IN RE: Inland Lakes & Streams Act Appeal of Budny,
Viola, Murphy, and Thomas
File No. 88-12-375, Permit of Ellis Murphy

The Natural Resources Commission, having considered the Proposal for Decision dated April 23, 1990, of the Administrative Law Judge, and the files, pleadings, briefs and written/oral arguments in the matter, hereby determines and orders that:

The Proposal for Decision is adopted and affirmed in its totality and is further incorporated into this final decision by reference and is adopted by the Department of the Natural Resources as its findings of fact and conclusions of law. (See Proposal for Decision, Cause No. 88-12-375, Permit of Ellis Murphy, dated April 23, 1990, attached hereto.)

_____________________________ ______________________________

Date Thomas J. Anderson, Chairman
Natural Resources Commission

IN RE: Inland Lakes & Streams Act Appeal of Budny,
Viola, Murphy and Thomas
File No. 88-12-375

Permit of Ellis Murphy

Dated: April 23, 1990
William C. Fulkerson,
Administrative Law Judge

This matter is a contested case hearing arising from the issuance of an Inland Lakes and Streams Act Permit to Ellis Murphy, for a privacy fence on his lot on Cable Lake.

The hearing was conducted in accordance with 1972 PA 346, MCL 281.951; MSA 11.475(l), the Inland Lakes and Streams Act.

1. The professional staff of the Department of Natural Resources is charged with the day to day administration of Inland Lakes and Streams Act.

2. Budny, Viola, Murphy and Thomas, members of the Wildwood Subdivision of Cable Lake, as Petitioners, requested the hearing in accordance with the Act, and Ellis Murphy was granted intervention as a party of interest and as the applicant/permit holder.

In August, 1988, Ellis Murphy, Permittee, applied to the Department of Natural Resources for a permit pursuant to the Inland Lakes and Streams Act (ILSA), to replace a privacy fence, which was damaged in a windstorm. It was proposed to extend up to 13 feet into Cable Lake, and along the Permittee's property line.

Mr. Murphy had replaced the fence before obtaining a permit. The Petitioners complained to the Department about the fence replacement. The Department, after a field review, decided the violation was minor and did not warrant civil or criminal action. Mr. Murphy was advised to apply for a permit; did so and received a permit. The Petitioners have requested a hearing challenging the permit issuance.

The Permittee's property is located on the shore of Cable Lake in Silver Creek Township, Cass County, Michigan. it is owned by Judy and Ellis Murphy, Permittee herein, and is contiguous to cable Lake. The adjacent lot provides an access to the lake for some residents including the Petitioners that own backlots in the Wildwood subdivision North. The fence, on the easterly side of the Permittee's property, was built sometime between 1976 and 1978, prior to the Murphy's purchase in 1983.

The Department staff are of the opinion the fence is mostly a matter of aesthetics. On July 9, 1987, see Exhibit #1, the Project Review Report stated, "No resource damage but is not aesthetically pleasing. Because the fence has been existing for many years I have no objection to issuing a permit."

Mr. Murphy, in his permit application stated his purpose for the fence; "Privacy is needed because of the number of persons using the access. Newer residents are leaving their boats on the access beach 24 hours a day, seven days a week. The record supports the fact that the beach, although restricted to adjacent owners and considered private, is heavily used. The fence is intended to insure privacy, while not interfering with the subdivision beach usage. There was no argument that many persons use the subdivision beach. Small boats line the exterior of the fences that are located on both sides of the beach. A letter, July 24, 1989, from John E. Stockman, see Exhibit #7, son of Harry and Ida Stockman--prior owners of the property who built the original fence, expresses their intention:

This letter is intended to verify some facts concerning the time this fence was built as well as the exact placement of that fence.
Last year we were contacted by Mr. Murphy, who now owns the property in question, and asked if we could supply him with the date the fence was built. After reviewing some family pictures we informed him the fence was built after August, 1976 and before December, 1978.
This fence was built as a privacy fence between my fathers property and the public beach. The fence extended only to the edge of the water, but during the next few years until the property was sold in 1983 the lake rose several feet and the fence then did extend a short distance into the water. Id.

Users of the beach testified they believed the fence was a hazard to their ingress and egress by boat. The testimony was not particularly clear as to the water depth at the fences' terminus. Again, probably because of the fluctuating water level. However, there is no evidence that the water depth is other than shallow. I find that the near shore fence is no more of a hazard than would be moored boats or docks. Residents further expressed concern that small children might go on the other side of the fence and be out of sight. The same would be true if a dock or boat were present in the same place.

Jeffery A. King, District Supervisor, Plainwell office, Land and Water Management Division, MDNR also testified. From the information he was presented, it appeared initially that the fence was "grandfathered", and because of this was exempt from the provisions of ILSA, pursuant to Section 4 of the Act, as a structure in existence prior to April 1, 1966. Later, after the filing for the contested case hearing, it became clearer that the initial construction took place between 1976 and 1978. The testimony shows there was no attempt to deceive in the permit application, but rather the Petitioner relied on a neighbor who observed the fence construction and was mistaken about the year. Mr. King testified he did not issue the permit based on the length of time the fence was in place. He reviewed this permit application under the same criterion he would have considered for the construction of a dock. Like Ms. Rice, Mr. King was knowledgeable of the prior complaints about the existing fence as well as the damage that was done when the fence blew over. When asked whether it would have made any difference in his decision about issuing a permit, if held known when the fence was actually constructed, he responded, "not necessarily." His primary concerns in deciding whether to issue the permit would have still related to safety and navigational hazard potential. Permittee, Murphy, fulfilled all the permit requirements and answered the questions on the Permit Application as he knew them to be true at the time, according to J. King.  King stated the question to be addressed is whether the age, length, and site specific aspects of the fence have a significant impact--one that would determine that a permit should not be issued. As District Supervisor, he made the decision that after a review of sub-section (i), the minor project criterion had been satisfied.

R 281.816 (i) The length or size of the proposed structure is not greater than the length or size of similar structures in the vicinity and on the watercourse and will not unreasonable interfere with the navigability or boatability of the water involved.

The Petitioners opine that Rule 4 applies and that subsection (d) "that no feasible and prudent alternative is available" must be considered. This rule is entitled, "Environmental assessment." When the rule is read in its entirety, the only interpretation that has merit is that the rule is designed to minimize potential adverse environmental affects. The standards of Rule 4 were promulgated to ensure environmental protection. If it has been determined that there is no environmental harm or the environmental harm is de minimus, this rule can't be applied. I find that Permittee Murphy's fence does not, nor can it be reasonably argued, cause environmental harm.

In reviewing the Permittee's application, the primary inquiry must be whether the structure will interfere with the riparian rights of others. In the instance of Rosema v Construction Material Co., 258 Mich 456 (1932) our Supreme Court recognized, "(A] riparian owner has a right to moor a ship of ordinary size alongside his wharf, to load or unload, although his boat may overlap his neighbor's premises, provided reasonable access is not obstructed" Id at 458, 459 [emphasis added]. Under the law, it is clear that the "reasonable access" of the adjacent owners has not been interfered with. There is no impediment to their usage of the waters. There is an opportunity to exercise their general rights as riparians to the waterway for recreational purposes--which includes fishing, boating, and swimming. Access is the key herein, the fence in this case is not a barrier, but rather as a privacy fence. While it is clearly not "grandfathered", it has still been there a number of years and during those years the riparian owners and the beach owners have had to be cautious--as everyone using water has to be, about those hazards that are associated with water. The right of everyone who has legal access to the lake waters is to make reasonable use of the waters.

'Among the rights of a littoral owner is the right to use his upland property to gain access to the lake waters; the right to put out in a boat or on foot from his upland property where it touches the lake waters; the right, after so embarking, to go boating, swimming, water skiing, fishing, ice skating or sledding or to engage in other aquatic sports, in or upon the lake waters; and the right to use the entire surface and subsurface lake waters for such purposes. Burt v Munger, 314 Mich 659; 23 NW2d 117 (1946); Manney v Prouse, 248 Mich 655; 227 N 685 (1929); Kerley v Wolfe, 349 Mich 350; 84 NW2d 748 (1957). Each littoral owner shares such rights with all other littoral owners and none may interfere, unreasonably with like rights of the others. Beach v Hayner, 207 Mich 93; 173 NW 487 (1919).,' [emphasis added] See Rice v Naimish, 8 Mich App 698, 703; 155 NW2d 370 (1967), quoting from Kurrle v Walker, 56 Mich App 406; 224 NW2d 99 (1974).

This analysis is challenged by the Petitioners herein. They specifically site Section 7 of 281.957 of the statute, which states:

Sec. 7. The department shall issue a permit if it finds that the structure or project will not adversely affect the public trust or riparian rights. In passing upon an application the department shall consider the possible effects of the proposed action upon the inland lake or stream and upon waters from which or into which its waters flow and the uses of all such waters, including uses for recreation, fish and wildlife, aesthetics, local government, agriculture, commerce and industry. The department shall not grant a permit if the proposed project or structure will unlawfully impair or destroyany of the waters or other natural resources of the state. This act shall not modify the rights and responsibilities of any riparian owner to the use of his/her riparian water.Id. [emphasis added]

A permit is necessary to engage in the activity requested as it involves a structure below the ordinary high water mark for Cable Lake. This mark has never been determined. The record shows the fence extends something less than 15 feet into the water. The actual distance of the projection, in relation to the ordinary high water mark may be slight. Absent that determination, the precise projection is not known.

In gaging the relative rights of riparians, the reasonable use doctrine prevails. Riparians may make use of their property so long as it does not interfere with reasonable use of the lake by other riparians. It is the Department's obligation to apply the law. Where the public trust, riparian rights and the environment are unharmed, the Department must issue the permit.

The Petitioner's assert the Rule 4 criteria require the Applicant pursue some alternative to the fence. As previously found, Rule 4 is entitled "Environmental assessment." Its purpose is to determine the potential for environmental harm. In this matter, there is no evidence of actual or potential environmental harm. Thus, the Rule 4 standards are inapplicable.

Based on the foregoing Findings of Fact and Conclusions of Law, I conclude that the Department properly applied the criteria for permit issuance. It is further proposed that the Permittee, Ellis Murphy, received a valid, properly issued permit.
 

Dated:___________________________ ______________________________

William C. Fulkerson
Administrative Law Judge

1. A packet of photo-copied materials. The first item in this packet is a photo-copy of the MDNR Permit issued to Ellis Murphy dated June 6, 1989 on Permit No. 88-12-0375.

2. An 8 1/211 x 1111 sheet of white paper with four 3 1/211 x 511 color photographs attached. [No description or date on photographs.]

3-5 3 1/211 x 511 color photographs. [No description or date on photographs.]

6. 8 1/211 1111 color photo-copy of photograph. [No description or date on photograph.]

7. A packet of photo-copied materials, i.e. letters, petitions, etc. The first item in this packet is a photo-copy of a letter from John E. Stockman to Judge William Fulkerson dated July 24, 1989.

8. A photo-copy of a memorandum to Mr. Wm. Martin, Supervisor, Mr. Ray Marguart, Silver Creek Township Clerk, and Members of the Township Board, friends and neighbors from Henry F. Murtfeld dated August 19, 1989.

9. 411 x 611 color photograph dated January, 1986 and described as 3rd Beach Cable Lake.

10. 3 1/211 x 5 1/811 color photograph. [No description or date on photograph.]