Michigan Supreme Court 

# Order
Lansing, Michigan
March 7, 2008 Clifford W. Taylor, Chief Justice 133923 Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan Robert P. Young, Jr. MARY C. KALLMAN and HIGGINS LAKE Stephen J. Markman, PROPERTY OWNERS ASSOCIATION, Justices Plaintiffs-Appellants,

v SC: 133923 COA: 263633 Roscommon CC: 03-724042-CH SUNSEEKERS PROP ERTY OWNERS ASSOCIATION, L.L.C., Defendant-Appellee.

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On order of the Court, the application fo r leave to appeal th e February 1, 2007 judgment of the Court of Appeals is consid ered and, pursuant to MCR 7.302(G)(1), in lieu of granting leave to app eal, we REVERSE in part th e judgment of the Court of Appeals and REMAND this case to the Roscommon Circuit Court for further proceedings.

The Court of Appeals erred when it reversed the trial court’s holding regarding nuisance in fact. The trial court did not err when it concluded that the defendant’s 184

- foot dock, with six mooring s ites on a piece of property with 25 feet of lake frontage, and its use of its property as a “keyhole” or “funnel” lot for its unlimited membership substantially interfered with pl aintiff Kallman’s use of h er property, amounting to a nuisance in fact.

The Court of Appeals properly raised sua sponte the issue of the plaintiffs’ standing to pursue their nuisance p er se claim under MCL 125.294. See Michigan Citizens for Water Conservation v Nestlé Waters North America Inc , 479 Mich 280, 291

- 94 (2007) (discussing the impo rtance of standing to the proper exercise of the judicial power); People v Smith , 420 Mich 1, 11 n 3 (1984). The plain tiffs, however, were not required to prove standi ng during or prior to trial absent a challenge by the defendant. See Lujan v Defenders of Wildlife , 504 US 555, 564 (1992) (n oting that facts supporting standing must be produced at trial “if contro verted”). When the trial court has not made findings with regard to standing because standing was nev er challenged in that court, the_______________________________________ __ 2

proper course of action is to remand for a hearing on the issue of standing. See Smith,
supra at 28-29. On remand, the pl aintiffs must show that they have a substantial interest that would be detrimentally affected in a manner di fferent from the citizen ry at large. Nestlé Waters, supra at 294. Standing may be proven by showing that the “defendant’s activities directly affected the plai ntiff[s’] recreational, aesthetic , or economic interests.” Id . at 296.

W EAVER , J., concurs and states as follows:

I concur only in the ord er reversing the Court of App eals judgment and remanding this case to the trial court for further proceedings.

I write separately because I disagree with the order’s disc ussion of the majority of four’s (Chief Justice Taylor and Justices Corrigan, Young, and Markman) erroneously created standing test in Lee v Macomb Co Bd of Comm’rs

, 1 Nat’l Wildlife Federation v Cleveland Cliffs Iron Co

, 2 Rohde v Ann Arbor Pub Schools

, 3 and Michigan Citizens for Water Conservation v Nestlé Waters North America Inc

. 4 In those cases, the majority of four systematically disman tled Michigan’s law on sta nding and replaced years of precedent with its own test that denies Michigan c itizens access to the courts. 5

On remand, I would ask the plaintiffs to show whether they have standing under the pre- Lee prudential test for standi ng by showing whether the plaintiffs can demonstrate “that the plaintiff’s substantial interest will be detrimentally affected in a manner different from the citizenry at large.” House Speaker v Stat e Administrative Bd , 441 Mich 547, 554 (1993).

C AVANAGH , J., would deny leave to appeal.

1 Lee v Macomb Co Bd of Comm’rs , 464 Mich 726 (2001).

2 Nat’l Wildlife Federation v Cleveland Cliffs Iron Co , 471 Mich 608 (2004).

3 Rohde v Ann Arbor Pub Schools , 479 Mich 336 (2007).

4 Michigan Citizens for Wate r Conservation v Nestlé Waters North America Inc , 479 Mich 280 (2007).

5 See my opinions chronicling the majo rity of four’s assault on standing in Lee , 464 Mich at 742; Nat’l Wildlife , 471 Mich at 651; Rohde , 479 Mich at 366; and Michigan Citizens

, 479 Mich at 310.

p0304 I, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

March 7, 2008
Clerk