If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

DEER LAKE PROPERTY OWNERS 

ASSOCIATION, FRED DARIS, MARIE DARIS, 

GENE ENGLISH, LORRAINE ENGLISH, 

RICHARD REMSTED, MARY ANN REMSTED, 

FRANK STROTHER, MATTHEW ZABEL, and 

ANDREA ZABEL,

Plaintiffs-Appellants/CrossAppellees,

UNPUBLISHED

October 10, 2019

v No. 343965

Oakland Circuit Court

INDEPENDENCE CHARTER TOWNSHIP, and 

CHARTER TOWNSHIP OF INDEPENDENCE 

PLANNING COMMISSION,

LC No. 2017-159031-AV

Defendants-Appellees, 

and

DEER LAKE KNOLLS HOMEOWNERS 

ASSOCIATION,

Intervening defendantAppellee/Cross-Appellant.

Before: RIORDAN, P.J., and K. F. KELLY and CAMERON, JJ.

PER CURIAM.

Plaintiffs Deer Lake Property Owners Association, Fred Daris, Marie Daris, Gene 

English, Lorraine English, Richard Remsted, Mary Ann Remsted, Frank Strother, Matthew 

Zabel, and Andrea Zabel (hereinafter collectively referred to as the “Property Owners”), appeal 

as of right from an Oakland Circuit Court opinion and order denying the Property Owners’ 
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motion for declaratory judgment, and affirming defendant Independence Township Planning 

Commission’s1 decision to grant a special land use permit (“SLUP”) to Deer Lake Knolls 

Homeowners Association ( the “Knolls”). The SLUP allows the Knolls to dock up to 10 boats 

on four seasonal docks on a 5.02 acre lakefront lot (the “outlot”) owned by the Knolls. 

There are three issues on appeal: (1) whether the Commission had the legal authority to 

issue the SLUP; (2) whether the Commission’s decision to issue the SLUP was supported by 

competent, material, and substantial evidence; and (3) whether the Property Owners are an 

aggrieved party. We affirm on all issues.

I. BACKGROUND AND PROCEDURAL HISTORY

This appeal arises from a dispute over lakeshore access between two homeowners 

associations. Deer Lake is a public access lake with a public boat launch. The Property Owners 

are an association of approximately 70 riparian,2 lakefront homeowners. The Knolls includes 27 

lots, three of which are lakefront, and 24 are backlots. The Knolls owns the outlot which 

provides keyhole access3 to the lake, and where Knolls erects seasonal docks. The Property 

Owners contend that the access and the additional docks increase boat traffic and create 

dangerously overcrowded conditions. This led to litigation that has spanned over five years, 

multiple courts, the township zoning board, the Commission, and an administrative appeal. 

The township granted the Knolls a nonconforming validation certificate (“NVC”) to erect 

on the outlot two season docks which moor four boats. The Knolls appealed that decision,4 but 

the Property Owners declined to challenge that appeal, and while it was pending, the Knolls 

obtained the SLUP which allows for overnight mooring of up to 10 boats on four seasonal docks 

on the outlot. It is the SLUP decision that is at issue in this case. 

 1 Hereinafter defendant-appellees Charter Township of Independence and its Planning 

Commission are collectively referred to as “Independence.” Where appropriate to differentiate 

between the two, the Charter Township of Independence is referred to as the “township” and the 

Charter Township of Independence Planning Commission is referred to as the “Commission.”

2 To be precise, “land which includes or abuts a river is defined as riparian, while land which 

includes or abuts a lake is defined as littoral.” 2000 Baum Family Tr v Babel, 488 Mich 136, 138 

n 1; 793 NW2d 633 (2010) (citation omitted). “However, the term ‘riparian’ is often used to 

describe both types of land,” and will be used in such a manner herein. Id. (internal quotation 

marks and citation omitted).

3 Keyhole water access is “[t]he use of property that adjoins or extends into a lake for water 

access by owners or occupants of other property that does not adjoin or extend into a lake.” 

Charter Township of Independence Zoning Ordinance Article 2, §2.02. Water access is “[t]he 

launching, mooring and/or docking of watercraft.” Article 2, §2.02.

4 That case was dismissed by stipulation, subject to the conditions stated in the consent order, 

which permits the Knolls to reinstate the matter after the instant appeal is concluded. 
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Prior to approval of the SLUP, the Commission held a public hearing. The hearing lasted 

nearly two hours, during which the Commission heard arguments from the attorneys for the

Knolls and the Property Owners, heard concerns from local residents and members of the Knolls 

who had conflicting reports regarding overcrowding, safety, aesthetics, environmental impact, 

and the necessity of a permit from the Michigan Department of Environmental Quality 

(“MDEQ”). The Commission also considered the Knolls’ application and supplemental 

application for the SLUP along with their attached documents which included the outlot property 

description, overall site plan, defined site plan, lake depth information, the NVC, the vesting 

deed, the Knolls’ original and current by-laws, the outlot by-laws and additional restrictions, 

materials relating to the appeal to the zoning board, the Property Owners’ by-laws, and the 1987 

Deer Lake Study. Before the meeting, the Commission also received:

 a letter from resident Dr. Derrick Fries, a claimed “International Boating/Safety Expert,” 

asserting that the SLUP posed no safety risk to marine traffic and boaters; 

 a memo and supplemental memo from the township planning consultant Richard Carlisle 

recommending special use approval to allow up to six boats and three docks; 

 a letter from Gregory Need on behalf of the Property Owners advocating that 10 boats 

would create a safety issue and would materially impact lake usage by the riparian 

owners, and that the docks would create aesthetic issues, and therefore, the NVC limit 

was more appropriate;

 a report, circa 2013, by Fred Daris, a Property Owners member, compiled from 11 

publications purporting that Deer Lake was over its carrying capacity; and

 an email from Norm Froeschke, a resident, expressing concerns over Carlisle’s report.

The minutes from the public hearing show that the Commission also considered aerial 

photographs of the lake and historical documentation regarding the Knolls’ use of the property. 

After the hearing was closed to the public, the Commission discussed the ordinance as it relates

to lake frontage, whether a MDEQ permit would be required, the aerial photographs of the lake 

with regard to the aesthetic impact and placement of the docks, alternative remedies for safety 

concerns, the impact that the mooring of a few additional boats could have on overcrowding, 

whether the ordinance concerned future development rather than correcting current conditions, 

and the limited precedential effect of the SLUP. The Commission unanimously approved the 

SLUP and placed its findings on the record.

The Property Owners appealed the Commission’s decision to the circuit court and the 

Knolls joined as an intervening party. The Property Owners argued that the Commission’s 

decision failed to comply with state law, was not based on proper procedure, and was not 

supported by competent, material, and substantial evidence on the record, and thus amounted to 

an abuse of discretion. The Property Owners also argued that the Commission’s decision 

violated MCL 125.3508, that the outlot did not qualify for special land use approval, and that the 

only credible evidence presented weighed against granting the SLUP. The Property Owners 

theorized that the seasonal docks constituted a “marina” which required permitting by the 

MDEQ pursuant to various provisions of Michigan’s Natural Resources and Environmental 

Protection Act (“NREPA”), and created nuisance conditions for neighboring property owners. 
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The Property Owners requested a stay to prevent construction of the seasonal docks until the 

instant appeal was resolved. 

The circuit court affirmed the Commission’s approval of the SLUP and dismissed the 

Property Owners’ appeal. In its opinion and order, circuit court denied the Property Owners’ 

motion for declaratory judgment,

5 reasoning that the Property Owners’ argument that the SLUP 

was an unlawful expansion of a nonconforming use was a challenge to the NVC, which the 

Property Owners had not raised before the Commission nor challenged on appeal. Thus, the 

issue regarding the NVC was not properly before the circuit court. The circuit court further held 

that the Commission’s issuance of the SLUP conformed to Michigan’s statutory and 

constitutional provisions and was appropriately considered under Articles 7 and 11 of the 

township’s zoning ordinance. The decision was based on proper procedure as the Commission

gave notice of the public hearing, the Property Owners had an opportunity to present their 

comments and concerns, the Property Owners were able to submit documents and evidence in 

support of their position prior to the public hearing, and the Property Owners’ counsel attended 

the hearing. 

The circuit court also found that the SLUP decision was supported by competent, 

material, and substantial evidence because the record reflected that the Commission “discussed 

the application at length, listened to public comment, asked questions, engaged in dialogue, and 

conscientiously deliberated. Both sides presented evidence in support of their positions, and it 

appear[ed] that all evidence was considered.” The circuit court said that this demonstrated that 

the Commission “considered the required factors, the safety of property owners and the public, 

aesthetics, traffic, natural resources, nuisance conditions, the impact of the proposal on 

surrounding land uses, and the like, it made a decision that was always going to be unpopular 

with one side.” The parties then appealed. 

II. UNLAWFUL EXPANSION OF THE NVC

The Property Owners argue that the Commission lacked authority to issue the SLUP 

because (1) the Knolls’ proposed use of the outlot as a private marina unlawfully expanded it to a

nonconforming use, and (2) the outlot does not qualify for the special land use process set forth 

in zoning ordinance Section 11.08. We disagree.

 5 The circuit court’s ruling on the declaratory judgment is not challenged here. However, the 

circuit court reasoned that, although the Property Owners moved under the proper court rule 

(MCR 2.605 which governs declaratory relief), what it actually was seeking was a temporary 

stay pending resolution of the issue of whether a MDEQ permit was required to install the docks. 

The circuit court characterized it as an injunction and noted that the Property Owners did not cite 

or argue the appropriate standard. The circuit court went on to find that the Property Owners 

were not likely to succeed on the merits (the only injunction factor discussed in its motion). The 

Property Owners’ nuisance claim based on MDEQ permitting was premature and that, contrary 

to Property Owners’ assertion, seasonal docking structures did not constitute a marina under 

NREPA anyway. 
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This Court reviews zoning decisions de novo. Edw C Levy Co v Marine City Zoning Bd 

of Appeals, 293 Mich App 333, 340; 810 NW2d 621 (2011). Courts must affirm a zoning 

decision unless it is contrary to law, based on improper procedure, unsupported by competent, 

material, and substantial evidence on the record, or was an abuse of discretion. Id. The 

interpretation of a zoning ordinance presents a question of law subject to review de novo. Gora 

v Ferndale, 456 Mich 704, 711; 576 NW2d 141 (1998).

The rules of statutory construction apply to the interpretation of municipal ordinances. 

Gora, 456 Mich at 711. As a general rule courts should defer to the interpretation of the statute 

by the administrative agency which is legislatively charged with enforcing it. Ford Motor Co v 

Bruce Township, 264 Mich App 1, 7; 689 NW2d 764 (2004). However, where the language used 

in the zoning ordinance is clear, the ordinance must be enforced as written. Kalinoff v Columbus 

Twp, 214 Mich App 7, 10–11; 542 NW2d 276 (1995). If reasonable minds could differ 

regarding the meaning of a statute, judicial construction is appropriate. Adrian School Dist v 

Michigan Public School Employees Retirement System, 458 Mich 326, 332; 582 NW2d 767 

(1998). Where specific definitions are not provided, “terms used in an ordinance must be given 

their plain and ordinary meanings.” Great Lakes Soc v Georgetown Charter Twp, 281 Mich App 

396, 408; 761 NW2d 371 (2008).

The Lake Access Regulations established under Section 11.08 of the Charter Township 

of Independence zoning ordinance states:

B. Keyhole Water Access Prohibited. Keyhole water access shall be prohibited, 

except as may be permitted and approved under subsections C. and D. below.

C. Special Land Use Approval for Private Access Property.

1. In any zoning district where a parcel of land is contiguous to a lake, special 

land use approval under Article 7.0 of this Zoning Ordinance is required, except 

as specifically exempted in subsections 2 and 3, below, to use all or any portion of 

such parcel as private access property. 

2. Special land use approval is not required for property for the sole purpose of 

swimming and/or day usage. 

3. Special land use approval is not required for direct water access from individual 

parcels occupied as a single family residence.

Section 2.02 defines a number of relevant terms, including “private access property,” as 

“[a] site that is directly adjoined to and part of a single-family residential subdivision or 

condominium development and under the jurisdiction of a condominium association or 

subdivision association, which site is used, or proposed to be used, to provide water access 

exclusively to owners or occupants of residential units within the subdivision or condominium 

association.”

The Property Owners contend that the statute requires that the outlot must be a “private 

access property” in order to qualify for the SLUP, and that the Knolls’ outlot does not qualify

because the Knolls is not a “condominium association or subdivision association.” As the circuit 
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court correctly analyzed, the Property Owners’ interpretation transposes the words of the 

ordinance. Section 11.08(C)(1) does not require that a parcel qualify as a “private access 

property,” but merely requires an SLUP to use the outlot as such. 

The Property Owners next argue that the SLUP is an unlawful expansion of the NVC, in 

violation of MCL 125.3208(2), which states in relevant part that a “legislative body may provide 

in a zoning ordinance for the completion, resumption, restoration, reconstruction, extension, or 

substitution of nonconforming uses or structures upon terms and conditions provided in the 

zoning ordinance.”

“[O]ne of the goals of local zoning is the gradual elimination of nonconforming uses.” 

Century Cellunet of Southern Mich Cellular, Ltd Partnership v Summit Twp, 250 Mich App 543, 

546; 655 NW2d 245 (2002). “A prior nonconforming use is a vested right to continue the lawful

use of real estate in the manner it was used prior to the adoption of a zoning ordinance” and “[a] 

zoning ordinance cannot operate to oust the property owner of his vested right even though the 

ordinance is reasonable.” Gackler Land Co, Inc v Yankee Springs Twp, 427 Mich 562, 573–574; 

398 NW2d 393 (1986) (quotation marks omitted). However, the expansion of a prior 

nonconforming use is generally not permitted. Edw C Levy Co, 293 Mich App at 342. 

The Knolls challenged the NVC decision in the circuit court but that challenge was 

dismissed by stipulation subject to reinstatement following the conclusion of the instant SLUP 

matter. Because the proceedings in this case are focused on the SLUP, the factual question of 

whether or not the SLUP decision effectively expands the NVC is not properly before this Court. 

Nor did the unanswered NVC issue present a valid reason for denial of the SLUP. See Salkin, 

Abandonment, Discontinuance and Amortization of Nonconforming Uses: Lessons for Drafters 

of Zoning Regulations, 38 Real Est LJ 486, 496 (2010) (“Once the special use permit is granted, 

it becomes the operative document regarding the permitted uses of the property, and the use of 

the property is no longer considered a nonconforming use . . . .”). Thus, the Commission had 

authority to issue the SLUP as the outlot, even with the NVC, qualified for the special land use 

process set forth in Section 11.08. 

III. COMPETENT, MATERIAL, SUBSTANTIAL EVIDENCE

The Property Owners next argue that the SLUP decision was not supported by competent, 

material, and substantial evidence because the evidence that the Commission relied on was 

anecdotal and conjectural. They also contend that the Commission ignored the following 

evidence: (1) the report by Fred Daris that the lake is already overcrowded, (2) testimony from 

several riparian property owners regarding the impact that overcrowding has on their use and 

enjoyment of the lake, and (3) the Carlisle’s report recommending no more than six boats and 

two docks. We disagree.

We stated in Edw C Levy Co, 293 Mich App at 340–41:

“Substantial evidence” is evidence that a reasonable person would accept as 

sufficient to support a conclusion. While this requires more than a scintilla of 

evidence, it may be substantially less than a preponderance. Under the 

substantial-evidence test, the circuit court’s review is not de novo and the court is 
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not permitted to draw its own conclusions from the evidence presented to the 

administrative body. Courts must give deference to an agency’s findings of fact. 

When there is substantial evidence, a reviewing court must not substitute its 

discretion for that of the administrative tribunal even if the court might have 

reached a different result. A court may not set aside findings merely because 

alternative findings also could have been supported by substantial evidence on the 

record. [Internal quotation marks, footnotes, and citations omitted.]

Prior to approval of the SLUP, the Commission held a public hearing on the matter, and 

considered evidence from all the stakeholders. The minutes indicate that the Commission

received historical documentation regarding past use of the outlot in addition to public comments 

and anecdotes supporting both the Knolls and the Property Owners. The Commission inferred 

from this evidence that, based on the Knolls’ history of self-policing and restraint, granting the 

SLUP would be appropriate under the standards listed in Section 7.03(g). The fact that some of 

the evidence was anecdotal is not surprising because the hearing was open for public comments, 

and the Property Owners give no reason why the Commission could not consider such evidence. 

Hughes v Almena Twp, 284 Mich App 50, 73; 771 NW2d 453 (2009) (“A local land use agency 

may properly consider relevant public comments as evidence.”). Additionally, the Commission

had to engage in speculation in order to consider potential future effects of the SLUP. Therefore, 

consideration of the outlot by-laws and the site plan, which disclosed how the outlot would be 

used, was relevant. 

The minutes show that the Commission engaged in lengthy discussions regarding the 

safety issues raised by Daris and the riparian owners, and questioned Carlisle at length and 

discussed his report. The Commission did not ignore this evidence; rather, it considered it at 

length and still decided to issue the SLUP anyway. 

In essence, the Property Owners are requesting that this Court consider the same evidence 

but draw a different conclusion. We decline to do so, as our role is to determine only whether 

the Commission’s decision is supported by competent, material, and substantial evidence on the 

record, which we find it was. Edw C Levy Co, 293 Mich App at 340–41 (“A court may not set 

aside findings merely because alternative findings also could have been supported by substantial 

evidence on the record.”). 

IV. AGGRIEVED PARTY

The Knolls argues that the circuit court committed error requiring reversal when it found 

that the Property Owners are an aggrieved party because there is no evidence that the Knolls’

docking will harm it in any way, let alone evidence that the docking will cause harm to it that is 

distinct from that of the general public who also use the public lake. We disagree.

The question whether a party has standing is a question of law that this Court reviews de 

novo. Lee v Macomb Co Bd of Comm’rs, 464 Mich 726, 734–736, 629 NW2d 900 (2001). As 

this Court noted in Olsen, “standing” in a case involving an appeal from a zoning decision is 

governed by MCL 125.3605, which permits appeals to the circuit court by an “aggrieved party.” 

Olsen v Chikaming Twp, 325 Mich App 170, 180-181; 924 NW2d 889 (2018). Thus, the proper 
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question is not whether Property Owners have “standing” but whether it is a “party aggrieved by 

the [SLUP] decision.” See id. This Court stated:

Incidental inconveniences such as increased traffic congestion, general aesthetic 

and economic losses, population increases, or common environmental changes are 

insufficient to show that a party is aggrieved. See [Unger v Forest Home Twp, 65 

Mich App 614, 617; 237 NW2d 582 (1975); Joseph v Grand Blanc Twp, 5 Mich 

App 566, 571; 147 NW2d 458 (1967)]. Instead, there must be a unique harm, 

dissimilar from the effect that other similarly situated property owners may 

experience. See [Western Mich Univ Bd of Trustees v Brink, 81 Mich App 99, 

103 n 1; 265 NW2d 56 (1978)]. Moreover, mere ownership of an adjoining 

parcel of land is insufficient to show that a party is aggrieved, Village of Franklin, 

[101 Mich App at 557–558], as is the mere entitlement to notice, Brink, [81 Mich 

App at 102–103]. [Id. at 185.]

The circuit court found that the Property Owners had alleged more than simply their 

status as lakefront property owners and so had standing based on Higgins Lake Property Owners 

Assn v Gerrish Twp, 255 Mich App 83, 91; 662 NW2d 387 (2003). In Higgins Lake, this Court 

found that a similarly-situated set of property owners and their association had standing, 

explaining:

The HLPOA is a nonprofit corporation whose members are primarily lakefront 

property owners. The purpose of the HLPOA is to protect the lake, the 

watershed, and the interests of its members. The HLPOA asserts that the alleged 

overuse of, and concentration of persons and watercraft, at the road ends is 

affecting its members’ enjoyment of the lake as well as their property values. 

Accordingly, the HLPOA has standing to sue as a nonprofit membership 

organization litigating to vindicate the interest of its members. [255 Mich App 

91.]

The Knolls argues that Higgins Lake is factually distinguishable because it concerned the 

issue of whether a homeowners association had standing as a nonprofit, not whether it had 

alleged harm sufficiently. At issue in that case was the scope of the public’s right to use road 

ends on Higgins Lake. Higgins Lake, 255 Mich App at 88. The subdivision plats dedicated the 

streets and alleys “to the use of the public” and backlot owners used the road ends for “lounging, 

sunbathing, and picnicking,” as well as mooring boats and placing boat hoists at the road ends. 

Id. The plaintiffs argued that these activities exceeded the scope of the dedication and that the 

dedication was limited to access only while the defendants presented evidence of the traditional 

and historical uses of the road ends, which included sunbathing, picnicking, lounging, and boat 

mooring for many years. Id. at 89, 92. This Court concluded that the association had standing, 

where it had “alleged overuse of, and concentration of persons and watercraft, at the road ends 

[affected] its members’ enjoyment of the lake as well as their property values.” Id. at 91. 

The Knolls argues that the Property Owners failed to allege harm sufficient to meet this 

standard. Although overburdening is a generalized harm that is not directly tied to the SLUP 

decision, the other alleged harms of affected property values, and aesthetic and environmental 

impacts are sufficiently pleaded. While “[i]ncidental inconveniences such as . . . general 
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aesthetic and economic losses, population increases, or common environmental changes are 

insufficient to show that a party is aggrieved,” Olsen, 325 Mich App at 185, the Property Owners 

pleaded more than mere generalized harms. In particular, the Property Owners alleged that the 

additional docks may disrupt or destroy the shoreline and its ecosystem. As riparian owners who 

share this shoreline, they have an interest beyond that of other lake users, the public at large, or 

even similarly situated neighbors. Moreover, the Property Owners are more likely to be affected 

by these additions and line of sight alterations than the public, or other lake users, by virtue of 

their proximity to the outlot and the situation of its members respective properties in relation to 

the outlot. Accordingly, the Property Owners are an “aggrieved party.”

V. CONCLUSION

The circuit court correctly concluded that the Commission had the authority to issue the 

SLUP, that its decision was supported by competent, material, and substantial evidence on the 

record, and that Property Owners are an aggrieved party. 

Affirmed.

/s/ Michael J. Riordan 

/s/ Kirsten Frank Kelly 

/s/ Thomas C. Cameron