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

LIVINGSTON COUNTY HOCKEY 

ASSOCIATION, INC.,

Petitioner-Appellant,

UNPUBLISHED

May 6, 2021

v No. 352715

Tax Tribunal

TOWNSHIP OF GENOA, LC No. 18-000021-TT

Respondent-Appellee.

Before: BORRELLO, P.J., and BECKERING and SWARTZLE, JJ.

SWARTZLE, J. (concurring).

I respectfully concur in the result only. I disagree with the majority that this case is 

materially distinguishable from this Court’s prior decision in Chelsea Health and Wellness 

Foundation v Township of Scio, unpublished per curiam opinion of the Court of Appeals, issued 

Oct. 12, 2017 (Docket No. 332483). As the majority points out, the Foundation’s activities in 

Chelsea Health and Wellness Foundation focus on physical activity, nutrition, and other 

miscellaneous health-and-wellness matters. Id. at 2-3. The Foundation charges a monthly fee for 

individual memberships, and it offers “scholarship options” in limited circumstances, id. at 3

(though these “scholarships” seem indistinguishable from common membership discounts offered 

by traditional gyms that are based on a person’s financial status or “your first 2 months FREE!”-

type promotions).

Although not on the same scale or scope, petitioner offers activities and benefits analogous 

to those of the exercise facility described in Chelsea Health and Wellness Foundation. Petitioner 

is a non-profit in good-standing, and thus it does not make a profit from either the fees it charges

or any other source of revenue. The parties stipulated that, through activities offered in its facility, 

petitioner has helped persons build endurance, gain physical agility, improve balance and joint 

flexibility, manage and maintain a healthy weight, and build self-confidence. The parties also 

stipulated that skating and playing hockey improve a person’s mental fitness and relieve stress, 

and anyone who has spent any significant time on a treadmill or elliptical machine likely suspects 

that petitioner has the upper hand in these areas compared to those in Chelsea Health and Wellness 
-2-

Foundation. Both petitioner’s skating facility and the Foundation’s exercise facility in Chelsea 

Health and Wellness Foundation offer various ancillary services, but the primary activities of both 

are undeniably physical exercise and personal wellness.

For these reasons, as well as others spelled out in more detail by petitioner in its appellate 

briefs, petitioner’s activities are similar in-kind, if not in scale or scope, as those of the Foundation 

in Chelsea Health and Wellness Foundation. I am not aware of any “scale or scope” requirement 

that would be relevant here, and, accordingly, if Chelsea Health and Wellness Foundation had 

been a published decision (and therefore binding on this panel under MCR 7.215(C)) or was 

otherwise persuasive, then petitioner would have been entitled to a tax exemption under MCL 

211.7o(1), and I would have written a dissent, rather than a concurrence. But Chelsea Health and 

Wellness Foundation is neither published nor persuasive.1

My fundamental problem with Chelsea Health and Wellness Foundation is that providing 

physical exercise and personal wellness facilities to members is not a burden of state government 

for which a charitable tax exemption is appropriate. Whether a person decides to engage in 

physical exercise (or not) has no relation to any proper burden of state government. Our state 

government is not coextensive with the source of its authority—the persons who, in their

aggregate, make up The People of the State of Michigan. Rather, our state government is, in an 

important sense, merely an organization (albeit a vital one, subdivided in many ways) that has been 

delegated certain collective responsibilities by the people of Michigan. There are many types of 

burdens that fall on communities, groups, families, and individual persons for which a state 

department or bureau has no relevance or role. And one of the burdens that falls squarely on an 

individual person is whether that person will engage in a physical activity for exercise.

Our Constitution does make “public health and general welfare of the people of the state . 

. . matters of primary public concern.” Const 1963, art 4, § 51. This provision, however, is 

properly understood to focus on the public health and general welfare of the people, i.e., health 

risks and benefits that exist at some relevant population level. For example, coordinating the 

distribution of vaccines across the state during a pandemic would certainly fall within this 

category. Another example would be providing physical education in our public schools. See 

MCL 380.1502. This constitutional provision is broadly worded and therefore should be broadly 

understood. But broadly does not mean boundlessly. See City of Gaylord v Beckett, 378 Mich 

273, 295; 144 NW2d 460 (1966).

 

1

I have sat on several panels involving aspects of Chelsea Health and Wellness Foundation, but 

under law-of-the-case principles, the question about the appropriateness of the charitable taxexemption to the Foundation itself was never presented. See Power Wellness Mgt, LLC v City of 

Dexter, unpublished per curiam opinion of the Court of Appeals, issued Mar. 4, 2021 (Docket No. 

352226); City of Dexter v Power Wellness Mgt, LLC, unpublished per curiam opinion of the Court 

of Appeals, issued Mar. 4, 2021 (Docket No. 349793); City of Dexter v Chelsea Health & Wellness 

Foundation, unpublished per curiam opinion of the Court of Appeals, issued Dec. 20, 2018 

(Docket No. 342364).
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One could rejoin that if a person does not exercise, then that person might not be as healthy 

as the person could otherwise be, which might then increase the risk of an unhealthy outcome for 

that person, which might then increase healthcare costs incurred by that person, which might then 

be passed along to taxpayers under certain circumstances. See Chelsea Health and Wellness 

Foundation, unpub op at 11-12. This is a rather attenuated line of reasoning to justify imposing a 

burden on state government that it must then address in some fashion, through tax breaks or 

otherwise. Moreover, there is no limiting principle to this line of reasoning—anything that impacts 

a person’s health in any way, shape, or form would, under this logic, impose a burden on 

government that would then need to be addressed by it. We should all be quite wary of a 

government that accepts the burden as to whether and to what extent a person exercises or follows 

a diet.

This does not, of course, mean that exercise facilities can never receive a tax exemption. 

Our Legislature has the authority to provide tax exemptions associated with all kinds of different 

activities, Const 1963, art 9, and, like any other interest group, exercise facilities could organize 

and petition the Legislature for a tax exemption, Const 1963, art 1, § 3. Whether this does or does 

not make sound tax policy would then be open to public debate in the body where such debates 

are supposed to take place, the Legislature. Const 1963, art 4, §§ 1, 20, 32. But what an exercise 

facility should not be able to do is gain a tax exemption as a charity because it is deemed by a court 

to be lessening a burden of state government—it is not, in fact, lessening any burden of state 

government, properly understood.

Accordingly, I agree with the majority that petitioner is not a charitable institution for 

purposes of MCL 211.7o(1), but I disagree with its conclusion that this case is materially 

distinguishable from Chelsea Health and Wellness Foundation. For this reason, I respectfully 

concur in the result only.

/s/ Brock A. Swartzle