Sign In

140685 - Drake v City of Benton Harbor

Carol Drake and Clellen Bury,
Scott W. Howard
(Appeal from Ct of Appeals)
(Berrien – Schofield, S.)
City of Benton Harbor and Harbor Shores Comm Redev Corp.
Pamela Chapman Enslen
John G. Cameron, Jr.


​In 1917, J.N. and Carrie Klock conveyed 90 acres of land to the city of Benton Harbor. The deed states that the land is “conveyed to [the City] upon the express condition, and with the express covenant that said lands and premises shall forever be used by said [City] for bathing beach, park purposes, or other public purpose; and at all times shall be open for the use and benefit of the public, subject only to such rules and regulations as said [City] may make and adopt.” The city accepted the Klocks’ gift by city resolution on May 7, 1917, which expressly recognized that the land was accepted “subject to the conditions set forth in said Deed.” The city developed the land into Jean Klock Park, which included a bathing beach, lagoons, a lakefront boulevard and park amenities, and a water treatment facility.


In 2003, the city announced that, because of financial difficulties, the city would sell an underutilized portion of Jean Klock Park to Grand Boulevard Renaissance, LLC, which intended to construct a residential development on the property. The plaintiffs, residents of Benton Harbor, filed a lawsuit challenging the city’s right to convey the property, asserting that such a conveyance violated the deed’s covenants and restrictions. The case was settled, and the parties agreed to a consent judgment that allowed the sale of a portion of Jean Klock Park to the private developer in exchange for an injunction against further privatization or conversion of the park. The consent judgment stated that Jean Klock Park shall not be used “for any purpose other than a bathing beach, park purposes, or other public purpose related to bathing beach or park use; provided, however, that there shall be no recreational vehicle park campsites…. The restrictions in this paragraph 3 shall run with the land and shall be binding upon the City and its successors.”
In July 2005, the city and Harbor Shores Community Redevelopment Corporation announced that they wished to use a portion of Jean Klock Park for a golf course that would be part of a privately-owned mixed-use development consisting of commercial and retail buildings, residences, the golf course, a marina, and other recreational uses. The project would use twenty-two acres of park land for three holes of an 18-hole Jack Nicklaus championship golf course. The city would lease the necessary land to Harbor Shores for a period of up to 105 years.
On July 8, 2008, the plaintiffs sued, seeking enforcement of the restrictions in the deed and the consent judgment. The plaintiffs argued that the consent judgment’s intent was to require that the Jean Klock Park continue to be used for passive recreational use – the same way it had been used since 1917. Harbor Shores and the city responded with motions for summary disposition, which were granted. The plan language of the deed and the consent judgment did not support the plaintiffs’ allegation that the intent of the consent judgment was to require that the park continue to be used only for passive recreation, the court stated. A golf course is a park purpose, the judge ruled, or certainly a public purpose related to a park use. The circuit court further held that, because the city itself is empowered to use the park land as a golf course, the deed and consent judgment are not violated if the city leases the land to another party to do the same thing.
The plaintiffs appealed, but in an unpublished per curiam opinion, the Court of Appeals affirmed the circuit court. The deed restricted the city’s use of the land, not its right to convey or otherwise assign its right to use the property, the appellate panel reasoned. The proposed use of the land for a golf course did not violate the deed or consent judgment’s requirement that the land be used for “public” purposes or for a “public park purpose,” the Court of Appeals concluded. The plaintiffs appeal.