Zoning violations; Private nuisance per se & private nuisance in fact; Cleveland v Hath; Standing; Sakorafos v Lyon Charter Twp; Effect of a local zoning ordinance; MCL 125.3407; Applicability of Unger v Forest Home Twp; Evidence of special damages; Lansing Sch Educ Ass’n v Lansing Bd of Educ; Evidence of sufficient harm; Attorney fees & costs; MCL 600.2591(1) & (3)(b); Manchester Township Zoning Ordinances (MTZO)

In these consolidated appeals, the court held that the trial court erred in granting defendant-Ashkay Island, LLC summary disposition of plaintiff-Pigeon’s private nuisance claims based on standing. It also vacated the award of attorney fees and costs to Ashkay as premature because, given its reversal of summary disposition, Ashkay was “not yet the prevailing party.” The case concerned Ashkay’s use of an island located within a lake (Iron Mill Pond) in a township. “Ashkay owns the island and another parcel of real property abutting Iron Mill Pond. Pigeon owns multiple parcels of real property abutting Iron Mill Pond, including his primary residence.” The parties have been involved in prior ligitgation. Pigeon filed this action in 2022. “Here, the question of standing relates to the damages or harm associated with Pigeon’s two related claims: (1) private nuisance per se, and (2) private nuisance in fact.” He contended that a local zoning ordinance, MTZO § 18.09, provided “a legal cause of action and thus confers standing on him under the principles set forth in Lansing Sch.” The court agreed. The ordinance provides that the “‘Township Board, the Township Zoning Administrator, the Township Building Inspector, the Board of Appeals, the Attorney of the Township, or any owner or owners of real estate within the district in which such building, structure or land is situated may institute injunction, mandamus, abatement or any other appropriate action or actions, proceeding or proceedings to prevent, enjoin, abate, or remove any said unlawful construction, maintenance or use.’” While Ashkay contended MTZO § 18.09 violates MCL 125.3407, the court found no conflict between them. It added that “even without relying on MTZO § 18.09, Pigeon has standing because he has presented evidence of special damages.” The evidence supported a finding that his “interests are detrimentally affected in a manner distinct from that of the public generally. Ashkay’s maintenance of structures lacking the required access poses an increased danger resulting from a fire or release of toxic material. Its activities could also be viewed as diminishing the rural character of the lake, which is part of a rural agricultural zoning district, thereby harming Pigeon’s aesthetic interests.” The court further held that he offered “evidence of sufficient harm to maintain a cause of action for a private nuisance in fact.”