-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

TOWNSHIP OF LOCKPORT,

Plaintiff-Appellant, PUBLISHED May 9, 2017
9:10 a.m.

v No. 331711 Saint Joseph Circuit Court CITY OF THREE RIVERS, LC No. 16-000104-CZ

Defendant-Appellee.

Before: W ILDER , P.J., and B OONSTRA and O’B RIEN , JJ.

O’B RIEN
, J.

The Township of Lockport (“the Township”) appeals as of right the trial court’s order granting summary disposition in f avor of the City of Three Rive rs (“the City”). We reverse.

This case arises out of the City’s attempt to annex approximat ely 80 acres of real property from the Township. In 2006, the private owners of the land at issue and the Township executed a “Grant of Easement,” which granted the Township a 20 -foot easement over the land
for the installation a water transmission line. A water transm ission line was installed shortly thereafter. Approximately ten years later, on February 1, 2016 , the City purchased the land at issue from the private owners, intending to develop a recreatio n facility. On the day following the purchase, February 2, 2016, the City’s Commission approved a resolution to annex the land at issue. In response, the Tow nship filed this lawsuit on Febr uary 3, 2016, seeking, ultimately, to prevent the annexation. A temporary restraining order was ente red, and proceedings continued from there. A hearing on the Township’s motion for preliminary injunction was held on February 17, 2016, and, after hear ing the parties’ arguments an d reviewing the parties’ filings, the trial court denied the Township’s motion for preliminary in junction and granted the City’s motion for summary disposition. Its decision was based, primar ily, on its conclusion that the Township’s lawsuit could not succe ed on its merits because the land at issue was “vacant” for purposes of MCL 117.9(8). An order reflecting its decision was entered on that date. The Township appealed, arguing that the land is not “vacant” under MCL 117.9(8). We agree.

Appellate courts review a trial court’s decision on a motion f or summary disposition de

novo. Bernardoni v Saginaw , 499 Mich 470, 472; 886 NW2d 109 (2016). “A motion for summary disposition made under MCR 2.116(C)(10) tests the factu al sufficiency of the complaint.” Id . Summary disposition pursuant to MCR 2.116(C)(10) is appropri ate when, “[e]xcept for the amount of damages, there is no genuine issue as to any material fact, and the-2- moving party is entitled to judgment or partial judgment as a m atter of law.” “In deciding a motion under subrule (C)(10), the trial court views affidavits and other documentary evidence in the light most favorable to the nonmoving party.” Chandler v Dowell Schlumberger Inc , 456 Mich 395, 397; 572 NW2d 210 (1998).

In this case, the trial court g ranted the City’s motion for su mmary disposition based on its interpretation and application of the Home Rule City Act (“the HRCA”), MCL 117.1 et seq . A trial court’s interpretation and application of a statutory pro vision is reviewed de novo on appeal. Yono v Dep’t of Transp , 499 Mich 636, 645; 885 NW2d 445 (2016). “When interpreting a statute, [the] foremost rule of construction is to discern and give effect to the Legi slature’s intent. Because the language chosen is th e most reliable indicator of t hat intent, [appellate courts] enforce clear and unambiguous statutory language as written, gi ving effect to every word, phrase, and clause.” Wyandotte Electric Supply Co v Electrical Tech Sys, Inc , 499 Mich 127, 137; 881 NW2d 95 (2016). If the st atutory provision at issue i s clear and unambiguous, it must be enforced as written, and no j udicial construction is permitt ed or required. Bank of America,
NA v First American Title Ins Co , 499 Mich 74, 85; 878 NW2d 816 (2016).

Specifically, the trial court interpreted and applied MCL 117. 9(8), which provides, in relevant part, as follows:

Where the territory proposed to b e annexed to any city is adjac ent and consists of a park or vacant property locate d in a township and owned by th e city annexing the territory, and there is no one residing in the territory, t he territory may be annexed to the city solely by r esolution of the city council of the city. . . .

Stated simply, this portion of MCL 117.9(8) “authorizes a city to annex certain vacant land that the city owns by enacting a reso lution for annexation and requi res no affirmative action on the part of the township.” Rudolph Steiner Sch of Ann Arbor v Ann Arbor Charter Twp , 237 Mich App 721, 733; 605 NW2d 18 (1999). The issue before this Court in this case is whether the property at issue was “vacant” for purposes of MCL 117.9(8).

The term “vacant” is not defined in MCL 117.9(8) or the remain der of the HRCA with regard to that specific subsection. Nevertheless, this Court h as previously interpreted and applied the term in several deci sions, and each party in this c ase points to one of those decisions as being dispositive here. The Township points to Charter Twp of Pittsfield v Ann Arbor , 86 Mich App 229, 235; 274 NW2d 466 (1978) (“the Ann Arbor decision”), where this Court concluded that a parcel of land used constantly as a multi-lane road was not vacant for purposes of MCL 117.9(8). The City, on the other hand, points to Charter Twp of Pittsfield v Saline , 103 Mich App 99, 107-108; 302 NW2d 608 (1981) (“the Saline decision”), where this Court concluded that a parcel of land used seasonally for the product ion of crops and subject to leasing agreements was vacant for purposes of MCL 117.9(8). While neit her decision is directly on point, or binding, MCR 7.215(J)(1), w e are of the view that bot h support the Township’s position
in this case.

In the Ann Arbor decision, this Court, recognizing that the statutory language s hould be interpreted and applied “accordi ng to [its] common and approved usage,” turned to the dictionary
definition of “vacant” and defined “vacant land as that which i s not put to use.” 86 Mich App at-3- 235. Applying that definition, this Court concluded that the p arcel at issue was not vacant
because it was “in constant use as a road.” Id . Three years later, in the Saline decision, this Court expressed “agree[ment] with the . . . Court’s use of an o rdinary meaning test to determine the definition of vacant [in the Ann Arbor decision].” 103 Mich App at 107. Applying that ordinary-meaning test, this Cour t concluded that the parcel at issue was vacant because it was only seasonally used for the production of crops and subject to “farm leasing agreements” that could be terminated “in any case[.]” 1 In our view, both of these d ecisions correctly apply and interpret the statutory language at issue according to its plai n and ordinary meaning, and we
choose to do the same here.

The term “vacant,” as it applies to real property, can still b e defined the same way that it was in 1978—as real property that is “not put to use[.]” Merriam-Webster’s Collegiate Dictionary (11th ed). Under the Ann Arbor decision, real property is not vacant when it is in
constant use. Under the Saline decision, real property is vacan t when it is only seasonally us ed and subject to a lease agreement that may be terminated at any time. In the instant matter, it is undisputed that the real property at issue is currently and con stantly being used. The parties agree that there is, in fact, an underground water transmission line located on the land at issue.
Like the road in the Ann Arbor decision, the waterline is “in constant use[.]” Therefore, the Ann
Arbor decision best applies t o the facts and circumstances of this ca se. Had the waterline been in “temporary, seasonal” use or subject to a lease that might be t erminated at any time, the Saline decision would arguably apply. But , those are simply not the f acts before us in this case.

On appeal, the City argues that, in the Saline decision, this Court implicitly rejected the interpretation and application of the term “vacant” that was us ed in the Ann Arbor decision. We disagree. While it is true that, in the Saline decision, this Court did “part company with [the earlier] panel’s further holding that vacancy precludes use ‘fo r any beneficial purposes,’ ” that distinction has no impact on the outcome of this case. 103 Mic h App at 107. Whether MCL 117.9(8) requires that land “not b e[] utilized for any benefici al purpose” in order to be vacant is of no relevance to us here because the real property at issue i n this case was being “put to use[.]” 86 Mich App at 235. Consequently, it is not vacant for purpose s of MCL 117.9(8).

On appeal, the City also relies on the fact that “the water li ne is ‘buried’ underground” to support its position. Its reliance in this regard is misplaced . MCL 117.9(8) refers to “property,” and we are unable to find any au thority to support the notion t hat “property” refers only to the above-ground portion of the land at issue. 2 The word “land” can be defined as “the solid part of

1 Nearly a decade later, this Court was presented with a similar issue and expressly concluded that “agricultural” uses, alone, do not render property vacant for purposes of MCL 117.9(8). See Wheatfield Twp v Williamston , 184 Mich App 745, 746; 458 NW2d 670 (1990). Agricultural uses are simply distinguishable from the constant presence of t he water transmission line at issue
here.

2 The term property is defined as “a piece of real estate,” whic h is not particularly helpful under
the facts and circumstances of this case. Meriam-Webster’s Collegiate Dictionary (11th ed). However, it is apparent, in our v iew, that the Legislature’s re ference to “property” in this case is-4- the surface of the earth[,]” Merriam-Webster’s Collegiate Dictionary (11th ed), or “an
immovable and indestructible thr ee-dimensional area consisting of a portion of the earth’s surface, the space above and below the surface, and everything growing on or permanently affixed to it[,]” Black’s Law Dictionary (10th ed). Using these definitions, it is, in our view, quite apparent that the term “property” as used in MCL 117.9(8) contemplates the space below the surface, which is precisely w here the water transmission li ne is. 3

The City’s remaining arguments on appeal emphasize the fact th at the water transmission line exists on only “a de minimus portion of the” land at issue and the fact that the water transmission line exists only due to “a ‘non-exclusive’ undergr ound . . . easement[.]” In our view, these facts have little, i f any, impact on our analysis. First, MCL 117.9(8) requires vacancy, not partial vacancy. Had the Legislature intended to require partial vacancy or
otherwise exclude de minimus uses, it certainly could have expressed such an intent in the statutory language. It did not. Second, while the City is cor rect in asserting that the easement is non-exclusive, the City’s position fails to acknowledge the fac t that the easement is also
permanent

. 4 Had the easement been non-exclusive and temporary, the Saline decision described above would arguably be directly on point. But, as indicated a bove, it is not. These arguments are therefore unpersuasive.

Accordingly, because the trial court erred in interpreting and applying the term “vacant” as used in MCL 117.9(8), we reverse its order granting summary disposition in favor of the City and remand this matter for the entry of an order granting summa ry disposition in favor of the Township pursuant to MCR 2.116(I)(2). 5

a reference to “real property,” which can be defined as “[l]and and anything growing on, attached to, or erected on it, excluding anything that may be s evered without injury to the land[.]” Black’s Law Dictionary (10th ed). Consequently, we turn to the definition of “land” t o determine the Legislature’ s intent in this regard.

3 We also reject any notion that our Supreme Court’s decision in Rutland Twp v Hastings , 413 Mich 560; 321 NW2d 647 (1982), stands for the proposition that underground structures are irrelevant when determining whether land is “vacant” for purpos es of MCL 117.9(8). While it is true that the Supreme Court referred to the land at issue as “v acant land,” it expressly noted that it was doing so based on the fact that “[t]he circuit judge fou nd that the parcel subject to annexation was ‘vacant’ within the meaning of the statute” at t rial. Id . at 562 n 2. In our view, that brief reference to the land as vacant does not suggest tha t the Supreme Court held, as a matter of law, that land with onl y underground structures is “v acant” under MCL 117.9(8).

4 The easement agreement expressly “grant[ed] and convey[ed] to the [Township], its successors and assigns, a permanent , non-exclusive easement and right away in which to construct, operate, remove, inspect, repair, maintain and replace, a water transmis sion line, in, over, across, and through ‘the property[.]’ ”

5 Because the Township is entitled to judgment in its favor as a matter of law, we need not address whether the trial court erred in denying the Township’s motion for preliminary injunction based on the likeliho od of the Township’s claim succ eeding on its merits. Nevertheless, the resolution of t hat issue is likely apparent i n light of our conclusion above.-5- Reversed and remanded. We do not retain jurisdiction.

/s/ Colleen A. O'Brien
/s/ Kurtis T. Wilder
/s/ Mark T. Boonstra