The House on the Beach

Home relies on a nonexistent ‘Shore Avenue’ on the beach

July 7, 2013

When the Smiths packed up for the season in 2011 and left Northern Michigan for their homes elsewhere in the country, the building in front of their cottage was little more than a falling-down shack, something that had been there as long as anyone could remember.

When they returned the following spring, the shack was gone and in its place stood a towering house, blocking much of their view.

How the house could be constructed and whether the Onekama Township zoning administrator followed the law when she granted permission became the subject of a lawsuit that pitted neighbor against neighbor and the Smith family against the township.

Along the way the lawsuit saw the township agree to change the way it does business and a judge rule that in this case a Lake Michigan beach could legally be considered a road that a waterfront property owner could use as a driveway.

A WINTER SURPRISE

To the Smiths, the construction of the house in front of theirs appeared to coincide with them going away for the season.

Their cottage is perched above Lake Michigan’s sand dunes and a beach in a summer resort neighborhood that is a mix of old and new houses. Just like the Smith cottage, the one in front of it had been there for decades. There was no question it needed work.

What happened that winter came as a surprise, though.

"They started it after we left and it was kind of a shock," said Eric Smith, whose mother, Ann Smith, owns the cottage. "We didn’t know it was going to be happening."

According to Smith and the family’s lawsuit, the owner of the new cottage, Rudolph Milasich Jr., an attorney from Okemos, told Ann Smith at a cocktail party in the summer of 2011 that there would be some remodeling work done to the old cottage. The comment, they said, didn’t worry anyone. It was an old cottage.

"The old place was completely falling down, so I completely understand the need to do something about it," Eric Smith said. "We understand they had a right to fix up the place and make it liveable."

Milasich said in an affidavit that he told Ann Smith that summer, "the old cottage would be redone, or words to that effect, and that the height of the cottage would be increased."

PROJECT WENT UNMENTIONED

The person who Milasich hired to build his beach house also happened to do some odd jobs for the Smiths.

One of those jobs was driver: he was hired to take Smith’s mother and stepfather to Cherry Capital Airport for their flight to Washington D.C. that fall, Eric Smith said. During that ride the contractor never mentioned the construction project that would begin in the Smith’s front yard in just days, Smith said.

The permit for the construction project got pulled the next day, he said.

The Smiths only found out about the new construction when one of them returned the following April.

They were at a loss to understand how such a large building could have wound up in their view.

In response to the Smith’s lawsuit, Milasich and the township said the zoning law was followed and that the law does not protect views of Lake Michigan.

Milasich denied that construction was timed to commence once the Smiths left for the season.

"They went away when construction on the cottage began, those are not connected with each other," Milasich said. "The timing of the construction of the cottage is not related to whether the Smiths were there or not there."

He said construction couldn’t have occurred during the summer when the beach was filled with beach-goers.

LEFT WITH MANY QUESTIONS

The Smiths were left to figure out what happened. They believe the township zoning administrator broke the rules to allow the project to go forward.

Zoning administrator Kristine Philpot would not comment and referred all questions to the township supervisor, David Meister, who defended what happened and said Philpot did nothing wrong.

The Smiths, in their lawsuit, contended that in addition to exceeding what should have been the maximum allowable size (which the Smiths believe should have been limited to no more than 50 percent over the original structure’s size) the northern wall of the cottage was also moved 10 feet north to place it more squarely inside the lot, moving the structure more directly into the view of the lake from the Smith’s cottage.

Most troubling for the Smiths was the height of the new house. According to what was written in the building permit, the new beach house should have been no higher than 20 feet tall. Because the building sits on the beach below the Smith’s property, Smith said that 20 feet would not have been obtrusive.

The building that stands today is as high as 35 feet tall, Smith said.

"If they had built what they said they were going to build in the land use permit, we could have accepted it," Smith said.

Philpot told the Smiths she gave verbal permission for the building to be higher than what is described in the permit, Smith said.

Meister said it doesn’t matter that the building permit application said the building would be 20 feet tall, the zoning law says the building could be 35 feet tall, so the Smiths don’t have a basis for a complaint.

Smith said the zoning administrator did not have an explanation for the discrepancy until lawyers were involved.

"Once our lawyer started questioning her about it, she said she had given verbal permission to raise it 10 feet," Smith said.

"˜TAKE A POGO STICK IF IT WILL GO’

The Smiths eventually hired attorney Karen Feruson and filed a lawsuit.

"It’s a case where the township egregiously broke all of its rules, rules that would have protected the plaintiff, and they allowed defendant Milasich to substantially increase the nonconformity of his structure lot and his use of that structure for a residence," Ferguson argued at a hearing in the case.

As the dispute progressed the Smith’s learned of a legal theory the defendants used to explain why a falling-down old cottage on a seemingly landlocked parcel between their place and the beach could be turned into a towering, modern house.

Milasich had conducted a survey which showed his cabin was on Shore Avenue, a road that runs along the Lake Michigan beach, according to a 1915 plat map. The road has never been constructed.

The Smiths believe this road does not exist, and that if it did, that would be a problem, because it would run where people have for decades laid out in the sun, made sand castles, and tossed around beach balls.

The Smith family lost a hearing for summary disposition before Manistee County Circuit Court Judge James Batzer in January when Batzer agreed with the argument that a road on a plat map could constitute legal access to a property.

Batzer said it didn’t matter, legally, if the road is on a Lake Michigan beach, as long as it exists on the plat map. They could use a dune buggy if that’s what it took, he said.

In an exchange with Ferguson at the hearing, Batzer said the road could be used even if it hasn’t been constructed: "Any owner of property in that plat can use it. ... They can take an O.R.V. They can take snowshoes. They can take a pogo stick if it will go."

ZONING DOESN’T PROTECT VIEWS

Milasich, through his attorney Richard Figura, filed a counterclaim against the Smiths, seeking to get the court to create an easement for a driveway through the Smith property to access the new house. Milasich said he didn’t want to raise that claim, but he said it was a claim he needed to make because of the lawsuit.

Milasich and Figura also argued the Smith’s problems stemmed from where the family decided to build years ago.

"Any view problems are rooted in the Plaintiffs’ decades old decision to build the summer home on the back lots and on an angle overlooking a lot which has always had a cottage standing between the front of that summer home and Lake Michigan," Figura wrote. "They now seek to preserve that decision by preventing ... Milasich from exercising his lawful rights on his front lot property."

Another issue raised by the Smiths was whether the law allowed a new house to be constructed so close to Lake Michigan where it might be within historic lake levels and in danger of being lapped by Lake Michigan.

Figura responded that the Smiths only raised that issue in an effort to protect their view; he argued that the setback requirements from Lake Michigan exist to protect property.

NO NOTICE PROVIDED

Even if the Smiths had wanted to object to what was in the building permit, they said, they were not able to because they didn’t find out a permit had been issued until construction was almost complete Under the law, they had 30 days to object from when the permit was issued.

"The fact that we weren’t here, that was just sort of too bad," Eric Smith said.

Smith said when it comes time to send a tax bill, the township knows how to find him.

"They send us tax notices all the time," he said.

If they would have gotten a notice, they could have also paid attention to the construction and made sure it aligned with what was allowed in the permit, Smith said.

THE SETTLEMENT

The lawsuit settled in May and now the Smiths and Milasich say they are trying to put the matter behind them and get along.

The Smiths received a payment of $25,000 from Milasich and the township insurance company, and the Milasich family gets to keep their cottage intact.

The biggest part of the settlement, from the Smith’s point of view, were concessions from the township that they believe will ensure what happened to them is unlikely to happen to someone else.

Permits for construction projects on nonconforming lots will now require notice to neighboring landowners, even if they are summer residents who live out-of-state.

The township also formally recognized that oral permission for variance from what’s described in a building permit is not sufficient.

Ferguson said these are protections that are important in townships that have a lot of summer homes.

"I’m sure (disputes like this happen) all the time in townships that have a lot of seasonal residents," she said.

Meister said settling the lawsuit was the expedient thing to do, adding that it was not settled because the township did something wrong. He said there are very few nonconforming lots in the township so a case like this is unlikely to happen again anyway.

WHAT ABOUT THE SEPTIC TANK?

Milasich said he is happy with the settlement, in particular that it puts an end to a neighborhood dispute that could have made summer days at the beach awkward.

Another issue with the new house, however, is that it has a septic holding tank and no driveway where a septic pumping truck can pull up to empty it.

Ferguson argued that the tank might have to be emptied quite often if the house is used at full occupancy.

Environmental consultant Christopher Grobbel estimated the septic holding tank could have to be pumped out roughly every 17 days if the house is being used to capacity, Ferguson argued.

The Milasichs argued the house would be used only for short periods each year.

Under the settlement, Milasich can no longer seek an easement through the Smith’s property for access.

It is unlikely pumper trucks will be able to use Shore Avenue on the beach to reach the tank.

"He’s bascally stuck with the judge’s decision now, saying your access is over Shore Avenue, which doesn’t exist," Ferguson said.

Milasich said he doesn’t yet know how a septic hauler will access his holding tank.

"That remains to be seen," Milasich said.

CRITICAL DUNE PROTECTIONS

There would have been other factors at play in this case if these dunes had been classified "critical dunes" by the state of Michigan, as are much of the state’s Lake Michigan shoreline, said James Clift, policy director with the Michigan Environmental Council.

Clift said the critical dunes map is based on research at Michigan State University. When it was adopted, the legislature adopted a map; since that time it’s been added to and cut up and areas have been exempted.

Clift said new construction cannot happen on the beach in a critical dunes area without permission from the Michigan Department of Environmental Quality. In areas not designated critical dunes, local zoning applies.

He said part of the reason the critical dune concept was adopted is because a lot of people recognized what an incredible resource Michigan sand dunes are to the state.

"Part of it I think is there’s a certain aesthetic portion to it," he said. "Clearly, the public has access to walking the beach and to the extent that a house isn’t right there, that makes it a beach that is more highly valued."

He said limitation of construction on beaches too close to Lake Michigan also makes sense to protect property from the lake. Water levels that go down will eventually come up, he said.

"If you’re below the high water mark, then you’re just waiting for the Great Lakes to come back and take your house," he said. "They’re clearly going to come back. They are going to get higher. Do they hit their highest highs? Who knows."