                          STATE OF MICHIGAN

                           COURT OF APPEALS



TOWNSHIP OF LOCKPORT,                                               PUBLISHED
                                                                    May 9, 2017
               Plaintiff-Appellant,                                 9:10 a.m.

v                                                                   No. 331711
                                                                    Saint Joseph Circuit Court
CITY OF THREE RIVERS,                                               LC No. 16-000104-CZ

               Defendant-Appellee.


Before: WILDER, P.J., and BOONSTRA and O’BRIEN, JJ.

O’BRIEN, J.

       The 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.

        This 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.

       Appellate courts review a trial court’s decision on a motion for summary disposition de
novo. Bernardoni v Saginaw, 499 Mich 470, 472; 886 NW2d 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

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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 NW2d 210 (1998).

         In this 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 NW2d 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 NW2d 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 NW2d 816 (2016).

       Specifically, 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. . . .

Stated 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 NW2d 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).

         The 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 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). 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.

        In the 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

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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[.]”1 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.

       The 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.

        On 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 at issue in this case was being “put to use[.]”
86 Mich App at 235. Consequently, it is not vacant for purposes of MCL 117.9(8).

       On appeal, the City also relies on the fact that “the water line is ‘buried’ underground” to
support its position. Its reliance in this regard is misplaced. MCL 117.9(8) refers to “property,”
and we are unable to find any authority to support the notion that “property” refers only to the
above-ground portion of the land at issue.2 The word “land” can be defined as “the solid part of



1
  Nearly a decade later, this Court was presented with a similar issue and expressly concluded
that “agricultural” uses, alone, do not render property vacant for purposes of MCL 117.9(8). See
Wheatfield Twp v Williamston, 184 Mich App 745, 746; 458 NW2d 670 (1990). Agricultural
uses are simply distinguishable from the constant presence of the water transmission line at issue
here.
2
  The term property is defined as “a piece of real estate,” which is not particularly helpful under
the facts and circumstances of this case. Meriam-Webster’s Collegiate Dictionary (11th ed).
However, it is apparent, in our view, that the Legislature’s reference to “property” in this case is

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the surface of the earth[,]” Merriam-Webster’s Collegiate Dictionary (11th ed), or “an
immovable and indestructible three-dimensional area consisting of a portion of the earth’s
surface, the space above and below the surface, and everything growing on or permanently
affixed to it[,]” Black’s Law Dictionary (10th ed). Using these definitions, it is, in our view,
quite apparent that the term “property” as used in MCL 117.9(8) contemplates the space below
the surface, which is precisely where the water transmission line is.3

        The City’s remaining arguments on appeal emphasize the fact that the water transmission
line exists on only “a de minimus portion of the” land at issue and the fact that the water
transmission line exists only due to “a ‘non-exclusive’ underground . . . easement[.]” In our
view, these facts have little, if any, impact on our analysis. First, MCL 117.9(8) requires
vacancy, not partial vacancy. Had the Legislature intended to require partial vacancy or
otherwise exclude de minimus uses, it certainly could have expressed such an intent in the
statutory language. It did not. Second, while the City is correct in asserting that the easement is
non-exclusive, the City’s position fails to acknowledge the fact that the easement is also
permanent.4 Had the easement been non-exclusive and temporary, the Saline decision described
above would arguably be directly on point. But, as indicated above, it is not. These arguments
are therefore unpersuasive.

       Accordingly, because the trial court erred in interpreting and applying the term “vacant”
as used in MCL 117.9(8), we reverse its 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).5

a reference to “real property,” which can be defined as “[l]and and anything growing on,
attached to, or erected on it, excluding anything that may be severed without injury to the
land[.]” Black’s Law Dictionary (10th ed). Consequently, we turn to the definition of “land” to
determine the Legislature’s intent in this regard.
3
  We also reject any notion that our Supreme Court’s decision in Rutland Twp v Hastings, 413
Mich 560; 321 NW2d 647 (1982), stands for the proposition that underground structures are
irrelevant when determining whether land is “vacant” for purposes of MCL 117.9(8). While it is
true that the Supreme Court referred to the land at issue as “vacant land,” it expressly noted that
it was doing so based on the fact that “[t]he circuit judge found that the parcel subject to
annexation was ‘vacant’ within the meaning of the statute” at trial. Id. at 562 n 2. In our view,
that brief reference to the land as vacant does not suggest that the Supreme Court held, as a
matter of law, that land with only underground structures is “vacant” under MCL 117.9(8).
4
  The easement agreement expressly “grant[ed] and convey[ed] to the [Township], its successors
and assigns, a permanent, non-exclusive easement and right away in which to construct, operate,
remove, inspect, repair, maintain and replace, a water transmission line, in, over, across, and
through ‘the property[.]’ ”
5
  Because the Township is entitled to judgment in its favor as a matter of law, we need not
address whether the trial court erred in denying the Township’s motion for preliminary
injunction based on the likelihood of the Township’s claim succeeding on its merits.
Nevertheless, the resolution of that issue is likely apparent in light of our conclusion above.


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Reversed and remanded. We do not retain jurisdiction.

                                                  /s/ Colleen A. O'Brien
                                                  /s/ Kurtis T. Wilder
                                                  /s/ Mark T. Boonstra




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