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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

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In <a href="http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20170509_C331711_29_331711.OPN.PDF" target="_blank" rel="noopener">Township Of Lockport v City of Three Rivers, No. 331711</a>, the COA held the trial court erred in interpreting and applying the term "vacant" as used in MCL 117.9(8).

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This case arises out of the City’s attempt to annex 80 acres of real property from the Township. In 2006, the private owners of the land and the Township into an agreement which granted the Township a 20-foot easement over the land for the installation a water transmission line. Approximately ten years later, the City purchased the land from the private owners, intending to develop a recreation facility. In response, the Township filed a temporary restraining order seeking to prevent the annexation.

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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 the land at issue was "vacant" based on its interpretation and application of the Home Rule City Act ("the HRCA"), MCL 117.1 et seq. The Township appealed, arguing that the land is not "vacant" under MCL 117.9(8). The issue 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 remainder of the HRCA with regard to that specific subsection. The Court relied on two cases to determine the meaning of "vacant." 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 production of crops and subject to leasing agreements was vacant for purposes of MCL 117.9(8). The COA held, while neither decision is directly on point, or binding, MCR 7.215(J)(1), both support the Township's position in this case.

The court held the term "vacant," as it applies to real property, can still be defined as real property that is "not put to use." 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 this case, 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 and 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.

On appeal, the Court rejected the Cities' argument that in the Saline decision, this court rejected the interpretation and application of the term "vacant" that was used in the Ann Arbor decision. The Court did agree with the Saline decision that vacancy precludes use for any beneficial purposes; however, this had no distinction or impact on the outcome of this case. The court also rejected the Cities' argument that water line is buried and rejected the de-minimus portion of the land use, since MCL 117.9(8) requires vacancy, not partial vacancy. Had the easement been non-exclusive and temporary, the Saline decision would be directly on point. But it is not.

Accordingly, the COA held the trial court erred in interpreting and applying the term "vacant" as used in MCL 117.9(8), and reversed the trial court's order granting summary disposition in favor of the City, and remand this matter for the entry of an order granting summary disposition in favor of the Township pursuant to MCR 2.116(I)(2).

Partner

Jason L. Byrne

Labor and Employment

COA: An easement is vacant if it is non-exclusive and temporary, not when it is not exclusive or permanent

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COA: An easement is vacant if it is non-exclusive and temporary, not when it is not exclusive or permanent

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