Amicus Brief

Carol Drake v City of Benton Harbor and Harbor Shores Community Redevelopment Inc

Case Year: 2010
Case Forum: Michigan Supreme Court
Keywords: deed restriction, redevelopment, park purposes, "other public purposes", consent judgment
Amicus Counsel:

Eric D. Williams (P33359) | 524 North State Street | Big Rapids, MI 49307 | 231-796-8945


This case presents competing views of what constitutes permitted “park purposes” or an “other public purpose.” There is the donor’s view of what should be a permitted park purpose according to the grant and dedication of land to the City, and the City of Benton Harbor’s view of what should be a permitted park purpose according to its status as a home rule city, and the Plaintiffs’ view of what is a permitted park purpose according to their ideas as park users. This case poses a significant risk of producing a new legal standard by which home rule cities will have their legislative decisions regarding the use and development of municipal park land challenged by interested citizen groups and scrutinized by the courts. Where the decision of what to put in a city park is made by the city commission of a home rule city, the standard of review employed by the courts should be whether or not the decision was within the power of the city to make, and authorized by law. Otherwise the courts may be called upon to rule on whether a soccer field, petting zoo, picnic shelter, golf course, ice arena or an archery range is a park purpose or a public purpose deserving of being established in a municipal park.
There is no overriding public policy in state or federal law that compels Michigan municipalities to preserve, develop, or use municipal parks in any particular manner by which Plaintiffs or the courts can select passive recreational use over a golf course, dog park, or basketball court as a more proper, legal, or preferred park purpose or other public purpose. Plumbing the intellectual depths of the phrases “park purposes” and “other public purpose” with real property law tenets is a futile exercise without an established legal standard of measure by which the proposed use of park land by a home rule city can be evaluated by the courts consistent with principles of Michigan municipal law.


On January 21, 2011, the Court heard oral argument on the application for leave to appeal the January 21, 2010 judgment of the Court of Appeals. On order of the Court, the application is again considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

MSC requested LDF amicus brief? Yes

The case revolves around a dedication of land to the City of Benton Harbor to be used for “bathing beach, park purposes, or other public purpose.” The City leased a portion of the dedicated park land to Harbor Shores for three holes of a public golf course. Plaintiffs challenged the legality of Benton Harbor’s actions, arguing the dedication did not allow the lease.

Case Number: 2010-04
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