High waters, shrinking beaches up ante over road end lake access
“If you own beachfront property in Leland, you have to expect that humans are going to be part of your landscape,” says Leland Township supervisor Susan Och, who has been dragged into a court battle that pits private property owners against public access rights to use Lake Michigan road ends as beaches. Photo By Raquel Jackson
By Linda Alice Dewey
Sun contributor
Higher Lake Michigan levels have shrunk beach areas and are exacerbating the struggle between public beachgoers and private landowners over access to our shoreline.
A prime example can be found at the 60-foot-wide beach access at Reynolds Street in Leland, which for decades has been called “South Beach”. The beach, currently a large patch of sand and beach grass, leads to a five-foot cliff at the shoreline, making the water unapproachable on rough days. Sandy areas amongst the grass are becoming fewer.
“It seems that our Lake Michigan shoreline is growing in popularity, even as the beach itself is shrinking in this ongoing period of rising water,” Leland Township supervisor Susan Och wrote in a2017 email to Reynolds Street beachfront riparian landowner Alexander “Xandy” Janko, who on July 5 sued the Township and Leelanau Road Commission over control of the beachfront.
Water levels across the Great Lakes have surged at a meteoric pace the past few years since climbing from an all-time low in 2013. At the end of July, the U.S. Army Corps of Engineers expected the water to level out at 581.92 feet above sea level—an increase of 15 vertical inches above July 2018. This creates all kinds of problems at the local beaches.
Leelanau County Road Commission manager Justin Kalenske recognizes today’s dilemma.
“Obviously, the water table is way up,” he says. “Years ago, the beach was much bigger; there was a lot more room to set up towels and have a bonfire.” Today, he says, people just try “to find a sandy spot, where years before, there was a lot more dry land to plant a chair on it.”
Sometimes, when folks can’t find a good spot, they intrude on private beachfront property—a regular occurrence for Janko. He and his parents have been asking for assistance from the township with the increasing frequency of incursions on his property. Emails and letters sent to the township describe children jumping off their boardwalk, the public changing clothes, tossing trash, and leaving fires unattended on their properties, “drunken and disorderly conduct, as well as vandalism and theft.”
The unofficial campaign, launched by Janko and some of his neighbors to combat these intrusions, began in 2013, when the water had sunk to its lowest historical point. (The Lake Michigan-Huron water level in January 2013 was 576.02 feet; since then it has risen nearly 6 feet.) Leland township met and responded by putting in signs as well as fire rings, as the family requested.
Then, in the first eight months of 2017, the lake surpassed its average seasonal rise by 10 inches, reaching 580.71 feet above sea level in August. As those waters rose and beach areas became more sought after, the Township board—concerned over increased trouble reported again by Janko—displayed Public Access signs delineating where the public could go and what was private property. Meanwhile, Janko’s family installed a snow fence along the lot line and a “Private Beach” sign, and roped off the border along the lake end of the boundary line.
In Michigan, the public may walk the beach up to the Natural High Water Mark. The U.S. Supreme Court reaffirmed that right throughout the Great Lakes early this year when it declined to hear a challenge brought by riparian landowners in Chief Justice John Roberts’ Indiana home town.
Beach battle heats up
As the waters rose in 2017 and 2018, so did riparian anger regarding the Reynolds Street access. This culminated in a November 5, 2018, letter to Leland Township from David L. Powers, attorney for Save Our Shoreline (SOS), a Bay City-based organization representing riparian interests. With a thinly veiled threat of a lawsuit, Powers demanded the township take down signs designating the area as a “park” and a “beach”, and to remove fire rings and garbage cans.
The township did so, but at a price to Janko.
“Up until the point where he hooked up with Save Our Shoreline,” says Och, “we were trying to work through how to solve the problem of people partying on the beach. After that it became—once you start sending lawyers’ letters, now the township has to be on the defensive.”
As she relates the story, Och becomes frustrated. “Many of the things in the lawsuit we have already done. We have pulled signs that say, ‘South Beach’, that identify it as a ‘park’, and we don’t reference it as a ‘park’ on the website anymore. The only thing left to do is pull the life rings and safety signs, and that’s not something I’m ever going to do.”
The water has continued to rise. And this year the beach battle escalated. The Glen Arbor Sun obtained an image of another letter, dated March 17 and printed on “Friends of Lake Michigan” letterhead. It issigned by Abigail and Albert Janko, and Adele Joyes Dinsmore and Caroline Joyes Woods, owners of the properties on the north and south sides, respectively, of the Reynolds Street beachfront access.
Addressed to their “friends and neighbors”, and opening with, “Happy St. Patrick’s Day”, the letter cites “increased recreational trespass and public abuse of our private properties.” Then it declares that, in commissioning a private survey last year, they discovered the road is not “platted.” It assures their neighbors that the path will be accessible to them and closes by saying, “To be clear, we support everybody’sright to access Lake Michigan at appropriate locations.”
What that meant was anybody’s guess. Neighbors living close to a beach access but not on Lake Michigan, count on its availability. In addition, says Och, “For people who have bought property near a particular road end, that access to water is an important part of the value of their property.”
Janko’s St. Patrick’s Day letter to his neighbors, apparently intended to assure them of continued access, raised concern. One neighbor contacted Och. “It looks like our friend Mr. Janko is at it again,” read her email.
Lawsuit over who owns the road
The riparian landowners revealed their strategy on July 5, when the Abigail M. Janko Share Trust and the Preston P. Joyes Jr. Trust filed a lawsuit against Leland Township and the Leelanau County Road Commission in U.S. District Court.
The Sun has contacted the Janko/Joyes attorney, Justin Ordway, and SOS attorney Powers. Both declined the opportunity to comment.
Och did, however. “The lawsuit,” she explains, “claims that the road wasn’t properly dedicated all the way down to the water, and that the adjoining property owners own that portion between what used to be Water Street, which has been vacated except for the intersection with Reynolds Street, and the water.”
Then she pauses. “I’m looking at the property description,” she reveals during a phone interview. “And that’s not what it says.”
The suitalso claims newly discovered historical documents prove this point, and that therefore the road easement constitutes a government “taking” of the land.
Past letters and emails to the township from Janko and his parents, which the Sunhas also obtained, display an acknowledgement that the government has authority over the road. A July 2017 email from Alexander Janko stated “we were pleasantly surprised to see the County Road Commission install two ‘Public Access’ steel posts.”
Also, township assessor Julie Krombeen writes that neither party has been assessed for the 60 feet of road end beach front property.
To mediate or litigate?
The Township has determined to enter into mediation with the plaintiff and has yet to be served court papers. The Road Commission, however, has decided to proceed with litigation.
Och was asked whether the Township might reconsider its decision to mediate rather than litigate, in light of the Road Commission decision.
“I’m going to wait and see how things unfold,” she says. “We need to do the best thing for taxpayers—don’t spend an arm and a leg on frivolous lawsuits, but also don’t give up the public access to Lake Michigan that is so important to our property values and our residents.”
Och acknowledges there are approximately a dozen other public water access points in Leland Township. At the same time, lots of people are heading there. “There are plenty of places to get to the water,” she indicates, “and plenty of people looking to get to the water.
“We’re trying to make peace here,” she asserts, “and we’re trying to have a situation where people can go to the beach and people can own property on the beach without a lot of mischief making or resentment.”
“But you know,” she adds, “if you own beachfront property in the village, you have to expect that humans are going to be part of your landscape.”
That may especially be true if water levels continue to rise over the next few years.
Mystery of the Reynolds Street fence
Remember this past May 23, when a split rail fence suddenly appeared at the Reynolds Street access, only to disappear two nights later? No one ever claimed responsibility; and although many guessed, the identity of the anonymous fence raiser remained a mystery.
Until now.
TheSun has obtained a letter which may point to the perpetrator.
The mysterious overnight appearance of these two parallel split rail fences, spaced approximately four feet apart and leading to the beach, raised a furor on social media, because they were placed in the middle of what had been a 60-foot-wide public access. In case of an emergency, paramedics might have had a difficult time carrying someone off the beach on a stretcher through the narrow split-rail pathway. “Impeding emergency personnel from doing their job can get someone in very big trouble,” Och told the Traverse City Record-Eagle at the time.
Within 48 hours, the fences were gone. No permits were pulled, and no notification given—except perhaps for this letter, sent on March 17—six weeks prior to the appearance of the fence.
Addressed to the Joyes and Janko neighbors, it includes the following statement:
“We will keep a pedestrian pathway open to the public this summer,” the Jankos and Joyes families inform their neighbors, “and hope to conserve a future walkway for the benefit of our subdivision owners.”
Could this have been the “pedestrian pathway” referred to in the letter distributed six weeks earlier?
Will road end access battle become precedent setting case?
By Linda Alice Dewey
Sun contributor
Michigan law regarding public access to navigable water is generally regarded in the legal community as being poorly written. Therefore, many of the rules for public use of Michigan’s waterways are decided, case by case, in court.
The way things are going in Leelanau County, the Reynolds Road case may end up there, so let’s look at a few of the issues.
Pertinent to this case is a 1960 Michigan Supreme Court decision.The court recognized thatroad-end public access can be established by easement, a history of regular public use, or fees. More important, the court found it may be used for beach recreation, not just for “transportation,” i.e. walking to and from the water over the strip of land between the road and the shoreline.
Leland Township supervisor Susan Och affirms that Reynolds Road has been used as a public beach for generations. “This has been a public right of way to the beach,” she says. “It’s not just a walking path, it’s a beach. I’ve had elderly people say they’ve been going to the beach there since they were children.”
In November 2018, the township received a demanding letter regarding Reynolds Road from the attorney for Save Our Shoreline (SOS), an organization advocating for riparian (waterfront landowner) rights.
Because of the need for court cases, Och is suspicious of the motivation behind the involvement of SOS. “My job is to promote peace and fairness in our community,” she says, “but there are people coming in on this issue who are looking for a test case.” She clarifies that she is referring directly to SOS. “I don’t want Leland Township to be dragged into that fight.”
The lawsuit, filed on July 5 in U.S. District Court Western District of Michigan—Southern Division, cites four counts against Leland and the county road commission. It contends that the road was improperly platted and that the government took the property, which it claims is valued at $600,000.
Och feels the filing is inappropriate. “If you think the boundary line is in the wrong place,” she countered, “then you apply for a boundary line adjustment, which you do on a local level, not in federal court.”
This isn’t the only case on beachfront public access currently being litigated in the state. The attorney handling the case for the township told Och he has four similar cases on his desk at present.
Maybe one of them will get in front of a judge. Perhaps this one.
