Joseph Circuit Court LC No. 16-000104-CZ
Before: Wilder, P.J., and Boonstra and O'Brien, JJ.
Township of Lockport ("the Township") appeals as of
right the trial court's order granting summary
disposition in favor of the City of Three Rivers ("the
City"). We reverse.
case arises out of the City's attempt to annex
approximately 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 transmission
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
recreation 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
Township filed this lawsuit on February 3, 2016, seeking,
ultimately, to prevent the annexation. A temporary
restraining order was entered, and proceedings continued from
there. A hearing on the Township's motion for preliminary
injunction was held on February 17, 2016, and, after hearing
the parties' arguments and reviewing the parties'
filings, the trial court denied the Township's motion for
preliminary injunction and granted the City's motion for
summary disposition. Its decision was based, primarily, on
its conclusion that the Township's lawsuit could not
succeed 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.
courts review a trial court's decision on a motion for
summary disposition de novo. Bernardoni v Saginaw,
499 Mich. 470, 472; 886 N.W.2d 109 (2016). "A motion for
summary disposition made under MCR 2.116(C)(10) tests the
factual sufficiency of the complaint." Id.
Summary disposition pursuant to MCR 2.116(C)(10) is
appropriate when, "[e]xcept for the amount of damages,
there is no genuine issue as to any material fact, and the
moving party is entitled to judgment or partial judgment as a
matter 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 N.W.2d 210 (1998).
case, the trial court granted the City's motion for
summary 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 provision is reviewed de novo
on appeal. Yono v Dep't of Transp, 499 Mich.
636, 645; 885 N.W.2d 445 (2016). "When interpreting a
statute, [the] foremost rule of construction is to discern
and give effect to the Legislature's intent. Because the
language chosen is the most reliable indicator of that
intent, [appellate courts] enforce clear and unambiguous
statutory language as written, giving effect to every word,
phrase, and clause." Wyandotte Electric Supply Co v
Electrical Tech Sys, Inc, 499 Mich. 127, 137; 881 N.W.2d
95 (2016). If the statutory provision at issue is clear and
unambiguous, it must be enforced as written, and no judicial
construction is permitted or required. Bank of America,
NA v First American Title Ins Co, 499 Mich. 74, 85; 878
N.W.2d 816 (2016).
the trial court interpreted and applied MCL 117.9(8), which
provides, in relevant part, as follows:
Where the territory proposed to be annexed to any city is
adjacent and consists of a park or vacant property located in
a township and owned by the city annexing the territory, and
there is no one residing in the territory, the territory may
be annexed to the city solely by resolution of the city
council of the city. . . .
simply, this portion of MCL 117.9(8) "authorizes a city
to annex certain vacant land that the city owns by enacting a
resolution for annexation and requires 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 N.W.2d 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).
term "vacant" is not defined in MCL 117.9(8) or the
remainder of the HRCA with regard to that specific
subsection. Nevertheless, this Court has previously
interpreted and applied the term in several decisions, and
each party in this case 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 N.W.2d 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 N.W.2d 608 (1981) ("the Saline
decision"), where this Court concluded that a parcel of
land used seasonally for the production of crops and subject
to leasing agreements was vacant for purposes of MCL
117.9(8). While neither decision is directly on point, or
binding, MCR 7.215(J)(1), we are of the view that both
support the Township's position in this case.
Ann Arbor decision, this Court, recognizing that the
statutory language should be interpreted and applied
"according to [its] common and approved usage, "
turned to the dictionary definition of "vacant" and
defined "vacant land as that which is not put to
use." 86 Mich.App. at 235. Applying that definition,
this Court concluded that the parcel 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 ordinary meaning test to determine
the definition of vacant [in the Ann Arbor
decision]." 103 Mich.App. at 107. Applying that
ordinary-meaning test, this Court 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[.]" In our view, both of these decisions
correctly apply and interpret the statutory language at issue
according to its plain and ordinary meaning, and we choose to
do the same here.
term "vacant, " as it applies to real property, can
still be 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 vacant when it is
only seasonally used 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
constantly 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 to
the facts and circumstances of this case. Had the waterline
been in "temporary, seasonal" use or subject to a
lease that might be terminated at any time, the
Saline decision would arguably apply. But, those are
simply not the facts before us in this case.
appeal, the City argues that, in the Saline
decision, this Court implicitly rejected the interpretation
and application of the term "vacant" that was used
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 'for any beneficial
purposes, ' " that distinction has no impact on the
outcome of this case. 103 Mich.App. at 107. Whether MCL
117.9(8) requires that land "not be utilized for any
beneficial purpose" in order to be vacant is of no
relevance to us here because the real property ...