Copeland v. Genoa Twp. (Michigan Court of Appeals, June 30, 2011).
Plaintiffs were owners of neighboring units in a residential condominium project (the "Villas") built in 1997. When the Villas were developed, the developer recorded a master deed. A subdivision plan and bylaws were incorporated into the master deed by reference. The subdivision plan contained legal descriptions of where easements exist within the Villas. One of the easements was entitled "Easement for Public Utilities (Water Tower Easement)." Genoa Township thereafter built a water tower on this easement. The water tower serves the water needs of the public along with the water needs of persons residing in the Villas.
In approximately June 2009, Genoa Township negotiated a five-year lease agreement with a wireless provider for space atop and alongside the water tower upon which to erect "communications equipment, antennas and appurtenances." The lease was also to convey land space within the water tower easement for the installation of a 750 square foot accessory building for equipment related to the wireless communications antennas. The building was proposed to be 16 feet tall.
In January 2010, plaintiffs filed a declaratory action and requested injunctive relief in order to prevent Genoa Township from executing the lease. After cross-motions for summary disposition were filed by plaintiffs and Genoa Township, the trial court found that the antennas and accessory building were within the meaning of "public utility" as set forth in the deed and that the accessory building was not inconsistent with the Villas' bylaws. Thus, the trial court granted defendants summary disposition and denied plaintiffs summary disposition.
On appeal, the Court held that based on the plain and unambiguous language in the deed, the "Easement for Public Utilities (Water Tower Easement)" includes utilities for telephone and telecommunications systems and their supporting equipment. In addition, the Appellate Court stated that the bylaws “make clear that those utilities could be provided by a private company.” In regard to the Plaintiffs’ argument that the wireless provider was not a “public utility” regulated by the Michigan Public Service Commission, the Court stated that this issue was not pertinent. The language of the master deed and supporting documents were controlling.
Anthony Dorland
DorlandA@moss-barnett.com
(612) 877-5258