| Michigan
Public Radio
February 21, 2006
U.S. Supreme Court refuses to hear beachwalking case
Great Lakes beachfront property owners are plotting their next move
now that the U.S. Supreme Court has declined to hear their challenge of
a Michigan ruling. It held that people have the right to walk along the
shoreline of the Great Lakes.
The court’s action upholds a state Supreme Court decision that
the public owns the Great Lakes shoreline. The Michigan court held that
the dry land between the water and the high water mark is held in a “public
trust” by the state for everyone to use.
Property owners are now deciding whether to accept defeat, or pursue
other avenues to get what they want. One possibility is a federal lawsuit
asking a judge to declare that the state Supreme Court decision amounted
to seizing private property. The owners could also lobby for a state law
that would set more rules defining where the public area of the shoreline
begins and ends, and what’s allowed there.
Environmental and conservation groups cheered the court’s decision.
They say the Great Lakes shoreline is a unique resource that belongs to
everyone.
January 5, 2006
Beachwalking case goes to the Supreme Court
Great Lakes shoreline property owners are asking the U-S Supreme
Court to review a Michigan case. They want the nation’s highest court
to reverse a ruling that says the public owns the beaches along the Great
Lakes.
The property owners are challenging a Michigan Supreme Court decision.
The state court held that the public owns the Great Lakes beaches from
the water to the high water mark. The case was filed by a woman who was
seeking the right to walk along the shore of Lake Huron in northeastern
Michigan.
David Powers is an attorney with the property owners group Save Our
Shoreline. He says the Michigan decision rolled back property owners’ rights,
abd overturned years of case law that held Great Lakes property owners’
rights extend the edge of the water. If the state has taken private property
in violation of the Constitution, the U.S. Supreme Court should be very
concerned about that.
Powers says the Michigan decision strikes at the ability of property
owners to protect their investment. The other side in the case says the
Great Lakes shoreline is such a unique resource that no one person should
be allowed to claim exclusive rights to it.
Powers filed the papers last month asking the nation’s high court to
take the case. The other side in the case has until next week to
file its response.
November
7, 2005
Lawmaker wants to redefine
access to Great Lakes beaches
A state lawmaker
plans to introduce legislation soon that could re-open the controversy
over where people can walk on the Great Lakes shoreline. State Representative
Brian Palmer says he wants a clear line drawn to establish where public
access begins and ends on the Great Lakes beaches. He says the law should
also clearly state that public access only gives people the right to walk
on the shoreline.
State Representative Brian
Palmer plans to introduce his bill next week. He says it would set some
limits on what the public may do on the shoreline.
"Our
legislation would propose a swath of area between the water’s edge-upland
for a number of feet, approximately eight feet or so, where individuals
could walk along the water’s edge -- nothing that would affect the property
rights of the owner in any way, butwould clearly allow passage along the
water’s edge."
Representative
Palmer wants to set a line several feet from the water’s edge that’s open
to the public, but otherwise give lakefront property owners control of
the beach down to the water.
Earlier this year, the state
Supreme Court ruled the public owns the Great Lakes shoreline between the
water and the high water mark. Environmental and conservation groups say
they’re against anything that might weaken the principle that the public
owns the Great Lakes shoreline.
Some
conservation groups say people should be allowed to fish from the shoreline,
or stop and rest. They say they’d oppose anything that weakens the principle
that the public owns the Great Lakes shoreline.
May 14, 2004
Appeals court rules property rights run to water’s
edge
The state Court of Appeals has ruled that private property rights on
the Great Lakes run up to the water’s edge. The decision could deny hundreds
of miles of lakefront to swimmers, anglers, and beach strollers who aren’t
shoreline property owners.
The appeals court dismissed a lawsuit filed by a woman who claimed the
public has access to all Great Lakes beachfront below the high water mark.
Her attorney, Pamela Burt, says the ruling will almost definitely be appealed
to the Michigan Supreme Court and, if necessary, to the U-S Supreme Court.
Attorney Scott Strattart represents a couple that was sued by a neighbor,
who wanted the right to walk along the Lake Huron shoreline in front of
their house. Strattart says lakefront owners have paid to own beach
property, and shifting lake levels shouldn’t decide where private property
rights begin and end.
The attorney for the property owners said they have a fair expectation
of privacy on land they’ve paid for.
The
Record Eagle
December 21, 2003
Selective mooring measure proposed
Walker bill bans many open water moorings
By BRIAN McGILLIVARY
TRAVERSE CITY - A state lawmaker is proposing legislation that would
benefit lakefront property owners by banning others from mooring boats
in portions of the Great Lakes. Rep. Howard Walker, R-Traverse City,
introduced the legislation, which is favored by people like Jon Andrus,
a boating enthusiast and Old Mission Peninsula resident.
"I just got fed up with what I call urban sprawl on the Great Lakes,"
said Andrus, who does not own lakefront property. "There's no other place
in the state of Michigan you can go and plop yourself down on state property
without a permit."
Property owners on the Great Lakes, known as riparians, own to the high
water mark. The state holds in public trust the shore below the high water
mark and the bottom lands under the lake.
Kingsley resident Barry Arsenault is not a boater but opposes the Walker
plan, saying it attempts to strip away rights held by all Michigan residents.
"If you have 100 feet on shore you get to use Lake Michigan like your
own private swimming hole," he said.
Walker's legislation, House Bill 5288, replicates legislation previously
introduced by former state Sen. George McManus, R-Traverse City.
The McManus bill never received a hearing and died in committee. The House
Great Lakes and Tourism Committee will hold public hearings on HB 5288
in 2004, committee chairman David Palsrok said.
Walker called the bill "a starting point" and acknowledged that a bill
limiting moorings to riparian owners is sure to become a political lightning
rod. He said he doesn't intend to eliminate moorings in open waters, and
also said the bill needs a lot of work and local input.
"Our interest is not to get rid of moorings in the Great Lakes, but
to protect the interests of public safety and somewhat of the rights of
the riparian owners," Walker said. "It makes it hard for landowners
to enjoy their beach frontage when
you have a lot of boats stacked out in front," he said.
Traverse City attorney Jim Olson specializes in public trust law and
said the legislation sounds like a waste of time.
Riparian owners already have a right to moor in front of their property,
and legislation that restricts public use of the Great Lakes violates the
public trust doctrine. "The public right is paramount to any riparian
right," Olson said.
Riparian owners have contributed more than $10,000 to Walker campaignoffers,
but he discounted any connection to the mooring bill.
"For the record I have not talked with one contributor (regarding HB
5288)," he said.
The bill allows riparian owners one mooring without a permit but they
would need a permit for more than one.
Andrus said at one time a property owner in Old Mission Harbor had 30
moorings in front of his property. Those buoys are now gone, but the anchors
remain.
Grand Traverse County Prosecutor Dennis LaBelle worked with both Walker
and McManus to develop anti-mooring bills. LaBelle, who lives on East Bay,
spent a day removing abandoned mooring anchors that were above or just
below the surface. They become a navigation hazard to small craft and personal
watercraft, he said. Labelle wants the state's exemption
of mooring buoys from regulation rescinded and he wants the local sheriff's
department to have the ability to enforce mooring regulations.
He's also pushing for regulations on how the buoys are made, to
help prevent boats from breaking away during storms and damaging other
boats and docks.
Click here for the text of House
Bill HB 5288
The
Leelanau Enterprise
April 24, 2003
Mooring Review in
Suttons Bay
Army Corps needs
word on buoy issue
by: Amy Hubbell
Officials of the Village of Suttons
Bay may reconsider their decision last month to ignore the plight of some
35 boatowners who use “unauthorized” mooring buoys in Suttons Bay south
of the village’s coal dock.
The Army Corps of Engineers has threatened
to remove the “rogue mooring field” which, Corps officials say, does not
comply with state and federal law. Boaters were informed in the fall that
they would be subject to “enforcement action” after June 1 unless they
could convince village officials to take charge of the mooring field.
However, the Village Council on March
16 voted 6-0 to “not support” establishment of a municipal mooring field
in Suttons Bay. The council’s marina committee chairman Karl Bahle and
trustee Donna Herman indicated that a number of village residents with
a “riparian interest” on the bay were opposed to the mooring field.
At the regular monthly Village Council meeting on Monday, however, members
of a loosely organized “Save Our Boats” association pressed their case.
Association member Jerry Harrison
said that a petition had been signed “by every business owner in downtown
Suttons Bay except the Bahles and the Boones” supporting establishment
of a municipal mooring field. He told the Village Council that, as an interim
step, the council should send a letter to the Army Corps of Engineers indicating
that the Village Council was still considering the issue.
“We need to get the Corps off our
back so we have a little more time to work this out,” Harrison explained.
The Corps has threatened to have the Coast Guard remove privately-installed
mooring tackle from the bottom of the bay after June 1.
At Monday’s meeting, village trustee
Steve Mentzer moved that the Village Council send a letter to the Corps
indicating it was still working n the mooring field issue. However, te
motion was not acted upon after Bahle suggested that such a decision could
be delayed another month and still meet the Corps’ June 1 deadline.
On Tuesday morning, several members
of the “Save Our Boats” association met with Bahle and village president
Larry Mawby at a mrina committee meeting to discuss the issue. Immediately
following the meeting, committee chairman Bahle reported that “no decision
has been made” on whether to send a letter to the Army Corps of Engineers.
Mawby pointed out that the other member of the two-person committee, village
trustee Ewa Einhorn, had not attended the meeting.
Harrison said he and other boatowners intended to follow through with
suggestions by Bahle and Mawby that they speak personally with several
Suttons Bay waterfront property owners in an effort to warm their opposition.
Village officials also presented boatowners with a three-page list of
questions and concerns about a how a municipal mooring field would be established
and operated. The list includes such questions as where boatowners will
park their cars, how the mooring field will be “policed,” and how mooring
spaces will be allocated.
“The big question,” according to the list prepared by village officials,
“is the village willing to be the agent for this area and go against the
wishes of some of the property owners on the south shore with riparian
interests?”
Members of the “Save Our Boats” association – and the attorney they
recently hired to represent them – acknowledge that the issue is more political
than legal.
However, attorney Peter R. Tolley of Grand Rapids warned village officials
in an April 15 letter that “one might argue that an attempt to deny...use
(of the existing mooring field), after more than a century, constitutes
a taking without just compensation.” Boatowners point out that a
mooring field has existed in the southern end of Suttons Bay since the
1850’s when Harry Sutton moored the first sail-powered lumber barges there.
“At the time sailing vessels represented the ‘life blood’ of our commerce
and community,” boatowners wrote in a memorandum presented Monday to the
Village Council. “We contend that they still represent economic vitality
and potential income to the Village.”
Boatowners also presented the Village Council with a detailed package
of information outlining how the Village of Harbor Springs recently established
a municipal mooring field – which is turning a profit for the village.
Boatowners estimate the Village of Suttons Bay could earn an additional
$20,000 per year if it took charge of the mooring field. Boatowners
have also offered to pay all costs associated with applying for permits
to establish the mooring field as well as the cost of upgrading any non-conforming
moorings.
Copyright © 2003, Leelanau Enterprise. Reproduced
with permission.
The
Leelanau Enterprise
March 20, 2003
Mooring dispute has boat owners fuming
The Suttons Bay Village Council flatly refused Monday to sponsor establishment
of a “legal” boat mooring field off its coal dock in the southern end of
Suttons Bay. Boaters who will no longer be allowed to moor their
boats there are furious.
“Selfish and shortsighted are the only way to describe the vote
in the Suttons Bay Village Council Monday night,” wrote Bill Siegmund in
a letter the editor which appears on page 5 of Section 1 in this week’s
Enterprise. In September 2002, the Army Corps of Engineers posted violation
notices on more than 30 boats attached to “rogue moorings” in Suttons Bay.
Officials said the moorings were not authorized by the Army Corps and the
Michigan Department of Environmental Quality as required, and must be removed
permanently by June 2003.
Federal and state officials have said that an authorized mooring field
could be established in Suttons Bay as long as a municipality with a riparian
interest – in this case, the Village of Suttons Bay – agreed to serve as
the “sponsor” for an application.
“In such a permit scenario, the sponsor would be obliged to take on
the roles of permit administrator, information clearinghouse, compliance
officer, and, in the case of unauthorized actions, responsible party,”
wrote Gary Mannesto, chief of the Army Corps’ regulatory office in Detroit.
Mannesto sent letters to each of the boat owners last week advising
them that unless appropriate permits were obtained, “We will escalate our
enforcement action against you if you disregard our above order and moor
your boat to unauthorized mooring tackle.” Mannesto added that the Coast
Guard could be asked to “pull and dispose of any authorized mooring tackle
found in the mooring field after the June 1, 2003, removal deadline.”
Representing a loosely-organized “Save our Boats” group, Siegmund last
month approached the Village Council and informed them that boaters were
prepared to absorb any costs associated with applying for the appropriate
permits and establishing the mooring field legally.
At the Village Council meeting in February, Siegmund presented council
members with packets of information showing how the Village of Harbor Springs
recently established a 60-unit mooring field – and is making a profit operating
it. At last month’s meeting, trustee Karl Bahle agreed that the marina
committee he heads would consider the issue and bring a recommendation
to the Village Council.
According to minutes of a marina committee meeting attended Friday by
Bahle, trustee Ewa Einhorn and village president Larry Mawby, a decision
was made that the “Village will not apply to administer this field in the
foreseeable future.” On the recommendation of its marina committee,
the full Village Council voted 6-0 Monday to “not support” establishment
of a municipal mooring field in Suttons Bay.
Village manager Phil Hamburg explained Tuesday that the members of the
Village Council feel that “there are too many issues involved including
policing, parking, and the interests of riparian (waterfront) owners who
could be adversely impacted by the field and are also taxpaying, voting
members of the community.”
Siegmund said his group has already retained an attorney who may challenge
the Army Corps of Engineers’ authority to police Lake Michigan bottomlands
which are regulated by the Michigan Department of Natural Resources and
the Michigan Department of Environmental Quality. He predicted
that a mooring field would return to Suttons Bay – eventually.
Siegmund pointed out that boats have been mooring in southern Suttons
Bay since at least the mid-1800’s, and that boats in the bay were part
of the village’s essential character. He said it was unfortunate that the
investment boaters had already made to install mooring tackle in the bay
would be wasted if the Coast Guard removed the tackle.
He said that, eventually, the village would be required to absorb higher
costs to re-establish the mooring field if it does not quickly reverse
its decision to ignore the issue.
by Eric Carlson
Copyright © 2003, Leelanau Enterprise. Reproduced
with permission.
The
Leelanau Enterprise
February 20, 2003
Moorings in Suttons Bay on hold
Whether a mooring field will reappear
in the southern end of Suttons bay this spring remained an open question
following Monday's regular monthly Village Council meeting.
Boat owner Bill Sigmund, representing
the loosely organized Suttons Bay Boat Club, asked the council to “consider
the feasibility of establishing a mooring field” run by the village. The
Army Corps of Engineers last year issued violation notices to the owners
of most of the private “rogue moorings.”
In September, Army Corps officials
warned 25-30 boat owners in Suttons Bay that the mooring buoys they were
using were unauthorized. A letter posted on each of the mooring buoys threatened
“enforcement action” unless the moorings were removed or appropriate permits
were obtained from the Army Corps and the State of Michigan by
2003.
Earlier, Corps officials had tried
to involved the Village of Suttons Bay in the issue by pointing out that
the village marina provides a “dingy dock” for use by owners of boats moored
in the bay. However, village officials last year indicated the village
had “no interest” in taking responsibility or managing that mooring field.
That sentiment was reiterated Monday
by village trustee Karl Bahle. who also chairs the Village Council's marina
committee.
“We have been through this already
with the Army Corps of Engineers,” Bahle told Sigmund. “The question we
have to ask ourselves is: do we want to get involved in the mooring business?
There are a lot of reasons why we don't.”
Sigmund pointed out that boaters
have been moored in Suttons Bay since the mid-1800's, and the presence
of sailboats in the bay has long been a part of the village's identity.
He presented Village Council members a packet of information form the Village
of Harbor Springs, which has established and operates a 60-unit mooring
field. He said the mooring field provides a good revenue source for Harbor
Springs.
Although individual waterfront property
owners may place mooing buoys in Lake Michigan immediately in front of
their property with authorization from the Army Corps of Engineers and
the State of Michigan, individuals without a direct “riparian interest”
are generally not authorized to establish moorings, officials explained.
However, permits to establish a mooring
field could be obtained by a municipality with a “riparian interest, such
as the Village of Suttons Bay,” Sigmund said. He urged the Village Council
“to at least consider” whether it could establish whether it could help
boat owners reestablish the mooring field this spring.
Sigmund said boat owners would be
willing to pick up costs involved in studying the issue and apply for initial
permits from state and federal agencies. To establish a legal mooring field,
he explained, a survey would be required, and the village would need to
lease the Lake Michigan bottomlands from the State of Michigan.
Bahle told Village Council president
Larry Mawby that the issue could be taken up again by the marina committee.
He also expected a mooring discussion at the Village Council's next regular
monthly meeting, set for March 17th, 2003.
Copyright © 2003, Leelanau Enterprise. Reproduced
with permission.
The
Leelanau Enterprise
Fall, 2002
Feds want buoys
pulled from Bay
by: Eric Carlson
Mooring buoys which have accommodated boaters in the southern
end of Suttons Bay for many years may disappear unless several government
entities and private parties can reach an agreement about the buoys by
next spring.
Boaters using mooring buoys in Suttons Bay were issued “violation notices”
last week by the Army Corps of Engineers.
The Corps is also considering cracking down on mooring violations elsewhere
in Grand Traverse Bay, including in and around Traverse City.
“At present, approximately 25-30 boats are moored in Suttons Bay
to mooring buoys that have not received authorization from the Corps of
Engineers,” read a letter accompanying the notices.
An Army spokesman said last week that the Corps was informed about
the “unauthorized” buoys by private waterfront property owners who are
concerned about the increasing number of boats moored just offshore.
The mooring buoys are privately owned, and many of the owners are loosely
organized through the Suttons Bay Boat Club. Although the Village of Suttons
Bay has a “dinghy dock” at its marina which is used by some of the moored
boat owners, the village plays no role in managing the mooring field.
Army Corps officials used a small boat last week to post violation notices
on each of the moored boats. They also noted registration numbers.
The Corps’ letter threatened “enforcement action” against boaters unless
they either remove moorings by May 2003 or apply for and receive “after-the-fact”
authorization. Only a handful of mooring buoys in the bay have been placed
there with proper authorization, officials said.
Army, boat club and village officials met at the Village Hall Sept.
17 to discuss the issue. The Village Council’s marina committee chairman,
trustee Karl Bahle, told Corps and boat club officials that the village
has “no interest” in maintaining and managing the mooring field.
That sentiment was echoed by village manager Phil Hamburg, according
to minutes of the meeting.
The Army first contacted village officials in May, warning that the
village must apply for a permit to maintain the mooring field or face legal
action. Army officials pointed out that many boat owners gain access to
moorings through the village marina, and the village has a riparian
interest in adjacent Lake Michigan bottomlands.
Village officials asked Cong. Bart Stupak to look into the issue.
In a June 12 letter to the Army, Stupak pointed out that the Corps was
putting the village in a “difficult situation,” and asked federal officials
to document why they believed the village was the “responsible party” for
the “rogue mooring field.”
A series of letters between Stupak’s office and Army officials followed,
resulting in the Army “softening its position toward the village,” according
to Hamburg.
However, owners of boats moored in the bay may not let the village off
as easily.
According to Suttons Bay Boat Club member Dennis Vitton, boaters would
like to see the Village of Suttons Bay help negotiate agreements with private
waterfront property owners, apply for permits for a mooring field, and
help manage the moorings.
“My goal would be the establish(ment of) a boat-mooring field in the
area south of the coal dock now occupied by mooring boats,” Vitton wrote
in a recent letter to village officials. “The Village of Suttons Bay would
control the field. To this end I would propose that the Village of Suttons
Bay (work) with the Suttons Bay Boat Club and others to sponsor the establishment
of a boat mooring field in this area.”
The Army Corps of Engineers “will only evaluate a permit application
for a mooring field, not individual permits,” according to Army representative
David Reinke who attended last week’s village marina committee meeting.
The Michigan Department of Environmental Quality would need to lease
state-owned Lake Michigan bottomlands to the village or some other party
before a mooring field would be allowed, according to Reinke.
“The wild card in this whole arrangement is co-jurisdiction with the
state,” Reinke told the Enterprise last week. “The state sometimes approaches
things from a different direction than the Corps. If no local government
will sponsor (the mooring field) the state may not issue permits.”
Reinke said similar problems had been brought to the attention of Corps
officials in Lake Charlevoix, in Lake Michigan near Muskegon, and elsewhere
in Grand Traverse Bay. However, no other violation notices have been issued
in Grand Traverse Bay—yet.
Suttons Bay has “a rather large mooring field in the overall scheme
of things,” Reinke said. Obtaining the necessary permits and working
out an understanding between waterfront property owners, boat owners, village
officials, the MDEQ and the Corps may be difficult, Reinke said, but necessary.
“I can only guarantee you that however this plays out, it’s likely someone’s
not going to be completely happy,” Reinke said.
Copyright © 2002 The Leelanau Enterprise.
Used with permission.
From
BoatU.S.
There are no hard and fast rules
regarding the rights of boats to either have permanent moorings in a harbor
or to drop an anchor in a particular spot. While these waters may be "navigable"
the federal government will not get involved in telling a state or locality
how to regulate their local waters unless commercial shipping or homeland
security are being affected. Local municipalities do have the right to
set their own waterway regulations up to a certain distance from shore,
many times with
the approval of the state boating
office. That being said, such regulations must be "reasonable," and pertain
to a specific problem or threat, such as traffic flow, environmental protection,
etc.
Your best bet on this one is to consult
a local attorney who is familiar with this area of the law, either maritime
or riparian rights. It's an extremely complicated area and not one that
we have the expertise to advise on. You might check with Van Snider at
Michigan Boating Industries Assoc. as his group might have some experience
or resources on this. The
bottom line is that in most parts
of the country it is common for USACE to issue permits for a mooring. It's
done here all over the Chesapeake Bay. For referrals to maritime attorneys,
our Marine Insurance division keeps a list if you need to find out; they're
at 800-283-2883; ask for Policy Services.
I regret I do not have a simple answer
for you. There is no clear "right" to moor boats on a fixed mooring anchor.
(Incidental anchoring, such as for one night or two, is a different matter.)
You could also check with the Michigan
Boating Law Administrator's office to see if there are state guidelines
for how localities can regulate recreational boats. They're at: 517-335-3414.
Sincerely yours,
Elaine Dickinson
BoatU.S. Public Affairs
edickinson@boatus.com
TOWNSHIP ZONING ORDINANCES INCLUDE
AUTHORITY TO REGULATE RIPARIAN RIGHTS
By E. A. Trautz, Higgins Lake, Michigan
(last updated 12/02/1999)
In Hess v West Bloomfield Township,
439 Mich 550 (1992), the Michigan Supreme Court had to determine whether
riparian rights are "land" and the "use of land" as those terms are
used in the enabling provision of the Township Rural Zoning Act (TRZA).
The Hess case involved a request
in 1977 from the Pine Bluffs Estate Association to the West Bloomfield
Township board for a special use permit
to convert a commonly owned lot
in the subdivision into a private park and beach, including construction
of facilities to moor and dock boats. Approval was granted, including permission
to provide for the mooring of two boats. In 1989, after all eleven
lots in the subdivision were sold, the association petitioned the township
to amend the permit to increase the
mooring to eleven boats. The
township board denied the petition to amend, so Charles C. Hess and ten
other non riparian owners in the subdivision brought an action against
the township claiming the Township Rural Zoning Act does not authorize
a township to regulate riparian rights through the application of a zoning
ordinance.
The Court held a township has the
authority through the enabling provisions of the TRZA to regulate riparian
rights such as dockage of boats, as a part of its zoning power for the
following reasons:
1-. "Land' as defined in MCL
83i; MSA 2.212(9) includes all rights andinterests that are associated
with or attached to any piece of real property.
2. Land bounded by a natural
watercourse is defined as riparian, and riparian owners enjoy certain exclusive
rights including the right to erect and maintain docks and the right to
anchor boats permanently off the owners shore, thus the term "land" as
used within the Township Rural Zoning Act (TRZA), includes those rights
or interests that attach to the ownership of land and extends to riparian
rights, including the mooring of boats.
The Supreme Court went on to say:
"Including riparian rights within
the term "land" as it is used in the TRZA is not inconsistent with the
manifest intent of the Legislature. The TRZA permits townships to
regulate activities to promote the general welfare of the public and to
protect the character and natural resources of a township community, primary
concerns under the constitution. Regulation of riparian rights is
necessary to ensure that land uses are compatible with surrounding properties
and to conserve water resources. The TRZA allows townships to balance
the most advantageous use of lands, resources and properties within their
boundaries and to create zoning districts and ordinances in accordance
with such evaluations. Such a balance could not be achieved if riparian
rights were excluded form any zoning control by the township." (emphasis
added)
Most land bordering Michigan's lakes
and streams is zoned "single-family." If a township enforces its
zoning ordinance as it applies to single family land with riparian rights,
"keyholing" or "funneling" of large numbers of people onto a waterbody
through single-family zoned land, will be prohibited. When a township
fails to include riparian rights as "land" and the "use of land" as those
terms apply to its zoning ordinance the results can be disastrous.
Here is what has happened in Gerrish and
Lyon Townships, two townships bordering
Higgins Lake, a 12,000 acre, high-quality lake in Roscommon County, Michigan:
In Gerrish Township, twenty families
incorporated the Shadyview Association for the purpose of sharing in the
purchase of a lot zoned single family with 77 feet of frontage on
Higgins lake. Each year the association erects a 20-boat marina for
dockage of its members' boats; the shore is used as a private beach
for member families and guests; the single-family house is a clubhouse;
the remainder of the lot is used for parking the cars of members and guests
and as a children's playground. The
twenty member families share equally
the payment of the higher taxes imposed on riparian land.
In Lyon Township, eight families
formed the Sunseekers Association to purchase a lot zoned single family
with 25 feet of lakefront. The association and erects a 10-boat marina
on its riparian interests, rents the small cottage to the public and provides
parking for members and guests on the remainder of the lot. In another
subdivision in Lyon Township six families formed an association to purchase
a vacant lot zoned single family with 50 feet of lakefront. The lot
is now a private park, beach and marina for the 6 families and their guests.
Also in Lyon Township an association composed of 125 families owning land
in an off-lake subdivision, purchased a lot zoned single family nonconforming
light industrial with 125 feet of lake
frontage. The association
has applied with the DEQ for a 45-boat marina and plans to convert the
existing building into a condominium. The association presently owns
an adjacent lakefront lot 100-feet wide zoned single family which it uses
as private beach and a 40-boat marina.
The failure of Gerrish and Lyon townships*
to regulate riparian rights through the application of their existing zoning
ordinances has resulted in the funneling of hundreds of people and boats
onto Higgins Lake. As a consequence, the shoreline of Higgins
Lake is changing from low density to high-density use. (*Both townships
also allow road ends within their jurisdiction to be used for lounging,
picnicking, sunbathing and as private marinas.)
The psychological effect of not enforcing
zoning ordinances as they apply to riparian land is also devastating because
lakefront owners who conscientiously obey the law and use their riparian
land for single family dockage can never be certain when the property next
to them zoned for single family will be purchased by 10-20 families
and used as a multifamily park, beach and marina.
For these reasons it is important
for officials of townships with lakes or streams within its borders to
heed the following dicta of the Michigan Supreme Court; "In
a state such as Michigan, with its abundant bodies of water, there would
be no way to ensure that land uses are compatible with surrounding properties
unless water activities are evaluated. Similarly, the
conservation of natural resources,
which clearly includes water, cannot be undertaken if there is no means
to regulate riparian rights. Finally, the stated purpose of the TRZA
is to allow townships to balance the most advantageous uses of the lands,
resources and properties within their boundaries and to create zoning districts
and ordinances in accordance with such evaluations. Such a balance
could not be achieved if riparian rights are excluded from any control
by the township. Review of the historical development of the TRZA
indicates the Legislature intended the regulatory authority possessed by
the townships to encompass more than activities which are located on 'dry
land.'" (emphasis added)TOWNSHIP ZONING ORDINANCES INCLUDE AUTHORITY
TO REGULATE RIPARIAN RIGHTS
By E. A. Trautz, Higgins Lake, Michigan
(last updated 12/02/1999)
In Hess v West Bloomfield Township,
439 Mich 550 (1992), the Michigan Supreme Court had to determine whether
riparian rights are "land" and the "use of land" as those terms are
used in the enabling provision of the Township Rural Zoning Act (TRZA).
The Hess case involved a request
in 1977 from the Pine Bluffs Estate Association to the West Bloomfield
Township board for a special use permit
to convert a commonly owned lot
in the subdivision into a private park and beach, including construction
of facilities to moor and dock boats. Approval was granted, including permission
to provide for the mooring of two boats. In 1989, after all eleven
lots in the subdivision were sold, the association petitioned the township
to amend the permit to increase the
mooring to eleven boats. The
township board denied the petition to amend, so Charles C. Hess and ten
other non riparian owners in the subdivision brought an action against
the township claiming the Township Rural Zoning Act does not authorize
a township to regulate riparian rights through the application of a zoning
ordinance.
The Court held a township has the
authority through the enabling provisions of the TRZA to regulate riparian
rights such as dockage of boats, as a part of its zoning power for the
following reasons:
1-. "Land' as defined in MCL
83i; MSA 2.212(9) includes all rights andinterests that are associated
with or attached to any piece of real property.
2. Land bounded by a natural
watercourse is defined as riparian, and riparian owners enjoy certain exclusive
rights including the right to erect and maintain docks and the right to
anchor boats permanently off the owners shore, thus the term "land" as
used within the Township Rural Zoning Act (TRZA), includes those rights
or interests that attach to the ownership of land and extends to riparian
rights, including the mooring of boats.
The Supreme Court went on to say:
"Including riparian rights within
the term "land" as it is used in the TRZA is not inconsistent with the
manifest intent of the Legislature. The TRZA permits townships to
regulate activities to promote the general welfare of the public and to
protect the character and natural resources of a township community, primary
concerns under the constitution. Regulation of riparian rights is
necessary to ensure that land uses are compatible with surrounding properties
and to conserve water resources. The TRZA allows townships to balance
the most advantageous use of lands, resources and properties within their
boundaries and to create zoning districts and ordinances in accordance
with such evaluations. Such a balance could not be achieved if riparian
rights were excluded form any zoning control by the township." (emphasis
added)
Most land bordering Michigan's lakes
and streams is zoned "single-family." If a township enforces its
zoning ordinance as it applies to single family land with riparian rights,
"keyholing" or "funneling" of large numbers of people onto a waterbody
through single-family zoned land, will be prohibited. When a township
fails to include riparian rights as "land" and the "use of land" as those
terms apply to its zoning ordinance the results can be disastrous.
Here is what has happened in Gerrish and
Lyon Townships, two townships bordering
Higgins Lake, a 12,000 acre, high-quality lake in Roscommon County, Michigan:
In Gerrish Township, twenty families
incorporated the Shadyview Association for the purpose of sharing in the
purchase of a lot zoned single family with 77 feet of frontage on
Higgins lake. Each year the association erects a 20-boat marina for
dockage of its members' boats; the shore is used as a private beach
for member families and guests; the single-family house is a clubhouse;
the remainder of the lot is used for parking the cars of members and guests
and as a children's playground. The
twenty member families share equally
the payment of the higher taxes imposed on riparian land.
In Lyon Township, eight families
formed the Sunseekers Association to purchase a lot zoned single family
with 25 feet of lakefront. The association and erects a 10-boat marina
on its riparian interests, rents the small cottage to the public and provides
parking for members and guests on the remainder of the lot. In another
subdivision in Lyon Township six families formed an association to purchase
a vacant lot zoned single family with 50 feet of lakefront. The lot
is now a private park, beach and marina for the 6 families and their guests.
Also in Lyon Township an association composed of 125 families owning land
in an off-lake subdivision, purchased a lot zoned single family nonconforming
light industrial with 125 feet of lake
frontage. The association
has applied with the DEQ for a 45-boat marina and plans to convert the
existing building into a condominium. The association presently owns
an adjacent lakefront lot 100-feet wide zoned single family which it uses
as private beach and a 40-boat marina.
The failure of Gerrish and Lyon townships*
to regulate riparian rights through the application of their existing zoning
ordinances has resulted in the funneling of hundreds of people and boats
onto Higgins Lake. As a consequence, the shoreline of Higgins
Lake is changing from low density to high-density use. (*Both townships
also allow road ends within their jurisdiction to be used for lounging,
picnicking, sunbathing and as private marinas.)
The psychological effect of not enforcing
zoning ordinances as they apply to riparian land is also devastating because
lakefront owners who conscientiously obey the law and use their riparian
land for single family dockage can never be certain when the property next
to them zoned for single family will be purchased by 10-20 families
and used as a multifamily park, beach and marina.
For these reasons it is important
for officials of townships with lakes or streams within its borders to
heed the following dicta of the Michigan Supreme Court; "In
a state such as Michigan, with its abundant bodies of water, there would
be no way to ensure that land uses are compatible with surrounding properties
unless water activities are evaluated. Similarly, the
conservation of natural resources,
which clearly includes water, cannot be undertaken if there is no means
to regulate riparian rights. Finally, the stated purpose of the TRZA
is to allow townships to balance the most advantageous uses of the lands,
resources and properties within their boundaries and to create zoning districts
and ordinances in accordance with such evaluations. Such a balance
could not be achieved if riparian rights are excluded from any control
by the township. Review of the historical development of the TRZA
indicates the Legislature intended the regulatory authority possessed by
the townships to encompass more than activities which are located on 'dry
land.'" (emphasis added)
Mooring issue heats up
To: the Suttons Bay Boat Club
member and moored boat owners
From: Denny Vitton
September 22, 2002
The Army Corps of Engineers has begun taking action to evict those boats
mooring in and around the coal dock. Last Tuesday they put notices
of violation on all the boats moored there at that time. The
notice gave the boat owner 14 days to apply for a permit or required the
boat owner attached to the mooring to remove the mooring by May 1, 2003.
Those that apply for a mooring will be told that their application unless
they are a shoreline owner in that area or have a shoreline owners
permission will be held pending the possible establishment of a mooring
field in that location. If a mooring field can not be established
then the permit will be denied. Shoreline property owners will be
handled differently.
As Commodore-elect I have talked with many of the boaters that are mooring
in this location. All expressed grave concern over this action.
As a result three of us met last week with representatives of the Army
Corps of Engineers, Village Manager, Phil Hamburg along with Councilman
Carl Bahle to discuss what can be done to establish a mooring field in
this location.
The Corps expressed its desires to do just that but indicated
it is a local government task to do so.
Councilman Bahle express strong concern (reservation) about the Villages
help in this matter. As many of you remember the Village tried this
back in the 1980's and met with opposition so the matter was dropped.
Councilman Bahle indicated that those that want to establish a mooring
field would have to show what benefit it would be to the Village to do
so. The group would also have to take the lead in building the needed
support.
It is my belief that the Suttons Bay Boat Club should take an active
lead in this effort along with other interested individuals and groups.
I am asking for your thoughts and support on this issue. A good topic
for discussion at the change of watch Pot Luck October 5 at 6:30 Bahly
Park.
As a sidelight to this issue, while doing research on the this topic
one individual discovered that Senator McManus along with several others
have sponsored legislation to outlaw all mooring of boats buy non- shoreline
owner except by a shoreline owners directly in front of their ownership.
So what is next? No anchoring at all?
____________________
September 15, 2002
It has been brought to my attention
that the Army Corps of Engineers (Corps) is looking into the mooring of
boats in Suttons Bay. In talking to the Corps last week they indicate
they had received complaint(s) from riparian (lakeshore) property owner(s)
regarding the moorings. They reaffirmed that US law requires a Corps
permit for all permanent boat moorings. They also indicate that unless
the applicant is a riparian or had an authorization letter from an adjacent
riparian the chances of a permit being issued were slim. To make
matters more complicated, not only is a Corps permits required but
in order to use the State Of Michigan owned Great Lakes bottomlands a 347
permit would also be needed. They are issued by the Department of
Environment Quality (DEQ). In speaking with personnel from the Cadillac
DEQ office they also confirmed the permit requirements and reiterated the
same riparian requirement that the Corps did.
It is also my understanding that
the Suttons Bay Village Marina has sent letters out to those of you that
have dingy docks in the marina. They indicated that unless you had a Corps
permit they could not allow the your use of an dingy dock next season.
Those that did apply for a Corps permit received a reply from the Corps
indicating your application was being held and they would be getting back
with you in the near future.
So where does that leave us, no moorings
or dingy docks perhaps? In talking with Phil he indicated that the
reason for the letters was the to comply with the Corps' concerns.
Phil also indicated that the Village had little time to invest in organizing
a mooring operation with everything else they have going on. So unless
an adjacent riparian owner can be located the moorings may have to go.
Of course there is always the political route but that axe can swing both
ways. I do know that in the past the various governmental agencies
responsible felt there were bigger problems to tackle so they left this
issue unresolved. Maybe that will occur here also. Who knows?
My reasoning to bring this to your
attention is my feeling that if we work together maybe we can work something
out. If we work with the Village, the Corps, the DEQ, interested
property owners, The Boat Club and others there may be an alternative solution
that will allow the mooring to remain under a permitted situation or to
remain period.
1. First I need to know is there
an interest in doing something?
2. If so, are you willing to
help in the effort?
3. Need to get together with interested
parties to map out what can be done and we need to do. It is my understanding
that the Corps will be meeting with the Village sometime in September to
discuss this issue.
4. Maybe the Village can be talked
into being the riparian property owner if they have help organizing the
effort, setting the ground rule etc. Or maybe there is another property
owner that would be interested??
Let me know your thoughts on this.
I am willing to help as I do have some contract in the Corps and the DEQ
as I have worked in this area for some time. It is my feeling that
if everyone works together maybe a solution can be worked out.
- Denny Vitton
NATIONWIDE PERMIT # 10
Here is something new! The Army Corps of Engineers has issued (at the
national level) a nationalwide permit (NW10) for single boat non-commercial
mooring buoys! This is something that should be explored. If the Detroit
Army Corps will only issue permits for buoy fields, it may well be that
single boat permits are not needed. They are allowed based on Nationwide
Permit # 10.
TOWNSHIPS
Additionally, the Michigan Supreme Court says that Townships are the
government group that is responsible for managing mooring fields. This
means that the Army Corps met with the wrong group--the Village of Suttons
Bay. While they clearly should have an interest in the mooring field, the
Michigan Courts say otherwise.
MICHIGAN DEQ PERMIT (Without Army Corps)
A separate permit system seems to be available from Michigan alone.
It would be a conveyance of the bottomland to the S.B. Boat Club (if they
chose to sponsor it). See attached PDF file. Attached is the form in PDF
format.
U.S. COAST GUARD SPECIAL ANCHORAGE AREA
This might also be the first step in getting the U.S. Coast Guard to
recognize the mooring field in Suttons Bay as a "Special
Anchorage Area." This is an area the is formally recognized as an mooring
area and the boundary is posted in the Federal Register and 33 CFR. One
advantage is the elimination of lighting requirements for vessels.This
gets rig of a major problem (keeping the light going every night) and eliminated
liability for boat owners since they are in a designated anchorage area.
There is one in Harbor Spring that appears on N.O.A.A. Charts. A JPG image
of that area is attached.
MEETING MINUTES
The minutes of the meeting between the Township and the Army Corps
need to be located. Also the Army Corps should be
contacted with a request for any notes that kept relating to the meeting
and to the actions that they took.
OTHER GROUPS
There is another group (besides BOAT/US) to contact:
http://www.boatus.com/
http://www.soba.gen.dc.us/Sobabib.htm (Boater Rights)
http://www.stsconsultants.com/index.html (Consultant)
RIPARIAN RIGHTS
This is a VERY good document about land ownership and streams, rivers
inland lakes and the Great Lakes. A MUST read:
http://www.michigan.gov/documents/publicrights_22525_7.htm
MORE LINKS AND INFORMATION
Below are a number of web pages that should help everyone research this
issue....
Army Corps -- Do I need a permit?
http://www.sam.usace.army.mil/PA/regulatory/permit.htm
Contacts:
Michigan Attorney General -- Jennifer M. Granholm
http://www.ag.state.mi.us/
Main Office Lansing Grand Rapids Office
G. Mennen Williams Building, 7th Floor
525 W. Ottawa St.
P.O. Box 30212
Lansing, MI 48909
Main Number (517) 373-1110
Consumer Protection (517) 373-1140
Facsimile (517) 373-3042
E-mail miag@michigan.gov
Jim
Piggush (Best Contact for Riparian Rights)
Assistant Attorney
General
(517) 373-7540
Michigan House -- Locate Your Representative
http://www.house.state.mi.us/LocateRep.html
Michigan Senate - Find Your Senator
http://www.senate.state.mi.us/SenatorInfo/find-your-senator.htm
U.S. Senate
http://www.senate.gov/
U.S. House of Representatives
http://www.house.gov/
Michigan Department of Environmental Quality
http://www.michigan.gov/deq
Army Corps of Engineers
Detroit - http://wwwlre.usace.army.mil/index.cfm?chn_id=1081
Washington - http://www.usace.army.mil/
Suttons Bay Township
http://www.leelanaucounty.com/guide/town-sb.html
Suttons Bay Village
http://www.leelanaucounty.com/guide/villages.html
Suttons Bay Marina
Suttons Bay Village Marina
(150 slips) (231) 271-6703
Leelanau County Commissioners
http://www.leelanaucounty.com/guide/commissioners.html
Leelanau Planning
http://www.leelanaucounty.com/guide/other.html
http://www.mwai.org/Newsletters/mwa-newsletter-August%202002.pdf
http://www.mwai.org/Newsletters/mwa-newsletterFeb-2002.pdf
http://www.mwai.org/Newsletters/MWAI-Nwsltr-Dec-Jan-2002.pdf
http://www.mwai.org/Newsletters/August-2001/MWAI-August-2001-a.pdf
http://www.mi-riparian.org/
http://www4.law.cornell.edu/uscode/33/ch9.html
http://www.mlswa.org/TRAUTZ1202.htm
http://www.michiganlegislature.org/mileg.asp?page=getObject&objName=mcl-324-30101&highlight=
- Tom Davison
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