MI Appeals Court Finds Public Nuisance Case Involving Trees and Aircrafts Should Have Been Reviewed Using State, Rather Than Federal, Standards

This post was authored by Matthew Loescher, Esq.

The trial court found that trees on Suzanne Yopek’s property were a public nuisance that had to be abated because, under federal regulations, they encroached into the area used by aircraft when they land or take off from the Brighton Airport. This area was also known as an approach protection area (APA). In this case, Yopek appealed the trial court’s order granting the defendant Brighton Airport Association, Inc.’s (BAA) motion for summary disposition, and denying in part its motion for summary disposition.

On appeal, Yopek contended that the trial court erred by using federal, rather than state, standards to identify the protected area. The trial court held that, according to the Michigan Department of Transportation’s (MDOT) Bureau of Aeronautics survey, there was an encroachment of the APA under federal regulations. The court further found that the purpose of the Aeronautics Code was to protect the public by regulating the areas surrounding airports. By this reasoning, the violation of federal regulations by way of an encroachment into what those regulations recognize as an APA constituted a public nuisance that was required to be abolished. nevertheless, under MCL 259.156, only structures or plantings that encroach on APAs as defined by the Michigan state Aeronautics Commission constitute a nuisance. Importantly, there was no reference to federal regulations in MCL 259.156. AS the statute was clear and unambiguous, judicial construction was neither appropriate nor permitted. Accordingly, the trial court erred by misreading the statute and rejecting Yopek’s assertion that only state standards applied.

The court next found that the trial court’s erroneous conclusion that the federal standards applied led it to err in finding that there was no factual dispute regarding whether Yopek’s trees encroached into the APA. The record reflected that the trial court found that MDOT’s updated inspection of the runway “determined that under the Michigan Aeronautics Code, the trees are not encroaching, however, under the Federal Air Regulations the trees are encroaching into the APA.” In his argument against this, Yopek emphasized that MCL 259.156 requires that, in order for a court to declare her trees a public nuisance subject to abatement, the trees must encroach upon any APA “determined by the Michigan aeronautics commission in the state plan for approach protection areas.” Here, the May 2021 survey provided by MDOT-OA Explicitly declared that there were no “encroachments observed” according to the “aeronautics commission general rules.” As such, the court determined the trial court was erred by finding that there was no genuine issue of material fact that there were obstructions on Yopek’s property that was encroached on the APA.

Yopek next alleged that the trial court erroneously failed to address her claim that BAA was not entitled to seek equitable relief because, according to her, BAA had “unclean hands.” On remand, the trial court was instructed to consider whether the BAA acted unfairly: by extending the runway or taxiing area, including whether BAA took any actions to make the trees on Yopek’s property qualify as a nuisance when they did not constitute a nuisance before that actions; or by operating in conflict with a local zoning ordinance.

Lastly, the court noted that because the parties did not make any claims in their pleadings involving the validity of the original easement, and Yopek did not consent to the trial court’s consideration of the issue, the trial court’s resolution of the validity of the original easement was beyond the scope of the case. Accordingly, the court held that the trial court should not have addressed the validity of the original easement.

Yopek v Brighton Airport Association, Inc., 2022 WL 4390551 (MI App. 9/22/2022)

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