POSITION PAPER OF THE ML&SA REGARDING PROPOSED PUBLIC ROAD ENDS AT LAKES LEGISLATION
(November, 2011)
1. What are these road ends?
Many inland lakes in Michigan have public roads (whether developed or undeveloped) which end perpendicular at the lake. These are public roads and, hence, public property. Theoretically, both the county road commission and local township government where a given road end is located have certain jurisdiction over such public roads. The width of the rights-of-way or easements for these public roads vary—they can be anywhere from only 10 feet wide to 66 feet wide in some cases.
2. The problem.
People who own properties near inland lakes, but without lake frontage, are often referred to as the owners of backlots or “backlotters.” Some backlotters at many inland lakes throughout Michigan (particularly at Higgins Lake) are misusing these public road ends at the lakes. How? In a variety of fashions. Some backlot owners are attempting to seize or appropriate these public properties for their own private and exclusive use. They are doing this by installing private docks, shorestations and boat cradles in the water adjacent to these public ways, and are permanently storing, anchoring and mooring their boats at such docks, shorestations or other structures at these public road ends. This not only “junks up” the water at the public road ends, but also prevents other members of the public from utilizing the narrow road ends for what they were intended for—that is, public travel to and from the water and for such permissible public activities as swimming, fishing and temporarily pulling boats up to shore.
3. Road ends are lousy marina sites.
Even if it were not unlawful to have overnight boat moorage, shorestations, private docking, and similar uses at public road ends, the public road ends make lousy marina sites in any event. They are too narrow. Furthermore, they lack parking, bathroom facilities, and other basic necessities and amenities. The backlotters should not be wasting their efforts “tilting at windmills” regarding road ends—rather, they should be attempting to obtain more and better public lake access sites with acreage and significant lake frontage that will be safe, have adequate parking, and accommodate reasonable public access.
4. Why are backlotters allowed to seize and abuse these public properties?
Obviously, local governments would never allow anyone to misuse, seize or appropriate for their own private and exclusive use the front yard of a township or city hall, a public park or other public way or property. Unfortunately, with public road ends at lakes, county road commissions and local governments (such as townships) have generally abdicated their responsibility to properly regulate activities at such public ways. In many cases, these governmental units fear the political clout and stridency of some of the backlotter groups. In this vacuum of governmental abdication, it has been left up to area lakefront (riparian) property owners or lake associations to stop backlotter abuse of public road ends by the filing of expensive and time-consuming civil lawsuits. That is an inefficient way to vindicate public rights regarding these public road ends.
5. Rights of usage to public road ends under real estate or property law.
The Michigan appellate courts have universally held on numerous occasions that virtually every public road end which terminates at an inland lake in Michigan can be used only for travel purposes such as walking to and from the lake, swimming, fishing, temporarily pulling a boat up to shore to let off people or pick them up and similar nonsedentary purposes. The courts have consistently ruled that non-travel activities and uses such as sunbathing, lounging, picnicking, the permanent mooring of boats and the use of shorestations, boat cradles and similar items are prohibited at public road ends and the waters adjacent thereto. Depending upon the width of the public road right-of-way, the courts have usually allowed the installation of one limited dock (by a governmental unit) to aid in navigability, but have also held that permanent or overnight boat mooring at any such dock is prohibited.
For this long-settled Michigan case law, please see Jacobs v Lyon Twp, 199 Mich App 667 (1993); Thies v Howland, 424 Mich 282 (1985); Higgins Lake Property Owners Assn v Gerrish Twp, 255 Mich App 83 (2003), lv to appeal denied by the Michigan Supreme Court in 469 Mich 907 (2003); and Lyon Twp v Higgins Lake Property Owner’s Assn (unpublished Michigan Court of Appeals opinion, April 11, 2006, Case No. 265162).
These cases are based on the common law regarding real estate or property principles. In other words, when the public road ends were created, these are the only activities they were intended to be used for (i.e., access only) and those uses cannot be exceeded or contradicted. These court cases (which prohibit private dockage, permanent boat moorage, lounging, sunbathing, etc. at public road ends) have been the law in Michigan for over a century. Contrary to the claims by some backlotters that all of the cases simply represent the views of “activist” judges, the cases were decided by appellate judges from across the political spectrum and have been settled real property law in Michigan for many generations.
Backlotters continue to violate this clear case law. Unfortunately, without appropriate state legislation, vindicating these matters requires private civil lawsuits which can be time-consuming and expensive. Many responsible parties desire to see state legislation implemented which would allow any police officer or sheriff deputy to write a simple enforcement ticket (similar to a traffic ticket) regarding anyone doing anything illegal at a public road end. That would constitute a cheap, quick and efficient way of not only enforcing the law, but also clearing the public road ends of prohibited uses, structures and activities so that responsible members of the public can use the public road ends for lawful lake access purposes.
6. The rights of the lakefront/riparian lot owners who adjoin public road ends at lakes.
People who own lakefront properties next to public road ends are suffering in these situations in at least two ways. First, illegal dockage and boat moorage on the bottomlands at public road ends quite often spill over onto their riparian bottomlands. Also, the intense dockage and high speed boating activity at public road ends endangers the adjoining riparian landowners and their families.
Second, in many public road end cases, the adjoining riparian property owners actually own to the center of the public road end subject to the limited public access easement for travel purposes to and from the lake. To the extent that the public road ends are being abused by backlotters, that is a violation of the property rights of the adjoining riparian landowners who own the land under the public road right-of-way or easement. See Shell Oil v Village of Kalkaska, 433 Mich 348 (1989); Morrow v Bolt, 203 Mich App 324 (1994); Loud v Brooks, 241 Mich 452 (1928); Thies v Howland, 424 Mich 282 (1985).
7. Some of the extreme examples.
The abuse by some backlotters of certain road ends at lakes around the state is truly amazing. Contrary to what some of the backlotters at Higgins Lake have asserted, this problem is occurring statewide with increased frequency and is not limited solely to Higgins Lake. In the past, some of the public road ends have resembled floating marinas (with multi-stage docks, 30 or 40 boats being permanently moored and dozens of families claiming a road end as their own exclusive property)! Some backlotters have even chased other members of the public away from public road ends and their docks.
8. Past and current proposed responsible legislation.
Road ends legislation was first introduced almost a decade ago as a way of legislatively codifying and making the enforcement of the common law easier regarding the proper usage of public road ends at lakes. The Michigan Attorney General’s office probably first broached the idea of regulatory legislation years ago. Legislation to limit what occurs at road ends has been supported by virtually every responsible group in Michigan which is directly affected. The legislation as originally introduced (and as supported by many groups over the years) would have prohibited the mooring, storing, and anchoring of watercraft at public road ends, as well as prohibit the installation or use of dockage except when installed by a governmental unit. This is what the Michigan appellate courts have ruled civilly. However, that legislation was hijacked in the past by a small but very effective group of backlot property owners (primarily at Higgins Lake) who produced their own proposed counter-legislation which sought to overturn the longstanding case law and common law. In fact, the various pieces of legislation pushed by the backlot owners over the years have often been deceptive and somewhat of a wolf in sheep’s clothing—while purporting to enhance public access and local control, in fact, in most versions of past bills pushed by the backlot owners, the bills would have actually allowed a few backlot owners to appropriate the public road property (and attendant bottomlands) for their own private use and would have actually impinged upon local governmental control.
The latest proposed legislation is Senate Bill 778. SB 778 is a reasonable proposal that would ban private docks and overnight boat moorage at public road-ends at lakes, and is supported by groups such as the Michigan Lake & Stream Associations, Inc. (“ML&SA”) and the Michigan Waterfront Alliance (“MWA”).
9. The January 30, 2008 Michigan Attorney General Opinion.
In a well-researched Opinion dated January 30, 2008 (Attorney General Opinion No. 7211), the Michigan Attorney General addressed the constitutional and legal issues regarding public road-ends at lakes in a comprehensive and straightforward fashion. Anyone interested in the public road-end controversy should review that Opinion.
10. Why “grandparenting” is illegal and bad behavior would be both unlawful and unwise.
In past versions of the backlotters’ legislation, the backlotters attempted to expressly “grandparent” past illegal uses at public road ends by backlotters. Although the backlotters did not expressly use the concept of “grand parenting” in their proposed legislation, it would have had the same effect.
Why would de facto “grandparenting” for backlotters who illegally used these public road ends in the past be a bad idea? There are many reasons, including the following:
(a) It would reward illegal behavior.
(b) It would be unconstitutional.
(c) It would prove unworkable.
(d) One cannot obtain a “grandparent” right as to a public property!
(e) It would make many of the public road ends at lakes unusable by members of the general public through extensive use by backlot owners who would effectively be “grandparented” as to their formerly illegal dockage, shorestations, permanent boat mooring, etc.
(f) It would set a bad precedent regarding other statutes and public properties.
(g) What message would this send to the people of the state of Michigan—engage in illegal conduct, lobby the government for an exemption and ultimately you will not only benefit by your past illegal conduct, but you will be able to continue to engage in the formerly illegal conduct forever!
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Michigan law has recognized for well over 100 years that private individuals cannot obtain “squatters rights” (often legally referred to as “adverse possession” or “prescriptive easement rights”) as to public roads or public road rights-of-way.
In the past, backlotters have stated that any Michigan appellate court decision can be overturned by the Michigan Legislature. Of course, that is incorrect. While it is true that the Legislature can effectively “overturn” court decisions involving existing statutes by amending the statute, the Legislature cannot take away property rights and deprive a person or entity of property without due process and without paying compensation—that would be unconstitutional. The numerous Michigan Court of Appeals and Michigan Supreme Court cases which backlot property owners talk about “overturning” by the backlotters’ proposed legislation involve basic property rights. Any attempt to overturn those appellate court decisions or to seize private property rights by legislative fiat will almost certainly be struck down by the courts.
What long-standing property rights would be effectively taken away by legislation proposed by backlotters over the years? Many of the public road ends at lakes in Michigan constitute only an easement and the adjoining riparian property owners own to the center of the public road right-of-way subject to a limited easement for public access use. See Shell Oil v Village of Kalkaska, 433 Mich 348 (1989); Morrow v Bolt, 203 Mich App 324 (1994); Loud v Brooks, 241 Mich 452 (1928); Thies v Howland, 424 Mich 282 (1985). The extent or burden of that easement cannot be increased by the Michigan Legislature or a local government without due process and without paying the adjoining property owners for the additional burden on their underlying soil. Additionally, the property rights as to dedicated properties within a plat cannot be changed by legislative fiat. Does the Legislature really want to pass unconstitutional legislation? Is it wise to enact illusory legislation which will cause some local governments to act in a particular way, thus drawing them into protracted expensive litigation with adjoining riparian property owners who will ultimately likely succeed in having the statute and the local government’s actions be declared unconstitutional and be awarded damages?
The backlot property owners tried a similar route in a local township unsuccessfully already. They were able to prompt Lyon Township to pass a self-serving local ordinance which attempted to expand the usage rights for public road ends at lakes within that township. In Lyon Twp v Higgins Lake Property Owners Ass’n (unpublished Michigan Court of Appeals Case No. 265162, dated April 11, 2006), both the trial court and the Michigan Court of Appeals held that Lyon Township could not lawfully broaden the scope of allowable usage rights for road ends by ordinance. Thirteen years earlier in Jacobs v Lyon Twp, 199 Mich App 667 (1993), the Court of Appeals also thwarted an attempt by Lyon Township to do essentially the same thing which Lyon Township attempted to do more recently in the preceding case—that is, unlawfully attempt to expand usage rights to road ends by legislation. Just as Lyon Township could not constitutionally ex post facto expand usage rights at public road ends by ordinance, neither can the Michigan Legislature constitutionally legislatively expand usage rights of public road ends by legislation.
11. What is the ultimate goal of the backlotters?
Many backlotters want special privileges, pure and simple. They also want their own floating marinas at road ends, but without paying for lakefront property.
It sometimes appears that many of these backlot owners resemble a dog chasing a car. What happens when the dog actually catches the car? To the extent that the backlot owners ever obtain a right to utilize public road ends for uses such as extensive dockage, permanent boat moorage and shorestations, every other member of the public must have the same right—governments and the courts cannot discriminate against members of the general public (whether they be backlot owners or people who do not even own property near the lake involved). If one takes the logic (or illogic) of the backlotters’ arguments to their inevitable conclusion, do we have to allow 30 permanent boat moorings at a public road end? 60? 100? Who would decide how many boats is too much? How would limited, scarce boat mooring sites at public road ends be allocated? First come, first served? By a lottery? Who would police these issues? As you can see, the backlotters’ permanent goals are simply unreasonable and unworkable. Essentially, the backlotters’ view would lead to chaos and anarchy at these public road ends.
12. Many backlotters utilize only emotional and baseless arguments.
Among lawyers, there is an old saying that if you have the law at your side, argue the law in front of the jury. If you don’t have the law on your side but you have the facts on your side, argue the facts before the jury. If you have neither the law nor the facts on your side, “obfuscate” or use emotion. The backlotters have lost every major court case brought regarding public road ends at lakes in the state of Michigan. When the issues involved are explained to the average Michigan resident, that person is almost always appalled that a group of backlotters could seize public property for their own private use. Accordingly, the only argument or tactic left to the backlotters is to make emotional arguments.
In the past, the website for the backlotters group at Higgins Lake has used a series of “talking points” which backlotters were urged to utilize when attempting to make their case to legislators or members of the public. These talking points have included claiming that lakefront property owners simply desire to close these public access sites and urging backlot owners to make emotional arguments about how their families have used these road ends for generations and similar emotional claims. People should not be swayed by these hollow appeals.
Backlotters have also raised the specter of difficulty involving seniors and handicapped persons having to remove boats from the water at these public road ends each night if illegal use of the road ends cannot continue. What about handicapped individuals and seniors who desire to use the public road ends for the purposes for which the road ends were intended (for wading into the water, fishing, and swimming), but who cannot do so practically or safely due to the myriad number of docks, shorestations, and watercraft constituting an obstacle course at the road ends? Some backlotters assert that dismantling the illegal road end marinas would hurt their property values, but have provided no definitive proof of that argument. What about the negative impact on property values (and local taxes) for adjoining riparian properties due to the presence of huge, illegal floating marinas kept by backlotters? Clearly, the backlotters’ arguments are strained and effectuated.
13. This is not simply a situation of lakefront property owners versus backlotters.
Some of the backlotters love to paint this controversy as between wealthy, elitist lakefront property owners versus the supposed victims (i.e., backlot owners, who are afraid of losing their lake access rights). Of course, that is absurd. Certainly, riparian property owners have a major interest in ensuring that public road ends are properly used in order to prevent the “spilling over” effect which results in trespassing on adjoining private bottomlands and also to prevent the “overburdening” of the property underlying the public road right-of-way or easement. Ultimately, however, this is primarily a public interest issue—these limited public access sites must remain free and clear of clutter and obstructions and be available for use by everyone, not just a few pushy backlotters.
Some backlotters falsely claim that the ultimate goal of lakefront property owners is to close the public road ends at lakes forever. That is simply a scare tactic. Most lakefront property owners have no problem with public road ends as public access sites at lakes so long as they are reasonably and properly used. Furthermore, Michigan statute makes it virtually impossible for a public road end at a lake to be closed, abandoned or vacated.
14. Backlotters are not “victims.”
Many backlotters attempt to cast themselves as “victims” in this debate. It is an attempt by backlotters to garner sympathy. It is difficult to see how “squatters” can ever be true victims.
Some backlotters attempt to build their victimhood status by claiming that realtors promised them before they bought their off-lake properties that they would have boat mooring rights at the road ends. They also assert that generations of backlotters at Higgins Lake in particular have been utilizing the road ends for marina use without any problem. Finally, they sometimes claim that local township officials encouraged them to use the road ends for private use. Of course, upon closer examination, all of these arguments melt under the microscope. To the extent that any real estate salespeople or realtors misled backlotters when they purchased their properties, that is unfortunate. However, the old adage “buyer beware” is applicable and the proper course of action to take would be a lawsuit against any salesperson who misrepresented matters. While it is fairly common for salespeople to advertise a backlot has having lake access, that does not mean boat and docking rights.
The case law which prohibits floating marinas at road ends has been clear for a century or more. Candidly, some of the backlotters are lucky that they have been able to engage in illegal conduct for so long without sanction. Clearly, backlotters are not victims in any sense of the word.
15. The parking and campgrounds analogies don’t work.
Some backlot groups have suggested that perhaps permits or an annual lottery system could be used for road end boat docking, similar to what he asserts is done for public campgrounds. However, public campground permits are for relatively short periods of time (usually days or a week at most), and are not for an entire summer season! Furthermore, any member of the public would have just as much right to a temporary permit or to enroll in a lottery for permits for road end boat mooring as would a nearby backlot owner—government cannot discriminate against general members of the public (including those who do not even own property in the area) and in favor of backlotters. Finally, short-term public camping is appropriate for a large public park or campgrounds (which are specifically designed for such sedentary or stationary uses)—long-term boat mooring and private boat hoists are not appropriate for narrow public roads (which are for travel only)!
In reality, a more appropriate analogy would involve illegal public parking. Quite simply, public parking spots along a public street (in those areas where parking is allowed, and whether or not parking meters are involved) cannot be monopolized by one group of people. One person cannot “hog” a parking spot for weeks or months at a time without being ticketed and being required to move his/her car. No person can have “grandparented” public parking! On a public street where parking is allowed, no one can get a permit or enroll in a lottery where they are allowed to utilize the same parking spot along the public street for months at a time to the exclusion of other members of the public—rather, parking must be very temporary. Finally, parking along public streets is normally only allowed where the public street is wide enough to accommodate parking safely in light of the primary purpose—the movement of traffic. Under the proper parking analogy, Representative Sheltrown’s arguments break down totally.
16. No one has advocated closing the public road ends.
The way that some of the backlot owners are complaining about the court decisions and the reasonable road end bills advocated by ML&SA (and numerous other responsible organizations over the years), you would think that the public road ends are being shut off. The regulatory legislation urged by ML&SA will not shut or close off any public road end. Furthermore, the assertion by many backlotters that lakefront property owners are attempting to close or vacate public road ends is untrue in all but the rarest of situations (for example, where a particular public roadway never truly existed). In actuality, the past conduct of some backlotters has been an impediment to public access and removing the “floating marinas” illegally installed by some backlot owners will greatly help public access to lakes. These road ends can be used for a variety of lawful purposes and uses, including, but not limited to, walking to and from the lake, fishing, hand-launching of small watercraft (so long as such boats are removed when not being used and are not kept there), swimming and ice fishing. Such activities are consistent with the uses normally allowed for the public at most waterfront public parks.
17. The backlotters’ positions will actually hurt tourism and recreation.
The backlotters claim that they are protecting and even promoting tourism and recreation. In actuality, the backlotters’ views would hurt both tourism and recreation. Many of Michigan’s lakes are already overcrowded. The backlotters’ claims would make a bad situation worse. Furthermore, by seizing public road ends for private marinas, members of the public who wish to use road ends for proper purposes such as swimming, fishing, ice fishing, etc., would not be able to utilize those road ends as a practical matter. Common sense indicates that the road-end misuse hurts everyone except for a handful of backlot property owners.
18. The need for respect for the law.
Unfortunately, some backlotters have flagrantly disregarded the law, including the clear mandates of the Michigan Court of Appeals in Jacobs v Lyon Twp, 199 Mich App 667 (1993), and Higgins Lake Property Owners Ass’n v Gerrish Twp, 255 Mich App 83 (2003), by continuing to maintain private docks, permanent boat moorings, shorestations, and other prohibited uses and activities at public road ends at lakes. Such flagrant and open violation of law should not be permitted by the state of Michigan, let alone rewarded! Pending Senate Bill 778 (as backed by ML&SA and MWA) is a simple, straightforward way to enforce and maintain the law.
19. This is primarily an inland lakes issue.
The problems associated with public road ends at lakes involving docks, boat moorings and similar matters relate primarily to inland lakes, not the Great Lakes. Accordingly, the decision by the Michigan Supreme Court in the “beach walker” case in July of 2005 regarding walking along the shore of the Great Lakes applies only to the Great Lakes and does not change any of the case law or controversies regarding public road ends at inland lakes in Michigan.
20. Summary.
To the overwhelming majority of people (including those who are not directly involved in this controversy), once all of the facts are known, this issue is a “no brainer”—a few strident backlotters simply should not be able to junk up and seize public property for their own private use, the common law and real estate or property law as clearly identified by the Michigan appellate courts should be upheld and past illegal behavior should not be rewarded or “grandparented” for anyone. This is a situation where a small group of people (some backlotters) have used a good deal of energy spreading falsehoods in an attempt to stop needed legislation while pushing their own contrary special interest legislation. The Michigan Lake & Stream Associations and the Michigan Waterfront Alliance hope that everyone will support SB 778, as it is a common sense and reasonable approach.