Order                                                                        Michigan Supreme Court
                                                                                   Lansing, Michigan

  February 4, 2011                                                                   Robert P. Young, Jr.,
                                                                                               Chief Justice

  140685                                                                             Michael F. Cavanagh
                                                                                           Marilyn Kelly
                                                                                     Stephen J. Markman
                                                                                     Diane M. Hathaway
                                                                                         Mary Beth Kelly
  CAROL DRAKE and CLELLEN BURY,                                                          Brian K. Zahra,
           Plaintiffs-Appellants,                                                                   Justices

  v                                                       SC: 140685
                                                          COA: 287502
                                                          Berrien CC: 2008-000247-CE
  CITY OF BENTON HARBOR and HARBOR
  SHORES COMMUNITY REDEVELOPMENT
  CORPORATION,
            Defendants-Appellees.

  _________________________________________/

         On January 21, 2011, the Court heard oral argument on the application for leave to
  appeal the January 21, 2010 judgment of the Court of Appeals. On order of the Court,
  the application is again considered, and it is DENIED, because we are not persuaded that
  the questions presented should be reviewed by this Court.

         MARKMAN, J. (dissenting).

         The only issue in this case concerns whether a “championship Jack Nicklaus”
  privately-owned golf course constitutes a “park use,” consistent with J. N. and Carrie
  Klock’s deed to the City of Benton Harbor of property to be designated as Jean Klock
  Park in memory of their daughter who had died in infancy. The City, having previously
  sold a portion of Jean Klock Park to a private developer for a residential housing
  development, now attempts to justify the use of a remaining portion of the park for a golf
  course on, among other grounds, “underutilization” of the park, “economic
  development,” “jobs,” and the establishment of a “tourist destination.” However
  admirable these objectives, it is J. N. and Carrie Klock’s intentions that control here, not
  those of the current city government, and the Klocks’ intentions must control even if they
  are now viewed by the City as inconvenient to the pursuit of objectives preferred by the
  City. In my judgment, and for reasons that require little more than resort to the
  customary understanding of the term “park” by ordinary users of our language, I believe
  that the City’s use of Jean Klock Park, by leasing portions of it for 105 years to a private
  commercial entity, the Harbor Shores Community Redevelopment, Inc., for its use as a
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golf course, constitutes a breach of faith with the Klocks, and should be enjoined.
Although the City prevails today, it, and other communities throughout our state, may
well come out losers tomorrow as later generations of philanthropists look at the legacy
of J. N. and Carrie Klock and come to question the faithfulness of government in
upholding their intentions after they too have passed. I respectfully dissent.




                        I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                  foregoing is a true and complete copy of the order entered at the direction of the Court.
                        February 4, 2011                    _________________________________________
       s0201                                                                Clerk
