2017-08-17 / Front Page

High water causing more conflict

Sheriff urges: ‘Don’t be rude’
By Patti Brandt Burgess
Of The Enterprise staff

Continued high Lake Michigan water levels have given local public beaches and property owners alike less beach, bringing them into closer contact.

It’s a closeness that some don’t want.

Alexander Janko’s parents have a home on South Beach in Leland where beach-goers have tossed trash onto their private property, changed clothes on the patio stairs, let their dogs defecate on their property, looted wood from a boardwalk to feed their bonfires and let their children use that boardwalk as a running ramp to leap over the fires.

There has also been plenty of drunkenness, theft and vandalism, Janko said.

Janko and his family’s attorney, Peter Miller, say the beach-encroachers are violating the Jankos in two ways — by trespassing beyond the ordinary high water mark and by trespassing beyond the 60-foot right-of-way on county-owned road end beaches.

The Jankos recently took their complaints to the Leland Township Board seeking permission to place signs delineating where that right-of -way is. Their request was honored and the signs will say “Leland Township Public Beach ends here.”

The Leelanau County Road Commission partnered with the township last year to place signs marking the public access at three Leland road ends, but the signs are too far back from the beach where beach-goers don’t see them, Miller said.

In Glen Arbor there have been some complaints about people overstepping the road end rights-of-way, but it’s not a chronic issue, said John Peppler, Glen Arbor Township Board trustee.

“Most of the road ends are pretty well marked down here,” Peppler said.

The shifting high water mark

David Almeter, who lives on Grand Traverse Bay in Leelanau County, said the ordinary high water mark is a capricious measurement.

“The shoreline is never stable and the high water mark comes and goes with the shifting of sand,” Almeter said. “It changes from month to month and week to week, depending on the weather. And that’s part of the problem.”

Almeter sits on the board of Directors for Save Our Shoreline, a non-profit organization made up of property owners and others committed to preserving riparian rights along Michigan’s 3,288 miles of Great Lakes shoreline.

Almeter also has rental properties on the bay. He’s never encountered problems from people encroaching on his private beach.

“I don’t mind if people walk along the beach and neither do my neighbors,” Almeter said. “As long as they don’t build a campfire, bring a six-pack and make themselves at home for the day and leave a mess for us to clean up.”

The Michigan Supreme Court in 2005 made a decision in Glass v. Goeckel that protects the public’s right to walk along the 3,288 miles of Great Lakes shoreline.

In that case Joan Glass sued Richard and Kathleen Goeckel, who live on Lake Huron, to stop them from interfering with her walking along the shoreline.

While the Army Corps of Engineers has determined the ordinary high water mark to be 581.5 feet above sea level — a mark that is now underwater — the Michigan Court recognized that waters levels fluctuate due to rain and a host of other factors.

That fluctuation can expose land where water once was and then submerge it again after a good rain.

In Glass v. Goeckel the Court identified the ordinary high water mark as “The point on the bank or shore up to which the presence and action of the water is so continuous as to leave a distinct mark either by erosion, destruction of terrestrial vegetation, or other easily recognized characteristic.”

If there are no clear indicators that can be seen, the 581.5-foot rule is used.

Leelanau County Sheriff Mike Borkovich looks at the high water mark as including the 6 to 9 feet of wet sand at the shoreline. He says shoreline property owners do own the land up to the water’s edge, but people also have a right to walk along the water’s edge.

They don’t, however, have the right to lay out a beach towel and bring along a picnic basket to spend the day.

“It’s a precarious issue, always has been,” Borkovich said. “Basically the rule of thumb we use is for people to walk the wet sand.”

Anything beyond that is just rude, he said, and can generate a ticket for trespassing.

But deputies can only take enforcement action if a property owner has posted signs placing the space off limits or has told someone to leave their property and the person refuses.

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Your article mis informed

Your article mis informed that the 581.5 feet, OHWM, by Corps has been exceeded. "...- a mark that is now underwater -..." It has not. Current level is 580.71 feet. In fact your table with the article shows 580.66 feet above sea level this August 2017. You should correctly referred to the correct datum for the above sea level, too. Whether this is the IGLD, International Great Lakes Datum, or NGVD, the National Geodetic Vertical Datum, they are not the same. The Court Case cited went to the Michigan Supreme Court and supports previous litigated cases on this matter of access by the public to the Great Lake. It would be pointed that this case DOES NOT apply to inland lakes. Finally,reference to the State of Michigan Great Lakes Submerged Lands Act would be appropriate.