Van Ettan Lake, Matter of

• Citation: 149 Mich.App. 517,386 N.W.2d 572
• Decision Date: 20 May 1986
• Docket Number: Docket No. 79361
• Parties: In the Matter of VAN ETTAN LAKE. IOSCO COUNTY DRAIN COMMISSIONER, Petitioner-Appellee, and YMCA of Metro Detroit, Appellee, v. VAN ETTAN LAKE ASSOCIATION, Respondent-Appellant. 149 Mich.App. 517, 386 N.W.2d 572
• Court: Court of Appeal of Michigan (US)

Page 572

386 N.W.2d 572

In the Matter of VAN ETTAN LAKE IOSCO COUNTY DRAIN COMMISSIONER, Petitioner-Appellee and YMCA of Metro Detroit, Appellee, v. VAN ETTAN LAKE ASSOCIATION, Respondent-Appellant.

Docket No. 79361.

149 Mich.App. 517, 386 N.W.2d 572

Court of Appeals of Michigan.

Submitted Oct. 2, 1985.

Decided March 3, 1986.

Released for Publication May 20, 1986.

[149 MICHAPP 519] Ronald R. Tyler, East Tawas, for petitioner-appellee.

Robert J. Eppert, Tawas City, for respondent-appellant.

Before KELLY, P.J., and ALLEN and SHUSTER ^*, JJ.

KELLY, Presiding Judge.

This is an action under Sec. 10 of the Inland Lake Level Act of 1961, M.C.L. Sec. 281.61 et seq.; M.S.A. Sec. 11.300(1) et seq., in which the Iosco County Drain Commissioner seeks to determine the normal height and water level of Van Ettan Lake and create a special assessment district to finance the maintenance of the Van Ettan Lake dam. Respondent Van Ettan Lake Association is comprised of individual property owners whose interests were affected by the creation of the special assessment district. The circuit court granted petitioner's requests and respondent appeals as of right. We affirm.

The following facts are not in dispute and are taken from the concise statement of facts stipulated to by the parties below. On March 18, 1983, petitioner filed a complaint in circuit court to determine the "normal level" of Van Ettan Lake and to establish a special assessment district as authorized under M.C.L. Sec. 281.79; M.S.A. Sec. 11.300(19). The Van Ettan Lake dam was constructed in the mid-1940's to maintain a water level of 589.2 feet above sea level as required by a December, 1944, order of the Iosco County Circuit Court. As the [149 MICHAPP 520] result of an action later filed against the Iosco County Board of Supervisors by a riparian landowner below the dam, another order was entered in December of 1957 determining that the level of the lake would be reduced in late summer and drawn down to an elevation of 585.1 feet above sea level to permit the natural rise during the fall, winter and spring months to a maximum elevation of 592 feet.

A hearing was conducted in this case on June 14, 1983, at which petitioner presented the testimony of two employees of the Michigan Department of Natural Resources (DNR) as well as the testimony of an engineer employed by the drain commissioner. Following the testimony of these individuals, the court inquired whether counsel for the landowners or any individual landowners present in the courtroom objected to the DNR's proposed normal levels of 589.2 feet above sea level, reduced to 585.1 feet in the winter months. Counsel for all parties agreed that there were no objections to these lake levels proposed in petitioner's complaint, provided that the order entered would also require the dam to be operated in accordance with a 1955 DNR report.

Petitioner also presented proofs at the June 14, 1983, hearing in support of his proposed special assessment district. When the petitioner rested, the trial court indicated that it desired additional proofs regarding rights of access to the lake on the part of certain back lot owners who had been included within the proposed special assessment district.

The hearing reconvened on July 1, 1983, and the court allowed the petitioner to reopen proofs and introduce evidence relating to the rights of back lot owners to private access to the lake. After the petitioner rested a second time, several parties [149 MICHAPP 521] moved unsuccessfully to dismiss the complaint and filed application for leave to appeal to this Court, which was denied by order of March 1, 1984.

Further proceedings were conducted on June 20, 1984, and the trial court issued its opinion on July 17, 1984, establishing the normal lake level to be 589.2 feet, seasonally reduced to 585.1 feet, with a maximum level of 592 feet. The court created a special assessment district as proposed by the petitioner, but excluded from the district certain parcels of property described later in this opinion.

On appeal, respondents argue that the trial court lacked jurisdiction to hear this matter because the petitioner has never sought to change the lake level as previously determined by the court. Respondents further argue that even if jurisdiction were properly obtained, the trial court erred by failing to conduct the Sec. 10 hearing as a full trial, with rights of cross-examination and application of the Michigan Rules of Evidence. Finally, respondents take issue with the substantive findings of the court on the grounds that (1) the evidence did not sufficiently establish that property included in the special assessment district specially benefitted from proximity to the lake and (2) the special assessment district is underrepresented by the court's exclusion of various subdivisions. We address these arguments in order.

Respondent's jurisdictional argument is without merit. Essentially, respondents argue that because the county did not petition for a change in the normal height and water level of Van Ettan Lake, as previously determined by the circuit court under the statute in effect prior to 1961, the circuit court was without authority in 1983 to change the method of financing maintenance of the existing dam. Since its construction, the Van Ettan Lake [149 MICHAPP 522] dam had been financially maintained by the entire county.

It is true that petitioner's complaint set forth height and level determinations identical to those already in place under the 1944 and 1957 orders. It is also true that the petitioner's complaint does not indicate the need for any new construction. We think it evident that the sole purpose of this proceeding is to change the source of financing for the Van Ettan Lake dam. Respondents have failed to persuade us, however, that the county's purpose in instituting this proceeding is contrary to the authority granted it under the Inland Lake Level Act. There is no express language in the statute limiting the authority of the circuit court to confirm special assessment districts only where there is a change in the lake level or only where a new structure is required for maintenance of the same level. Section 10 merely requires the court to determine the lake level before confirming a special assessment district.

Moreover, Sec. 19 of the Act expressly provides:

"The expense of determining the normal height and water level of any public inland lake, the expense of constructing and maintaining any dam, together with the cost and expense of acquiring lands and other property by condemnation necessary thereto, may be assessed, levied and collected upon the taxable property within the special assessment district." M.C.L. 281.79; M.S.A. 11.300(19).

Section 19 in its original form provided that the cost of constructing and maintaining a dam under the 1961 act "may be assessed, levied and collected upon the taxable property of the county, the same as other general taxes are assessed, levied and collected in such county". Financing through special assessment districts was authorized pursuant [149 MICHAPP 523] to a 1969 amendment. We think that if the Legislature had intended to authorize the creation of special assessment districts only where the county sought to change a previous determination, build a new structure or determine a lake level for the first time, it could easily have said so in the 1969 amendment.

Respondent's jurisdictional argument is frustrated not only by the terms of the statute but by the case law as well. Respondent's reliance on Niles v. Meeker, 219 Mich. 361, 368, 189 N.W. 207 (1922), is misplaced since, in that case, the Supreme Court held that the county had no authority under the predecessor statute to construct a proposed dam because it had failed to first obtain a determination of the natural height and water level and had failed to substantiate on the record the benefit of the dam to the navigability of the lake or to the public health or welfare of the county. Petitioner met both requirements in the instant case.

A case more on point with the situation here is Missaukee County Board of Comm'rs v. Nyland, 45 Mich.App. 307, 206 N.W.2d 543 (1973), lv. den. 390 Mich. 799 (1973), upon which the trial court also relied in rejecting respondent's argument. In Nyland, the county created a special assessment district to finance a new outlet in Lake Missaukee in order to maintain the normal height and water level as it had been determined in 1942. There, as here, the county did not seek to change the level determination though, unlike as in this case, the county did propose the construction of a new structure. This Court held in relevant part:

"No property rights were acquired under the 1942 order. At the time the 1942 order was entered the expenses of maintaining the lake level were to be borne [149 MICHAPP 524] by the county as a whole. However, this did not prevent a change in the law to provide for financing by special assessment." 45 Mich.App. 308-309, 206 N.W.2d 543.

We adopt this analysis for purposes of the instant case and hold that the Inland Lake Level Act of 1961 authorizes the creation of a special assessment...