Fight Over Illegal Docks

April 2006 News

Families accustomed for years or even decades to installing docks on lakes where they don't own waterfront property this year risk hefty fines or even jail time if they ignore a ruling to desist.

And while the tension over water access is a perennial problem on Michigan's thousands of inland lakes, the epicenter of the issue is on Higgins and Houghton lakes in the state's northern Lower Peninsula. There, judges spent much of the off season enforcing court rulings that local authorities were reluctant to recognize.

As the new boating season begins, residents and cottagers throughout the state prepare for battles on the lakes and in courts. Those without waterfront property remain legally barred from a generations-old practice of creating temporary marinas with docks and hoists at the ends of public roads that terminate on lakes.

In the Roscommon County court dealing with Higgins and Houghton lakes, a judge slapped six people -- one from Macomb Township, one from St. Clair Shores, one from East Lansing, one from DeWitt and two from Roscommon -- with $450 fines apiece and court costs for violating an earlier ruling. A Roscommon man in November was fined and banished from using
Higgins Lake this year, a ruling altered last week. A Taylor woman was briefly jailed and fined after a courtroom outburst in November.

And civil process servers still are loo
king for John Schreck, 45, a Canton Township resident who owns 75 acres a half-mile from Higgins Lake. Despite a new sign warning the practice is illegal, Schreck followed family tradition last spring, installing a hoist for a 24-foot-long pontoon boat at a road end. Now, he's accused of contempt of court on suspicion he tried to evade being served with orders to appear in court.

"I haven't decided what I'm going to do when they deliver the notice to face the judge," said Schreck, who said he has not hidden to avoid being served. "He will say I'm guilty, but we've used these road ends all my life because that was the understanding when my family bought the land back in the 1940s."

With the demand for recreational access ever increasing and lakefront owners loo
king to protect their expensive property from overcrowding, courts throughout the state continue to hear similar arguments.

The case that recently defined the public's right to stroll along
Michigan's Great Lakes shorelines started as an argument on Lake Huron between lakefront and back-lot neighbors in Greenbush, south of Alpena. The U.S. Supreme Court has declined to review the Michigan Supreme Court decision that allows public beach walking below the historic high water mark.

Houghton and Higgins lakes dominate the controversy about public access each year because a plethora of roads end at them. Some inland lakes in Metro Detroit lakes have roads that dead-end at the waterfront, but many simply curve around the water and therefore do not create an access point for boat moorings or docks.

"People like to use them for public access, but most of the time they're just shooed away by nearby property owners," said Commerce Township Supervisor Tom Zoner, who estimates the township has four roads that dead-end into lakes. "They're actually kind of hard to find, so it's usually residents who know the area pretty well and they're just loo
king for a party spot."

Issue brings waves of cases

On Houghton Lake, Chesterfield Township resident Marty Prehn has been sued by an association of residents that operates a marina next to his cottage.

"It's an amazing reversal of logic where they are claiming my boat hoist in front of my cottage is sitting on an underwater easement they somehow purchased years ago," Prehn said.

The Sunshine Bay Dock Association argues Prehn's dock extends onto its lakefront property and is not at a road end at all, said Scott Hess, the lawyer who represents the association.

It's an example of the entanglements that surround lake access. The problem with seasonal road-end marinas is statewide, but Higgins Lake, with 94 dead-ends at the water's edge, is a hotbed, said James Riley, an assistant state attorney general who represents the Department of Natural Resources and Department of Environmental Quality in water access lawsuits.

Many local governments and counties have outlawed the practice, but some townships took the opposite tack, adopting local ordinances supporting off-lake residents in their quest to keep long-standing doc
king and mooring at road ends. A Michigan Court of Appeals decision released April 11 determined that local governments can't make laws allowing overnight boat mooring and hoists.

"There is no statewide ordinance, only case law established by previous lawsuits, so the matter is left up to neighbors to sue each other, road after road and subdivision after subdivision," Riley said. "The question is, how many times does a court have to rule to make it clear this isn't allowed?"

The practice continued on Higgins Lake despite numerous lawsuits resulting in court opinions against it that date to the 1980s.

"Enforcement is very difficult politically here when the majority of the voters don't own lake frontage, but want to continue enjoying the lake," said William Carey, a lifelong
Higgins Lake resident who also is a lawyer representing lakefront owners.

"Any board or unit of local government around here knows enforcement ensures a recall election. That's happened several times already so it gets turned over to the courts, and the courts chastise the townships for not ta
king on their responsibilities, and then, nothing happens."

Indeed, back-lotters successfully recalled three Lyon Township Board members in
Roscommon County in early 2003 when the board passed a township ordinance that barred boat moorings at the end of roads that abut Higgins Lake. Voters broomed Supervisor Paul Tatro, the township's treasurer, and one trustee; Tatro won back the office during the November 2004 election.

During his nearly two-year absence, the new board fought in court to gain road-end rights. Again, the courts ruled against the seasonal marinas, and slapped the township with a $2,000 fine for challenging the court on its earlier ruling.

"People are just now realizing that this isn't going to change," Tatro said.

"Obviously people who live two blocks from the lake and moored their boat at the road end for the last 20 years are not happy and they're not going to be happy. What we're doing now is trying to find better and more access to the lake for people who don't own lakefront property."

Judge cracks down

When the local judge stepped aside because of claims about conflicts of interest, a visiting judge was assigned to oversee two lawsuits. Higgins Lake frontage owners, at least a quarter of them from Metro Detroit, had again sued back-lotters docking at the road ends.

Newaygo County Circuit Judge Terrence Thomas warned last spring the road ends were meant for swimming and temporary recreational access including fishing and launching small boats. A dock can be installed, but picnic
king, sunbathing and overnight boat mooring aren't allowed.

Thomas cracked down during the off season. The names of more than 100 boat owners who violated his orders last summer were provided to the judge, Carey said. Most weren't punished after agreeing to never do it again. About a dozen got fined after unsuccessfully arguing their innocence before the judge.

"We aren't trying to keep people off the lakes. It's about respecting private property and public rights of everyone to use those road ends," said Pat Springstead, president of the Higgins Lakefront Property Owners Association and owner of Nemo's Bar in
Detroit near Tiger Stadium. "They should not have special privileges on public land just because their grandfathers did."

That was essentially the argument posed by the seven men who pleaded no contest to violating a judge's ruling barring the creation of seasonal marinas with docks and hoists at the end of a road that terminates at a lake. An eighth man who argued he moored his boat in front of a public park was ordered to pay $750 in fines and court costs and barred from using Higgins Lake through 2006, although last week a judge relented and agreed to allow the man to use the lake again. At the end of that contentious November hearing, a
Taylor woman was slapped with a $100 for cursing at the visiting judge.

Ric Federau, president of the Higgins Lake Civic Association that represents 1,200 back-lotters, said losing mooring privileges will hurt off-lake property values.

"This is a war of front-lotters against back-lotters," Federau said.
"There are more than 400 displaced boats now on Higgins Lake. That's a lot of frustrated people who are thinking this is a judge legislating from the bench."

You can reach Doug Guthrie at (734) 462-2674 or and Amy Lee at (313) 222-2548 or

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