July 2011 - Parks & Recreation - 32

LAW REVIEW continued from page 29

for the sale of a portion of the property to
the developer, but permanently enjoined
(i.e., prohibited) Benton Harbor from the
following:
using any portion of the property depicted as " Jean Klock Park " for any
purpose other than a bathing beach,

park purposes, or other public purposes related to bathing beach or park use.

In 2005, Benton Harbor announced its
intention to lease approximately 22 acres
of the (now) 74- acre park to defendant
Harbor Shores Community Redevelopment Corporation ( " Harbor Shores " ) for

the development and use of the land as a
public golf course. Benton Harbor apparently signed a lease with Harbor Shores
for this purpose. Plaintiffs thereafter initiated the lawsuit at issue here, alleging a
breach of the parties' settlement agreement and violation of deed restrictions,
and seeking an injunction.
In response, Benton Harbor contended
that " the lease of a portion of the park for
use as a public golf course serves a public purpose and is a 'park use' as a matter
of law and as required by the 1917 deed
and the parties' 2004 consent judgment. "
Defendant Harbor Shores reiterated this
same argument. Harbor Shores is a nonprofit corporation formed for the purpose
of, among other things, fostering redevelopment and revitalization of blighted
areas. The trial court granted summary judgment in favor of defendants Benton Harbor and Harbor Shores. Plaintiffs
appealed.

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On appeal, plaintiffs argued that " the Benton Harbor's lease of part of Jean Klock
Park to Harbor Shores violates the restriction that the property be 'forever used'
by Benton Harbor. " In so doing, plaintiffs
contended that " Benton Harbor is the only
entity that may use the property. " Accordingly, plaintiff's argued that " the lease of a
portion of the property to Harbor Shores
necessarily means that Benton Harbor is
no longer using that portion of the property as required in the deed. " The state
appeals court disagreed.
As noted by the appeals court, deeds
are contracts and, therefore, " subject to
the legal principles generally applied to
contracts. " Further, the court noted " the
only purpose of rules of construction
of conveyances is to enable the court to
reach the probable intent of the parties
when it is not otherwise ascertainable. "
Accordingly, in " construing a deed of conveyance " of land, the court acknowledged
" the first and fundamental inquiry must
be the intent of the parties as expressed
in the language thereof. " Moreover, " in
arriving at the intent of the parties as expressed in the instrument, " the court
July 2011 - Parks & Recreation

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