Yankee Springs Twp. v. Fox, Docket No. 249045.

• Decision Date: 12 October 2004
• Docket Number: Docket No. 249045.
• Citation: 692 N.W.2d 728,264 Mich. App. 604
• Parties: TOWNSHIP OF YANKEE SPRINGS, Plaintiff-Appellee, v. Richard FOX, Defendant-Appellant, and Antonio Veloso, Nina Veloso, Edwin Hartman, Mrs. Edwin Hartman, Todd Greenman, Rachel Greenman, Roger G. Truckenmiller, Trisha J. Truckenmiller, James S. Swanson, Linda J. Swanson, Mike Bedford, Ron Heethuis, John Rough and Linda Rough, Defendants.
• Court: Court of Appeal of Michigan — District of US

692 N.W.2d 728

264 Mich. App. 604

TOWNSHIP OF YANKEE SPRINGS, Plaintiff-Appellee, v.Richard FOX, Defendant-Appellant, andAntonio Veloso, Nina Veloso, Edwin Hartman, Mrs. Edwin Hartman, Todd Greenman, Rachel Greenman, Roger G. Truckenmiller, Trisha J. Truckenmiller, James S. Swanson, Linda J. Swanson, Mike Bedford, Ron Heethuis, John Rough and Linda Rough, Defendants.

Docket No. 249045.

Court of Appeals of Michigan.

Submitted July 8, 2004, at Grand Rapids.

Decided October 12, 2004.

Approved for Publication December 21, 2004, at 9:00 a.m.

Released for Publication February 16, 2005.

Bauckham, Sparks, Rolfe, Lohrstorfer & Thall, P.C.(by John K. Lohrstorfer), Kalamazoo, for the plaintiff.

David H. Tripp, Hastings, for the defendant.

Before: FORT HOOD, P.J., and DONOFRIO and BORRELLO, JJ.

PER CURIAM.

DefendantRichard Fox, as an owner of an undivided one-eighth interest in 2620 First Street (the First Street lot), a riparian lot on Gun Lake previously owned by defendants John and Linda Rough, appeals as of right from the trial court order permanently enjoining defendant and several other First Street lot owners from using the First Street lot to access Gun Lake in violation of the plaintiff Yankee Springs Township's antifunneling ordinance found within its riparian-lot-use regulations.We affirm.

Defendant first argues that the plaintiff's riparian ordinance does not apply to Gun Lake because the lake is not wholly located within the plaintiff's borders.We disagree.We review the trial court's interpretation of the township zoning ordinance de novo.Brandon Charter Twp. v. Tippett,241 Mich.App. 417, 421, 616 N.W.2d 243(2000).

In Hess v. West Bloomfield Twp.,439 Mich. 550, 562, 486 N.W.2d 628(1992), our Supreme Court held that riparian rights are derived from land.Thus, it is the location of the riparian land, and not the location of the lake that abuts the land, that determines the plaintiff's authority and jurisdiction in this case.Further, the Township Zoning Act, MCL 125.271 et seq.,"permits townships to regulate riparian rights, such as dockage of boats, as part of their zoning power."Hess, supra at 565-566, 486 N.W.2d 628.Therefore, because the riparian lot at issue is located within plaintiff's boundaries and because plaintiff is authorized by statute to regulate riparian rights, plaintiff has the authority to regulate defendant's riparian rights in this case.

Defendant next contends that the riparian-lot-use regulations are void for vagueness because the regulations do not provide fair notice of the conduct proscribed.We review the constitutionality of this ordinance de novo.Jott, Inc. v. Clinton Charter Twp.,224 Mich.App. 513, 525, 569 N.W.2d 841(1997).

A statute or ordinance may be void for vagueness if (1) it is overbroad and impinges on First Amendment freedoms, (2) it does not provide fair notice of the conduct it regulates, or (3) it gives the trier of fact unstructured and unlimited discretion in determining whether the statute has been violated.Dep't of State v. Michigan Ed. Ass'n-NEA,251 Mich.App. 110, 116, 650 N.W.2d 120(2002).Because defendant's void-for-vagueness challenge is limited to the argument that the ordinance does not provide fair notice of the conduct proscribed, we must examine the constitutionality of the ordinance "`without concern for the hypothetical rights of others.'"People v. Knapp,244 Mich.App. 361, 374 n. 4, 624 N.W.2d 227(2001), quotingPeople v. Vronko,228 Mich.App. 649, 652, 579 N.W.2d 138(1998).Thus, "`[t]he proper inquiry is not whether the [ordinance] may be susceptible to impermissible interpretations, but whether the [ordinance] is vague as applied to the conduct allegedly proscribed in this case.'"Knapp, supra at 374 n. 4, 624 N.W.2d 227, quotingVronko, supra at 652, 579 N.W.2d 138.

The relevant section of the plaintiff's zoning ordinance concerning riparian-lot-use regulations provides as follows:

In any zoning district where a parcel of land is contiguous to a lake or pond, either natural or man-made, such parcel of land may be used as access property or as common open space held in common by a subdivision, association or any similar agency; or held in common by virtue of the terms of a plat of record; or provided for common use under deed restrictions of record; or owned by two or more dwelling units located away from the waterfront only if the following conditions are met:

1.That said parcel of land shall contain at least 70 lineal feet of water frontage and a lot depth of at least 100 feet for each dwelling unit or each single-family unit to which such privileges are extended or dedicated....[Section 15.14.2.]

Defendant argues that, under one permissible interpretation, the various types of ownership listed in the introductory paragraph of this section can be interpreted as modifying both "access property" and "common open space."According to defendant, if such an interpretation is adopted, the lot owners are not in violation of the ordinance because the First Street lot does not constitute access property "owned by two or more dwelling units located away from the waterfront."Defendant further contends that one can also interpret the types of ownership listed in the introductory paragraph as modifying only "common open space."Under the second interpretation, defendant would be in violation of the ordinance because the First Street lot qualifies as access property.

Under the rules of grammar and statutory construction, which apply to ordinances, Gora v. City of Ferndale,456 Mich. 704, 711, 576 N.W.2d 141(1998), if reasonable minds can differ with respect to the meaning of a statute, judicial construction is appropriate.Adrian School Dist. v. Michigan Pub. School Employees' Retirement Sys.,458 Mich. 326, 332, 582 N.W.2d 767(1998).However, we believe that reasonable minds could not disagree regarding the meaning of the ordinance.

The disjunctive term "or" refers to a choice or alternative between two or more things.Root v. Ins. Co. of North America,214 Mich.App. 106, 109, 542 N.W.2d 318(1995).Accordingly, applying basic grammar rules and rules of statutory construction, the introductory paragraph set forth in § 15.14.2 of the zoning ordinance can only correctly be interpreted in one way.Consequently, there can be no question that for a parcel of land to be used as access property, it must comply with the conditions listed in § 15.14.2, including:

1.That said parcel of land shall contain at least 70 lineal feet of water frontage and a lot depth of at least 100 feet for each dwelling unit or each single-family unit to which such privileges are extended or dedicated.Frontage shall be measured by a straight line which intersects each side lot line at the water's edge.

At least eight families with nonwaterfront dwellings own one-eighth interests in the First Street lot.Because the lot has only 103 feet of water frontage, the riparian-lot-use regulations prohibit the use of the lot as access property.Thus, we find that the ordinance was not void for vagueness.

Defendant next argues that the ordinance is unconstitutional because it denies him substantive due process.We disagree.

As stated previously, we review the trial court's ruling on a constitutional challenge to a zoning ordinance de novo.Jott, supra at 525, 569 N.W.2d 841.Judicial review of a challenge to an ordinance on substantive due process grounds requires application of three rules:

(1) the ordinance is presumed valid; (2) the challenger has the burden of proving that the ordinance is an arbitrary and unreasonable restriction upon the owner's use of the property; that the provision in question is an arbitrary fiat, a whimsical ipse dixit; and that there is not room for a legitimate difference of opinion concerning its reasonableness; and (3) the reviewing court gives considerable weight to the findings of the trial judge.[A & B Enterprises v. Madison Twp.,197 Mich.App. 160, 162, 494 N.W.2d 761(1992).]

To establish that a zoning ordinance violates substantive due process protections, a party must show (1) that there is no reasonable governmental interest advanced by the zoning classification or (2) that the ordinance is unreasonable because it contains arbitrary, capricious and unfounded exclusions of legitimate land use.Frericks v. Highland Twp.,228 Mich.App. 575, 594, 579 N.W.2d 441(1998).

The 1987 antifunneling ordinance in question explains the problems that led to its adoption, including overcrowding and pollution of lakes and other waterways, as well as the dangers to life and property posed by an increased risk of boating accidents.Likewise, the expressed intent of the riparian-lot-use regulations is that the regulations are designed to prevent funnel development and to protect and preserve lakes.

The protection of natural resources such as lakes is a reasonable governmental interest.In Hess, our Supreme Court stated that the Legislature, in granting townships the authority to promote public health, safety, and general welfare by enacting zoning ordinances, was complying with its "constitutional mandate to protect the environment, including bodies of water, from impairment or destruction."Hess, supra at 565, 486 N.W.2d 628.Protecting Gun Lake from congestion and pollution and protecting the public from the risk of increased boating accidents promotes public health, safety, and welfare.The goals of the ordinance are reasonable governmental interests that state law expressly permits townships to regulate.Further, limiting the number of dwelling units given access to riparian lots will curtail funneling, or lake access by nonriparian lot owners.Thus, the ordinance is rationally related to its stated purpose.

Furthermore, the ordinance is not unreasonable as an arbitrary and capricious exclusion of legitimate uses of land.We find a rational relationship between the ordinance and its objective.Limiting the number of...