In Miller Apple Ltd. P'ship v Emmet County, unpublished opinion per curiam of the Court of Appeals, issued February 9, 2010 (Docket No. 2730) the Court of Appeals, in affirming the Circuit Court's ruling found that Plaintiff's interest in thwarting competition from a nearby restaurant business, is not a legally protected interest sufficient to confer standing for the plaintiff. 

At issue in Miller Apple Ltd. P'ship, was a PUD agreement governing a Petoskey development known as Bear Creek Plaza.  The Plaintiff operates an Applebee's on a leased lot in a plaza across from a vacant parcel of property.  Pursuant to the PUD agreement, only two restaurants were permitted in the Plaza.  However, the intervening defendants initiated proceedings to amend the PUD agreement to permit three restaurants and to change the designation of the vacant lot to permit the construction of a Bob Evans.  The Plaintiff, filed a claim of appeal of the County Board's of Commissioners decision to approve the amendment.  In their motion, the Plaintiff alleged that the operation of the Bob Evans would cause it economic injury in violation of a legally protected interest under the constitution. 

The Court of Appeals agreed with the Circuit Court and dismissed the Plaintiff's action.  In doing so, the Court of Appeals held for the Plaintiff to have appellate standing, the plaintiff must be aggrieved.  The plaintiff, in a zoning case alleging they have been grieved must prove "that he has suffered special damages related to the beneficial use and enjoyment of his own land that are not common to other similarly situated property owners."  The Court held that the plaintiff's interest in thwarting competition from a nearby restaurant business, even assuming that such prospective competition constitutes an "actual" and not merely "conjectural" or "hypothetical" injury, is not a "legally protected interest" sufficient to establish standing."

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In Flinckinger v Van Buren County Road Commision et al, unpublished opinion per curiam opinion of the Court of Appeals, issued February 2, 2010 (Docket No. 289701), the Court of Appeals held the Kal-Haven snowmobile trail did not qualify as a "highway" under the statutory definition for purposes of Government Tort Liability Act.

In Flinckinger, the Plaintiff was injured when his snowmobile hit a fallen tree lying across the Kal-Haven Trail.  The Plaintiff filed suit alleging the Defendants were grossly negligent and/or negligent for failing to inspect, maintain, and discover the fallen tree.  In their answer, the County Road Commission asserted the Plaintiff's failure to plead the avoidance of the Governmental Tort Liability Act and moved for summary disposition.  In response to the Road Commission's motion, the Plaintiff informed the court they were not basing their tort claim on the highway exception to governmental immunity but on the recreational use act. 

The trial court found the recreational use act was inapplicable, did not create an additional exception to the governmental immunity act, and only limited the liability of landowners.  Shortly after the court's opinion on the Road Commission's motion for summary disposition, Van Buren County filed its motion for summary disposition arguing that the recreational use act did not create an exception to governmental immunity and cited Ballard v Ypsilanti Twp, 57 Mich 564, 576; 577 NW2d 890 (1998).  The trial court agreed with the defendants and found there was no liability on behalf of the defendants. 

On appeal, the Court of Appeals limited its analysis to whether the Lake-Haven Trail qualifies as a "highway" under the statutory definition.  Analyzing the language of the statute, the Court of Appeals held ". . . both our court and the Supreme Court have held that a sidewalk, trailway, crosswalk, etc., must be "on the highway" to come within the definition of "highway," and thus fall within the highway exception."  To determine whether the trailway was on the highway, the Court of Appeals said they must look at the proximity of the trail to the actual highway.  In this case, the path was approximately 800 feet from the closest road and therefore was not on the highway.