Condominium Boat Docks Do Not Require "Marina" Permit
The Michigan Court of Appeals has held that boat docks owned by the residents of a condominium development do not collectively constitute a marina that would require a permit under Part 301 (Inland Lakes and Streams) of the Natural Resources and Environmental Protection Act (NREPA). Accordingly, the appeals court reversed a trial court's ruling that the condominium developer and owner's association was required to apply for a permit to operate the boat docks.
Beachfront Development, Inc. (Beachfront) had developed the Chalet du Paw Paw Condominiums (Chalet) on the shores of Paw Paw Lake. The development included a network of docks placed in lake from spring until fall each year for use by condominium owners. Although the docks were generally serviced and maintained by a single company retained by the Chalet du Paw Paw Condominium Association (Association), the docks themselves were individually owned by the condominium owners. The Michigan Department of Environmental Quality (MDEQ) had sued Beachfront and the Association, arguing that the boat docks constituted a "marina," as defined under Part 301 of NREPA, and, therefore, required a permit in order to maintain the docks. The trial court agreed with MDEQ's interpretation of Part 301 and ordered Beachfront and the Association to obtain the necessary permits in order to maintain the docks; however, the trial court declined to impose any penalty against Beachfront or the Association for the past violations. Both parties appeal the trial court's ruling.
Appellate Court's Decision
On appeal, the court reversed the trial court's interpretation of the term "marina" under Part 301 of NREPA. Part 301 defines the term "marina" as "a facility that is owned or operated by a person, extends into or over an inland lake or stream, and offers service to the public or members of the marina for docking, loading or other servicing of recreational watercraft." The appeals court held that, under the plain meaning of this definition, "the term ‘marina' . . . does not include the docks like those located in front of Chalet that belong to individual condominium owners with riparian rights to the property that exist for the owners' private, noncommercial, recreational use." Rather, the court held that the "marina operating permit requirements are clearly directed toward entities such as commercial marinas and yacht clubs." The appeals court held that Beachfront's construction of several docks for unsold condominium units was inconsequential because the docks were included with the units when they were sold. Further, the appeals court held that Beachfront's prior attempts to lease docking privileges that were not associated with condominium ownership "is not controlling of Beachfront's current status under the NREPA." Finally the court held that the Association's actions related to the docks, which included arranging for dock maintenance, establishing a "beach and dock committee," obtaining liability insurance for the docks, and approving dock configuration, "did not support the conclusion that the Association is operating a marina."
Accordingly, the court reversed the trail court and held that neither Beachfront nor the Association was operating a "marina" in violation of Part 301 of NREPA. In addition, because the court held that Part 301 did not apply to the docks, the court dismissed MDEQ's appeal of the trial court's decision not to impose a penalty against Beachfront and the Association.
Attorney General v. Chalet du Paw Paw Condominium Assoc., No 205384 (Mich. Ct. App. Aug. 3, 1999)
This article was prepared by Jeffrey L. Woolstrum, a partner in our Environmental Department, and previously appeared in the January, 2000 edition of the Michigan Environmental Compliance Update, a monthly newsletter prepared by the Environmental Department and published by M. Lee Smith Publishers.