Legal Matters

Riparian Rights in Michigan

Road Ends

February 22, 2008

Washtenaw County Circuit Court rules in favor of the PBWOA Position Portage Ave Alleyway

Washtenaw County Circuit Court: After a 2-1/2 day trial Judge David Swartz ruled in favor of the plaintiffs, the PBWOA (interveners in the case) Dexter Township and property owners in Portage Lake Resort Subdivision:

The ruling was that the right of installing a 150 + foot dock and mooring of boats for the exclusive use of 5 back-lot property owners will not be granted and the overnight mooring of boats is illegal.

January 19, 2005

Livingston County Circuit Court Rules on Lake Access

For the second time in four years the court has ruled that private road ends are to be used only as the deeded access allows.

Most subdivisions were platted with Riparian Owners having privileges that they paid for in the higher price for the property, along with paying higher property taxes. The back-lot property owners were given privileges of the access to the water through road-ends and dedicated out-lots.

The road-end issue has been challenged in court many times and the courts have always ruled that unless specifically granted; the only right for the back-lot owner is ingress and egress to the water. This means you can walk down to the water and go for a swim, water your horse or collect a bucket of water. No mooring of boats. No loitering, No sun bathing, No Picnicking. No parking of vehicles. You walk in and you walk out.

The recent case heard, January 19, 2005, by Livingston County Circuit Court Judge David Reader that was brought before the court by a home owner on Portage Lake. This action was the brought when three back-lot property owners decided that they had the right to moor the boats off of a private road-end on Portage Lake.

This is the second time that this owner along with your PBWOA had to foot the bill of this court trial to protect the rights of the Riparian Owners. This ruling, handed down by Judge Reader, also defends the rights of seventeen other back-lot homeowners by protecting their deeded rights to use the road-end as they were intended to be used. It stops a “select few” from infringing on the other owners.

Judge Reader upheld a previous ruling, in the same court, heard by now retired Judge Burress that “The defendants, as owners of said non-riparian lot, have no right to moor any boat in the waters of Portage Lake at times they are not in attendance thereon”.

Noise

Several boats on these lakes, in Livingston and Washtenaw Counties that are operating in violation of MCL 324.80156, which defines allowable noise levels for boats, including specification for exhaust/muffler systems. Specifically, the boats in question often operate with straight exhausts without mufflers and/or operate at noise levels that exceed the decibel levels described as allowable in MCL 324.80156.

The majority of boats on the lakes are within decibel ranges that do not warrant enforcement for noise violation.

However, there are several boats that are extremely noisy. They roar. It is these roaring boats – the few extreme cases – that should be quieted. For example, to describe this kind of boat noise on a weekend afternoon, there could be as many as 50 PWCs and motorboats on Portage Lake. All of them are making some noise, with some barely audible and some noisier.

But, on occasion, there will be one roaring boat that can be heard over all of the others. This roaring boat can be heard from one end of Portage Lake to the other. Sometimes, two or more of these roaring boats will race, and the noise is incredibly loud.

Those roaring boats are the basis for this appeal for action by the Livingston County and Washtenaw County Marine Patrol, which could bring an end to the excessive noise levels created by these boats. Furthermore, in addition to MCL 324.80156, there are also township ordinances that reference noise violations.

Hamburg Township Ordinance No. 20-A Noise Ordinance Section 6a:

“No person shall conduct or permit any activity, including those specific prohibitions listed in Section 5 that produces a dB(A) at or beyond the property line of the property on which it is conducted which exceeds the levels specified in Table 1”.

Such noise levels shall be measured on the property line or on the adjacent property which is receiving the noise. Where property is used for both residential and commercial purposes, the limitations set forth below for commercial property shall apply.”

Use of Property Producing Sound	Use of Property Receiving Sound	7:00 a.m. to 10:00 p.m.	10:00 p.m. to 7:00 a.m.
Residential	Residential	75	60
Commercial	Residential	80	60
Residential	Commercial	80	60
Commercial	Commercial	90	75

Putnam Township Zoning Ordinance Section 15.200 Par. F:

“Noise. The generation of noise at a level greater than the normal level of traffic noise at the time of such generation or emission, when determined at the boundary of the property. Industrial districts may have higher levels of noise”. Additionally, there are precedents set by the townships to control boating on the lakes within the townships. Since, Livingston County handles law enforcement on the lakes; it would seem that enforcement of the township ordinances – on boat speed as well as noise – is the responsibility of Livingston County.

Dexter Twp. Noise Ordinance No 5 Section 3

“It shall be unlawful for any person to create, assist in creating, permit, continue or permit the continuance of any unreasonably loud, disturbing, unusual or unnecessary noise which annoys, disturbs, injures, or endangers the comfort, repose, health, peace or safety of others within the limits of the Township of Dexter”.

Dexter Twp. Noise Ordinance No. 5 Section 4

“No person shall conduct or permit any activity which produces a dB(A). Beyond his property line exceeding the levels specified in Table 1. Table 1” specifies residential limits of 86 dB(A) from 7am. to 10pm. and 55 dB(A) from 10pm. to 7am.

Webster Twp. Section 5.14 par. 6

“Noise which is objectionable due to volume, frequency or beat shall not exceed the average traffic noise at the lot lines. Warning sirens and similar apparatus used for public purposes shall be exempt from this standard”.

Many of the PBWOA members are tax-paying residents of Livingston and Washtenaw Counties as well as Putnam and Hamburg Townships. Therefore, we believe strongly that it is our right to request action to curtail the roaring boats on our lakes. Previously, we as individuals have lodged complaints about these roaring boats to the Michigan DNR and to the marine patrols of Livingston and Washtenaw Counties. Both counties share marine patrol responsibilities on Portage and Base Lakes. Generally, nothing happened after the complaint was lodged. No law enforcement officer followed up, let alone issued a citation for any violation.

To report Noisy Boats call 911

In addition to the PBWOA notifying the townships and county officials that you desire action to quiet the roaring boats, there is something that each of us can do. Every time that one of the Roaring Boats begins operating on our lakes, you can call 911 to report that noise violation in progress. The Marine Patrols of both counties have advised that calling 911 is the recommended way to report boating noise violations. You can cite the specific township ordinances and Michigan Law during your phone call.

Lake Levels

The levels of Portage and Base Lakes are controlled by the John Flook Dam which is located to the east of the McGregor Road bridge near the public launch site. That dam is managed by the Washtenaw County Water Resources Commissioner’s (WCWRC) office. To some extent, levels further upstream are affected by the dam, but not as much as you might expect, Rather, upstream levels depend on the flow rate in the river and restrictions to that flow.

Several years ago, the Washtenaw County Circuit Court established the Summer lake levels for Portage and Base at 851.54 feet above mean sea level. Although a Winter level was not specified by the Court, the WCWRC traditionally lowered lake levels over the Winter starting on the date the public launch site was closed for the season. At first, levels were lowered by as much as 30 inches, but in later years the drawdown level decreased to as little as 12 inches. In 2010, at the urging of PBWOA, the WCWRC went to court to officially establish a Winter lake level. The result of that proceeding was that the Winter level was set to 15 to 18 inches below the Summer level. Since that ruling, we have experienced a couple of mild winters and so have not verified that the drawdown will be sufficient to prevent ice damage during Spring thaws. Lake levels are monitored by an electronic gauge located at the dam and are recorded at the WCWRC office and periodically posted on the WCWRC website.

One of the problems with controlling the lake levels is that there is not a good way of predicting changes in flow rate upriver so that the dam can be opened in advance of rising water. A more severe problem in Winter is that ice forms on the mechanisms that operate the gates making them very difficult to operate in a timely manner.