BOC Adopts Lake Level Resolutions for Final 10 Lakes

HARRISON – A lengthy portion of the Sept. 21 meeting of the Clare County Board of Commissioners was taken up by the lake level resolutions related to assessment rolls and project costs for the 10 lake level projects as presented by Clare County Drain Commissioner Carl Parks and attorney Kyle O’Meara of the firm Fahey, Schultz, Burzych and Rhodes PLC.

Administrator Lori Phelps prefaced the presentation with a brief summary of the project, its importance and required action. She noted the 2020 dam failures in Gladwin and Midland counties and ensuant flooding causing catastrophic damage had brought to light the state law that lake levels were to be maintained at a level specified in a court order. She said that had not been done since the ’60s and ’70s, and some not at all, adding that the problem is statewide, not just in Clare County. Thus, the BOC had to authorize an engineer to look at lake levels, which then had to be set by the 55^th Circuit Court. That, she said, included setting a one-time assessment fee for each affected property owner for each property owned: the average fee being roughly $100. Phelps also said that lake level assessments could be necessary again in 30-50 years.

The 10 lakes included Arnold, Bertha, Dock and Tom, Dodge, Eight Point, George, Long, Shingle, Sutherland and Otter. O’Meara commended Phelps’ overview and noted the Drain Office held assessment hearings for the 10 lakes Aug. 12 and Sept. 7, 2022, to go over proposed assessment rolls, as well as project costs for updating historical lake level orders.

O’Meara said it was noticed that all of the 10 lakes were specified in their court orders at elevations at which the lake historically had not been maintained. He said the engineers determined that by looking at infrastructure designed to maintain the lake level, and many times that infrastructure was designed to maintain a different level than specified in the court order. He said that is bad, particularly because to do any significant maintenance on any of those structures because EGLE [Environment, Great Lakes and Energy] will not issue a permit to repair or rebuilt the structure to maintain a level that is not in that court order.

O’Meara said he had encountered such instances, and EGLE simply said go to court, which when done in a piece meal fashion leads to exorbitant costs. Seeking cost efficiencies, the county’s lake level hearings were done in groups of back-to-back hearings each day.

 He also noted that most of the lakes did not delineate the boundaries of a special assessment district in their court orders, despite SADs historically being used.

“Because we needed to fix the court orders for the elevations, we also made sure the special assessment districts were correct,” he said. “Boundaries in the new orders, also that the special assessment rolls were updated to account for things like splits, combinations, land transactions that occurred since some of these court orders were initially entered.”

He cited dates when some of the existing court orders were originally entered, the earliest being Long Lake in 1953 – meaning they have lasted quite a long time. O’Meara said the revised orders are intended to last either indefinitely or at least decades. He also said some of the assessments seem a bit high, and that he and Parks didn’t want to assess people unless they had to be – and in this instance it was a necessity to fix the court orders. He said that matters, because now that the county is aware of the discrepancies, if it does not correct them it is a violation of state law – and the county would be in violation, not just the drain commissioner.

“People should not be assessed for this court process for a very long time,” O’Meara said. “The intent of this was to fix these orders and to keep them indefinite so they’re fixed. The only times that property owners would be essentially assessed would be if there needed to be maintenance/shovel-the-dirt work on a project or on some infrastructure that’s maintaining one of these lake levels.”

Commissioner Dale Majewski asked about how back lot boundaries were determined and questioned why some properties around Lake George, which he said had absolutely no deeded access to the lake, were being assessed at a higher rate than some directly on the lake. O’Meara said the engineers looked at the plat surrounding individual lakes and determined what plats give essentially private access right to properties within that plat. He said that plats may dedicate parking areas, beaches or private roads that run into the lake that technically only the plat back lot owners could pay. O’Meara said that information had to be presented to the court, which ultimately made the call of who is in the special assessment district and who is out. That, he said, makes the process different from a township special assessment district.

“On Lake George, a lot of the back property owners – there’s no deeded access to that lake,” Majewski said. “No more than anybody that lives in Farwell or Lansing or anywhere else. There’s nothing on those deeds that says they have any special privilege or access to that lake.”

O’Meara said he couldn’t be specific without seeing a specific plat, but that there were road ends, parks, etc. and that such was part of the reason for holding the public hearings. He said that at the hearings some adjustments were made to assessments when a property owner reported not having access and that was found to be consistent with the plat; their assessments were zeroed out.

Majewski also noted situations around Lake George where a single owner who had contiguous lots with different lot numbers having multiple assessments, and that some of the back lots were paying more than the people who actually live on the lake.

O’Meara clarified that a special assessment is for the benefit of the property not the owner, and because they are individual properties they get individual assessments. He also said that some people who don’t have deeded access may actually have platted access, but just don’t use it.

“That’s why we give property owners mailing notice and we have a call-in line,” he said. “We do have to rely somewhat on the property owners, because with the court setting the special assessment boundary telling us ‘assess these properties when you assess’ – and we really can’t do a title search. We can look at all the plats, but to do a title search of every single property in these special assessment districts…” He cited the 2,000 parcels in the Dodge Lake complex and the vast expense of title searches on each, then reviewing them as potentially adding hundreds of thousands of dollars to the cost of the project.

Noting that any assessment is significant, O’Meara said he believed the one-time assessment for the back lots at Lake George was about $24.09.

After lengthy discussion, the commissioners vote to approve the lake level assessment rolls/project costs resolutions – all but Majewski who cast the lone dissenting vote.

Later in Public Comment, Lincoln Township Supervisor Dennis Zimmerman addressed the commissioners adamantly refuting the lake assessment process as describe by attorney O’Meara. He presented a letter to each commissioner then began his comments.

“There has been no petition nor referendum by the property owners on Lake George to change the special assessment district boundaries,” Zimmerman said. “It was just done by the drain commissioner – not by the court, not by the attorney – by the drain commissioner.”

Zimmerman said he felt that action was subject to a challenge which could be costly. He also noted that while Lincoln Township has three lakes involved, the township is not allowed to participate in the process. He said his involvement can only be as a Lake George property owner.

“The special assessment district on Lake George is 45 years old,” he said. “Originally started establishing it in 1974, and then it was established by court order in 1976. Typically, a special assessment is reviewed and renewed after 30 years, so I question whether or not we could even be doing this.”

Zimmerman then said the court date held before the hearing was misrepresented, as it was solely for the judge to look at the numbers and say ‘OK.’ He said the judge did not look at boundaries, special assessment districts or assessments.

“All he did was say ‘OK, these are the new elevation levels, and this is what we want,’” Zimmerman said. “Then in August they went into the public hearing that talked about boundaries, the amounts, and as everybody came into those hearings, everybody was kind of shocked. We had been led to believe it was going to be about $10,000 a lake – imagine our surprise when it got to be $32,800 for Lake George to basically change a number on a page, and that’s about all.”

He also decried the previous description of cement structure, boards, etc. Zimmerman said the structure was two channel irons 4 feet apart, with three 2x6’s, and a little bit of concrete in the base of each channel iron.

“I was just out there the other day, and by the way, everybody including Carl has to have permission from TransCanada to actually go on the property,” Zimmerman said. “He doesn’t, but he needs to – because that’s under the protection of Homeland Security.”

Zimmerman also said that at the hearings, there was an attorney present, but that attorney Stacy Hissong was in the back of the room, and that everyone who stood to make a comment or ask a question was interrupted by her.

“To me, that’s a violation of the Open Meetings Act,” Zimmerman said. “Because they are, in fact, your subcontractor. That should never have been allowed to happen.”