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STATE OF MICHIGAN
COURT OF APPEALS


ROBERT E. WHITMAN, Plaintiff-Appellee, v LAKE DIANE CORPORATION, Defendant-Appellant.

FOR PUBLICATION June 28, 2005 9:10 a.m. No. 258553 Hillsdale Circuit Court LC No. 03-000800-CH Official Reported Version

Before: Hoekstra, P.J., and Jansen and Kelly, JJ. PER CURIAM. In this action for declaratory and injunctive relief, defendant Lake Diane Corporation appeals as of right the trial court's order granting plaintiff Robert E. Whitman's motion for summary disposition and permanently enjoining defendant from conducting an election, pursuant to MCL 455.206, to expand the territory under its jurisdiction. We affirm. I. Basic Facts and Procedural History Defendant is a nonprofit corporation formed in 1977 under the summer resort owners corporation act, MCL 455.201 et seq., which provides for the creation and operation of a corporate association of property owners to act as a local body of governance for summer resort communities. See MCL 455.204. The act requires property owners who become members of the corporation to execute grants of authority under which the corporation is given "the right to exercise all jurisdiction, conferred by [the] act, over the lands owned by members of [the] corporation . . . ." MCL 455.207. During the first two years following incorporation, "land of no owner that does not voluntarily join [the] corporation can be compelled to come under the jurisdiction of the corporation . . . ." MCL 455.206. However, following two years of continuous operation within "the territory to be affected," the corporation may call for an election to determine whether the "entire territory" comprising the resort community "should become entirely incorporated." Id. In September 2003, defendant's board of trustees resolved to hold such an election for the purpose of expanding the territory of the corporation to include all lakefront property along Lake Diane in southern Hillsdale County. As required by MCL 455.206a, defendant published notice of the election, which was to be held on December 13, 2003, in a newspaper of general -1-


circulation within the county for a period of four weeks immediately preceding the election. As also required by the act, defendant provided for the registration of "all freeholders" within the affected area "qualified" under the act to vote on the proposed expansion. See MCL 455.206b and MCL 455.206c. On the eve of the election, however, plaintiff, who owns property along the shore of Lake Diane not currently under defendant's jurisdiction, brought this action for declaratory and injunctive relief, challenging the constitutionality of the summer resort owners corporation act on a number of grounds.1 A temporary restraining order enjoining defendant from conducting the scheduled election was issued by the trial court on December 12, 2003. A preliminary injunction to the same effect was issued in January of the following year. Both parties thereafter sought summary disposition under MCR 2.116(C)(10). At the hearing on these motions, the trial court declined to address the constitutional arguments raised by plaintiff, choosing instead to invalidate sua sponte the act's election procedures on the ground that "the election process contained within the statute is invalid in that it does not specifically detail the requirements . . . as to who votes, how they vote, when they vote, and all the other requirements necessary for a valid election . . . ." Finding this lack of direction to violate constitutional due process requirements, the trial court enjoined the proposed election until such time as the procedural deficiencies identified by the court are addressed by the Legislature. This appeal followed. II. Analysis As a question of law, we review de novo a trial court's decision on a motion for summary disposition. Ardt v Titan Ins Co, 233 Mich App 685, 688; 593 NW2d 215 (1999). The constitutionality of a statute, which must be determined on the basis of the provisions of the act itself, is also a question of law that we review de novo on appeal. Tolksdorf v Griffith, 464 Mich 1, 5; 626 NW2d 163 (2001); Judicial Attorneys Ass'n v Michigan, 459 Mich 291, 304; 586 NW2d 894 (1998). Before undertaking such review, however, we note that the instant dispute is not the first in which the basic constitutionality of the summer resort owners corporation act has been called into question. In Baldwin v North Shore Estates Ass'n, 384 Mich 42; 179 NW2d 398 (1970), our Supreme Court was called upon to address the constitutional propriety of the weekend residency requirement of MCL 455.206c, which purports to identify those persons qualified to vote in an election under MCL 455.206 and requires, among other things, that such

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Specifically, plaintiff alleged that the summer resort owners corporation act violates the Michigan Constitution in that it is unconstitutionally vague as whole, denies equal protection of the law to out-of-state freeholders, allows the taking of private property without just compensation, and violates the local government provisions of Const 1963, art 7,

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