Portage, Base & Whitewood Owners Association

March 17, 2008

Newsletter

February 22, 2008 – Ann Arbor

Washtenaw County Circuit Court rules in favor of the PBWOA Position

On 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.   

If history repeats itself when mistakes are made, this is one of those cases. In 1994, the same court with Judge Patrick Conlin presiding, issued a judgment which prohibited permanent mooring of boats at the same eight foot wide alleyway off of Portage Ave; regardless whether or not they were moored at dock or tied off on posts. For some unknown reason Judge Conlin attached a sunset provision that let his ruling expire after 10 years.

 For the period from 1994 to May of 2005 there was little activity at this alleyway. Occasionally a float-boat was tied out in shallow water by an elderly couple that lived on Portage Blvd. There was a short 10 foot section of dock with a cross section forming a T. This presented no particular problem to the neighbors.

 In April of 2005, the PBWOA received a call from Mr. Hector Castaneda who owned a cottage that sits on the north side of the alleyway. He reported to us that the owners on Portage Blvd had put in a dock that extended approximately 150 feet into Portage Lake and that they were now mooring about 10 boats some on lifts. Mr. Casteneda also advised that the people took all of his dock sections off of his property to lengthen this dock. Hector was selling

his property and the neighbors assumed that he would not mind it was taken without permission. Other riparian owners along Portage Ave also contacted the PBWOA.

 On May 2, 2005 at our regular monthly board meeting, this problem was presented to the PBWOA Board of Directors. A committee of three board members was set up to investigate the problem and to advise Dexter Township of the situation. Response by the PBWOA was immediate and was on our agenda a total of 21 times until April 2, 2007 ‘when we voted to intervene in the case.

 The PBWOA at its April 2, 2007 board meeting voted to ask the court to allow us to become interveners in the case because of our disagreement with Dexter Township handling of the situation. A committee was set up to bring in the appropriate owners of the Portage Lake Resort into the case.

 We had found out that Dexter Township had backed down from its position that these backlot owners were illegally using the alleyway and had now agreed to treat the problem as a request for a zoning variance. Dexter Township had drawn up the agreement that would grant five property owners on Portage Blvd the exclusive use that had belonged previously to all 65 owners that make up the Portage Lake Resort Subdivision.

 Dexter Township decided to treat the claim by five backlot owners as a method to obtain title to the property, by allowing their claim that, because of continued use for 15 years, they were entitled to the property by adverse possession and the right to use this alleyway as a marina for their exclusive use. This is what the township was agreeing to when the PBWOA stepped in.

 Dexter Township sent summons to all 65 owners of Portage Lake Resort ordering them to cease & desist from using the alleyway as a marina and docking boats overnight. All 65 property owners’ received a summons that stated that if you wish to be released from this action, to sign here, and they were out of the suit. Most owners did so thinking that they were agreeing to the township’s position that this use had to stop.

 Mistakes made: The PBWOA Board believed that Dexter Township was carrying out the original orders listed in the complaint.

The township said that when they came out and interviewed owners in the subdivision, they expressed little concern over this issue unless their property was in close proximity to their home. The township felt that there was little support from the owners in Portage Lake Resort in pursuing the case in court and that this could be better handled as a zoning variance problem.

Although we were in constant contact with the Dexter Township Officials, they gave the PBWOA no information that they were changing their position from cease and desist to “can’t we all just get along”. They were talked into a position that let the 5 backlot owners have the property.

Continued on page 2

Alleyway continued:

 Not only is this a bad idea, but the township does not have this authority to give rights or title to property that is platted in writing as property of the public.

 The PBWOA Board had to move quickly. So strongly did the board feel that immediate action was needed, that the PBWOA accepted the full financial responsibility of taking this case to trial.

We felt that this was not just a neighborhood dispute and if allowed, could have far reaching affects. Also, the neighbors in Portage Lake Resort were concerned about having to step up to the plate without having the support of the entire lake community.

 When PBWOA was granted intervener status by the Court, the township agreed that we could take over the case and pursue a ruling that agrees with all previous court rulings that say that; “If the deed or plat recorded for a subdivision or property does not specifically dedicate the use of a street, road, alleyway, promenade or out-lot, as dockage and mooring of boats; then it means; for egress and ingress only. Which means come down, go have a nice swim and return home.

 The ruling of the court will be published in about one month.   What we are asking was that the alleyway be returned to its original status that the developer had in mind when the property was dedicated to the use of the public. This 8 foot alleyway was intended to be used for the people who purchased the off-water property as a method of getting to the water for, (1) Taking a bath, (2) getting water for your horse or animals, (3) going for a swim, or as in years ago (4) Coming to the grocery store by boat to get provisions. What it was not intended for is: Mooring a boat, loitering, picnicking, partying, and disturbing the peace. 

 Judge David Swartz followed that law when he determined that the case would be decided on what the intent was from the wording in the plat and the obvious planning of the whole subdivision. There are two dedicated Park Lots for the recreation for the off-water owners. Prior use of the property whether with permission or without does not entitle a person or persons to lay claim to the property. This would be “adverse possession” of which there hasn’t been a case won on such a claim in the last 100 years.

 It was a matter decided on common sense. It didn’t make sense from the start and the PBWOA hopes that this case that had to be tried again is a message to all off-water owners. That the entitlements of riparian ownership go hand in hand with the rights of ownership of those people who paid the higher price for the property and also pay much high taxes to enjoy the privilege.

Hotel Bandalier

Right here in River City 

As Maxwell Smart would say,

“Would you believe”?

 Believe it or not we have a Commercial Resort Convention Center, Meeting Hall, Hotel, Bed & Breakfast, Church Hall, Family Reunion, Week End Getaway, Asian Center, Sports Bar, Water Sports, Boat Rental Livery, Multiple Family Rentals; all of this in a R1 residential neighborhood of million dollar homes in Webster Township. Well, we do! The PBWOA had requested that Webster Township put a stop to this.

 At our board meeting on June 25, 2007 this situation was brought to the attention of the PBWOA Board of Directors. The board voted to proceed with putting a stop to such a blatant violation of our zoning laws.

 The first compliant came when over 65 cars were parked on Sunrise Dr. one weekend in June of 2007 and an estimated 150 people were in the home. In the subdivision call Bandalier Acres located on Base Lake, our  investigation found that the previous home of Mr. Ted Fiest was renovated from a conventional lake home into a 9 bedroom, 8 bath hotel by the new owners’ James and Priscilla Carlson who do not live at this location. Their mailing address is in Ann Arbor.

 The PBWOA mailed this information in July of 2007 to the officials of Webster Township, Mr. John Kingsley, supervisor, and Mr. Bruce Pinzia, Zoning Officer, a complete package with photos and video of the hotel in operation plus a copy of their 10 page website advertising the above. The website shows solid bookings for the year and rates from $1700 to $2500 for a weekend.  

 Webster Township sent a letter dated November 9, 2007, to James and Priscilla advising them that an injunction had been filed against them to cease and desist in the rental of their property, which is in violation of the uses permitted in the Rural Residential District because that they rent to multiple families. There is an appeal process that Carlson can ask for but has to do this within 60 days of the injunction. This would have been up as of Jan 9, 2008. We will keep you informed.

 PBWOA BOATING SAFETY CLASS

April 12, 2008

9:00 a.m. to 3:00 p.m.

Portage Yacht Club

8930 Dexter Pinckney Road

Register by Calling the

PBWOA Hot Line at 734 878 6770

More info on page 5

Hamburg Township Hazard Mitigation Committee

 Flood Control

If you were here in May of 2004, Memorial Day weekend, we are sure that you remember the flooding that occurred in the upper stretch of the Huron River from Ore Lake to Strawberry along with extreme high water in Gallagher, Whitewood and Base. Meetings followed. In fact a big meeting was held at the Pinckney High School with over 200 people attending. The question asked; what’s going on and what are you going to do about it. This was mainly directed at Cindy Pine Hamburg Township Supervisor. Well we are here to tell you that Hamburg / Cindy did not sit back and tell us that God wants it this way. We did not start building an Arc but instead formed the Hamburg Hazard Mitigation Committee.

 The PBWOA board felt that this was a good idea and that we should be directly involved and have members on this committee. So we did and we appointed board member Bill Hahn and our President Dave Spielman to serve on this committee as well as Bill Tupper as an alternate member.

 First item on the agenda was for the committee, to meet the federal requirements, to first determine the biggest threat (Hazard) to the Hamburg community.

They did and it was Flooding. The next step was to develop a plan that would mitigate this hazard.  

 Why is the PBWOA concerned about the flooding upstream at Ore Lake? It’s because it could happen here on Base and Portage. It’s because we are getting the effects of the flooding down here in the lower part of the Huron River. Our banks of the Huron River between Base and Whitewood are eroding away and the trees are flooding out and falling into the river at a rate that we have not seen before. We are getting dumped on, water wise, more than we have ever seen before. The townships above us are allowing more and more development upstream with more roofs and pavement that shed the water quickly into the Huron River.

 What’s being done?  First the Hamburg Township, Haz-Mit-Comm; has now developed a clean up of the Huron from Ore Lake to Strawberry that has been quite successful in warding off a flood so far. We have come close but all indications show that removing debris and harvesting weeds has greatly improved the flow in that stretch river.

 Recently we have had the longest continued high water for the winter months in recent history. The water levels in Gallagher, Whitewood and Base Lakes have been next to impossible to handle. We could have some serious sea-wall damage this year.

 Ok, why? Well it’s a combination of things. Added runoff from development, and don’t believe in the idea that for the retention pond stop the run off.  Developers don’t put Retention Ponds in any more. They put in Detention Ponds. They just detain the water for a little while but do not retain it. It is too costly to put in a pond that would retain the water.

Our Portage Lake Dam

Did you know that the dam is approaching the 50 year mark? The PBWOA has now actively got involved with the Dam. We have had several meetings with Art Stauch and also have met with the Washtenaw County Drain Commissioner, Janice Bobrin, about the condition of the Dam and its maintenance. We were given the records for the past 7 years as to the amount of funds that were spent on the repairs and preventive maintenance of the Dam. The funds for the maintenance come from the Special Assessment District that was created in 1964 when the Dam was built. We still pay for the maintenance through our township taxes being assessed each year in April for the previous year’s maintenance expenses. There are approximately 1600 properties that make up the Portage / Baseline Lake Level Assessment District #8005.

 Here are the figures for the past 7 years:

Year                 Amount            Cost / SAD Member

2001                $20,592                       $12.87

2002                $9,958                        $  6.22

2003                $16,310                       $10.19

2004                $11,848                       $  7.40

2005                $12,986                       $  8.11

2006                $16,485                       $10.30

2007                $8,225                         $  5.14

Average over 7 years is $13,772 or $8.60 per home in the SAD.

 We could not imagine anyone arguing about the benefit of the Portage Dam. The Dam was built to   stop flooding that occurred far too often. It has maintained the water levels so have a beautiful water system. Up until the last decade we were able to manage the water up stream fairly well but now we can’t. We need to make need repairs to bring the Dam up to 100% operational.

 Flooding in the Upper Huron

Operation Flood-Not

When we talk about flooding in the upper Huron River, we are talking about the Huron River from just below Kensington Dam down to Base Lake. This is an area that is twice the size of the drainage area of Portage Lake. To give you some figures the combined drainage area of Portage Lake and Little Portage Lake is 132768 acres. The total combined drainage area of Base Lake is 259848 acres. Portage Lake is not on the Huron River chain when you take the Dam out of the picture, meaning that water from the Huron would not run into Portage Lake be it not for the Dam. Portage Lake is large. It has 19328 acre feet of water. Portage flushes every 3.09 years, were as Base Lake has 7975 acre feet of water and flushes every 2 weeks. 

  The problem with the Portage Dam is that it is not able to expel enough water to evacuate the excess water in the upper Huron during flooding conditions. If the Dam opened all 3 gates to relieve the high water at Ore Lake it takes 4 days to show an effect. The reason is that we first have to drain a vast amount of water from Portage Lake. If you didn’t have to drain Portage Lake, what would be

the result up stream? We think it would make a substantial difference.

 We just happen to be in a most unusual situation. There is only about 11 inches of fall between Ore Lake and Portage Dam. The dam is about 8 feet tall. If we open the gates we now have 8 feet of fall in the river if we shut off Portage Lake.

 The PBWOA has developed a plan that would be of a great benefit to all of the Huron River. It would basically end flooding because we would have a Dam that is a Flood Control Dam and Not a Water Level Control Dam.

 What we are proposing is that we replace the McGregor Road Bridge, which is in great need of replacement, with two objectives in mind. First, as we has previously proposed to our membership back in 2002 and received 54% of the responding members in favor of the idea, of raising the bridge height to a clearance above the water to 7 feet.

Secondly, the bridge is designed to accommodate a flood control gate that would operate on the same principals as what is now being used in Europe. It operates on air pressure and water displacement inside the gate itself. Pump air in and water out the gate raises off the bottom and seals off Portage to the required level of 851.5 feet sea level. Excess water that flows into Portage would overflow around the gate.

 What good does this do? If you do not have to drain  Portage Lake other than the just the overflow, then the Portage Lake Dam can become more effective and quickly release water down stream were there is a drop in elevation of 75 feet from our Dam to Ford Lake Dam with 8 Dams in the river to control flooding. There is another 75 foot drop from Ford Lake to Lake Erie.

 The Control Gates, one at McGregor and also one at the Pontoon Canal, could just operate late at night. The beauty of this is that we could operate these for the most part at night and not interfere with access in and out of Portage Lake.

 Also, in this proposal, is the removal, by dredging, obstructions in the river that restrict its flow. Starting at the M-36 Bridge and then to Strawberry Bend; we would remove about 1800 cubic yards of bottom to make Strawberry Bend with two channels. One for up bond traffic on the east side and one for down stream on the west side of the river.

 How would we do this: There might be some grant money and the Washtenaw County Road Commission might help on the McGregor Road Bridge. But we feel that the only way we will get it done is to do it our selves.

When you look at the number of riparian home owners who would benefit from this and the number of homes and businesses in Livingston County that are contributing to the added water; a Special Assessment District would be the answer and the additional taxes per year would be minimal.

We have played with some figures however they are just estimated costs from the county road commission in 2002 that the McGregor Road bridge replace cost was about 2.5 million. So even if the costs went to 10 million, there would be at least 5000 home owners and or businesses sharing this cost over a 12 year bond. That comes out to $166 per year + interest.

  Lots of benefits: You would be able to get your float boat out of Portage with out going through the Pontoon Canal.  Portage Lake would maintain its desired level of 851.5. You would be able to go up stream, unimpeded and without having to wait at Strawberry Bend. We would be able to save the trees along the Huron. We would put a stop on flooding at Ore Lake and other places. We would cleanout the river of weeds that now a take root because the lack of fast moving water.  We would be proud to say that we helped solve a problem without being forced into it.

 So let us know what you think. Email your comments to PBWOA@chartermi.net

We will be working on this all summer. We will be mailing more information at a later date when we have more defined plans.

 PBWOA Annual Meeting

Saturday, May 17, 2008

 Dexter Township Hall

  9:30 AM. Until Noon

 Proxy Ballot Enclosed

Please return mail the ballot by May 5th

Mark your calendar now if you are interested in what is going on with our lakes you should attend our annual meeting. It has always been an interesting, informative and entertaining meeting.

 We have an impressive array of special people from our own PBWOA Board Members, Township Officials, Washtenaw County Marine Patrol, our Attorney Dana Dever and the Water Doc. Dr. Wally Fusilier. 

 Election of PBWOA Board Members: Our bylaws require that one half of our Board of Directors is elected each year. We have five current board members whose terms are up this year. They are: Bill Ferrington, Paul Tryon, Tom Hiller, Bill Hahn and Larry Simmering. These fine people have all agreed to serve one more term. However, we are looking for one new member to the PBWOA Board of Directors to fill the vacancy created by the retirement of Joe Mancari.

If you are interested call Dave Spielman at 734 426 4301.

 PBWOA BOATING SAFETY CLASS

April 12, 2008

9:00 a.m. to 3:00 p.m.

Portage Yacht Club

8930 Dexter Pinckney Road

Register by Calling the

PBWOA Hot Line at 734 878 6770

Continued on page 5--Boating Safety Class

 Boating Safety Class

This year we are again offering our Boating Safety Class. This is your opportunity to become certified in the safe operation of a powerboat and other types of boating. Leave your name, phone number and the number of people that will be attending.

There will be a charge of $5.00 per person which includes the cost of lunch.

 You will be issued your Boating Safety Certificate (BSC) providing you pass the written test given that day by the Washtenaw County Sheriff’s Department.

If you where born before December 31, 1978, then you are not required to have a Boating Safety Certificate. However, if you were born after 12/31/78; you have to have a BSC to operate a Personal Watercraft. That’s right. You can be 38 years young and you still have to comply. No prevision was put into the law based on maturity. It is a good idea that all you dads take the course right along with your kids. You need to know what is involved in the operation of a personal watercraft. If you are 14 years old, you can operate a Personal Watercraft if you have your BSC. If you get stopped on your Personal Watercraft without your BSC, you could be issued a ticket.

The owner of a Personal Watercraft will be held liable for anyone that you let use that machine, regardless of age. It is presumed that the personal watercraft is being operated with the knowledge and consent of the owner. When your kids bring over a friend to go jet skiing, you better make sure they have a BSC on them. It is your responsibility.

 PBWOA Membership

We need more members. If you know of a neighbor that does not belong to the PBWOA ask them to join us. It’s not the money. If it was, we would simply raise the dues. It’s the ratio of members to non-members that we don’t understand.

We seem to be stuck on the 38% figure. We have hand counted the known riparian owners of the four lakes including those on the river that should belong to the PBWOA and we come up with 910 riparian home owners.  We currently have 348 riparian homes for which we are truly grateful but we would be proud to say that we have over 50% of the riparian property owners backing our programs.

  If you are asked how to join the PBWOA, tell them just send a check made to the PBWOA for $35 to PBWOA Box 563 Pinckney MI. 48169 and we’ll do the rest. Tell them that they will receive one of our Jim Dandy Letter Openers that so many members are raving about.

Below is a list of the programs that we are currently involved.

Riparian Magazine: This great magazine is published by the Michigan Lakes and Streams Association on a quarterly basis. We pay for your subscription from your dues. The board feels that this is an important part of keeping you informed. Our own Portage Lake will be the featured lake in the May 2008 issue. Plus and article about the PBWOA Board and the long term dedication of the board members.  It is very informative and important for everyone in our membership to read this magazine.

Water quality: We have contracted for many years with the world renowned limnologist, Dr Wally Fusilier, who has well documented the water quality of these lakes. This is of the utmost importance to our Chain of Lakes and to you as a homeowner. The PBWOA invests a great deal of both time and money into this program.

Huron River Clean Up: We pay for and donate our labor to keep the Huron River free of debris.

 Hamburg Township Hazard Mitigation and Flood Control Committees: Three PBWOA Board Members serve on this important board.

Newsletters: Your dues go to cover the cost of publishing and mailing of our informative newsletters.

Fireworks: We donate annually to the fireworks committee PLACSO.  

 Michigan Lakes & Streams: We pay a portion of your dues money to the Michigan Lakes and Streams Association and their affiliate “The Michigan Waterfront Alliance” which is a lobbyist organization that works in Lansing.

Marine Patrol: We provide dockage for the Marine Patrol.

No Wake Markers:  We buy floating marker buoys and No Wake Signs for boating safety.

 Boating Safety Class: We provide what we consider the best Boating Safety Class around and pick up most of the expense.

 Education: Each year we send 2 board members to the Michigan Lakes and Streams Annual Meeting This is a terrific two day affair of the most comprehensive lake management programs offered by any state in the Great Lakes area. It has become a must do item of our board members.

 Severe Weather Warning System: This started when Dexter Township asked us to be the sponsor of a Weather Warning Siren that would be located right in our lake neighborhood. This was done with grant money providing they could get an organization to support the maintenance costs. We of course said we would and now we pay for the operating and maintenance costs. The siren is located on Dexter-Pinckney road just north of McGregor.

 Riparian Owners Rights: This is the main program on the PBWOA agenda. Historically it has been a battle between the riparian owners and

backlot property owners. The backlot owners, who have had water privileges granted in the property deeds, that gave them ingress and egress to the water have tried in various ways to expand their privilege. Some subdivisions have well defined rights as to how their excess to the water can be used. The PBWOA has been very successful in mitigating these types of situations by either litigation or township enforcement of zoning ordinances. In all cases it has proven to be a benefit not only to the backlot owners as a whole but to all of the community. 

PBWOA Historical Committee: This is an ongoing project that in 2002 and is hard at work compiling the History of the Lakes. Chairperson is Dr. Robert Reed. We have gained much information and hope to publish it soon.

Boat Surveys: We do surveys on the number of boats that are moored in and around these lakes. This is important data for us to keep in regards to the DNR and their Public Marina Expansion Program.

Attorney Fees: These fees vary from year to year but are a part of our budget. This year, with the litigation of the Portage Ave Alleyway; we have had an expensive year.  

 Let’s stop Fertilizing the Lakes

We are our own enemy when it comes to protecting our lakes. This is because we, and “we” is in the board scope of everyone that owns property that borders onto a creek, a stream, a river and the lakes, that uses any type of fertilizers on their lawns.

As most of you know we employee the services of Dr. Wally Fusilier as a consultant as well as our water quality limnologist to help us try to preserve to quality of the lakes. And as most of you know we have been losing the battle in regards to weeds.

At our November 2006 board meeting we met with Wally to discuss the big picture of the problems with the lakes. Wally explained to the board that after over one hour of discussion it boils down to us. Not the sewer disposal plants up stream, however they do add to the problem, it is the riparian home owner and a host of other owners described above.

Based on Wally’s years of experience, no model studies, just real life experience, it boils down to lawn fertilizers. Nitrates are coming from your lawn in to the streams and rivers and lakes and bingo, warm spring days, clear water and nitrates we have WEEDS; lots of weeds.

So what to do we do? We are not excusing the sewer treatment operations but the game has to start somewhere. It is our responsibility to stop,

Wally says 80% of the problem is fertilizing our lawns within 400 feet of the water.Wally recommended that we get the riparian owners to stop using lawn fertilizers on their property that adjoins the lake. You can use weed killer but not fertilizer within 400 feet of the water’s edge.

 The supposition that fertilizers with no phosphorous is Ok to use is not correct. They still contain nitrogen. Weeds in the water have all the phosphorus the need right in the lake bottom soil. It is NITROGEN that weeds need.  

 Holding back just 20 feet from the shoreline will not help. Wally pointed out that the soil around the lakes is primarily sand and the nitrates percolate down through the soil and into the water just lake our old septic drain fields. Wally said that an eight inch retaining berm along the water’s edge, with plants, is a great help in stopping the run off of natural nutrients in rain water.

 Weeds Continue to Grow: What we can do to reverse the problem? The upstream problems are something that we currently can control as far as getting any relief on the amount of phosphorous and nitrates that are coming into the river via sewage treatment plants. Inasmuch the property owners have put in a sewer system for the lake area from Strawberry to Portage; we have corrected a major contributor to nitrates from our drain fields. If we can show the Townships and the DEQ that we have taking care of our problem that they will have no excuse to keep dumping any more nitrates into the river that what the river normally has in it. 

Weed Killers OK:

Wally says that you can use weed killer on your lawn.

 PBWOA Board Resolution

At the November 6, 2006 board of directors meeting the board unanimously approved a motion to adopt and promote the policy asking all property owners stop the use of fertilizer on their lawns within 400 feet of any body of water that would empty into another body of water.

This is a big one folks. We are not going to be able to defeat the weed problem with chemical kills. We have to stop the nutrients from every getting into the water. We need everyone’s support.

PBWOA 2007/2008 Officers: