Use of road ends now restricted under fresh statute

After decades of legal interpretations and litigation, the battle over public use of road ends that provide boating access to inland lakes and streams may have finally come to an end with the passage of Senate Bill (SB) 778, which received approval in both chambers of the state Legislature and was signed by Gov. Rick Snyder on March 27.

“After being debated for so long, it’s a good feeling to see something through to fruition,” said state Sen. Mike Kowall (R-Commerce, Milford, Highland, White Lake, West Bloomfield, Orchard Lake, Wixom, Walled Lake and Wolverine Lake), a proponent of the legislation since he first began working on it back in 1999 when he was serving in the state House of Representatives.

“It just took a long time to get clarified and signed into law,” Kowall said. “There’s a lot of misunderstanding with this issue. There’s so much confusion and passion over the bill itself.”

Road ends are places where public roadways dead-end at the banks of a lake or stream. Most road ends were created more than a century ago to provide public access to lakes, rivers and streams. No definition of “public use” was ever provided, but case law has held that road end uses should be restricted to the ingress and egress of watercraft.

According to Road Commission for Oakland County (RCOC) Spokesperson Craig Bryson, the road commission is unsure of the number of road ends that exist in the county. In the past, RCOC officials have estimated there could be more than a hundred road ends in Oakland County.

“We don’t really keep track of those numbers,” he said.

There reportedly has been abuse at some road ends over the past several years, as some people have erected docks, installed boat hoists, and used the sites for picnicking, fishing, sunbathing, and swimming.

“This can get to be a very emotional issue,” said Bill Anderson, the legislative liaison for the Michigan Townships Association (MTA). “Especially when someone has been using the lake in a certain manner for 30 years, and then people say that’s not what they are supposed to do, it gets emotional.”

In 2003, the Michigan Court of Appeals ruled that the public may use road ends as a boating access point, but can’t use them for lounging, sunbathing, picnicking or the installation of boat docks or hoists.

“People started putting up docks and using the areas for everything but what they were actually intended (for) — a site to back a boat into the lake and then a place to take it out at the end of the day,” said Kowall, who sponsored the bill to codify road end rules already handed down by state judges in a couple of court cases — Jacobs vs. Lyon Township in 1993, and Higgins Lake Property Owners Association (HPLOA) vs. Gerrish Township in 2003.

The Michigan Court of Appeals’ ruling in the Jacobs case states that a land plat dedication allowed the installation of one non-exclusive dock at each road end leading to Higgins Lake, while the HPLOA case maintained that while one non-exclusive dock could be constructed, private docks were not permitted and sunbathing, picnicking, lounging, and permanent mooring of boats at road ends could be prohibited.

According to Kowall, SB 778 is simply “codifying” the rulings already handed down by state judges.

“It clarifies what the publicly-owned property can be used for,” he said. “What perked my interest on (this issue) is that some people are taking public land and turning it into their own private little resorts. They were blocking (the public access) off from general use by the public.”

Under the legislation presented to Snyder on March 12, boat hoists or docks can’t be constructed, installed, maintained or used at a public road end unless there is a recorded deed or easement that provided otherwise. The mooring or docking of a vessel between midnight and sunrise is prohibited, as is any activity that obstructs entering or exiting the inland lake or stream through the road end.

A single seasonal public dock or wharf can be installed and used, provided it has been authorized by the local unit of government that has jurisdiction over the road end.

Violation of the bill’s provisions would be a misdemeanor punishable by up to 90 days in jail and/or a maximum fine of $500. Each 24-hour period of the offense would constitute a separate violation.

Although Kowall’s bill was specific about restrictions on docks, boat hoists, and overnight anchoring at road ends, it didn’t specifically mention other activities such as sunbathing or picnicking.

While these are not criminal activities under the new statue, attorney Clifford Bloom, a riparian and water law expert, said they are still civilly wrong.

“There are many things that are not allowed at public road ends under common or civil law,” he said. “It’s unlawful but not criminally so. You can’t use (a road end) for bathing, picnicking, or camping. All that is allowed under civil law is for travel. These (sunbathing, picnicking and camping) activities have been illegal (at road ends) for a hundred years, but they aren’t criminal.”

According to Bloom, the new statute makes several activities criminal.

“It’s now a misdemeanor to put in a dock or put in a boat cradle (at a public road end),” he said.

Another clause in the statute is not as clear-cut, according to Bloom.

“‘Anything that obstructs lawful ingress or egress is a bit ambiguous,” he said. “So if I put up barriers (at the road end), that’s illegal. Now, a lot of people sunbathing to the point that people can’t walk through the area to get to the lake might be a criminal matter. That might be a violation. But it’s not a criminal statute (violation) itself unless it obstructs ingress and egress.”

The MTA gave strong support to the legislation, calling it “the correct interpretation” of previous court rulings, according to Anderson.

“This legislation implements court decisions that have come down on how you can use that road end access into an inland lake,” Anderson said. “It doesn’t do anything new. It simply puts into law what court decisions have said must be done.”

The state House of Representatives passed an amended version of the Senate-passed SB 788 in a 96-11 vote on March 1. The upper chamber concurred with the House’s version of the legislation, 31-7, in a March 7 vote.

“The bill codifies existing case law,” said state Rep. Lisa Brown (D-Commerce, West Bloomfield, Wolverine Lake), who voted for the bill. “Road ends are for access to the water, not for private use.”

“It made sense,” added state Rep. Hugh Crawford (R-Walled Lake, Wixom). “The law that was in effect before was vague on the use of a public road that ends on a lake. This clarifies it. People are not supposed to be using a public road or lakefront for private personal uses like boat hoists. People were using roads or lake access to put in private docks, and they are not supposed to do that because it’s public property. The resolution made sense to me.”

State Rep. Chuck Moss (R-Orchard Lake) also voted in favor of the bill because it provided clarification on what road ends “can and can’t be used for.”

“They provide public access,” he said. “They do not let people put in boat hoists and essentially become mini-marinists, which was happening in many places to the detriment of property owners on either side.”

And state Rep. Bill Rogers (R-Milford) said he was quite familiar with the “famous old end of the road” issue, having grown up on a lake.

“To use them to drop boats off is fine,” he said. “But to physically put structures up there — that’s why folks purchase property on the lake. I just didn’t feel it was appropriate for people from all over to throw in docks and what else and add to the issues on the lake for those who are complying legally.”

Kowall said he’s happy to get the issue settled before the pending summer boating season.

“Both people that live on the lake and people that live off the lake now can enjoy the water and do it safely,” he said. “They can enjoy their summer.”

The bill’s passage marks a new chapter in a battle that had been waged for years, both in the courts and in the state Legislature.

“There has been a huge amount of litigation over that issue. Most of it has taken place up at Higgins Lake,” said Anderson. “Essentially the courts came out and said it was a common law issue. When the contract was established to deal with the easement, the rights were defined at that time. The Legislature doesn’t have the authority to change that. And basically, it came down to scenarios where people were making use of that road end to a degree greater than what was allowed under the contract for that easement.”

Anderson said he often explains the situation by likening it to easements for sidewalks in front of houses.

“For example, a lot of people have easements in front of their houses for sidewalks. Now, the easement does grant people the right to bike up and down in front of the house. It doesn’t mean people have the right to build a fruit stand in front of your house or go camping on the sidewalk in front of your house. They can go to and fro, but they can’t put in anything permanent. These (road ends) aren’t parks,” he said.

The definition of “public use” at road ends led to several legislative battles, as well.

Former state Rep. John Stakoe, a Republican whose district included White Lake and Highland townships, took up the fight after Kowall left the state House in 2002.

During his tenure in the Legislature, Stakoe repeatedly but unsuccessfully introduced bills — all of which had essentially the same provisions as Kowall’s SB 778 — that would have codified the court rulings on road ends into state law.

However, Stakoe’s legislation was countered by opposing bills. In 2005, former state Rep. Joel Sheltrown, a West Branch Democrat, introduced his own legislation which proposed greater use of public road ends. In cases where the public roads were located within a recorded plat, each property owner within the plat would be allowed to take part in activities such as sunbathing, lounging, picnicking, erecting seasonal docks and temporary boat hoists at road ends. Local control would be awarded to municipalities, which could decide how to regulate the road ends.

Nearly identical legislation was introduced in March 2007, in the form of a House Bills 4463 and 4464. The legislative package, sponsored by former state Rep. Matthew Gillard, a Democrat from Alpena, required the state Department of Environmental Quality (DEQ) to issue a marina permit to a local unit of government to construct a road end dock if the local government enacted an ordinance with specific provisions.

Stakoe asked former Michigan Attorney General Mike Cox in 2008 to issue an opinion on the road end use issues. Stakoe wanted Cox to issue a ruling on whether the state Legislature can “revisit” court rulings dealing with the scope of what constitutes “public use” at road ends.

The opinion handed down from Cox’s office stated that any change in property interests has to be viewed in the context of more than 100 years of court rulings on the rights and limitations of properties within plats.

According to Opinion 7211, Michigan law prohibits “marina-like operations,” such as permanent boat mooring or hoists, lounging and sunbathing at public use road ends, unless the dedication authorizes otherwise.

Cox concluded that “while the Legislature has the authority to modify the law, any legislative modification of the judicially established rules of property law that have shaped the rights and expectations of property owners regarding the meaning of ‘public use’ in the context of platted roads ending at the shore of a lake has the potential to impact existing property rights and would be subject to the constitutional protections against the taking of property without due process and just compensation.”

Nevertheless, no law was put in effect to make that black and white — until now.

While the MTA’s Anderson said he doesn’t believe the issue is completely resolved, he said he does believe the clarification will deter many lawsuits.

“It will probably give greater guidance to people,” he said. “Now they can see the rulings in law. They don’t have to go back and start reading a dozen court cases. I think it will help to stop some court cases from going through now that people can see it in black and white.”

There are those who opposed the legislation, including a group which launched a petition drive at signon.org to have Snyder veto the bill.

The petition states: “SB 778 advocates elimination of valuable public access, rather than pensive regulation. It may also decrease revenue for businesses dependent on tourism of Michigan’s many inland lakes and streams, a detriment to the Pure Michigan campaign. This overreaching legislation will hinder local municipalities’ ability to manage public road ends in a manner appropriate to the local area.”

Bloom said the petition language is “misleading.”

“There are some against the bill spreading falsehoods that this bill would close public access and privatize inland lakes in Michigan,” he said. “That’s not true. No access site is being closed or abandoned due to the bill. All the bill does is codify the common law against private dock and boat moorage at public road ends. Public access to lakes is not being ‘severely restricted.’ It’s sad that a petition would be so misleading.”