Wortelboer v. Benzie County

• Decision Date: 21 July 1995
• Docket Number: Docket No. 152092
• Citation: 537 N.W.2d 603,212 Mich.App. 208
• Parties: Fred A. WORTELBOER and Betty L. Wortelboer, Plaintiffs-Appellees, v. BENZIE COUNTY and Benzie County Board of Commissioners, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

Page 603

537 N.W.2d 603

212 Mich.App. 208

Fred A. WORTELBOER and Betty L. Wortelboer, Plaintiffs-Appellees, v. BENZIE COUNTY and Benzie County Board of Commissioners,

Defendants-Appellants.

Docket No. 152092.

Court of Appeals of Michigan.

Submitted April 4, 1995, at Grand Rapids.

Decided July 21, 1995, at 9:00 a.m.

Released for Publication Sept. 15, 1995.

Olson & Noonan, P.C. by John D. Noonan, Traverse City, for plaintiffs.

Cummings, McClorey, Davis, Acho & Tremp, P.C. by Dennis P. Mikko, Traverse City, for defendants.

Before HOOD, P.J., and MacKENZIE and THOMAS, ^* JJ.

PER CURIAM.

Defendants appeal by leave granted the trial court's denial of their motion for summary disposition. We reverse.

This action implicates the Inland Lake Level Act (ILLA), 1961 P.A. 146, M.C.L. § 281.61 et seq.; M.S.A. § 11.300(1) et seq., and involves the maintenance of two seasonal lake levels of Crystal Lake in Benzie County pursuant to the ILLA. Under the 1909 version of the ILLA, which allowed lake levels to be established by county ordinance, the Benzie County Board of Supervisors established the level for Crystal Lake at 600.48 feet above sea level. In 1979, the board of supervisors passed a resolution pursuant to 1961 P.A. 146, M.C.L. § 281.63; M.S.A. § 11.300(3) instructing the Benzie County Supervisor to institute a proceeding to establish legal summer and winter levels for Crystal Lake. As a result, on December 1, 1980, the Benzie Circuit Court entered an order establishing a summer lake level, for the period May 1 to October 31, of 600.25 feet above sea level and a winter level, from November 1 to April 30, of 599.75 feet above sea level.

The lake level is controlled by a dam with removable boards. The boards are put into place to maintain the summer season lake level and removed to maintain the winter level. The December 1980 order gave the Benzie County Road Commission the responsibility of controlling the lake level by directing it to remove and replace the boards on the dam.

Plaintiffs hold title to real property that abuts the outlet stream from Crystal Lake, which is a tributary to the Betsie River. Water flows from Crystal Lake into Lake Michigan via the outlet stream and the Betsie River. Plaintiffs are affected by the changing levels of Crystal Lake. When the boards are placed on the dam to maintain the summer level of the lake, the outlet stream flow is substantially diminished or eliminated, resulting in fish kills and damage to fish habitat. In winter, when the boards are removed, water surges into the stream and causes substantial flooding and erosion of plaintiffs' property.

Plaintiffs brought this action in 1990, alleging that defendants' actions in altering the lake levels caused damage to their property through erosion and flooding. Plaintiffs also alleged that the diminished flow of water through the stream killed fish and created a foul stench, which deprived them of their use and enjoyment of their riparian rights and property. Plaintiffs alleged that (1) the establishment of two lake levels was contrary to the ILLA; (2) defendants' actions violated their common-law riparian rights; (3) defendants' actions violated the Michigan Environmental Protection Act (MEPA), M.C.L. § 691.1201 et seq.; M.S.A. § 14.528(201) et seq.; (4) defendants' actions constituted a nuisance; (5) plaintiffs' due process rights were denied because they did not receive notice of the proceedings that resulted in the order establishing the lake levels; and (6) defendants' actions resulted in an unconstitutional taking.

Defendants removed the action to federal court on the basis of the federal constitutional claims and those claims were dismissed. The state claims were remanded. Defendants moved for summary disposition on the basis of MCR 2.116(C)(5), (7), and (8). Plaintiffs' claims against the road commission and its manager were dismissed on the grounds that they were obligated to follow the December 1980 order and were not proper parties. The trial court denied the motion to dismiss with regard to the remaining defendants. Defendants' motion for reconsideration was also denied.

We review the trial court's ruling with regard to a motion for summary disposition de novo to determine whether the pleadings showed that a party was entitled to judgment as a matter of law or whether affidavits and other documentary evidence showed that no genuine issue of material fact existed. MCR 2.116(I)(1); Asher v. Exxon Co., U.S.A., 200 Mich.App. 635, 638, 504 N.W.2d 728 (1993). The existence of either circumstance merits a grant of summary disposition. Id.

We will first address whether plaintiffs' claims are precluded by the ILLA. Although defendants argue this issue in the context of standing, the crux of the matter is whether the ILLA provides a basis for plaintiffs' claims. We find that plaintiffs have standing, but that the ILLA does not permit plaintiffs' claims.

Defendants moved for summary disposition on the basis of, among other subrules, MCR 2.116(C)(5), that plaintiffs lacked the capacity to sue. When reviewing a ruling on a motion under MCR 2.116(C)(5), we must consider the pleadings, depositions, admissions, affidavits, and other documentary evidence submitted by the parties. MCR 2.116(G)(5). We review the trial court's denial of summary disposition on this basis de novo and examine the entire record to determine whether the defendant is entitled to judgment as a matter of law. Dep't of Social Services v. Baayoun, 204 Mich.App. 170, 173, 514 N.W.2d 522 (1994).

With regard to defendants' motion for reconsideration, the trial court found that plaintiffs were interested parties; defendants claim this is error. Defendants assert that plaintiffs have no standing to bring an action against defendants under the ILLA because the ILLA does not provide for a private cause of action. Defendants also argue that the proper party against whom plaintiffs should seek relief is the circuit court because it, not defendants, is the entity that sets the lake levels. Moreover, according to defendants, they are exempt from liability because they were merely carrying out a court order.

The ILLA, at the time of this action, specifically defined an "interested person" as

any person who has a record interest in the title to, right of ingress to or reversionary right to a piece or parcel of land which would be affected by a permanent change in the natural or normal mean level of a natural or artificial public or private inland lake. [1961 P.A. 146, M.C.L. § 281.62(f); M.S.A. § 11.300(2)(f).]

It is clear that plaintiffs are interested persons under the ILLA. However, in order to having standing, there must be a showing that plaintiffs have a legally protected interest that is in jeopardy of being adversely affected. Trout Unlimited, Muskegon-White River Chapter v. City of White Cloud, 195 Mich.App. 343, 348, 489 N.W.2d 188 (1992). Plaintiffs must have alleged a sufficient personal stake in the outcome of the controversy to ensure that the dispute sought to be adjudicated will be presented in an adversarial context that is capable of judicial resolution. Id.; Karrip v. Cannon Twp., 115 Mich.App. 726, 733, 321 N.W.2d 690 (1982). Typically, by demonstrating an injury, a plaintiff can show that it has a personal stake in the matter. Trout Unlimited, supra; Kaminskas v. Detroit, 68 Mich.App. 499, 503, 243 N.W.2d 25 (1976).

We find that plaintiffs have alleged a sufficient personal stake in this controversy and have demonstrated an injury to their enjoyment of the stream. However, although plaintiffs have standing, the ILLA does not provide them with a basis for recovery. In In re Van Ettan Lake, 149 Mich.App. 517, 525-526, 386 N.W.2d 572 (1986), this Court found that the purpose of the ILLA is to provide for the control and maintenance of inland lake levels for the public welfare and benefit. We noted that the ILLA does not create or protect individual rights regarding inland lake levels or create a civil cause of action for the benefit of individuals who are not satisfied with the county's exercise of authority. Id. at 526 386 N.W.2d 572. Thus, we agree with defendants that plaintiffs have no cause of action under the ILLA.

We also agree with defendants that under the ILLA, because the court has continuing jurisdiction over matters under the ILLA and it "may provide for departure from the normal level as may be necessary to accomplish the purposes of this act," plaintiffs' proper remedy would be to petition the circuit court for reconsideration of the lake levels. 1961 P.A. 146, M.C.L. § 281.70; M.S.A. § 11.300(10), as originally enacted. Whether plaintiffs chose or choose to take this route does not affect their ability to sue the county because the county passed a resolution to petition the court to set the lake levels as authorized by statute.

Defendants challenge the trial court's denial of summary disposition regarding their argument that the ILLA does not contemplate merely one lake level, but allows for the establishment of seasonal lake levels. A fundamental rule of statutory construction is that we must ascertain and give effect to the Legislature's intent. Erb Lumber Co. v. Homeowner Construction Lien Recovery Fund, 206 Mich.App. 716, 719, 522 N.W.2d 917 (1994). The first consideration in determining intent is the specific language of the statute. Id.; House Speaker v. State Administrative Bd., 441 Mich. 547, 567, 495 N.W.2d 539 (1993). While we presume the Legislature intended the meaning plainly expressed in a statute, judicial construction is permitted if the language is unclear and susceptible to more than one interpretation. Cowen v. Dep't of Treasury, 204 Mich.App. 428, 431, 516 N.W.2d 511 (1994). If the statutory language is ambiguous or reasonable minds may differ in its interpretation, a reasonable construction must be given in light of the purpose of the statute. Witherspoon v. Guilford, 203 Mich.App. 240, 247, ...