Hess v. West Bloomfield Township , 439 Mich. 550 ( 1992 )

Brickley, J.

This case presents an opportunity for us to determine whether a township has the authority to regulate docking of boats pursuant to the Township Rural Zoning Act (trza). MCL 125.271 et seq.; MSA 5.2963(1) et seq. Contrary to the opinion of the Court of Appeals in Fox & Associates, Inc v Hayes Twp, 162 Mich App 647; 413 NW2d 465 (1987), we find that the trza does in fact vest townships with such authority, and reverse the decision of the trial court, and remand this case for further proceedings consistent with our decision.

i. factual background

On August 30, 1977, Pine Bluff Estates Association¹ filed a petition with the West Bloomfield Charter Township Board for approval of a site plan and for a special use permit for a commonly owned lot, hereinafter referred to as outlot A, within the Pine Bluff Estates Subdivision. The association was seeking to convert this pie-shaped lot which abuts Pine Lake, into a private park and beach for its members’ use. The petition was filed by the association in accordance with the requirements of the West Bloomfield Charter Township Zoning Ordinance. Neither the necessity nor the authority under the zoning ordinance for the special use permit for docking privileges at outlot a has been questioned by the parties.²

On April 11, 1978, the planning commission recommended the board approve the site plan and special use permit for outlot a.³ The commission indicated that the dimensions of outlot a were not in conformance with the requirements of the zoning ordinance regarding subdivision recreational parcels of land with lake frontage; however, it determined that the association should be allowed to improve outlot a as long as any dock constructed on that lot was not used to launch or moor boats.

On June 19, 1978, the board granted the approval for the site plan and special use permit. However, the board, contrary to the recommendation of the commission, allowed two boats to be moored at the dock.

The boat restriction was acceptable to plaintiffs because few of the backlots within the subdivision had been developed at that time.⁴ However, on June 12, 1989, after all eleven of the backlots had been developed, the association submitted a petition to amend the special use permit for outlot A to increase mooring capacity of the dock from two to eleven boats. On July 25, 1989, the commission issued a recommendation to the board that the petition filed by the association should be denied because such use would not conform to the requirements of the West Bloomfield Township Zoning Ordinance. On October 16, 1989, the board adopted the recommendation of the commission and denied the petition, despite being informed of the Court of Appeals decision in Fox, supra, which had held that the trza does not vest authority to regulate docking upon township governmental units.

On November 3, 1989, plaintiffs filed a six-count complaint in the Oakland Circuit Court. Plaintiffs were attempting to have the court invalidate regulation of the docking privileges as exercised by the board with regard to outlot a. The first count, relying upon Fox, supra, asserted the zoning regulation employed by the board was invalid because there was no authority for regulating the docking of boats through the application of a zoning ordinance. Counts ii through vi included: a claim for mandamus to require the board to accept the petition for a variance, a complaint for superintending control to reverse the decision of the board, an appeal from the decision of the board, a claim for inverse condemnation, and an allegation of a violation of 42 USC 1983, respectively.

Plaintiff brought a motion for partial summary disposition with regard to counts i and iv, relying on the decision in Fox. Plaintiffs alleged that there was no question of material fact in this case and that they were entitled to judgment as a matter of law with regard to count i, pursuant to MCR 2.116(0(10). After hearing oral arguments regarding this issue on May 18, 1990, the trial court, relying upon Fox, determined that the board had acted without authority in regulating the mooring of boats at outlot a.⁵ The trial court refused to certify the decision as a final order; therefore, defendants filed an interlocutory appeal in the Court of Appeals which was denied on December 20, 1990.⁶ Defendants’ application for leave to appeal to this Court was granted. 437 Mich 1047 (1991).

ii

In Square Lake Hills Condominium Ass’n v Bloomfield Twp, 437 Mich 310; 471 NW2d 321 (1991), a majority of this Court, albeit by more than one opinion, determined that townships possess authority to regulate mooring of boats by ordinance, pursuant to the police power provided by the township ordinance act, MCL 41.181 et seq.; MSA 5.45(1) et seq. In this case, however, defendant West Bloomfield Township enacted the relevant zoning provisions in accordance with the statutory requirements of the trza. Therefore, our only consideration is whether the enabling provision of that act vested the township with authority to regulate the construction of a dock and the ability to limit the number of boats that could be moored there.

The enabling provision of the trza states:

The township board of an organized township in this state may provide by zoning ordinance for the regulation of land development and the establishment of districts in the portions of the township outside the limits of cities and villages which regulate the use of land and structures; to meet the needs of the state’s citizens for food, fiber, energy, and other natural resources, places of residence, recreation, industry, trade, service, and other uses of land; to insure that use of the land shall be situated in appropriate locations and relationships; to limit the inappropriate overcrowding of land and congestion of population, transportation systems, and other public facilities; to facilitate adequate and efficient provision for transportation systems, sewage disposal, water,' energy, education, recreation, and other public service and facility requirements; and to promote public health, safety, and welfare. For these purposes, the township board may divide the township into districts of such number, shape, and area as it considers best suited to carry out this act. The township board of an organized township may use this act to provide by ordinance for the regulation of land development and the establishment of districts which apply only to land areas and activities which are involved in a special program to achieve specific land management objectives and avert or solve specific land use problems, including the regulation of land development and the establishment of districts in areas subject to damage from flooding or beach erosion, and for that purpose may divide the township into districts of a number, shape, and area considered best suited to accomplish those objectives. [MCL 125.271; MSA 5.2963(1). Emphasis added.]

A

In Fox, supra, the Court of Appeals found the enabling provision of the trza to be limited to regulation of land activities "and does not extend to the regulation of the riparian rights of a landowner, especially when such regulation attempts to limit access to navigable waters or the number of dock slips a riparian landowner may build or possess.” Id. at 652. That case presented a situation in which a proposed condominium development, which had frontage on Lake Charlevoix, was rejected because of nonconformance with the applicable zoning ordinances. The zoning ordinances involved in that case regulated the building of structures along the shoreline and also the amount of dock space which would have been available to the condominium owners. The Court of Appeals held that the Legislature did not intend to allow such zoning regulation to be exercised by townships, pursuant to the trza, because the language within that act was limited to land use or development and did not mention water activity or riparian rights. The panel employed this interpretation of the trza despite a constitutional mandate of liberal construction in favor of the township.

Even with the liberal construction of the provisions of the constitution in mind, we do not believe that the trza grants authority to townships to regulate or limit boat dockage construction or riparian access rights. After consideration of all the applicable rules of statutory construction, we can only conclude that the Legislature, in enacting the trza, granted authority to townships to zone land use but not water use or to regulate riparian rights. [Id. at 656.]

The dissenter opined that the trza should not have been given as narrow an interpretation as that adopted by the majority, especially in light of the constitutional mándate.

In summary, riparian rights are not different from any other rights that arise out of the ownership or an estate in land. Consequently those rights are subject to the regulation and control of the township under the authority of the Township Rural Zoning Act. [Id. at 662.]

We granted leave to appeal in Fox, on March 22, 1988. See 430 Mich 858. Our order granting leave indicated that the limited issue to be addressed was "whether under the Township Rural Zoning Act ... a township has the authority to enact a zoning ordinance which limits boat dockage and funnel development by riparian owners.” That issue was almost identical to the issue before us today, and would likely have eliminated any need for us to review the instant case. However, we vacated our order granting leave to appeal in Fox on July 19, 1989, after the parties agreed to a consent judgment. 432 Mich 932.

B

The trza makes express references to "land development” and "use of land” within its enabling provision without expressly referring to water or riparian rights. However, that provision also does not expressly prohibit the zoning of water-related uses or riparian rights.

The question becomes whether the term "land,” as used in the enabling provision of the trza when "liberally construed” in favor of the township, "fairly implies]” the inclusion of boat dockage. For the reasons that follow we think that it does.

III

Interpretation of the trza is aided by Const 1963, art 7, § 34, which provides:

The provisions of this constitution and law concerning counties, townships, cities and villages shall be liberally construed in their favor. Powers granted to counties and townships by this constitution and by law shall include those fairly implied and not prohibited by this constitution. [Emphasis added.]

We must employ this constitutional mandate in conjunction with the following statutory rule of construction in our interpretation of the enabling provision of the trza.

MCL 8.3; MSA 2.212, establishes a statutory rule of construction for interpreting certain enumerated terms found within various statutory provisions.

In the construction of the statutes of this state, the rules stated in sections 3a to 3w shall be observed, unless such construction would be inconsistent with the manifest intent of the legislature. [Emphasis added.]

A statutory definition for the term "land” is included within MCL 8.3i; MSA 2.212(9), which provides:

The words "land,” "lands,” "real estate” and "real property” mean lands, tenements and real estate, and all rights thereto and interests therein. [Emphasis added.]

Accordingly, the statutory definition of land within this provision includes all rights and interests which are associated or attached to any piece of real property.

A

Land which includes or is bounded by a natural watercourse is de&ned as riparian. Persons who own an estate or have a possessory interest in riparian land enjoy certain exclusive rights. These include the right to erect and maintain docks along the owner’s shore, and the right to anchor boats permanently off the owner’s shore. [Thies v Howland, 424 Mich 282, 287-288; 380 NW2d 463 (1985). Citations omitted. Emphasis added.]

Outlot a clearly fits the definition of riparian property since it is a piece of land which abuts a natural watercourse, Pine Lake.⁷ Riparian rights are derived from and are dependent on ownership of "land” which abuts a natural body of water; thus, they constitute part of the property possessed by riparian landowners and become their property rights. See Square Lake Hills, supra (Cavanagh, C.J., dissenting); Thompson v Enz, 379 Mich 667; 154 NW2d 473 (1967).

Therefore, we conclude that the term "land,” as used within the trza, includes those rights or interests that attach to the ownership of land, which extends to riparian rights. Mooring of boats at a dock adjacent to outlot A constitutes an exercise of the riparian rights of the property owners of that piece of property.

B

Including riparian rights within the term "land” as it is used in the trza is not "inconsistent with the manifest intent of the legislature.” The Legislature indicated its intentions in adopting the TRZA.

The zoning ordinance shall be based upon a plan designed to promote the public health, safety, and general welfare; to encourage the use of lands in accordance with their character and adaptability, and to limit the improper use of land; to conserve natural resources and energy; ... to insure that uses of the land shall be situated in appropriate locations and relationships; . . . and to conserve the expenditure of funds for public improvements and services to conform with the most advantageous uses of land, resources, and properties. The zoning ordinance shall be made with reasonable consideration, among other things, to the character of each district; its peculiar suitability for particular uses; the conservation of property values and natural resources; and the general and appropriate trend and character of land, building, and population development. [MCL 125.273; MSA 5.2963(3). Emphasis added.]

This provision was broadly written to permit townships to regulate activities to promote the general welfare of the public and to protect the character and natural resources of a township community. In order to accomplish this goal, the Legislature must have been aware of the importance of riparian rights with regard to the overall use of land. In a state such as Michigan, with its abundant bodies of water, there would be no way to ensure that land uses are compatible with surrounding properties unless water activities are evaluated. Similarly, the conservation of natural resources, which clearly includes water, cannot be undertaken if there is no means for regulating riparian rights. Finally, the stated purpose of the trza is to allow townships to balance the most advantageous uses of the lands, resources, and properties within their boundaries and to create zoning districts and ordinances in accordance with such evaluations. Such a balance could not be achieved if riparian rights are excluded from any zoning control by the township.

Review of the historical development of the trza indicates the Legislature intended the regulatory authority possessed by the townships to encompass more than activities which are located on "dry land.”

The original version of the trza was enacted in 1943 PA 184. The first sentence in the first section of that act provided the authority for townships to designate zoning districts in which they could encourage, regulate, or prohibit certain types of activities or uses of the land within the zoning districts created, i.e., agricultural, forestry, recreational, residential, etc. The remainder of that section addressed regulation of dwellings or structure sizes within the zoning districts created by the township. There was minimal discussion of the authority of townships to control land development within the several zoning classifications. In 1978, the Legislature drastically amended this crucial provision of the trza to address and correct the inadequacy of the prior version.⁸

An indication of the legislative concern for the environment is apparent from the clause that was added to MCL 125.271; MSA 5.2963(1) in 1978, providing that townships shall have the authority to enact zoning ordinances to "promote public health, safety, and welfare.” This indicates that a much broader grant of authority was intended by the Legislature when it amended the trza in 1978. Additionally, the constitution states that conservation and protection of natural resources shall constitute a paramount concern in the interest of the health, safety, and general welfare of the people of the State of Michigan.

The conservation and development of the natural resources of the state are hereby declared to be of paramount public concern in the interest of the health, safety and general welfare of the people. The legislature shall provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction. [Const 1963, art 4, § 52. Emphasis added.]

Thus, by granting townships the authority to promote the public health, safety, and general welfare through enactment of zoning ordinances, the Legislature was complying with this constitutional mandate to protect the environment, including bodies of water, from impairment or destruction.

In order for townships to properly protect the bodies of water from destruction or impairment, pursuant to their zoning power within the trza, there must be an ability to regulate the exercise of riparian rights. To prohibit townships from exercising such regulatory zoning authority over riparian rights would permit the destruction or impairment of the natural resources associated with such bodies of water. To construe the trza in the manner asserted by plaintiffs, and the Court of Appeals majority in Fox, supra, would essentially prohibit townships from protecting the natural resources located within their communities that happen to be associated with bodies of water. This clearly could not have been the intention of the Legislature when it expanded the powers of the townships to regulate land development and to promote the public health, safety, and welfare, pursuant to the zoning authority of the trza. Therefore, our reading of the trza is not only not "inconsistent with the minifest intent of the legislature,” it is manifestly consistent with it.

IV. CONCLUSION

We conclude that the trza permits townships to regulate riparian rights, such as dockage of boats, as part of their zoning power. This interpretation is consistent with the underlying purpose of the enactment of the trza and its subsequent amendment, and is appropriate in light of the constitutionally mandated liberal construction. We reverse the trial court’s grant of summary disposition and remand for further proceedings consistent with this opinion.

Cavanagh, C.J., and Boyle, Riley, Griffin, and Mallett, JJ., concurred with Brickley, J.

1 The association represents all twenty-two lot owners within the subdivision. The individual plaintiffs involved in this case are only the backlot owners of the subdivision.

2 Site plan approval of outlot a was required pursuant to the then existing West Bloomfield Township Zoning Ordinance. That provision provides:

The following uses may be permitted in an R-10, R-12.5 and R-15 one-family residential disfrict añer review and approval of the site plan by the planning commission and provided that the planning commission finds that the use would not be incompatible with already existing uses in the area or would not interfere with orderly development of the area and will not be detrimental to the safety or convenience of vehicular or pedestrian trafiic, subject to the conditions imposed for each use, and subject to final approval by the township board:

(4) Land may be used for privately owned and operated parks, picnic groves or similar facilities for outdoor recreation . which may not be operated for profit; provided, that such use does not impair the natural appearance of such land or tend to produce unreasonable noise or annoyance to surrounding properties, and provided further that no use shall be made of any open land or water for boat liveries or commercial bathing beaches. [Section 26-73. Emphasis added.]

The special use permit was required for outlot A, pursuant to the zoning ordinance, since it only had fifty-eight feet of frontage on Pine Lake and docking privileges were desired.

Where a parcel of land contiguous to a body of water is presented for subdividing, a recreational park bordering on the body of water may be dedicated for the purposes of swimming and picnicking, the privileges of which are to be reasonably enjoyed by the owners and occupants of lots included in any plat or plats recorded within the parcel and only such owners and occupants provided that the recreational park is dedicated at the time for the use of owners and occupants of lots contained in such a recorded plat or plats at least twenty (20) lineal feet of water frontage and one hundred fifty (150) feet in depth shall be reserved therein for the rights of each lot of the size required by this chapter; provided, however, that no recreational park so created shall have less than three hundred (300) feet of water frontage. The launching of boats from recreational parks shall not be permitted nor shall boats be allowed to be docked at recreational parks. [Section 26-78. Emphasis added.]

The format of the township zoning ordinance was changed on June 21, 1982; however, the language of the relevant zoning ordinance provisions was not altered.

3 The commission also made an analysis of the need for a wetland permit to be obtained by the association. This issue is no longer relevant since the dock which was eventually created was fifty feet in length, which falls within an exemption to the wetland ordinance requirement.

4 The special use permit did not affect the ability of the eleven lots with frontage upon Pine Lake to moor boats at their own docks.

5 In light of the court’s granting summary disposition with regard to count i, both parties stipulated that the issue raised in count iv was moot. Accordingly, that issue is not presented for review by this Court. Additionally, we do not address the validity of the other counts raised in plaintiff’s complaint because they were not raised on appeal in this Court.

6 The plaintiffs alleged preemption by the actions of the Department of Natural Resources, for the first time, in their responsive brief filed with the Court' of Appeals. That issue was not preserved for review by this Court because it was not raised in the trial court. See Napier v Jacobs, 429 Mich 222; 414 NW2d 862 (1987).

7 We note that each member of the association is considered to possess an undivided 1/22 ownership interest in outlot a. This interest is not severable or alienable from the ownership of the primary lot within the subdivision, therefore we consider the undivided 1/22 interest ownership of outlot A sufficient to permit the relevant riparian rights to attach to each member.

8 The amended version has remained unaltered since it was adopted in 1978 PA 637 and is currently compiled at MCL 125.271; MSA 5.2963(1).