Baldwin v. North Shore Estates Ass'n, Docket No. 4282

• Decision Date: 24 December 1968
• Docket Number: Docket No. 4282,No. 3,3
• Citation: 15 Mich.App. 289,166 N.W.2d 552
• Parties: Ralph B. BALDWIN, Lois J. Baldwin June Noble Foote, and P. Craig Welch, suing on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. NORTH SHORE ESTATES ASSOCIATION, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 552

166 N.W.2d 552

15 Mich.App. 289

Ralph B. BALDWIN, Lois J. Baldwin June Noble Foote, and P.

Craig Welch, suing on behalf of themselves and all

others similarly situated, Plaintiffs-Appellants, v. NORTH SHORE ESTATES ASSOCIATION, Defendant-Appellee.

Docket No. 4282.

Court of Appeals of Michigan, Division No. 3.

Dec. 24, 1968.

Rehearing Denied Jan. 29, 1969.

Released for Publication April 11, 1969.

Robert C. C. Heaney, McCobb & Heaney, Grand Rapids, for appellants.

Guerry B. McNabb, Landman, Grimm, Bradbury & Laurin, Muskegon, for appellee.

Before LESINSKI, C.J., and FITZGERALD and TEMPLIN ^*, JJ.

FITZGERALD, Judge.

North Shore Estates Association is a nonprofit corporation voluntarily founded in 1959 to exercise control over platted resort property in Ottawa County. The purpose was to take over the management of the access road running through the 5 subdivisions of the property following termination of responsibility by the developer in 1958. The articles of incorporation provided that an election he held 2 years thence to determine whether the association should have jurisdiction over all the property owners (C.L.1948, § 455.206). To be 'qualified' to vote, a property owner must have been: (1) a 'qualified' voter of the State of Michigan, and (2) a weekend resident of the area for 1 month preceding the election. Few people could qualify (19%), and none of the people in plaintiffs' subdivision to the far south voted to come under the jurisdiction of the association in 1962. Only 1 property owner there was 'qualified'. The association now levies assessments and exercises general control over the area. The motivation for this action is found in the attempt of the association to pave and widen the road which would necessitate reaching the edge of the right-of-way. This is not the issue of the appeal.

Plaintiff sued in common interest, requesting a declaratory judgment, which was denied by the Ottawa county circuit court in favor of defendant, plaintiff appealing.

Relevant portions of C.L.1948, § 455.201 Et seq. (Stat.Ann.1963 Rev. § 21.751 Et seq.), to this appeal include:

'Sec. 1. That any number of Freeholders, not less than 10, who may desire to form a summer resort owners corporation for the better welfare of said community and for the purchase and improvement of lands to be occupied for summer homes and summer resort purposes, may, with their associates and successors, become a body politic and corporate.' C.L.1948, § 455.201; C.L.1929, § 10363.

'Sec. 4. On compliance with the foregoing provisions of this act, the persons so associating, their successors and assigns, shall become and be a body politic and corporate, under the name assumed in their articles of association and Shall have and possess all the general powers and privileges and be subject to all the liabilities of a (municipal) corporation (and become the local governing body).' C.L.1948, § 455.204; C.L.1929, § 10366.

'Sec. 6. Persons eligible to membership in said corporation, at any and all times, must be freeholders of land in the county of its organization and Such land must be contiguous to the resort community in which the corporation is organized: Provided, however, It shall not be necessary that the lands of all members shall join, but it shall be sufficient if such Lands are reasonably adjacent to the resort community, so as to be benefited by membership therein, and The trustees of the corporation, when lawfully authorized by the corporation, Shall be judges as to whether the lands of such proposed members are sufficiently identified with the common interests of the other lands embraced within said corporate jurisdiction, to make proposed members eligible: And provided further, That the land of no owner that does not voluntarily join such corporation can be compelled to come under the jurisdiction of the corporation (Until after a body politic and corporate has been incorporated under this act in the territory to be affected and has Continued to function as such for a period of 2 years. Thereafter an election may be called by the board of trustees or board of directors within The territory to be affected for the purpose of determining Whether the entire territory comprising the subdivisions or parts of subdivisions affected should become entirely incorporated.)' C.L.1948, § 455.206; C.L.1929, § 10368.

'Sec. 6c. For the purpose of such election all freeholders who have Resided week-ends in the territory to be affected for a period of 1 month prior to such election and who are Qualified voters in any voting precient of the state of Michigan at general elections, are qualified voters for the purpose of this act.' C.L.1948, § 455.206c.

'Sec. 6e. If a majority of the said qualified voters of the entire territory comprised in the territorial description contained in the notice of election shall vote in favor of the incorporation under this act, then the said board of trustees or directors shall declare the entire territory so affected to be incorporated under this act.' C.L.1948, § 455.206e.

'Sec. 7. Members admitted to said corporation at its organization and Afterwards, shall file with the secretary of said corporation a writing, subscribed, witnessed and acknowledged, in accordance with the requirements of deeds, which writing Shall grant to the corporation the right to exercise all jurisdiction, conferred by this act, over the lands owned by members of said corporation. Such grant of authority to the corporation shall be duly recorded in the office of the register of deeds of the county.' C.L.1948, § 455.207; C.L.1929, § 10369. (Emphasis supplied.)

The noted portions of sections 4 and 6 (inbrackets), and the subsections, were added by amendment in 1939 to the 1929 act. The jurisdictional portions of the statute have not been examined in the courts of this State.

Plaintiffs' first argument concerns the original jurisdiction of the association and the extent of the 'territory to be affected' under section 6, such territory allegedly being comprised only of those lands of the people who gave grants of authority to the association to assume jurisdiction in 1959 under section 7, thus invalidating the 1962 election as to those owners who did not so authorize. During the subsequent 2 years, the association allegedly had no jurisdiction as a 'body politic' over plaintiffs' particular subdivision as there was no authority voluntarily granted to the association from that subdivision.

The lower court held, concerning 'body politic', that, 'In order to make any sense out of this requirement, the words 'territory to be affected' must be construed to mean the Contemplated territory to be affected. Otherwise the association would be Unable (sic) to annex only that which they already had', agreeing with defendant that although plaintiffs gave no grant after the 1962 election, plaintiffs still are members, albeit involuntarily, by reason of the 'contemplation' of the board of trustees. At all times the association fully complied with the provisions of the statute. It is not our desire to debate the wisdom of the legislature in permitting this involuntary surrender of control of private property, but we may interpret a heretofore undefined statute with a view to the legislative intent in light of the actions of the defendant.

The road ran through all of the subdivisions created by the developer. The association was created under section 6 by certain owners from the northern subdivisions who were 'trustees' permitted to judge if the other lands were 'sufficiently identified with the common interests', and then include owners of these lands in the electorate where 'qualified'. We recognize plaintiffs' concern with the trial court's inclusion of the word 'contemplated' when defining 'territory to be affected', but hold it not unreasonable as this trial court apparently was the first to attempt an interpretation of the intent of the legislature as to the powers given in a vague and indefinite statute. ¹ As section 6 permits the trustees to be 'judges', and since judges do contemplate on occasion, we cannot say that plaintiffs' subdivision could not be a territory to be affected in the determination of the trustees, considering the area of the original development, the location of the road, the purposes for the incorporation, and the contiguity of the land. We are not in accord with the rigid demands of the statute as to inclusion of the 'entire territory' following the election where such jurisdiction permitting subsequent...