Border fence dispute; Nuisance per se; Whether the zoning ordinance required fence height to be measured from the “established grade”; “Existing grade”; Absurd result argument; Intent; Effect of a subsequent ordinance amendment; “Spite-fence” nuisance claim; Kuzniak v Kozminski

Concluding that the trial court properly applied the plain language of the township zoning ordinance in ruling that plaintiffs failed to establish their nuisance per se claim, the court affirmed the no cause of action verdict for defendants in this border fence dispute. It also affirmed summary disposition for them on plaintiffs’ spite-fence nuisance claim, finding no genuine issue of material fact that the fence served the useful purposes of increasing privacy and abating altercations. Plaintiffs argued that the trial court erred as a matter of law in reasoning that the “zoning ordinance required fence height to be measured from the ‘established grade.’” The court disagreed. They asserted the trial court should have interpreted § 2.18 of the ordinance to require border fences “be measured from the ‘existing grade.’” However, that ordinance section clearly limited border fences to a height of “6 feet ‘as measured from the established grade of the property.’” The fact that the ordinance used both terms suggested they have different meanings, and another ordinance section defining “established grade” also indicated the term had “its own distinct meaning under the ordinance.” Given that § 2.18 states clearly and unambiguously “that border fences shall not exceed a height of 6 feet as measured from the established grade, and, when that section is read within the ordinance as a whole, there is no plausible reading of [§] 2.18 that permits ‘established grade’ to mean ‘existing grade,’ the trial court did not err by applying the zoning ordinance as written.” The court rejected plaintiffs’ reliance on the absurd results doctrine, finding that the trial court’s result here was “clearly not absurd.” Further, the subsequent amendment changing the relevant ordinance to now state “that fence height must be measured from the ‘existing grade’ reinforces that ‘established grade’ and ‘existing grade’ have different meanings.” As to the spite-fence claim, plaintiffs did not create a genuine issue of material fact as to whether the “fence was constructed solely for malicious purposes.” The court noted that even if it “was partially motivated by malice,” there were no further verbal altercations between the parties after it was constructed.