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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 6070

May 25, 1982

TOWNSHIPS:

Authority to impose use permit upon grant of easement, right-of-way or license by riparian owner

A township may not, by ordinance, require riparian owners to first obtain a township permit before granting easements, rights-of-way, or licenses to nonriparian owners across riparian lands for purposes of obtaining access to natural watercourses.

Honorable Frederick P. Dillingham

State Representative

The Capitol

Lansing, Michigan 48909

You have requested my opinion as to the legality of a proposed amendment to the Marion Township Zoning Ordinance and you have included a copy of the ordinance amendment which is proposed to be adopted by the Marion Township Board.

The proposed amendment to the existing ordinance prohibits a 'riparian proprietor or owner' from granting an easement, right-of-way, or license to any person or legal entity 'other than to the owner, family and occasional guests,' for the purpose of 'providing access to a natural watercourse,' without first obtaining a conditional use permit therefor. The proposed amendment sets forth the following criteria which the township planning commission shall consider in evaluating the request for a use permit:

'(a) The diminution in the quantity, quality and level of the natural body of water.

'(b) The alteration in the flow of the natural body of water.

'(c) The expressed purpose for the request, including its extent, duration, necessity and its application.

'(d) The nature and size of the natural body of water.

'(e) The uses to which the natural body of water is put.

'(f) The extent of injury to riparian proprietors as it relates to fishing, swimming, boating and other recreational activities, or otherwise.

'(g) The proposed changes to the natural state of the body of water.

'(h) The necessity for the proposed use.

'(i) The interests of the public in fishing, navigation, conservation and recreation.

'(j) The comparative effects of the benefit to the applicant as opposed to detriment to riparian proprietors.'

I. Rights of use incident to ownership of a riparian tract.

In the absence of land use regulations adopted by the state or local units of government under the police power an owner has the right to make any desired use of his premises not amounting to a nuisance. Anchor Steel & Conveyor Co v City of Dearborn, 342 Mich 361; 70 NW2d 753 (1955); Teglund v East Lansing Building Inspector, 316 Mich 185; 25 NW2d 161 (1946).

The incidents of riparian ownership include:

'(1) Use of the water for general purposes, as bathing, domestic use, etc.

(2) To wharf out to navigability.

(3) Access to navigable waters, . . . [and]

(4) The right to accretions.'

Hilt v Weber, 252 Mich 198, 225; 233 NW 159 (1930); Tennant v Recreation Development Corp., 72 Mich App 183; 249 NW2d 348 (1976). Although riparian rights are not severable from their adjoining uplands, a riparian owner may nevertheless grant easements, rights-of-way, and licenses to nonriparian owners for purposes of providing access across riparian lands to adjoining waterways. Thompson v Enz, 379 Mich 667; 154 NW2d 473 (1967).

The use of riparian lands by nonriparian owners for purposes of access to navigable waters is lawful, so long as the same does not constitute an unreasonable use and interference with the rights of other riparian owners. Three Lakes Association v Kessler, 91 Mich App 371; 285 NW2d 300 (1979). Where there are several riparian owners on an island lake, such owners and their lessees and licensees have the right to use the surface of the lake, so long as none of them interferes with the reasonable use of such waters by other riparian owners. Swartz v Sherston, 299 Mich 423; 300 NW 148 (1941); Burt v Munger, 314 Mich 659; 23 NW2d 117 (1946); Opal Lake Association v Michaywe Limited Partnership, 47 Mich App 354; 209 NW2d 478 (1973).

II. Regulation of land use under police power.

An organized township is a municipal corporation possessed of powers prescribed by law. The township board is a body of special and limited jurisdiction. Hanslovsky v Township of Leland, 281 Mich 652; 275 NW 720 (1937).

As the Supreme Court stated in Kropf v Sterling Heights, 391 Mich 139, 157; 215 NW2d 179 (1974):

'The power of the . . . [municipality] to enact ordinances is not absolute. It has been given power by the State of Michigan to zone and regulate land use within its boundaries so that the inherent police powers of the state may be more effectively implemented on the local level. . . .'

In OAG, 1977-1978, No. 5312, pp 476, 477 (June 14, 1978), township zoning powers were reviewed and the opinion stated:

'A municipal corporation has no inherent power of zoning and therefore may only pursue its policies of use restriction pursuant to a statute enabling it to do so. (Citations omitted)'

1943 PA 184, MCLA 125.271 et seq; MSA 5.2963(1) et seq, Sec. 1, in pertinent part, states:

'The township board of an organized township in this state may provide by zoning ordinance for the regulation of land development and the establishment of districts in the portions of the township outside the limits of cities and villages which regulate the use of land and structures; to meet the needs of the state's citizens for . . . natural resources, places of residence, recreation, . . . and other uses of land; to insure that use of the land shall be situated in appropriate locations and relationships; . . . and to promote public health, safety, and welfare.'

This enabling act does not include language which may reasonably be construed to authorize a township to prohibit, restrict, or otherwise diminish the right of a riparian property owner to grant easements, rights-of-way, or licenses over and across his riparian lands so as to provide access to navigable waters.

It is my opinion, therefore, that a township may not, by ordinance, require riparian owners to first obtain a township permit before granting easements, rights-of-way, or licenses to nonriparian owners across riparian lands for purposes of obtaining access to natural watercourses. It is my further opinion that the township has not been granted any authority to prohibit, restrict or otherwise limit the holder of such rights in solely exercising the right to cross and recross the lands of his grantor in gaining ingress to and egress from a watercourse.

However, the holder of an easement, right-of-way or license may, in exercising certain of the rights granted, be subject to regulation validly adopted under the police power.

For example:

If the rights granted and asserted are or include:

(a) dredging or filling of bottomland,

(b) construction, enlargement, extension, removal or placement of a structure upon bottomland,

(c) erection, maintenance or operation of a marina,

(d) creation, enlargement or diminution of an inland lake or stream,

(e) structural interference with the natural flow of an inland lake or stream,

(f) construction, dredging, commencement, extension or enlargement of an artificial canal, channel, ditch, lagoon, pond, lake or similar waterway where the purpose is ultimate connection with an existing inland lake or stream, or where any part of the artificial waterway is located within 500 feet of the ordinary highwater mark of an existing inland lake or stream, or

(g) connection of any natural or artificially constructed waterway, canal, channel, ditch, lagoon, pond, lake or similar water with an existing inland lake or stream for navigation or any other purpose,

the holder may be required by provisions of the Inland Lakes and Streams Act of 1972, 1972 PA 346, MCLA 281.951 et seq; MSA 11.475(1) et seq, to obtain a permit from the Michigan Department of Natural Resources.

It should also be noted that if the holder, in exercising rights granted by an instrument in the nature of easement, right-of-way or license, proposes to construct or place upon the lands covered by such an instrument a building or structure, the holder may be required to obtain a permit under provisions of the State Construction Code Act of 1972, 1972 PA 230, MCLA 125.1501 et seq; MSA 5.2949(1) et seq, from the appropriate enforcing agency. Such construction and buildings or structures may be required to comply with applicable local ordinances. 1972 PA 230, supra, Sec. 11.

It is my opinion, therefore, that a township may not, by ordinance, require riparian owners to first obtain a township permit before granting easements, rights-of-way, or licenses to nonriparian owners across riparian lands for purposes of obtaining access to natural watercourses.

Frank J. Kelley

Attorney General


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