Outside Legal Counsel PLC

Ogemaw County Property Rights Case Immediately Appealed Before Trial

For Immediate Release | Nov 01, 2010

Outside Legal Counsel, along with co-counsel from Gronda PLLC, has filed an extraordinary request with the Michigan Court of Appeals in a case that involves a requested vacation of platted property privately dedicated for shared private use at "Shady Shores."

The case, Studley v. Hill Township et al, is an Ogemaw County Circuit Court case initiated by Bernard and Janet Studley of Lupton who are seeking to vacate or legally take, pursuant to the Land Division Act, a privately platted beachway for themselves in the Shady Shores Park subdivision between Rifle Lake and George Lake.

The Studleys live next to the only platted “Beachway” on Rifle Lake—an approximately sixteen feet wide by one hundred forty three feet deep strip of land that was privately dedicated to give all Shady Shores lot owners within the subdivision private water access and other related riparian rights.

Instead of informing and naming everyone who has a right to the use the Beachway, the Studleys' attorney only sued lot owners within 300 feet of the property. If the case continues to the judgment requested by the plaintiffs, hundreds of Ogemaw County property owners could very likely lose their private water rights to Rifle Lake by court order without any form of constitutional due process. Due process obligations include the right to legal notice and the opportunity to be heard.

OLC, along with co-counsel from Gronda, helped filed an emergency appeal application known as an "Application for Leave to Appeal" with the Michigan Court of Appeals. It is the position of the attorneys from OLC and Gronda that any interpretation of the Land Division Act that permits the taking of property rights without due process must be an incorrect interpretation.

"Neither a statute nor a court can take away someone's property rights without providing appropriate due process," states OLC attorney Philip L. Ellison. "The Michigan and United States Constitutions provide this right explicitly and for any attorney or any judge to interpret a statute or court rule otherwise is in error."

The attorneys seek to reverse Ogemaw County Circuit Court Judge Michael Baumgartner's decision implicitly finding otherwise.

Despite not having named or joined all lot owners with property rights in the Beachway, the Circuit Court has scheduled the trial to begin on December 9, 2010. The OLC and Gronda attorneys also asked the Circuit Court to stay its proceeding until a decision is reached by the Court of Appeals. That motion is currently pending before Judge Baumgartner.

An initial decision from the Court of Appeals is expected within the month of November.