Legal Questions Persist Over Ganges Township Giving Up 121st Street Beach Access
Many questions persist—including concerns over the legal procedures—regarding the recent decision by Ganges Township officials to give up jurisdiction over 121st Street road-end and transfer it to the adjoining property owners, thereby giving up a public access point to Lake Michigan and what many locals say is the only access point for emergency vehicles to the lake.
“No one notified me. I went down there two weeks ago and, lo and behold, there was a huge big cattle gate blocking access. I called the township and they told me it was a done deal,” Gail Kaplan, who owns property next to the road-end, told the The Local Observer Tuesday.
Ganges Township officials, with very little public notice other than regular township board agendas and minutes, decided to give up what was a public road-end and transfer complete ownership of it to the property owners on either side of the right-of-way, John and Mary Tilton and David Ryder.
They took the action on an issue that is evidently highly controversial, has a long history and the subject of contentious legal battles going years back.
Other residents have also raised questions about the township officias’ actions and motives, including local resident Dermot Putnam.
“The township citizens have lost an access point to the lakeshore. Privileged access has been increased, public access continues to diminish with no notice and no compensation for the abandonment,” Putnam told The Local Observer.
“Basically a piece of property probably worth close to $500,000 has essentially been given to the two non-residents who were on either side of the road. This was all done with no public notice which Ganges Township has freely admitted to me.” The road-end has a complicated history. The Allegan County Road Commission gave up jurisdiction over the road-end to hand it down to Ganges Township in November 2006.
Following years of legal wrangling, the ruling by Judge John E. Dewane of the Berrien County Circuit Court in 2012 declared the road-end was not a recreational public beach—as it had been used for more than a century by beachgoers—but merely an access point to the lake.
The Tiltons and the Stege family were defendants wanting to limit access, while several residents and the group “Friends of 121st Ave. Beach” were the plaintiffs pushing for the road-end to be kept public and open as a beach
Then on June 14 of this year - with little public notice, say residents - the township passed a motion to give jurisdiction of it to the Michigan Department of Natural Resources (DNR), which rejected the offer.
On the heels of that rejection, the township made its final move at its August 9 meeting with a resolution titled, “Relinquishment of jurisdiction over road-end resolution,” thereby voting to abandon the road-end and transfer it to the adjacent property owners.
On that final resolution, Ganges Township Supervisor John Hebert and Ganges Township Clerk Cindy Yonkers were the dissenting voices, while the yes votes came from Ganges Township Treasurer Cindy Reimink and Ganges Township Trustees Richard Hutchins and Barry Gooding.
A Freedom of Information Act (FOIA) request from The Local Observer Newspapers yielded little information particularly as it relates to legal questions, as Ganges Township officials cited attorney/client privilege as a reason not let publicly releasing a number of emails between township officials and Ganges Township Attorney Ron Bultje of Scholten Fant. They are permitted to do that under the law.
The documents that the township did release shows the resolution cites section 18 of the County Road Law, MCL 224.18, as the state statute allowing for relinquishment.
Subsection 8 indicates that when the county road commission gives jurisdiction over to a local unit of government, and if that government then in turn wishes to transfer that jurisdiction, it should give first priority to the Michigan Department of Natural Resources (DNR). “The local unit of government shall either maintain the property as a site of public access or allow it to revert to the adjoining landowners,” the law says.
However, Public Acts 217-219 of 1996 (particularly, MCL 247.41) indicates something that may contradict that: “a public highway or a portion of a public highway that …ends at a lake..shall not be abandoned, discontinued, vacated, or have its course altered resulting in a loss of public access by the order or action of an official or officials of a city or village in this state, until an order authorizing the abandonment…is made by circuit court for the county in which the highway is situated…”
Citing this last law, Grand Rapids-based Attorney Clifford Bloom has stated, as quoted in a previous article in this paper: “A road can be vacated (or abandoned) by court action if and only if the court directs vacation and both the local municipality and the State of Michigan decline to accept title to the road.”
In either case, by the very admission of Ganges Township officials themselves, John Tilton “was a constant source of complaints that we could do nothing about,” as cited by Ganges Township Clerk Cindy Yonkers.
Besides pressure from Tilton, township officials also noted the road-end as unsustainable expense, citing its deterioration from water runoffs.
Hutchins said he was the one who initiated the discussion of abandonment, asserting the township did nothing wrong in its procedures, legally or administratively, and did not see the need for further public notice other than agenda postings and minutes of meetings.
“I always felt that (road-end) has been a liability and not an asset,” said Hutchins.
Asked to explain “liability,” he said, “If anything happens—like a washout—we repair it at our expense. If somebody got hurt there, it would open us for a lawsuit.”
Asked why the township would make such a decision on a road-end that was and continued to be used as access to the lake by locals and visitors, Hutchins said, “I personally know not more than two people who use that road-end to get to the lake.”
Tilton has been persistent in his complaints for more than 10 years, before and even after the conclusion of the 2012 lawsuit, calling the police and the township alleging problems with noise, litter, people defecating and copulating, and so on.
Tilton did not respond to calls from The Local Observer for comment
“It is very distressing and tragic the township gave in to the constant pressure from the landowner there (Tilton) to give up the property there,” said Katherine Schlappi, a local property owner neighboring the road-end.
Another local property owner, Rudy Juarez, wrote a letter to the township on September 4, asking, in part:
“Last evening on our walk to the lake with our three children we were shocked to see that someone had erected a fence blocking 121st Street and posted ‘private property’ signs on it.
“Can you please let us know what the situation is?”