Private pier must come down, court rules
Owner of Lake Superior structure vows to fight order
Seventeen years ago, neighbors of a Madeline Island homeowner warned that the massive pier he wanted to extend into Lake Superior would ruin their beaches.
Even though the Department of Natural Resources approved the pier in 2001, the state agency now agrees the neighbors were right, setting up a court fight with implications that could affect waterfront property owners statewide.
At issue is whether the island homeowner should be forced to remove or drastically modify his pier — at a cost of tens of thousands of dollars — after an appeals court decided the DNR had authority to amend its 2001 permit over erosion to neighbors’ beaches.
An attorney for the Minnesota man who owns the pier said he will ask the Wisconsin Supreme Court to hear the matter, which he said could affect other waterfront owners in Wisconsin who thought their docks were grandfathered and lawful.
“We expect they view this as a test case,” said the lawyer, Thomas Biegert of New Richmond. “They’re waiting to see how it resolves. If the DNR prevails, it might give it right to go after others.”
Neighbors who opposed the pier can say, “told you so,” as they point to shoreline damage they predicted when the pier was first approved.
Other pier owners say the changes are the natural result of Lake Superior’s powerful dynamics and say erosion might be worse without the piers, which they say act more like protective jetties.
Rose Fahien, 84, of Madison, has been coming to Madeline Island since 1967. She
runs a canoe and cabin rental business and owns property next to the pier. She opposed the original permit to build it in 2001.
“It seems to me they should all be concerned about the nature of the island and its beauty,” Fahien said, referring to those fighting for the pier.
Philip Myers, a Twin Cities investment manager, and his wife, Terrie, an artist, have a home she designed right on the beach in La Pointe. Before the house, they built a 10foot-wide, 70-foot-long pier, with a 14-foot “L” extension on the end, in 2001, with a permit from the DNR.
Built to weather Superior
To survive Lake Superior, it was built on log cribs filled with boulders, with a 12-foot opening to allow water and sand to pass through with the predominant littoral drift, from the northeast to the southwest.
But more than a decade later, neighbors complained that the design wasn’t working, and the pier was affecting sandbars and beach conditions downdrift of Myers’ pier.
The DNR said Myers’ original permit was conditional; it could be amended if conditions changed. It ultimately found he had to rebuild the pier in a way that would allow much more water and sand to move underneath it or remove it.
“Properties lose value and attraction without a pier,” Biegert said. “The question is — can it be replaced to DNR specs, at an affordable cost?”
Biegert estimates the expense could exceed $50,000.
Myers appealed the DNR’s determination that it could amend the 2001 permit. He claimed the DNR lacked authority, and even if it had it, his pier was exempt from enforcement under two exceptions meant to grandfather non-conforming piers.
An Ashland County judge sent the case back to the DNR for more factfinding about whether the exemptions applied. Both Myers and the DNR appealed.
Last week, the District 3 Court of Appeals found the DNR could amend Myers’ 2001 permit and said the DNR did not have to explore whether exceptions applied.
Neighbors opposed Myers’ pier in 2001, but after a hearing, an administrative law judge granted the permit, saying a preponderance of evidence suggested the feared beach erosion was unlikely.
But he added the condition: “The authority herein granted can be amended or rescinded if the
structure becomes a material obstruction to navigation or becomes detrimental to the public interest.”
Myers finished his pier in October 2001. In 2012 and 2013, neighbors complained they were losing shoreland. The DNR investigated and informed Myers he would have to remove the pier and replace it with one that stood on legs and would let water pass underneath. He refused and sought the judicial review.
Myers argued the DNR cannot petition itself to amend his permit. Additionally, he argued, his pier was exempt from enforcement because it was in place prior to 2012 and was in compliance with an original permit.
Myers asked how the DNR could force him to removed pier built per a DNR permit when anyone who had built such a pier without any permit would be off limits from DNR action?
But the Court of Appeals said the DNR could, and did, reserve its own authority to amend Myers’ permit depending on conditions.
As to being grandfathered, the court noted an exception to that exception — when a pier interferes with the riparian rights of other lakeshore owners.
Biegert, Myers’ attorney, said that was like “moving the goal posts,” since Myers never got a
chance to contest such a finding.
The court deferred to the DNR’s findings and noted the record in the case contained several complaints about beach erosion from Myers’ neighbor.
Kevin Schurman of Minneapolis, who owns the next property down the shoreline from Fahien, said his beach has eroded about 80% since he bought a cabin there in 2004. It used to be about 100 feet to the water, and now, he said, it’s only 17 feet from his deck to the water. Much more erosion, he said, and his septic field will be exposed.
He said he and his wife had no idea why the water kept getting closer until they contacted the DNR and were directed to documents about Myers’ permit.
“We’d never heard of littoral drift. Once we did some research, we thought, ‘We’re screwed.’” He started getting near annual surveys of his land to document the losses.
He said from July to November 2013, he lost an area equal to eight yards of a football field.
He’s happy now that the court ruled for the DNR, but expected Myers to try more appeals and prolong the pier’s presence.
“The winds of November are coming, baby, and that’s when we get really hit,” he said.