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Michigan Supreme Court Lansing, Michigan 48909 ____________________________________________________________________________________________

C hief Justice

Justices

Maura D. Cor rigan

Opinion
THE TOWNSHIP OF BINGHAM,
Plaintiff-Appellant,
v RLTD RAILROAD CORPORATION and
LEELANAU TRAILS ASSOCIATION,
INC.,
Defendants-Appellees.
________________________________ PER CURIAM


Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. Stephen J. Markman

____________________________________________________________________________________________________________________________

FILED APRIL 18, 2001


No. 115602


This is a dispute between a township and proponents of a
"rails to trails" recreational pathway that passes through the
township. The Court of Appeals has twice found that the


township's zoning ordinance is preempted by laws that govern
such pathways. We reverse the judgment of the Court of


Appeals and remand this case to circuit court for further
proceedings.
I


This case concerns a former rail line that, roughly
speaking, extends from Traverse City to Suttons Bay. The


right of way in Leelanau County is about one hundred feet wide
and about fifteen miles long.1 Until the late 1970s, the


Chesapeake and Ohio Railroad provided freight service along
this corridor.2
"Abandonment" of a rail line is a term that has a
specific meaning under federal and state transportation law.3
In common parlance, however, one may say that this rail line
has been abandoned since the early 1990s, when a tourist
railroad ceased operation.4
At the time this litigation arose, the owner of the
corridor was RLTD Railroad Corporation, which was in the
process of selling the property (on land contract) to the
Leelanau Trails Association, Inc. The association's intent


was to construct and maintain a "rails to trails" recreational
pathway for hikers, runners, bicyclists, and others.
From the materials at hand, it appears that the sale has
been completed. The record is less clear regarding the


present status of the pathway, but we gather that it has been


At oral argument, counsel for the township explained
that the pathway is slated to be joined with a similar tract
in Grand Traverse County, creating a renamed trail of greater
length.

2

1

We are told that passenger service ended in 1948.


See RLTD R Corp v Surface Transportation Bd, 166 F3d
808, 810-811 (CA 6, 1999).
For several years in the early 1990s, the tourist line
carried sightseers back and forth.
2

4

3

at least partially open to the public for several years.
The project had opponents. Some lived in Bingham


Township, through which the rail line passed.

Backers of the


project apparently had indicated that as many as sixty or
seventy thousand persons might use the pathway each year, and
opponents were concerned about the potential effect of such
traffic.
In September 1995, RLTD filed a petition with the Surface
Transportation Board,5 seeking to formally abandon this


stretch of track.

The association filed on the same day a


statement of its willingness to assume control of the line.6
However, the eventual result of those proceedings was a
determination that the federal board lacked jurisdiction.
RLTD R Corp v Surface Transportation Bd, 166 F3d 808 (CA 6,
1999).
While the federal matter was under way, Bingham Township
filed a February 1996 complaint against RLTD and the


association.

The township alleged a dispute regarding the


extent of its zoning authority over the project, and asked for
a declaration of rights and a preliminary injunction against
the project.
Jointly represented, the defendants moved for summary


Actually, the petition was filed with the Interstate
Commerce Commission, which no longer exists. The matter was
transferred to the Surface Transportation Board. See RLTD,
n 3 supra at 810 and 811, n 2.
In February 1995, the Michigan Department of
Transportation and the Michigan Department of Natural
Resources had declined to purchase the former rail corridor.
3

6


5


disposition.

MCR 2.116(C)(8), (10).

In their motion, the


defendants stated that the township's zoning ordinance is
preempted by federal law. The defendants' supporting brief


also mentions state law, but the focus of the brief is
likewise on federal law.
The circuit court denied the request for preliminary
injunction and granted the defendants' motion for summary
disposition.7 The court found that the township's zoning


ordinance was preempted, though the court noted "certain
important caveats"-matters pertaining to public health and
safety are subject to the authority of local government.
In its ruling, the circuit court noted the Michigan
trailways act, which is Part 721 of the Natural Resources and
Environmental Protection Act.8 13A.72101 et seq. assumption that MCL 324.72101 et seq.; MSA


However, the court's opinion reflected the
the proceedings before the Surface


Transportation Board would lead to federal oversight of the
project.
Several days later, the township filed a motion to
clarify. judgment In response, the circuit court entered a final
declaring that "the Defendants' proposed trail


construction and operation is not subject to Plaintiff's


The court discussed the differing standards for
granting motions under MCR 2.116(C)(8) and (C)(10), but did
not explicitly state the paragraph under which the motion was
being granted.

8

7


MCL 324.101 et seq.; MSA 13A.101 et seq.
4


zoning code or master plan . . . ."9
After the township filed its claim of appeal in the Court
of Appeals, the Surface Transportation Board ruled that it was
without jurisdiction. appeal. RLTD, supra.10
This decision was later upheld on


In February 1998, the Court of Appeals affirmed the
judgment of the circuit court. NW2d 731 (1998). 228 Mich App 154, 155; 576


The Court of Appeals explained its decision


by noting the Legislature's strong interest in this sort of
recreational project:
The Legislature has repeatedly exercised its
authority over the development of rail-trails. For
example, in the State Transportation Preservation
Act of 1976, the Legislature expressly stated that
"[t]he preservation of abandoned railroad rights of
way for future rail use and their interim use as
public trails is declared to be a public purpose."
MCL 474.51(3); MSA 22.180(21)(3). The Legislature
later adopted the Michigan trailways act, MCL
324.72102; MSA 13A.72102, in which it again stated
that the acquisition, development, and maintenance
of Michigan trailways is in the best interest of
the state and is declared to be a public purpose.3
Recently, the Legislature passed an appropriations
bill for the Michigan Department of Transportation
identifying certain rail lines, including the one
at issue here, as "essential corridors" to the
state's transportation infrastructure. 1995 PA


Consistent with its earlier ruling, the court added
that "the Defendants' proposed trail is subject to other
reasonable regulation in the interest of public health, safety
and welfare."
Perhaps believing that the federal decision undercut
the basis of circuit court's ruling, the township amended its
zoning ordinance in early 1997. RLTD and the association say
in this Court that setback requirements and other features of
the amended ordinance would have the effect of destroying the
corridor by carving it into small segments. The township says
that its ordinance has been amended again, and would create no
such problem.
5

10

9

133,

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