In Re: Blackrick Campground Marina
Yolanda Blackrick
File No. 88-15--989-9

This case involves an application for a marina operating permit under the Inland Lakes and Streams Act, MCL 281.951 et seq; MSA 11.475(l), filed by Mrs. Yolanda Blackrick, owner of Blackrick Campground, seeking approval for a 28 slip dock on Crystal Lake, Montcalm County, Michigan. A hearing was held on May 20, 1991. Briefs and closing arguments were submitted June 3, 1991.

At the hearing the Petitioner was represented by Mr. Anthony Kogut, of Willingham and Cote. The Department was represented by Mr. Hal Harrington, one of its employees. Petitioner presented two witnesses, including Mr. Harrington, and submitted 18 exhibits. The Department presented one witness and two exhibits. An additional 14 exhibited;, including a stipulation to certain facts which is incorporated into the findings of fact in the next section of this opinion, were submitted as joint exhibits of the parties.
 

Findinqs of Fact

In General --The basic facts in this case are hardly in dispute. While there appear to be minor disagreements, the only disputed facts are those which are "ultimate", or conclusive facts, such as whether a particular use is "unreasonable" or "violative of the pubic trust." Accordingly, this opinion will highlight the testimony and exhibits in this section, and will address these ultimate facts in the Conclusions of Law section which follows.

The parties stipulated to several facts per Joint Exhibit 14. These facts are accepted as proven and are as follows:

1. Crystal Lake is an inland lake located in Crystal Township of Montcalm County.
2. Crystal Lake has a surface area of approximately 724 acres.
3. Crystal Lake is an inland lake within the meaning of the term as used in the Inland Lakes and Streams Act, 1972 PA No. 346, as amended.
4. The Petitioner seeks a permit for 28 slips at a dock or marina.
5. On or about July 3, 1989 a Marina permit (permit number 88-15-989--9) was issued for 14 slips; the request for 28 slips was denied.
6. The Petitioner's marina is a seasonal dock which is removed at the end of each summer "season" and put back in the water the next spring.
7. Crystal Lake exhibits physical, residential and recreational characteristics similar to many other lakes in the area.
8. Should Petitioner be granted a permit for 28 slips, it would have no impact on agriculture, as no agricultural lands are located on or adjacent to the project site.
9. The resource affected is not a rare resource.
10. Petitioner has a total lake frontage of approximately 116 feet.
11. On or about August 12, 1988 Mr. Richard Blackrick, now deceased, Petitioner Yolanda Blackrick's husband, was advised that he needed a permit for an existing dock. Therefore, he filled out an application for a permit with the Department of Natural Resources.
12. Petitioner's property is not zoned.

Mr. Harrington reviewed the work of Mr. Bennett, who is responsible for the marina permits under the ILSA. Mr. Bennett conducted the required public hearing regarding this application, after it was determined that this involved a marina and required a permit. Mr. Harrington did not visit the site, participate in the public hearing, or draft the findings in the permit response.

Mr. Harrington testified as to the difference between a marina and a dock by putting it in his own words -- a marina is structure which provides a service, access to somebody, while a dock is a structure over water for some use. The service provided by the Blackrick structure is dockage and access to water. Apparently, there is no boat launching capability on this property except for a few of the fishing boats. Mr. Harrington also testified that the Act defines a seasonal structure. This is a marina because it gives access to others who are not riparians who gain the use of the water and access.

He also testified by reading the definition of marina from the act:

"Marina" means a facility which is owned or operated by a person, extends into or over an inland lake or stream and offers service to the public or members of the marina for docking, loading or other servicing of recreational watercraft. MCL, 281.951(g).

Mr. Harrington concluded that this structure was a marina covered under the Act, and that a permit was therefor required. A permit is required by MCL 281.953(c) for operating a marina: "Except as provided in this act, a person without a permit from the department shall not: (c) Erect, maintain or operate a marina." He testified that a permit is not required for any seasonal structure placed on bottomland to facilitate private non-commercial use of the water, if it does not unreasonably interfere with use of the water by others or with water flow, pursuant to MCL 281.954(b).

In response to a question, Mr. Harrington stated that the criteria for review of applications are the statute and rules - generally asking these questions: does it have a structure, to what use is it put, what happens at the structure, does it unreasonably interfere, how many vessels, what use of the marina, is fuel sold, and are groceries, restaurant and tie-ups involved? The DNR does consider the objections of adjacent owners, if the objections are within the statutory and rule criteria. Most marinas involve public hearings for input into the departmental decision process, and findings do reflect this input. The weight of the objection from an adjacent landowner is determined by the nature of the objection, not just the proximity of the property. He acknowledged that adjacent users are most likely to be affected.

Mr. Harrington stated that the findings of lot size in Joint Exhibit 13 are not based on knowledge of Crystal Lake lot sizes, and acknowledged that sometimes there are narrower lots and sometimes a number of people may have access through a single lot.

The use of 1978 data for the exhibit was due to the limitation on availability of a data base. The Act passed in 1972 and succeeded an older act with an approval process. The first complete review of the inland waters of Michigan occurred in 1977-78 and included aerial photographs. Also, the first full-time employee for statute administration was made available then. Although there were budget problems and lost personnel in the early 1980's, there were 1200 licensed facilities in 1986-87. The 1978 figure was selected because it was the first which had complete data and was used to identify non-conforming uses. Scattered information was previously available only from a variety of sources and not for all years in question. No check was made of photos of this lake. This information would have resulted, most likely, in approval of 14 slips for Blackrick if first reviewed in 1978.

Mrs. Yolanda Blackrick testified in her own behalf. She operates a recreation vehicle travel park on Crystal Lake with 150 sites, about 115 of which are usually occupied. Most sites are rented for the season and are the summer home for the inhabitants. The park is actually across the street from the beach shown on Joint Exhibit 10, which shows the lot where the dock and beach are located. There is walking access between the beach and the park. The water is shallow and proceeds gradually lakeward without a drop-off. Petitioner's Exhibits 1 and 2 show the dock and beach. To the east, there is about 50 feet of beach for swimming, but most campers do not swim.

She testified that the campground grew, which increased the demand for boat slips. She needs 28 spots in order to retain campers and stated that they will leave without the marina slips. The dock is now 28 slips, having been lengthened in about 1983 by adding two sections of 4 slips. Her husband and she handled the operation of the campground, but he handled the early stages of the permit process. They were told to get a permit in 1989. [It was actually probably 1988, according to the timing of her husband's demise. Also, see the stipulation.]. Her husband passed away in January 1989. Their contact was with Mr. Bennett.

Mrs. Blackrick testified that she was unaware prior to that time of the requirement f or a permit and that she did not use a lawyer in the application process or at the public hearing. She was not told that she needed one or that she needed to get people to come to the hearing. When the permit was issued for 14 slips, the campers were unhappy, because only the fishing boats can launch from this site. The current campers put other watercraft in at the public launch, then moor at the dock.

They have rules for the dock and the campground facility requiring the boaters to walk their boats out and for pontoons to be pushed to the end, but they can come straight in. There are about 10 pontoons and the rest are fishing boats and runabouts. These boats could go to the launch. The rules are for the safety of swimmers. The boats are not started for safety's sake.

Petitioner's Exhibits 3-8 show the public launch site and the parking on the nearby streets. On weekends the public access, which is 1/2 mile west, is limited and the parking overflows. It would be hard for the campers to use the public access.

She testified that the dock is seasonal and that she sells no gas or food. only campers use the dock site, which is not open to the public. She has no plans to expand. She did not know the length of the dock - which she guessed to be 85 feet. Slips are assigned by the season as available. The dock has been moved and straightened, and there is no mooring in front of neighbors. Prior to the dock, the boats were moored in the lake and could swing about. There was no control then. No accidents have occurred on the site.

She has lived at the lake for about 20 years and has driven, pontooned and boated around the site. Petitioner's Exhibits 9 and 10 show the east side of the lake adjacent to the public fishing site, one house, and anchored boats. Petitioner's Exhibit 11 shows the west side of the lake with a dock, and Petitioner's Exhibit 12 shows the same with a second site. Petitioners Exhibit 13 show the upper grove area of the east side, as do Petitioner's Exhibits 14 and 15, which feature boat houses and anchoring boats. These sites are all identified on the map, Joint Exhibit 13. There is one other marina and one other campground on the lake.

The nearby neighbors submitted affidavits which are Petitioner's Exhibits 16-18. To the west, Emery Morris, a successor to a former complaining neighbor, has no complaints. Donna Demond is two lots to the east, has no complaints, and feels it is safer. To the immediate east, Dean Derks has no complaint and feels the dock protected his swimming. None of these individuals were at the public hearing. The dock has been moved eastward to provide more space on the west side.

Mrs. Blackrick testified that the property is not zoned and her dock is like other docks in good repair. There are 150 campground sites and 28 slips. A separate fee is charged for the slips, which fee is not included in the site rental. Most campers do not have boats, but there is excess demand for the slips. Any camper can have a slip, if space is available.

There are other docks of the same length and with 28 slips. The sailing club on the north side has about 50 members and they do leave their boats out overnight. She does not know how much dock footage there is at that site or if there are motors. At least 20 boats are moored there.

Department's Case -- Mr. Thomas Bennett testified for the Department. He has worked at DNR for five years in the Land and Water Management Division. He attended Ferris State and Central Michigan University, receiving a bachelors degree in 1982, has a Masters in biology from the University of West Florida, and is currently taking classes at Michigan State University for a Masters in Geology.

In regard to the permit process, he handles the marina operating permits under the ILSA and cooperates with the field offices in the construction of marinas for ILSA. Most of the focus is under Section 7 of the Act and Rules 4 and 9. He does application review, comments to the field offices on construction, and handles the files on operations of marinas, including the conduct of public hearings. He makes recommendations on the disposition of applications.

Mr. Bennett testified that the application in question is for a marina and the structure is a marina. After the public hearing, 15 days are allowed to comment. The materials and comments and the information from the department review is then considered and a decision on the application is prepared. The factors in section 7 of the Act and Rules 4 and 9 are used: use of property, ingress and egress with riparians, parking, environmental impact, whether the proposed structure is reasonable, length of encroachment, and photographs of past use.

He stated that the application could not be approved because it did not satisfy the following: (1) it cannot meet the requirements of accommodating all riparian interests, (2) it unreasonably interferes with adjacent riparians, and (3) the dock structure is inconsistent with the other structures and the use of the body of water and other waters in the state.

Mr. Bennett stated that this is a marina supplying the service of dockage and moorage associated with the operation of the campground. He also testified that the operation does not meet any of the exemptions of 4(b) of the Act for seasonal structures.

Mr. Bennett identified the joint exhibits. [As to Joint Exhibit 6, the objection voiced is not particular to this permit, but voices the objection of the Crystal Lake Association to any permit for a marina.] Mr. Bennett stated that he held the public hearing on this application. The file contains five letters of objection, including one from a renter who thought there was a restaurant involved. Mr. Bennett testified that the objections are reviewed and considered, but that they must be substantial and factual. He noted he believed that the objections involved some misapprehensions about the nature of the marina, particularly that it might involve a restaurant.

Mr. Bennett identified Joint Exhibit 10 as a plat obtained to form the basis of Department Exhibit 1. Joint Exhibit 11 shows that the dock is 112 feet long, with 8 feet per slip. Department Exhibit 1 was prepared through the use of a computer, which Mr. Bennett described. Property boundaries - are taken from the plat of the township. These are digitized. The dock dimensions are taken from drawings submitted with the application. Two schemes were considered, one of dock at time of application, the other with the dock relocated to the middle of the property. The key is to find the radius of the turn of boats based on the dimensions. The factors are the length and beam of the boat and the size of the slip. A 1.5 x length radius is the minimal distance required. Based on projects for drawing 1, the turns intruded on the west and endangered the swimmers on the east, while those in the alternative did not.

Mr. Bennett noted that the marina operating rules were impractical -- who will obey the no running motors and walk boats out from shore at 5:30 or 6:00 a.m. when going out to fish? [This seems a minor point, since swimmers are unlikely to be present at that time.]

Next, Mr. Bennett reviewed the findings set forth in Joint Exhibit i2, which is the letter of denial of the application and the approval of 14 slips in its place. The letter is signed by Mr. Harrington, but was prepared by himself.

Under item 3, this structure required a permit. As to item 6, Mr. Bennett noted that there were objections, although he pointed out that a new adjacent owner did not object. As to item 13, it was Mr. Bennett's view that the structure does unreasonably affect other riparians and seeks an unreasonable number of slips based on total frontage. Generally, the DNR uses 75 feet per residence. It was reviewed as a residential lot which would be rated at 75 feet of frontage per boat which would yield 1.5 boats and result in approval for two boats to be moored.

Mr. Bennett further testified that this use is unreasonable as it affects riparian interests. The number of boats is not consistent with the residential use of the property. [He made no comparison to other commercial usages on this or other inland lakes.]

As to item 14, Mr. Bennett noted that the dock could be located so as to restrict the usage to be within the applicant's riparian "interest area." As to item 15, he felt that there was a safety problem for swimmers as proposed, but not as approved.

Mr. Bennett felt that the case law on reasonable use warranted the limited approval granted, which he characterized as "generous." Fourteen slips were granted because of past usage. An alternate design would place 7 slips on each side of a dock and exclude swimming altogether. The legal requirements, according to Mr. Bennett, are found in Rules 9(a) and 9(b).

Item 15 involved the dock length. He testified that the length of the dock intrudes into the 'water and interferes with public trust. He stated that the dock at Sailing Club appears to be about 140 feet while the average dock length on the lake is between 70 and 80 feet. [The dock in question is approximately 112 feet per Joint Exhibit 11. ] Crystal Lake Sailing Club has a permit for 36 slips and 8 mooring buoys. It has 318 feet of frontage with the dock located about 80 feet into the property. He had no knowledge of any accidents at the Blackrick site.

He further testified that there is public parking for about 15 vehicles at the public launch, that it is a crowded site on weekends, and that there is no known plan for a second site. He testified that this lake is not overcrowded for recreational watercraft. The reduction would change the number of users by 14, since if those 14 went to the public launch, others could not use it.

Mr. Bennett felt that this use unreasonably affects adjacent landowners, who are the main concern. [This appears no longer to be a problem with the landowners on either side.] He still felt that there were legal issues.

Specific Additional Findings - What is clear is that this facility has operated in essentially the same concept for about twenty years. By 1978, it had 14 slips; by 1983 it had expanded to 28. It has operated solely in conjunction with a campground and provided for the campers only the limited service of access to the lake and dockage. It is not open to the public and does not sell food or gasoline or provide any other services.

What is equally clear is that it has never been licensed under state law and operated without a permit during the entire duration of the law passed iii 1972. On the other hand, the use as a commercial operation has always been legal; there are no zoning or other restrictions which limit the use of this property, nor have there ever been any such limits.

There are no indications of any pollution or harm to the environment which differentiate a 14 slip from a 28 slip dock. The only differences between the two alternatives are the length of the dock and the number of boats on the lake.

While the lake association finds that the lake is congested, that is not the position of the Department. While some neighbors object to the use as a marina, that objection is probably due to the objection to any use as a marina at all, rather than the issue of 14 versus 28 slips. The adjoining landowners both urge the approval of the permit at the 28 slip level, as does a near neighbor.

Conclusions of Law

Department's Positions --The Department based its rejection on six grounds, as identified in its closing argument and brief:

(1) All ingress and egress is not presently within the riparian owner's interest area but docks could be placed in such a way as to allow ingress and egress to take place within Blackrick's interest area. See Legal Conclusion 2, below.

(2) The facility at present (28 slips) does unreasonably affect the public trust and/or riparian rights. The resort has an unreasonable number of boats along its riparian frontage. Blackrick Campground has a total riparian frontage of approximately 116 feet. See Legal Conclusion 3, below.

(3) The total number of boats (28) and other watercraft with access through the applicant's property unreasonably affects the public trust and use of the water by other riparians and is an unreasonable exercise of riparian rights. See Legal Conclusion 3, below.

(4) The proposed activity requires a permit under Section (3) (c) of the Inland Lakes and Streams Act, 1972 PA 346, as amended. See Legal Conclusion 1, below.

(5) The public interest in the proposed development is not greater than the public interest in the unavoidable degradation of the resource. See Legal Conclusion 3, below.

(6) The Department finds that the applicant has feasible and prudent alternatives to the proposal that would minimize the adverse impact of the project proposal on the public trust in Crystal Lake and riparian rights. See Legal Conclusion 4, below.

The Department's presented three detailed legal arguments: (1) that this is a marina (see Legal Conclusion 1), (2) that the denial was proper because the use was unreasonable and would impair the public trust, interest, and riparian rights (see Legal Conclusion 3), and (3) the denial was proper and did not interfere with the Petitioner's riparian rights (see Legal Conclusion 4).

Petitioner's Positions - Petitioner identifies what she refers to as five "flaws" in the Department's reasons for denial:

(1) Reliance upon the public hearing regarding any objections of riparians. See Legal Conclusion 3, below.

(2) Finding that there were reasonable alternatives to the permit as requested below. See Legal Conclusion 4,

(3) Reliance upon residential standards to determine interference with the public trust and riparian interests. See Legal Conclusion 3, below.

(4) Finding that the use of the structure exceeded the Petitioner's riparian interest. See Legal Conclusion 2, below.

(5) Determination of historic use of the property as evidenced by a 1978 photograph. See Legal Conclusion 4, below.

The Petitioner's legal arguments are (1) that the denial interferes with her riparian rights (see Legal Conclusion 4), and (2) that the denial is not consistent with the requirements of the Inland Lakes and Streams Act (see Legal Conclusion 3).

Ultimate Conclusions of Law

Legal Conclusion 1- Is the structure in question a marina for which a permit is required under the terms of the Act?

The Department has presented testimony and argument that the structure is a marina under the terms of the Act. Particularly, the testimony established that the use is commercial and that the structure is used for docking and loading recreational watercraft. The Petitioner did not present fa'ctual evidence to the contrary, nor does she make any legal assertion to the contrary in her brief Accordingly, I find that the structure is a marina as defined in Section 2 (g) of the Act and that a permit is required under the provisions of section 3(c) of the Act.

Legal Conclusion 2 -- Does the operation of the marina intrude beyond the area of interest of the Petitioner and therefor interfere with the rights of adjoining riparians?

The record appeases to establish that since the time of the public hearing, the dock has been relocated so that it no longer interferes with the interests of the adjoining riparians. The Petitioner has testified that the dock was relocated in conformity with the Department's position. Further, the affidavits submitted by the Petitioner show that the adjoining riparians have no objection to the dock as applied for. Even if the dock has not been relocated, it is not essential to the ultimate disposition of this matter, since the dock location can be controlled as a condition of the permit, whether 14 or 28 slips are involved. Insofar as the permit is conditioned on where the dock was located at the time of application, the position of the Department is sustained. A condition in the permit that the dock be located on the property in a manner that it does not cause an intrusion into the adjoining riparians' areas of interest is justified, even if the adjoining landowners have no objection. See also the discussion under Legal Conclusion 3.

Legal Conclusion 3 -- Would the granting of the application as submitted unreasonably interfere with the public trust, interest, and riparian rights in Crystal Lake?

According to the testimony and briefs, the denial of the permit was based on Section 7 of the Inland Lakes and Streams Act and on Rules 4 and 9 issued thereunder.

Section 7 of the Act governs the issuance of permits. Its language requires that the Department act only under particular circumstances:

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 destroy any 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. . . .

"Public trusts--'' means all of the following: (i) The paramount right of the public to navigate and fish in all inland lakes and streams which are navigable. (ii) The perpetual duty of the state to preserve and protect the public's right to so navigate and fish. (iii) The paramount concern of the public and the protection of the air, water, and other natural resources of this state against pollution, impairment, and destruction. (iv) The duty of the state to protect the air, water, and other natural resources of this state against pollution, impairment, and destruction.

In each application for a permit, all existing and potential adverse environmental effects shall be determined and a permit shall not be issued unless the department determines all of the following: (a) That the adverse effects to the environment and the public trust are minimal and will be mitigated to the extent possible. (b) That the resource affected is not a rare resource. (c) That the public interest in the proposed development is greater than 'the public interest in the unavoidable degradation of the resource. (d) That no feasible and prudent alternative is available.

In acting upon an application for marina operating permit, the department shall not issue a permit unless the department determines that the facility meets all of the following criteria:
(a) The facility does not unreasonably affect the public trust or riparian interests.
(b) Ingress and egress are within the riparian owner Is interest area or written authorization is secured from the adjacent owner whose riparian or property interest is or may be affected.
(c) The recreational watercraft-carrying capacity of the waterbody upon which the facility is located is not exceeded by the increased use brought about by the marina, and the increased use attributable to the marina will not created congestion or safety problems or aggravate existing recognized congestion or safety problems.
(d) The construction and operation of the facility will not destroy or adversely impair the use of the waters or natural resources of the state.
(e) The facility is not aesthetically displeasing and conforms to similar structures and activities in the area or similar watercourses.
(f) The facility has adequate parking space to accommodate anticipated users.
(g) The facility is in compliance with local zoning ordinances...
(h) The structures do not constitute a safety or navigational hazard and are in good repair.
(i) The potential adverse environmental effects of operation a marina have been determined pursuant to R281-814.

As to argument (3), see Legal Conclusion 2, which finds that this aspect is no longer at issue. Also, I note again that the adjoining landowners whose interests are intruded upon under the old location have no objection to the project and have so stated in their affidavits.

The petitioner correctly points out that the denial did not include any finding that there was a material impact on the environment, or that the recreational watercraft carrying capacity of the lake had been exceeded, or that the facility was not aesthetically pleasing, or that it did not compare to other structures on the lake, or that there was inadequate parking, or that there was a violation of local zoning. Nor does this record provide any basis for such findings.

The thrust of the Department's position is basically to compare this use to residential properties, since the surrounding properties are indeed residential. There is no question that the boating usage of petitioner's 116 feet of frontage is substantially greater than that of the adjoining property owners.
Since the commercial use of the property is lawful and because there is another commercial or multi-user permit on the lake, this comparison is unjustified. since the commercial category is obviously permissible, as evidenced by the Act, by the granting of the alternative marina license to Blackrick, and by the granting of a license to the crystal Lake sailing Club, the restriction of the number of boats must be premised on some other set of criteria than that used to determine the number of boats in residential settings. No criteria were introduced or noted by the Department until the hearing, at which the issue of the permit for the crystal Lake Sailing Club was raised by the Petitioner. At that point, an attempt was made to justify the difference in slips based upon the front footage of the sailing Club compared to that of the marina in question. But that was clearly not the basis for denial. The Department did not have any published or unpublished criteria regarding commercial operations. Its brief attempts to justify the position taken at the hearing on its power to develop criteria on a case by case basis. with this legal position, I agree, although the law in Michigan is less than clear. However, they developed no such criteria during the course of the hearings other than to compare the two marinas. Under the circumstances, I find the that the limitation to 14 slips based on comparison to residential usage was arbitrary.

In its brief, the statement is made that the placement of 28 boats is unreasonable and will lead to overcrowding, impairment of the waters and resources, and violation of the public trust. The statement is conclusory and not established by any facts entered in the record. The Department's testimony establishes that this lake has not reached the point of excessive congestion and has not exceeded its carrying capacity. There is no fact-based testimony in the record to support, the position that the number of slips sought here will affect any other riparian or affect the public trust -- which by the Department's own rule definition means the right of the public to navigate and fish and the protection of the water against pollution, impairment, and destruction.

The record is devoid of any showing that there is interference with the rights to navigate, much less to fish. with the dock relocated, there is no interference with the neighboring property, and, if there ever was, whether that interference was unreasonable is uncertain. There was no testimony that anything was polluted, impaired or destroyed.

The crux of the determination was that there were too many boats for the size of the property. The rest of the argument is unsupported by anything in the record and is merely conclusory. How is this interference manifested? What testimony or evidence establishes that the interference occurs? Since this number of slips has persisted on the site since 1983, the approval will add nothing to the burden, and the lake, according to the record, is not overburdened.

I find no evidence whatsoever that there is any degradation of the resource or of the public trust.

Mr. Bennett testified that the use of public comment material was limited to that which reflected the legitimate, substantial and factual concerns. In light of the development that the adjoining landowners have no objection, the apparent misapprehension at the hearing that this would be a more full-service marina than that for which the permit was sought, and the generalized objections to all increases in marina operations of the lake association although the lake has not reached its carrying capacity, there is little basis to conclude that the rights of the other lakefront owners is interfered with by this proposal.

Legal Conclusion 4- Does the restriction to 14 slips unreasonably interfere with the Petitioner's rights?

The restriction to 14 slips is an unreasonable restriction since it is based on two premises which cannot be sustained.

First, as discussed in Legal Conclusion 3, the comparison to residential property is unwarranted because this property is and always has been properly used for commerce. That use is lawful and has existed since before the Act was passed. Even the denial recognized that this comparison would be unreasonable and inappropriate, but the selection of the 14 slip limit was not tied to any rule, guideline or practice of the agency in considering limits on permits for commercial marina's. Instead, including during the hearing, the reference was to the difference between this dock and surrounding residential uses. Only the rationalization of the limit in light of the existing permit for the crystal Lake sailing Club at the hearing itself, based on front footage, serves as a basis for the limit outside the commercial restriction.

Second, the selection of the limit to 14 slips was based on photographic evidence of preexisting use of this dock as a marina. The basis was the availability of photographs showing 14 slips in 1978. The rationale was that this was the only information available and that even 14 slips were not justified if the preexisting use showed interference with another's riparian rights.. While the use of the photographs may be a valid way for the Department to discover existing use, it cannot serve as a conclusive presumption of that use, as the Department has done in this instance.

The record is uncontroverted that there was a preexisting use dating back prior to the current Act's passage in 1972 and that by 1978 the use was 14 slips. However, at the hearing it was established without contradiction that the use had evolved to 28 slips by 1983, five years before the initial application. Nothing contradicts the testimony of Mrs. Blackrick to that effect and the Department did not attempt to do so. It merely showed that in 1978 the usage stood at 14 slips.

Since the record clearly establishes a preexisting use of 28 slips, there is no valid justification to resort to the 1978 level for determining preexisting use. It was selected because it was all that was available, not because it reflected some objective time frame or criteria. If photographs were available for 1983, they would have established a different level of use.

Thus, the residential comparison was inappropriate in light of the clearly established, long-term commercial use and conclusive reliance on the 1978 count was arbitrary in light of the other available evidence of preexisting use. Accordingly, the restriction did unreasonably interfere with the Petitioner's riparian interest in the property.

One final point is that the alternative selected is not feasible under the circumstances. The limitation to 14 slips will unquestionably affect the Petitioner's riparian interests adversely. Movement of the dock to a central location is feasible as an alternative, and justified even though the neighbors have no current objection.

Nothing in the legal authorities cited by the Department leads to a contrary conclusion. There is no question that this commercial use is a protected riparian interest and that use, either at 14 or 28 slips, does not constitute an unreasonable interference with the riparian rights of anyone else, particularly of the adjoining landowners who no longer object. since there is no evidence of interference with the public's rights of navigation and no evidence of harm to the environment, the use is reasonable and the limitation is unreasonable.

Decision

This case involves a dispute over whether there should be 14 or 28 slips on a dock which serves a campground. It does not involve any question of pollution or destruction of resources. The dock qualifies, barely, as a marina, but the application, the intent of the owner, and the operating permit all reflect that it is in fact a seasonal dock which serves only to provide access and mooring for recreational vehicles at the campground. No food is sold, no gasoline is available, and no services for boat owners are provided.

The operation has existed for at least 20 years and has included 28 slips for at least 8 years. In all likelihood, the number of slips has exceeded 14 for at least 10 years. The major defect with the operation was that the location of the dock at the time of application resulted in some interference with an adjoining landowner's riparian interest area, but two events have eliminated that defect. First, the dock has been relocated voluntarily by the owner and a condition of the permit could assure that the annual location of the dock would not interfere with the interests of the neighbors. Second, the adjoining neighbors have no objection to the licensing of this facility at the larger figure and apparently no objection to its location. There was no showing that the dock would interfere with anybody else's riparian interests or their right to navigate. Accordingly, it is unwarranted to conclude that there is any basis for objection that the 28 slips constitute an interference with either riparian interests or the public trust.

The testimony did not establish that the lake is at its maximum carrying capacity, so the only conclusion that can be legitimately drawn is that the 14 additional slips contribute to the current level of traffic on the lake. Since the 14 extra slips have been in use for at least 8 years, there will be no additional contribution to the current conditions as a result of this permit.

The permit should be granted as originally sought in the application -- 28 slips. A condition should be included requiring that the dock be located so as to eliminate intrusion into the neighboring riparians' areas of interest.

Dated: July 22, 1991
Don LeDuc
Administrative Law Judge

September 10, 1991

TO: Dennis A. Conway
Executive Division

FROM: Hal F. Harrington, In Charge
Submerged Lands Management Unit
Land and Water Management Division

SUBJECT: Blackrick Campground
Contested Case Appeal 88-15-989-9

The Land and Water Management Division (LWMD) has drafted and forwarded the DNR permit to Mr. Kogut. We are awaiting his client's preparation of the redesigned drawings for the marina facility. Upon receipt of satisfactory drawings, the LWMD will issue the permit.

It is therefore appropriate to adjourn hearing the case while the final details of permit issuance are being completed. Should you have any questions, feel free to contact me at 373-1950.

HFH:cks

Joint Exhibit

1. Application for Permit--8-8-88
2. Application for Permit--8-12-88
3. FOIA Request--9-2'7-88
4. Public Notice--10-5-88
5. Public Notice--10-5-88
6. Letter of McGrath to Wandell--9-10-88
7. Letter of Morgan to Blackrick--2-15-89
8. Letters of Objection (5)
9. Notice of Public Hearing--2-15-89
10. Letter of Miller to Bennett (with Attachment)--3-24-89
11. Schematic of Sites--Undated
12. Letter of Harrington to Blackrick--6-29-89
13. Map of Crystal Lake with Photograph Locations
14. Stipulation of Facts--5-20-91

Petitioner/Plaintiff

1. Photograph--Lot 14--Blackrick Dock
2. Photograph--Lot 14--Blackrick Beach
3. Photograph--Public Landing
4. Photograph--Public Landing
5. Photograph--Soal Road-Overflow Parking
6. Photograph--Public Landing Overflow Parking
7. Photograph--Public Landing Overflow Parking
8. Photograph--Public Landing Overflow Parking
9. Photograph--Dock East of Public Fishing
10. Photograph--Dock East of Public Fishing
11. Photograph--Dock on North Side of Lake
12. Photograph--Second Dock on North Side of Lake
13. Photograph--Mooring on East Side of Lake (Upper Grove)
14. Photograph--Upper Grove Boat Houses
15. Photograph--Upper Grove Boat Houses
16. Affidavit--Neighbor Emery A. Morris
17. Affidavit--Neighbor Donna Dumond
18. Affidavit--Neighbor Dean Derks

Department/Defendant

1. Computer drawing of dock area.
2. Marina Permit for Crystal Sailing Club, Permit Number 79-15-351-9, Expiration Date December 31, 1992.