TOWNSHIP ZONING ORDINANCES INCLUDE AUTHORITY TO REGULATE RIPARIAN RIGHTS
By
E. A. Trautz, Higgins Lake, Michigan
In Hess v West Bloomfield Township, 439
Mich 550 (1992), the Michigan Supreme Court had to determine whether riparian rights are “land” and the “use of land” as those terms are used in the enabling
provision of the Township Rural Zoning Act (TRZA).
The Hess case involved a request in 1977 from
the Pine Bluffs Estate Association to the West Bloomfield Township board for a
special use permit to convert a commonly owned lot in the subdivision into a
private park and beach, including construction of facilities to moor and dock
boats. Approval was granted,
including permission to provide for the mooring of two boats.
In 1989, after all eleven lots in the subdivision were sold, the
association petitioned the township to amend the permit to increase the mooring
to eleven boats. The
township board denied the petition to amend, so Charles C. Hess and ten other non riparian
owners in the subdivision brought an action against the township claiming the
Township Rural Zoning Act does not authorize a township to regulate riparian
rights through the application of a zoning ordinance.
The Court held a township has the authority through the
enabling provisions of the TRZA to regulate riparian rights such as dockage of
boats, as a part of its zoning power for the following reasons:
1. “Land’
as defined in MCL 83i; MSA 2.212(9) includes all rights and interests that are
associated with or attached to any piece of real property.
2. Land
bounded by a natural watercourse is defined as riparian, and riparian owners
enjoy certain exclusive rights including the right to erect and maintain docks
and the right to anchor boats permanently off the owners shore, thus the term
“land” as used within the Township Rural Zoning Act (TRZA), includes those
rights or interests that attach to the ownership of land and extends to riparian
rights, including the mooring of boats.
The Supreme Court
went on to say:
“Including riparian
rights within the term “land” as it is used in the TRZA is not inconsistent
with the manifest intent of the Legislature.
The TRZA permits townships to regulate activities to promote the general
welfare of the public and to protect the character and natural resources of a
township community, primary concerns under the constitution.
Regulation of riparian rights is necessary to ensure that land uses
are compatible with surrounding properties and to conserve water resources.
The TRZA allows townships to balance the most advantageous use of lands,
resources and properties within their boundaries and to create zoning districts
and ordinances in accordance with such evaluations.
Such a balance could not be achieved if riparian rights were excluded
form any zoning control by the township.” (emphasis added)
Most land bordering Michigan’s lakes and
streams is zoned “single-family.” If
a township enforces its zoning ordinance as it applies to single family land
with riparian rights, “keyholing” or “funneling” of large numbers of
people onto a waterbody through single-family zoned land, will be prohibited.
When a township fails to include riparian rights as “land” and the
“use of land” as those terms apply to its zoning ordinance the results can
be disastrous. Here is what has
happened in Gerrish and Lyon
Townships, two townships bordering Higgins Lake, a 12,000 acre, high-quality
lake in Roscommon County, Michigan:
In Gerrish Township, twenty families incorporated the
Shadyview Association for the purpose of sharing in the purchase of
a lot zoned single family with 77 feet of frontage on Higgins
lake. Each year the association
erects a 20-boat marina for dockage of its members’
boats; the shore is used as a private beach for member families and guests; the
single-family house is a clubhouse; the remainder of the lot is used for parking
the cars of members and guests and as a children’s playground.
The twenty member families share equally the payment of the higher taxes
imposed on riparian land.
In Lyon Township, eight families formed the Sunseekers
Association to purchase a lot zoned single family with 25 feet of
lakefront. The association and
erects a 10-boat marina on its riparian interests, rents the small cottage to
the public and provides parking for members and guests on the remainder of the
lot. In another subdivision in Lyon
Township six families formed an association to purchase a vacant lot zoned
single family with 50 feet of lakefront.
The lot is now a private park, beach and marina for the 6 families and
their guests. Also in Lyon Township
an association composed of 125 families owning land in an off-lake subdivision,
purchased a lot zoned single family nonconforming light industrial with
125 feet of lake frontage. The
association has applied with the DEQ for a 45-boat marina and plans to convert
the existing building into a condominium. The
association presently owns an adjacent lakefront lot 100-feet wide zoned
single family which it uses as private beach and a 40-boat marina.
The failure of Gerrish and Lyon townships* to
regulate riparian rights through the application of their existing zoning
ordinances has resulted in the funneling of hundreds of people and boats onto
Higgins Lake. As a consequence, the
shoreline of Higgins Lake is changing from low density to high-density
use. (*Both townships also allow
road ends within their jurisdiction to be used for lounging, picnicking,
sunbathing and as private marinas.)
The psychological effect of not enforcing zoning
ordinances as they apply to riparian land is also devastating because lakefront
owners who conscientiously obey the law and use their riparian land for single
family dockage can never be certain when the property next to them zoned for single family will be purchased by 10-20 families
and used as a multifamily park, beach and marina.
For these reasons it is important for officials
of townships with lakes or streams within its borders to heed the following
dicta of the Michigan Supreme Court;
“In a state such as Michigan, with its abundant
bodies of water, there would be no way to ensure that land uses are compatible
with surrounding properties unless water activities are evaluated. Similarly, the conservation of natural resources, which
clearly includes water, cannot be undertaken if there is no means to regulate
riparian rights. Finally, the
stated purpose of the TRZA is to allow townships to balance the most
advantageous uses of the lands, resources and properties within their boundaries
and to create zoning districts and ordinances in accordance with such
evaluations. Such a balance
could not be achieved if riparian rights are excluded from any control by the
township. Review of the
historical development of the TRZA indicates the Legislature intended
the regulatory authority possessed by the townships to encompass more than
activities which are located on ‘dry land.’” (emphasis added)