Ruffled Feathers

May 9, 2010

Ruffled Feathers:Wings of Wonder fights Leelanau Road Commission plan to shoot down bird sanctuary
By Anne Stanton
Spirits soared like an eagle at the Wings of Wonder (WOW) bird
sanctuary last week, thanks to a forthcoming restraining order against
the Leelanau County Road Commission, whose actions threatened the
existence of the bird sanctuary and raptor hospital.
On Thursday, WOW founder Rebecca Lessard announced that Judge Thomas
Power of the 13th Circuit Court would be signing a restraining order
against the road commission, which had ruled that a narrow two-track
that runs through the Lessards’ remote home and bird sanctuary in the
forest east of Empire was a public road, available for access by
anyone.
In recent weeks, persons driving through the Wings of Wonder compound
have frightened the birds recovering in a huge pen which stands just a
few feet from the driveway. Lessard has said that it’s unlikely that
WOW would be able to continue its wildlife rehabilitation mission
under such circumstances, because the frightened birds batter
themselves against the walls of their enclosure.
But last Thursday in her blog, wingsofwonder.blogspot.com, Lessard
shared good news with hundreds of supporters:
“We are now allowed to put our gates back up and the Road
Commissioners has to replace the original signage (Dead End and No
Outlet signs) PLUS put up PRIVATE DRIVEWAY signs! This is all great
news... and so reassuring that now we can once again provide a quiet
and safe sanctuary for the raptors. My continued thanks to you all;
for your letters, your financial pledges, your calls, and your warm
embraces. The ‘game’ is not over, but at least the Road Commission has
been stopped at this point in time.”

GOING BACK
WOW’s conflict with the road commission goes back several years and
involves some odd twists.
Lessard’s Wings of Wonder was founded as an education-oriented
nonprofit that rehabilitates 25-75 wounded raptors each year.
Lessards presents over 120 educational programs each year, reaching
over 8,000 people, including many school children. She has earned
numerous “person of the year” awards from groups ranging from the Boy
Scouts and NMEAC to the Michigan Audubon Society.
The raptors are kept in huge enclosures near the Lessards’ home,
nestled in a wilderness area on Wells Lake.  To get to their compound,
you need to turn onto South Gilbert Road from M-72. The pavement is
short and quickly turns into a two-track, which runs about .7 miles
before reaching the Lessard property. The two-track goes through the
Lessard’s yard and continues all the way through to Beeman Road.
It’s that long two-track, which is at issue. Once upon a time, the
public drove on the two-tracks that crisscrossed several hundred acres
of property just south of M-72 near Empire. Lessard and her husband,
Don, moved to one of the parcels in1999 and signed a deed, registered
at the courthouse, that delineated the two-track leading to their home
as a private easement, beginning where the pavement ends. As such, the
two-track would not be maintained or plowed by the Leelanau County
Road Commission.
Knowing that, they built a garage about eight feet off the two-track
and raptor enclosures less than five feet off from what they
considered their driveway. They also put up “no trespassing” signs,
private property signs, and private driveway signs in 1999.
So it came as a shock, shortly after the raptor rescue at Glen’s
Landfil, when Rebecca arrived home and saw a new “Seasonal Road” sign.
She soon discovered that Glen Noonan, the original owner of the
landfill, pushed for the decision. He refused comment for the article.

WHAT ABOUT THE RAPTORS?
Lessard immediately thought of her raptors’ sensitivity to noise and
intruders. She recalled a time when three families trespassed onto the
property and put their hands on the wire enclosures. A newly captured
eagle was so frantic to escape, she bloodied her face and wings trying
to escape. “I was so upset when I came upon them, I almost threw up,”
Rebecca said.
For the last two years, the couple has fought the road commission’s
decision—attending meetings, filing a legal petition, and putting up a
gate in July of 2009 to block off their driveway. Yet the road
commission voted against their petition and two weeks ago the Leelanau
County prosecutor issued a “cease and desist” order to force them to
stop using the gate. The couple responded last week with a lawsuit and
the request for a temporary restraining order to allow them to close
the gate. Rebecca also blasted an email asking people to write letters
and contribute to legal costs.
“The road commission has taken what’s called adverse possession of our
road, and now we have to spend thousands to prove we own it. I don’t
see how this can be right. It’s really scary,” Don said. “We followed
all the rules and regulations. To use the prosecuting attorney to come
after us, I’m dumbfounded. I can’t believe it.”

SOME HISTORY
The Lessards bought their property from the late Barbara Cruden, an
elderly woman who built a cabin in 1990 (the cabin now serves as the
raptor hospital).
After Cruden built the cabin, she blocked off her property from what
she considered trespassers, partly because some were dumping trash and
eroding the lake’s sandy banks. The Kasson Township Planning
Commission in 1991required her to provide a name for her private road
that began where the pavement ended. She called it Greenway Road and
agreed to maintain the two-track.
In 1992, Cruden signed an easement agreement with Cherryland Electric
to have electricity brought to her home. Cherryland did a title search
to ensure the two-track was private before burying an electric cable
down the entire center of Greenway.
The road commission posted a dead-end sign at South Gilbert Road. When
the Lessards bought the property in 1999, Rebecca called the county
road commission and asked for a dead-end sign at the end of Beeman
Road because people occasionally drove through her property. Herb
Cradduck, manager of the road commission, agreed. He told the
*Express* that he didn’t know at the time the two-track was public.
It wasn’t only Cradduck who believed the road to be private. When the
Lessards applied for permits and passed inspections for a garage and
the raptor homes, the zoning administrator never discussed setback
requirements that normally apply to a public road.
The two-track only gained the attention of the road commission after
Cradduck’s neighbor decided to log her property in 2008. Rebecca asked
the logging trucks to come in from the Beeman Road entrance so her
raptors wouldn’t be disturbed. After the logging was done, the road
into the Lessards’ backyard was much more accessible. As a favor, her
neighbor put two large logs across the easement to block access into
the Lessards’ backyard from the Beeman Road side.

QUESTIONING AUTHORITY
That’s when Cradduck had the “Seasonal Road” sign erected and ordered
the log barrier removed. If the Lessards wanted to challenge the
decision, they’d have to come to the next road commission meeting. To
prepare for the meeting, they researched the chain of deeds at the
courthouse. Every one of them, going back to 1970, listed the
two-track as a private easement, she said.
Lessard thought the research would quickly persuade the commissioners
to change their minds. Instead, the commissioners told stories of how
they used to drive the two tracks to get to their favorite mushroom or
hunting sites.
The Lessards were told they should have checked with the road
commission before building their garage and raptor enclosures.
Further, they were told that the two-track came into county ownership
under the McNitt Act, a law in the 1930s that transferred ownership of
roads from  townships to counties, Johnson contended.
Eventually, the road commission backed off its justification of the
McNitt Act.  Instead they discussed the legal theory of  “highway by
user,” which says any road used by the public *and* maintained by the
road commission for 10 years is a de facto public road. They said
early maps show Gilbert Road was established prior to the 1930s and
used by the original Wells family, and reportedly other people in the
townships.
Following the public hearing, the road commission’s attorney issued an
opinion, saying the two-track is a county road, which cannot be
refuted by a private agreement. The Lessards did not attend the next
January 5 road commission meeting, where commissioners Glen Noonan,
Lee Bowen, and John Popa voted to deny the petition for abandonment.
Despite the decision, the Lessards continued to block the two-track
with a gate. The road commission, frustrated by the couple’s refusal
to comply, requested the Leelanau County prosecutor to order the
Lessards to stop blocking the two-track.
Meanwhile, the Lessards suspect that Noonan began telling people to
drive through their yard.
“Maybe in a given year, we have two cars drive through, people who are
lost.  But last week alone, we had nine cars that we saw. Three of
those were road commission cars or trucks. A week ago Sunday at 8
p.m., a silver Tacoma pick-up drives into our yard, past our gate.
There are two young men in their 20s.”
In the course of the conversation, the driver told Don that Noonan had
sent him there. “He said, ‘There was really good mushroom hunting here
and to come on down.’”
Noonan refused comment.
Another older driver told Rebecca he was told there was land for sale.
And then on April 27, at 9 p.m., she saw headlights come out of the
woods.
“This dumpy red car is racing through our yard at 45 mph, slams on our
brakes and tears through our open gate.”
The Lessards suspect the car was sent to intentionally plow through
the gate in order to file a lawsuit. “Now we’ve chained the gate open.
That’s how freaked out and paranoid we are,” Rebecca said.

NO MEANINGFUL DISCUSSION
The Lessard’s lawsuit, filed by attorney Jeff Jocks, contends that
this case doesn’t meet the highway by use standard—certainly not in
the last 20 years.
Now the road commission has to hire and pay an attorney for a hearing
in 13th Circuit Court. The cost of an attorney isn’t covered by the
road commission’s insurance since damages aren’t sought, so taxpayers
will pick up the tab.Lessard said the road commission should have
collected the evidence *before* deciding the two-track was public,
which has already cost the couple $6,800 for an attorney, security
surveillance, signs, and the gate.
Lessard said the larger point is one of fairness. For the last 11
years, no one ever said the road was public—not Kasson Township, not
Cherryland Electric, not the legally filed deed. The abrupt
decision—with no documentation or proof— threatened to shut down Wings
of Wonder.
Jim Johnson, the road commission’s engineer, said he has no proof that
the two-track was publicly used and maintained for 10 years because
the Lessards just filed their lawsuit.
But why didn’t he come up with proof before this?
“In 2008, we asked the attorney for an opinion,” Johnson explained,
“and his opinion was this was a public road, and we took him at his
word. We believe it’s our road, but we don’t have a list of things
readily available. We have to compile those things. If she is right,
and we are wrong, we’ll admit it.”
Johnson said the Lessards should have communicated better with the
road commission.
“We tried communicating in the past, and we didn’t get anything back.
I know of more than one occasion when we attempted to conduct a
meaningful discussion, and we tried to do that with an open mind,”
Johnson said.
The Lessards said they were the ones who initiated the phone calls,
repeatedly spoke at meetings, and the public hearing. But it’s all
been futile.
“They haven’t listened to us at all,” Don Lessard said. “The road
commission started the mess by suddenly declaring our private easement
as a public road and slapping up a ‘Seasonal Road’ sign without
talking to us first.”

Editor Robert Downes contributed to this story.