Marcus Park on Duck Lake is a site of a dispute over access to private docks which may soon be coming to an end.

The resolution, unanimously passed Dec. 5, lays the groundwork toward a solution that would seek three outcomes: Continue to allow the public’s access to Marcus Park; continue to allow, by way of a land transfer, access to the residents’ of Marcus Dunes to docks at the east edge of Marcus Park; and to end a steady stream of expensive lawsuits that have done little to resolve the issue.

And, perhaps the two other parties involved — Winterwood Shores and members of the Duck Lake Riparian Owners Association (DLRA) — can find a way toward an agreement that is satisfying to them as well.

“I’ve seen friendships that (have) dissolved over this,” said parks and recreation commission Chair Laura Shields. “It’s been very divisive.”

“We would be glad to (craft) an agreement that would cause some sort of better solution,” added township Supervisor Sam St. Amour.

Last June, the township board voted 4-2 to table a Parks and Recreation Commission recommendation that would have allowed property owners in both Marcus Dunes and Winterwood Shores, two exclusive subdivisions located southwest of Duck Lake, to continue to have access to the docks. That resolution died on the vine due to a new round of lawsuits by the DLRA.

Both subdivisions have enjoyed a legal easement to ‘boat’ on Duck Lake for over half a century, allowing a tradition of use that has had some bearing on the decision to let them maintain the practice.

The property was deeded to the township by the Ben and Ruth Marcus Family in 1977 with several conditions, one being that residents now living upon what was once Marcus Family property be granted water rights on Duck Lake, through Marcus Park, in perpetuity.

Although easement agreements between the township and residents of both developments have been in the works for some time, the deed for the land in which Winterwood Shores sits isn’t so straightforward.

“When the (Marcus Park) property was deeded to the township,” said Shields, “at some point, the property across the street, section 24, was divided.”

The divided properties, which eventually went on to become Marcus Dunes and Winterwood Shores, were purchased by separate buyers, the latter going to a Migmon Dake. When the property was deeded, however, the easement allowing Winterwood Shores residents dock access was omitted. The easement later was inserted into the deed, said St. Amour, but courts ruled the subsequent interpolation wasn’t legal.

“The (Winterwood Shores) chain of custody has been broken,” said St. Amour. “And they can’t get it back.”

14th Circuit Court Judge William Marietti decided in January 2006 that Marcus Dunes’ residents do indeed have water rights. The same judge rejected Winterwood owners’ claim to the same later that year.

Marietti cited the Winterwood deed as lacking “an identifiable servient estate” for the rejection of their claim. Yet, in October 2010, the township’s Parks and Recreation Commission ruled that Winterwood Shores’ residents should have the same access granted Marcus Dunes’ residents.

At the time, Fruitland Parks and Recreation Commission member, Roger Missimer, said that while the two decisions were different, “... the intent was the same.”

Going back over the issue this year, and with additional advice from legal council, the parks and recreation commission determined that Marcus Dunes did have a strong legal claim to the easement, and has moved ahead with plans to honor that.

The recommendation seeks to transfer a “narrow strip” of Marcus Park land — already used for docks by Marcus Dunes and Winterwood Shores residents — to the Marcus Dunes Condominium Association in exchange “for the surrender by the Unit Owners (Marcus Dunes) of all right, title and interest they would have with regard to existing easements over and across that portion of Marcus Park predominately used by the public.”

As it stands, the docks can be placed anywhere in Marcus Park, but Marcus Park/Winterwood Shores residents have chosen throughout the years to place them on a little-used spot, the aforementioned “narrow strip” as to not greatly interfere with the public’s access to the park.

The commission also has come to the conclusion, citing Marietti’s decision and the deed to the land, among other things, that Winterwood Shores does not have a clear right to the easement.

“We feel for Winterwood. We’d like them to have that right, but they don’t,” said St. Amour. “And our attorney has advised us that we cannot give them those rights. That would be illegal.”

St. Amour has said the township has received notice from the association representing Winterwood Shores’ residents that it will be sued if any agreement excluding them is accepted.

But that’s not the end of the issue.

St. Amour indicated he has received word that officials from the DLRA and Marcus Dunes association are in talks that may place clear limits on how many docks should be allowed. Further, St. Amour said he hopes that perhaps the residents of Marcus Dunes could find a way to include Winterwood Shores in some sort of agreement the would ensure the latter’s continued access to the docks.

“As far as we know, the parties are in agreement to chat,” said St. Amour. He also said the township board wouldn’t consider the park and recreation commission’s recommendation until prospects for a “global agreement” are brighter.

“That moves the deadline back, gives everyone a little more time to figure this out,” said St. Amour.

Any agreement between Marcus Dunes and Winterwood Shores would have to be consider the state laws on keyholing — that is, laws that concern the use of one dock or lake access point by more than one property owner in a given subdivision or neighborhood-type association. Shields said such an agreement would conform to the law.