IN RE: INLAND LAKES AND STREAMS ACT APPEAL
OF JOSEPH MILANI, JR.

Cause No. 86-12-257

The Natural Resources Commission, having considered the Proposal for Decision dated July 12, 1989, of the Administrative Law Judge, and the files, pleadings, briefs, and oral argument in this 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 Natural Resources as its findings of fact and conclusions of law. (See Proposal for Decision, Cause No. 86-12-257, dated July 12, 1989, attached hereto.)

Date Raymond Poupore, Chairman
Natural Resources Commission

IN RE: Inland Lakes and Streams Act Appeal of
Joseph Milani Jr.
Cause No. 86-12-257

William C. Fulkerson
July 12, 1989 Administrative Law Judge

This matter is a contested case hearing concerning an Inland Lakes and Streams Act permit denial of Joseph Milani, Jr., to construct an open-pile wooden pier approximately 30 feet in length with associated wooden decking and to improve an existing sea-wall.

JURISDICTION

The hearing was conducted pursuant to the Inland Lakes and Streams Act 1972 PA 346, and the promulgated rules.

Joseph Milani, Jr. is the Applicant under the Inland Lakes and Streams Act. He is represented in this matter by Peter W. Steketee.

The Respondent, Department of Natural Resources, is charged with the day to day implementation of the Inland Lakes and Streams Act, and is represented by Nancy K. Wiest, Assistant Attorney General.

George Holmes, has intervened in this matter and is represented by his attorneys, Haywood, Skinner & Associates, P.C.

OPINION

This case comes before the Department with a complex history, much of which has distorted or at least clouded the real issues at hand in this matter. The permit at issue was requested by Joseph Milani Jr. on June 24, 1986. In the winter of 1987, the Department of Natural Resources denied a permit "to construct an open-pile wooden pier approximately 30 feet in length with associated wooden decking and to improve an existing seawall on Lot 17 of Jesiek's Addition, Kalamazoo Lake, Allegan County, Michigan". This denial was based on Department findings that "adverse effects to the environment and the public trust are not minimal nor are they mitigated to the extent possible;…",

[further], the Department finds that the proposed project will have a significant adverse impact on the natural resources and easement rights associated with Kalamazoo Lake. The existing frontage of Lot 17 on Kalamazoo Lake consists of approximately 120 feet, 16 feet of which is dedicated to an easement. The remaining 104 feet appears to leave suitable room for a pier and mooring area of the nature proposed.

Subsequent to the Department denial, the Petitioner filed a Petition for Contested Case Hearing on April 1, 1987. At the same time George Holmes sought to be admitted as an intervening party, pursuant to interest rights he claims in the easement described in the permit denial. The Petition to Intervene states, "if Petitioner Milani were issued a permit to construct the pier and piles as proposed and subsequently use the created space to dock a boat, it would substantially interfere with respondent's property rights which accompany his grant of the easement for ingress and egress." Intervention was granted.

The Department based its decision to deny a permit on riparian rights, the public trust in the waters and that there were feasible and prudent alternatives, in view of the easement rights of adjoining property owners.

This matter is properly being reviewed under the Inland Lakes and Streams Act of 1972 (ILSA) and the promulgated rules, with a particular focus on MCLA 281.957 (Sec 7) of ILSA, as well as R 281.814, Rule 4. (a) and (d).

Joseph Milani, Jr. and George Holmes are both owners of lots within the Village of Saugatuck, Allegan County, in a subdivision known as Jesiek's Addition. This land was subdivided into small lots in the 1920's. Milani owns lots 9 - 17. Holmes owns lots 3, 4, and 5. Lot 17 is the lot at issue; it fronts the Kalamazoo River. Mr. Milani has a home on lot 17. The northerly 16 feet of the lot is where an easement is located. Both Milani and Holmes own interests in that easement. Pursuant to an October 28, 1988 Order of the Circuit Court, George Holmes, and other owners of lots within Jesiek's Addition of the Village of Saugatuck, Allegan County, "have a right of way for ingress and egress on a 16 foot wide strip of land lying on the northerly side of Lot 17 which is an extension of West Lakeview Road to Kalamazoo River or Lake." Additionally, from an instrument recorded on May 9, 1969, at the Township of Saugatuck, Allegan County, Michigan it is noted that, "hereby grant to the present owners in fee, their successors and assigns, of Lots one (1) through sixteen (16)..."

This easement and right of way is given to all of the present property owners, their successors and assigns, of the Jesiek's Addition to the Village of Saugatuck at this time as all lots in the aforesaid plat were sold with the understanding than as easement and right of way to the river was included with each and every lot but through oversight, some deeds did not contain the aforesaid easement and right of way.

Mr. Milani's right to the use of the easement is inclusive in the language set forth in the above conveyance. Mr. Milani as the owner of lots 15 and 16 was conveyed:

together with a right of way to Lake Kalamazoo running from the above property along the northerly side of Lot Seventeen (17) of said Addition, and including the right to build and maintain a pier sufficient to the use of small boats, adjoining said Lot Seventeen (17), or the private way herein mentioned...

Both Joseph Milani and George Holmes have rights within the scope of the easement. What must be determined is how those rights interrelate with one another and how they effect the owners of such rights.

The question at hand relates to reasonable-use. The record is very complete in its assertion of the "right of ingress and egress". In fact, Petitioner Milani's Response In opposition To Intervenor's Motion To Introduce Newly Discovered Evidence, states on page seven, "It is, as we have repeatedly pointed out, an easement of ingress and egress, the only purpose of which is to afford access to navigable waters. Once such access is gained, the easement's purpose has been served..." Now the question is, are all those entitled to the "right of ingress and egress to navigable waters" able to exercise their right?

Mr. Milani is the riparian owner of lot 17 on Kalamazoo Lake/River. However, it is equally clear that the easement right owners, which includes Mr. Milani, have a right of access to the waters.

Mr. Milani's easement right, through his ownership of lots 15 and 16 of Jesiek's Addition in addition to the right of way to Lake Kalamazoo along Lot 17, "and including the right to build and maintain a pier sufficient to the use of small boats, adjoining said Lot Seventeen (17), or the private way herein mentioned...". It is clear from the language of the original conveyances that the intent was for owners of lots 1-16 to have a share in the 16-foot easement along lot 17. The grant is not particularly clear and questions remain as to the scope and extent of the easement.

In the Petitioner's Hearing Brief, he states that, "For example, no holder of a lot benefited by the 1959 Easement may use his or her easement rights in such a way as to unreasonably interfere with the easement rights of the owners of other lots benefited by the 1959 Easement or, more importantly, of the owners of lots benefited by the 1954 Easement or by the Pre-1954 Easement." The Petitioner sites Murphy Chair Co v Radiator Co, 172 Mich 14 (912). Upon review of Murphy, supra, on pages 28 and 29, the elements of reasonable-use are further demonstrated.

While we do not mean to hold that said complainant's right of way is exclusive, we do hold that its right to a reasonable, free use as a passageway should not be interfered with by the defendants. It is elementary that an easement which granted is an estate which cannot be abridged or taken away, either by the grantor or his subsequent grantees. On the other hand, the grantor of the easement of a right of way may use the way in any manner he sees fit, provided he does not unreasonably interfere with the grantee's reasonable use in passing to and fro. The owner of the right of way has the right to a reasonably unobstructed passage at all times, and also such rights as are incident or necessary to the enjoyment of such right of passage. I Boone on Real Property, S 143b. [emphasis added]

Again, from Petitioner's Hearing Brief, page 16, stating:

Once these individuals reach the water's edge, they are entitled to exercise their general rights as members of the public to use the navigable waterway for recreational purposes. These rights include fishing, boating, and swimming. Thies vHowland, 424 Mich 282 (1985)…. Hence, by providing reasonable space for access to the water, the Milanis are doing all that the law requires them to do for the benefit of the dominant tenements.

The Petitioner makes an excellent point on page 17 of his Petitioner's Hearing Brief, quoting the Michigan Supreme court in Delaney v Pond, 350 Mich 685, at 687 (1957):

The use of an easement must be confined strictly to the purposes for which it was granted or reserved. A principle which underlies the use of all easements is that the owner of an easement cannot materially increase the burden of it upon the servient estate or impose thereon a new and additional burden.

To further reiterate the above point, in Turner v Hart, 71 Mich 128; 38 NW 890 (1888) the emphasis of the court was simply that the Defendant remove the barrier fence from in front of Plaintiffs' docks to be sufficient to restore to Plaintiffs their access to the bayou for navigational purposes. While this opinion does not intend to equate Intervenors and other easement right holders to riparian owners, they can exercise their rights of access to the use of lake waters. Quoting from Rice v Naimish, 8 Mich App 698, 703; 155 NW2d 370 (1967), in Kurrle v Walker, 56 Mich App 406; 224 NW2d 99 (1974), the rights of these owners is defined:

'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 NW 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]

While I am of the opinion that the Department was not protecting public trust or pure riparian rights as is outlined in Section 7 of the Inland Lakes and Streams Act, it did recognize the "possible effects of the proposed action upon the inland lake or stream and upon the waters from which or into which its waters flow and the uses for all such waters, including uses for recreation, fish and wildlife, aesthetics, local government, agriculture, commerce and industry…. This act shall not modify the rights and responsibilities of any riparian owner to the use of his/her riparian water." I disagree with the Petitioner that the Departments consideration of the rights of the easement owners, "was clearly a non-statutory, non-authorized, extra-jurisdictional, ultra vires, and illegal basis upon which to deny the permit".

The Kalamazoo River is a navigable body of water, impressed with the public trust. As such, those persons who gain lawful access to that body of water have a right to freely navigate. Thus, the easement holders have a lawful right of access to the Kalamazoo River and a corresponding right pursuant to Public Trust Law to freely navigate those waters. Section 7 of the Inland Lakes and Streams Act requires that no permit be issued that will impair the public trust. I agree with the Petitioner that the public trust is not an issue in this case. This case has nothing to do with any alienation of or reallocation of the public trust resource. It cannot seriously be argued that an impairment of the public trust will result from the project. Department witnesses reasoned that because the placement of the watercraft and dock might interfere with the exercise of access rights from the easement that, in affect, interfered with public trust rights. That is not the case. This is a dispute between two private parties, concerning the exercise of rights incidental to the ownership of easements. I find that the proposed project will not adversely affect the public trust.

The permit was denied, in part, as a result of the application by the Department of Rule 4 to these facts. The record amply demonstrates that there will be no environmental harm from the proposal, and that if it were done elsewhere, whatever environmental harm there is would not be diminished. In fact, there is no allegation of any adverse environmental effects as a result of this project. The Department opines that Rule 4 continue to apply and that subsection (d) "that no feasible and prudent alternative is available" must be considered. This rule is entitled, "Environmental assessment". If the rule is read in its entirety, the only interpretation that has merit is that the rule is designed to minimize potential adverse affects. These standards are obviously designed to maximize environmental protection. If there is no environmental harm or the environmental harm isde minimus, this rule serves no purpose and can't reasonably be applied. To require an alternative to the proposal, when there is no environmental harm, is inappropriate. It is analogous to a building inspector saying that your proposal meets all requirements for a building permit, however, you must build the structure on another lot you own because it is not as controversial. More importantly, in terms of alternatives, Mr. Milani is seeking to exercise rights that arise as a result of an easement appurtenant to lots 15 and 16, that right only applies to the easement. A proposal to build at another location would be incidental to Mr. Milani's riparian ownership of lot 17, which is a separate and distinct ownership interest. In that regard, the analogy to the building inspector, requiring the construction of a house on another lot, is entirely applicable to this situation. Thus, stripped of various matters that are really not issues in this, case, we return to the issue of the relationship of Mr. Milani's proposed activity to the easement. I find that Mr. Milani's dock does not offend any rights within that easement. There is argument as to how much of the dock is within the easement. Mr. Milani maintains that it is constructed entirely outside the easement and on his riparian property. In any event, that small difference is not significant. To the extent that a portion of the dock extends into the easement area, Mr. Milani has a right to have it there. Pursuant to his easement rights the presence of that dock--or portions of that dock within the easement area is not unreasonable. It is a minimal intrusion, if any.

The heart of the issue is the size of the watercraft that Mr. Milani proposes to moor at the dock. I suspect that if Mr. Milani had proposed to launch a canoe from that dock, the need for this hearing would disappear. The fact is that the watercraft, together with sufficient room for moorage and springpiles, essentially occupies the entirely of the easement's width. Mr. Milani offers that by mooring the boat at least 20 feet off-shore, there would be ample room to enter the water and freely navigate. Mr. Holmes asserts that he has a right to go straight out to a navigable depth, without interference. As things currently exist, it appears that Mr. Holmes could do just that, he could launch a boat and go right around Mr. Milani's watercraft and into the thread of the stream. The lack of any inhibition on gaining access to the thread of the stream is dependent upon the actions of adjacent riparians. Should they not choose to wharf out immediately adjacent to the lot line, a continued way of travel would remain. Once gaining lawful access, there is no question that Mr. Holmes may travel anywhere on the surface of that water, including across the adjacent riparians' zone of interest, to reach a place to navigate.

This matter would be very simple if the question were whether an adjoining riparian can moor their boat so as to block an easement owned by others. That would not be permissible. In this instance, we have a specific grant of the right to install a dock and moor small boats. Thus, if the moorage is too great, and interferes with the easement, it is probably a nuisance as to the other easement owners. In Rosema v Construction Material Co, 258 Mich 457 (1932), our Supreme Court recognized Id at 458, 459; "[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." The Court reasoned that the right to overlap was incidental to a reasonable use of a navigable stream. The Court did not find any right to permanent dockage that overlapped an adjoining riparian.

It is of particular concern that Mr. Holmes offers no specific proposal of how he intends to use the access. The evidence indicates that one person in the subdivision has launched a small boat to reach a sailboat moorage. Mr. Milani used photographs to show that a small inflatable boat could be launched from the shore. Mr. Milani concedes that he should accommodate some access, but refuses to yield his right to moor, which he has enjoyed for around twenty years with previous docks and watercrafts. He has offered to moor his boat out sufficient distance to allow access by small boats. When all of the facts are considered, it is my opinion that this is reasonable. The dock and the seawall will not interfere with riparian rights or the public trust. The imposition on the easement rights is not unreasonable. The seawall and dock are, arguably, permissible because of Mr. Milani's riparian ownership and can be separated from the easement.

This case serves as an example of the difficult questions posed for field staff of the Department to deal with. The issue is one of a fairly sophisticated real property question, clothed in a permit application process ill-suited, if not incapable, of resolving the underlying issue. The permit process is also ill-suited to dictate conditions such as distance of moorings from the shore or size and type of boat to be moored. This process is for construction-type permits, not perpetual regulation. This case is easily distinguished from marina cases, the more common source of ingress and egress problems, in two ways; (1) the rules require consideration of ingress and egress in the permit process and (2) there is a continuing operating license that requires renewal and is enforceable.

It is not the intention of this opinion to imply that the staff acted unreasonably, they did the best they could in an attempt to accommodate these competing interests. The ILSA is of little guidance, probably because it was not intended to be able to deal with this type of dispute. It is the Department's obligation to apply the law. Where the public trust, riparian rights and the environment are unharmed, the obligation is to issue the permit. It is also not the scope of this opinion to declare whether Mr. Milani's moorage, now or in the future, is a nuisance as to other easement owners. It is a reasonable use within the confines of the regulatory authority of the Inland Lakes and Streams Act.

PROPOSAL FOR DECISION

Based on the foregoing, it is proposed that Mr. Milani be issued a permit as applied for.

Date:
William C. Fulkerson
Administrative Law Judge

RE: Inland Lakes and Streams Act Appeal of Joseph Milani Jr.
Cause No. 86-12-257
(87-20-C)

STIPULATED EXHIBITS

1. Proposed Stipulation of the parties to title history and supporting documents, w/cover letter, 1/13/89
2. Letter - 1/17/89, clarification of the title history documents sent 1/13/89
3. Letter - 1/20/89, discussion of the title history documents sent 1/13/89
4. Letter - with complete application for permit, 1/24/86, includes graph of proposed improvements/changes to site
5. Notice - 7/10/86, of Public Hearing on the proposed project
6. Letter - 8/4/36, discussing ingress and egress by Holmes over the easement
7. Letter - 8/20/86, denying the request for the permit
8. Letter - 9/12/86, Petitioner asking for reconsideration of the denial
9. Letter - 9/12/86, to Jesiek Addition Lot Owners describing the facts, history, and intentions, and referral to J. King, DNR representative, by Joseph Milani Jr. driveway area.
10. Letter - 10/24/86, to DNR, J. King, further attempt to get reconsideration of permit denial, revised pier drawing, copy of warranty deed included (3/3/88).
11. Letter - 1/14/87, sent to J. King with copy of deed and outlining further reasons for questioning permit denial.
12. Letter - 1/21/87, sent to J. King with deeds of lots 15 and 16, trying to clarify title and property description.
13. Certified Letter - sent 2/17/87, denying the permit related to pier construction.
14. Graphic outline and illustration of the project, showing boat mooring area.
15. Scaled Plan View, with reference to adjacent property owners, outline showing revision of proposed project.
16. Graphic outline of 16,' ingress/egress area and small boat mooring area off from dock.
17. Graphic illustration of how all of the Milani watercraft and adjacent landowner watercraft are moored in the subject area.
18-21. Color photographs of dock/easement area.
22. Graphic illustration and picture copies of "original pier mooring and replacement pier mooring", relating to ingress and egress question.
23. Color photographs with hand-marked illustration of water easement area.
24. Handwritten memo by J. King, recommendations related to Milani easement and adjacent owners rights - says a feasible and prudent alternative exists, referenced to file.
25. Listing of facts and questions related to the Milani pier construction and adjacent lot owners easement rights (ingress and egress) - referenced to file, 1/21/87.
A-K. Color photographs of area, from landward and waterward view, boat mooring area shown.
L1-L4. Color photographs of boat mooring areas and sequential showing of the mooring of one boat.

RESPONDENT DNR EXHIBITS

1. Letter - 7/30/86, sent to DNR, on behalf of Holmes (intervenor) by David Haywood - regarding right-of-way, ingress and egress of 16' easement.
2. Letters - 7/28 and 29/86, to DNR, regarding permit application of Milani as it relates to their property easement: rights to ingress and egress.
3. Project Review Report - 7/11/86, by DNR representative J. King, agreed to assist in attempt to resolve matter.
4. Picture---of 16,1 easement, with logs placed horizontally, appearing like a barrier.