposition plaintiffs for the entered circuit the proceedings court and remands for further consis- opinion agree tent with the of the Court. I with disposition, suggest that an issue on re- might special sought by mand be whether the plaintiffs impair the would in fact the natural 4Id. Mich Separate Opinion Levin, J. produce
appearance unrea- A tend to outlot or of surrounding proper- annoyance to sonable noise or ties. express my disagreement separately to
I write majority’s to declare whether the decision regulate riparian authority to the has docking pursuant the trza of to the boats zoning provision at in a case issue does not the ordinance where regulate riparian rights purport to docking or the of boats.
I granting court, in Hess’ The circuit motion disposition, partial summary that West declared "insofar ordinance was invalid Bloomfield’s regulate purports it construction and dock judge ruling dockage.” his based on boat Appeals Associ- decision of the Court Fox & Twp, App Hayes 647; 413 ates, Inc 162 Mich v (1987), judge "con- NW2d 465 which the said was trolling.” Appeals said that the Court there He "Hayes no un- held that had der the trza to dock construction through dockage boat its ordinance.”5 appeal. Appeals denied Court leave would, I I concur in reversal of the circuit court. however, circuit reverse on the basis quoted following passage opinion He also in the of the Court of Appeals: provisions Even with the liberal construction of mind, grants constitution in authority we do not believe that the trza townships dockage or limit con- boat rights. all struction or access After consideration of construction, applicable statutory only rules of we can trza, Legislature, enacting granted conclude that authority regulate riparian rights. not to zone land use but use or to water Hayes Twp, supra, & Associates v [Fox p 656.] *16 Hess West v Bloomfield Separate Opinion by Levin, J. concluding, first, court erred in that West Bloom- "attempting dockage” field was boat under the of its ordinance here requiring special permit on, relied use to use park recreation, and, second, land as a for outdoor that Fox & Associates barred West Bloomfield denying plaintiffs special from use increase from two to eleven the number of boats docked at outlot A. agree position
I thus with the advocated West court, Bloomfield in the circuit where West Bloom- argued field the ordinance involved Fox & "attempted water, Associates rights. That's not what we have in this case.” added.) (Emphasis argued
West Bloomfield further
that when the
plaintiffs sought permission to increase the num
ber of boats that could be docked at outlot
a,
pertinent provision
issue under the
of its
proposed
ordinance was whether the
increased use
of outlot A
area,
was reasonable in a residential
whether,
ordinance,6
set forth in the
"the
going
produce
use of the land was
to tend to
annoyance
neighbors.
unreasonable noise and
Very simple, very simple,
you
if
remove the water
up
context, this kind of administrative issue comes
every
Township proceeding.
month at a normal
Is
property going
interfering
the use of this
to be
adjoining property.”7 (Emphasis
added.)
n 3.
See
argued:
West Bloomfield further
happen
adjoining
In this case we
to have a lake next door or
property.
question
just
And the
before the
is
what can be
piece
property,
done on this out lot as a recreational
not as a
they’re saying
boat issue. It’s not a situation like in Fox where
have,
many
you
in,
many
you put
how
boats can
how
docks can
produce noise unreasonable surrounding properties. annoyance And, sec- to ruling the court that the circuit erred Appeals that that Court of decided in Fox & Associates regulation proscribes the trza affects dockage.” of land use way any boat "dock construction and
II appropriate It is this Court seek to not to truly case, decide in there no issue this where is regarding authority regulate of a to riparian rights, question use water or whether Legislature delegated authority the township such to a has the trza. authority a town-
under of ship riparian rights docking regulate to of properly only can be in a where boats decided case regulates zoning provision riparian at issue docking validity or the of and the of boats truly regulatory such a is at issue._ period. piece question you is how can use this recreational of land. distinguishablе completely it’s Fox So from because it’s not a you going regulate matter matter water how are water. It’s a you’re going regulate using land how [Emphasis thing as a tool or measure. added.] Hess v West Bloomfield Levin, J. Separate Opinion spe- by denying sure, Bloomfield, To be West cial use to increase from two eleven might at outlot number of boats that be docked A, docking regulate the of boats at outlot did seek to on the a. But it asserted the to do so not right it basis that had the under rights, but on the water use right it had the the use of basis the land at which the dock was sited so that in the docked would increase neither number boats impair appearance natural produce annoy- nor tend to unreasonable noise or surrounding properties. ance to importance may While it be of little plaintiffs they in- here whether denied an are. dockage other, crease in boat on one basis or the *18 might impor- it
another сase be of considerable township may, tance whether a regulate under the trza, riparian a owner’s use of the water or the docking launching irrespective of boats might, park whether such use in a recreational setting, annoyance result in unreasonable noise or surrounding properties.
III Square Court, This first in Lake Hills Condomin Twp, 310; ium Ass’n v Bloomfield 437 Mich (1991), case, NW2d 321 striving and now in this has been question to address the whether Fox & correctly Associates was decided. That issue squarely presented has not been in either case may frustrating, departure justify be but does not making. from the norms of decision parties controversy After the resolved the under- lying Associates, Fox & this Court declined to provide advisory opinion regarding an the law presented applicable in the factual situation 439 Mich by Opinion Separate Levin, J. princi- adhere This Court should that case.8 ple underlying opin- such an to render refusal its declining render Assоciates, & ion in Fox opinion does not even case that in a such an presented. present there the issue
iv largely appears Bloomfield is that West It Any developed community. use or of water rights most would Bloomfield West subdivided that has been land often affect intensively Any developed for some time. and used existing against con- uses would rezone effort to pérsons become who then would front the nonconforming users. may it reasonable
While be especially eye use, where an to water case, body lies, in the instant as of water entire questions single township, will different within a by land located the water is bordered arise where townships, in Fox & Associates.9 as in several water, one border the Where several practical township may matter, able not, effectively im use.10This would water order, 1989, briefing July after entered an this Court On Court, granting vacating argument leave its earlier order in this oral to light "in appeal order stated that in Fox & Associates. The parties, appeal agreed is proposed judgment leave to consent longer persuaded that it should review is no denied because the Court statement, justices, separate questions presented.” said Two in a the that Mich appeal plenary *19 they consideration.” 432 "would retain (1989). 932 9 townships by three or more and is three Lake Charlevoix bordered villages. cities or 10 majority when it writes: overstates the matter therefore resources, which Similarly, of natural the conservation water, is no
clearly undertaken if there cannot be includes pur- Finally, riparian rights. regulating the stated means for pose townships to balance the most is to allow of the trza Hess v West Bloomfield by Separate Opinion Levin, J. plicate power of the state to water plaintiffs’ use and claim that the state has preempted regulation of water use and ghts.1 ri
v recognize It is asserted that there is a need a power townships in use and water riparian rights provide controlling a means for overuse of lakes backlot owners funnel developments. The asserted need arises where township’s zoning permits12 ordinance the use of single lakefront land for a use other than or multiple family fronting residences on the lake. township zoning
Where, however, does not effect the recreational use of lakefront lands, advantageous resources, properties uses of the within their boundaries and to create districts and ordinances in accordance with such evaluations. Such a balance riparian rights could not be achieved if are excluded from Ante, township. [Emphasis p control added. 563.] might Legislature While such a "balance” be achieved if the were grant townships authority respecting riparian rights to the probably thority to zone where body single township, entire оf water is located such balance by recognizing delegating cannot be achieved such au- is, body where the entire of water as in the case Charlevoix, villages of Lake bordered three cities or and at least townships. three Legislature protect has enacted a number of laws to resources, preserve including natural state’s water. Act, seq.; Those acts include the Natural River MCL 281.761 et seq.; Act, 11.501 MSA et the Soil Erosion and Sedimentation Control 13.1820(1) seq.; seq.; MCL 282.101 et MSA et the Wilderness and Act, 13.734(1) seq.; seq.; Natural Areas Inland Lakes and Streams 322.751 MCL et MSA et Act, 11.475(1) seq.; MCL 281.951 et MSA et MCL 281.631 et Act, seq.; Management the Shorelands Protection and Act, seq.; seq.; MSA 13.1831 et the Environmental Protection MCL 14.528(201) seq.; seq.; Open 691.1201 et Space MSA et the Farmland and Act, 26.1287(1) seq.; seq.; seq.; 554.701 Preservation MCL et MSA et Act, Management the Sand Dune Protection 281.651 MCL et 18.595(1) Act, seq.; MSA et et and the Wetland MCL 281.701 Protection 18.595(51) seq.; seq. et Associates, pursuant planned development. In Fox & to a unit *20 Mich 550 439 Opiniоn Separate Levin, J. single or by persons of the owners are not who fronting lake, multiple family on the residences expansive township may construction need an not resulting prevent zoning power overuse to the of Townships, development. in the exer funnel from power use, to zone land their undoubted cise of might proscribe the use subdivisions for future single family except residences for lakefront or, multiple family possibly, with a residences density family foo on lakefront limitation13 based tage.14 boat-dockage limitation. with a In contrast zoning in Fox & Associ- involved in the in ordinance The limitations opinion dissenting Judge in Fox & ates are set forth McDonald’s
Associates, p supra, 657. again it majority the matter when writes overstates The riparian regulate townships rights, destruction ability to the exercise "must” have the permit authority deny the them such would and that to impairment of resources: or natural protect townships properly of water the bodies to In оrder pursuant impairment, to their destruction or
from power exercise of ing ability the must be an trza, the there within townships rights. prohibit riparian from exercis- To zoning authority regulatory would over such impairment resources of the natural the destruction or of water. To construe such bodies associated with the manner asserted majority from Appeals by plaintiffs, and the Court of townships essentially prohibit Fox, supra, would protecting located within their natural resources the happen bodies of water. to be associated with communities [Ante, p 565.] legislation concerning ignores the use majority’s statement 11) (see Legislature power of the to enact n and the inland waters of additional natural necessary protect may thought legislation with bodies of water. resources associated appears goes to constitutionalize majority further when it even townships protect power the environmеnt: promote Thus, authority granting health, general through safety, enactment of public welfare ordinances, Legislature complying with this was environment, including protect the mandate to constitutional \Ante, p water, impairment 565. destruction. from bodies Emphasis added.] Bloomfield Hess v West Separate Opinion Levin, J. Square supra, p 335, Lake, and to As set forth agreed majority, I there that extent " 'townships boat have launching protection docking for the *21 persons property safety, health, and welfare of township under the ordi- within their communities ”15 though they may act,’ not have such even nance power suggested "[a] trza. I town- under ship appropriately accordingly, enact, could, under regulation barring act, ordinance docking in an unsafe or hazard- of motorboats launching manner, of motorboats dur- ous or the sleeping ing usual hours.” Id. justification sum,
In there is neither need nor addressing question of water a fundamental where the issue is not law a case truly presented. 5.45(1). 41.181; MCL