IN RE: INLAND LAKES AND STREAMS ACT APPEAL
OF ROBERT BRZESKI

Cause No.: 86-6-199

The Natural Resources Commission, having considered the Proposal for Decision dated February 23, 1988, of the Administrative Law Judge, and the files, pleadings, briefs, and oral argument in this matter, hereby determines and orders that:

The Proposal for Decision is adopted and affirmed in its totality, with the following insertion after the words "to a distance not greater than 40 feet from the structure,": "that Department of Natural Resources field staff is given the discretion to work out a reasonable solution to protect the major shoreline trees, and further that the structure is"; and is further incorporated into this final decision by reference and is adopted by the Department of Natural Resources as its findings of fact and conclusions of law. (See Proposal for Decision, Cause No. 86-6-199, dated February 23, 1988, attached hereto.)

Dated
David D. Olson, Chairman
Natural Resources Commission

Cause No. 86-6-199

William C. Fulkerson
Administrative Law Judge

This matter is a contested case hearing arising from the denial, in part, of an Inland Lakes and Streams Act permit to place a bulkhead and back fill behind it on Portage Lake in Onekama Township, Manistee County, Michigan.

The hearing was conducted pursuant to the Inland Lakes and Streams Act (ILSA) 1972 PA346, as amended, and the promulgated rules.

1. The professional staff of the Department of Natural Resources is charged with the day to day administration of ILSA.

2. Mr. Robert Brzeski is the applicant for a permit who requested a contested case hearing pursuant to Section 11(2) of ILSA.

1. The Petitioner is one of the owners of a parcel of land fronting on Portage Lake. The land is bordered on the landward side by M-22, a State highway. The lot is approximately 330 feet in width and varies in depth from 148 feet to 90 feet. A drain for road runoff from M-22 divides the parcel with approximately one-third on one side of the drain and two-thirds on the other. The land contains an existing seasonal dwelling. The Petitioner's original application called for a bulkhead and triangular shaped fill which would give the Petitioner a consistent depth of 150 feet across his lot, that is, the bulkhead would go out two feet on the east side and continue straight to the other property line where it would be 60 feet offshore. At the time of the hearing, the Petitioner amended his permit application to ask that the fill be placed up to 85 feet offshore.

The stated purpose of the requested bulkhead and the fill as enunciated in the application, Department Exhibit #1, is; "The purpose of the work is to provide shore protection, preserve trees located thereon, protect the integrity of existing residential structures, and to provide protection against further encroachment to Michigan Highway 22."

2. Portage Lake is a drowned river-mouth lake. That is, it is directly connected through a channel to Lake Michigan. Consequently, the water level in Portage Lake is directly related to the level of Lake Michigan. It is undisputed that recent high water levels of both Portage Lake and Lake Michigan have directly affected Mr. Brzeski's property. It was his testimony that during his period of ownership, approximately six years, the shoreline in front of his cottage has eroded to within 28 feet of the structure. Petitioners Exhibit #4, which is a Department of Transportation map drafted in 1963, forms the basis of Mr. Brzeski's opinion that he ought to be able to regain all or most of the land that existed at that time. The map shows that the water's edge was approximately 80 feet from the structure in 1963. The map also shows that the first 25 feet from the water's edge are delineated by a marsh symbol. According to the testimony, 1963 was one of the record low years for the Great Lakes. Recognizing that the level of Portage Lake follows that of the Great Lakes it is reasonable to assume that Portage Lake was at or near its lowest level in recent history. Therefore, much more of the Petitioner's property would have been exposed than is normally the case. Petitioner's Exhibit #6, which is an aerial photograph from the Manistee County Equalization Department, shows a line along the shoreline which may indicate a historic property boundary. This Exhibit contains the limitation "The boundary lines shown are only an approximation."

The Petitioner cites Exhibit #6, which is a Highway Easement release of a 200 feet easement for drain purposes across the property by a predecessor to the Petitioner's Title, as evidence that he should have the right to fill. This easement was granted in 1963 and is reflected on the 1963 Highway Map. It also is the Petitioner's belief that he is paying property taxes on the larger parcel as described or depicted in the 1963 materials. There is no legal description of the property which indicates a conveyance of a specific amount of upland to the Petitioner. The description contained in the land contract and Title Insurance is, "that part of the east 330 feet of Lot #4, Section 35, T23N, R16W, that lies north of M-22." As a riparian on an inland lake the Petitioner owns the bottomlands to the center of the lake. He also has an exclusive right of possession to exposed bottomlands.

3. In response to the Petitioner's application, the Department and U.S. Army Corps of Engineers issued a joint public notice and the notice was circulated to various interested divisions within the Department and their comments invited. October 10, 1986 Mr. Brzeski was notified that his permit was denied and that the Department would consider the granting of a permit for a seawall that more closely followed the shoreline, Department Exhibit #9. The Department found, in part, that the project would have a significant adverse impact on the natural resources associated with Portage Lake, the proposed bulkhead and backfill would eliminate approximately 10,000 square feet of productive shallow water habitat, is an unreasonable encroachment in Portage Lake and an unreasonable encroachment on the public trust. The amended proposal of Mr. Brzeski would double the amount of fill in the Portage Lake to 1800 cubic yards, would move the bulkhead, at the closest point, 27 feet offshore and 85 feet offshore at its farthest point. The fill would then be in excess of one-half acre.

Based on the testimony I conclude that the proposed fill, as originally proposed, or as modified would violate the public trust and riparian rights. A bulkhead at right angles to the shore extending 60 to 85 feet out into the water is clearly an unreasonable encroachment on the right of the public and other riparians to navigate. The loss of a half-acre of shallow productive bottomlands is a significant negative environmental impact upon the lake. Adverse effects to the environment and public trust are significant and are not mitigated by the proposal.

4. According to the testimony, the shallow near shore bottomlands, proposed for fill, are valuable. That is, these areas are highly productive and an important part of the lake system. These types of land provide spawning and nursery areas for fish. The bulkhead perpendicular to the shore extending straight out would interfere with water circulation causing debris to collect in front of the neighboring property. An 85 foot bulkhead would serve as an obstacle to navigation, if not a hazard. The Petitioner would be removing one-half acre of lake surface to enhance his lot size.

5. The Petitioner further argued that his property was nonconforming as a result of erosion. He would like to make an addition to the front of his cottage but cannot because it will not meet the setback requirements of local zoning from the lake. According to Exhibit 11, a letter from the Onekama Township Zoning Administrator, the local zoning requirement is that all structures be set back from the water's edge 40 feet. If the shoreline was 35 feet from the dwelling when Mr. Brzeski purchased it, it was not in conformance with the zoning requirement at that time. I find a reasonable and prudent alternative to the proposal of Mr. Brzeski would be to allow fill and bulkheading to a point 40 feet from the existing structure and curved back into the shoreline as it went away from the structure. This would cause Mr. Brzeski's structure to be in conformance with local zoning. Mr. Brzeski also has approximately 200 feet of property in width on the side of the drain where his structure exists. I believe that the additional land would accommodate any proposed additions to the existing structure in a reasonable fashion. I also find that such bulkheading and fill would not unreasonably impair the public trust or riparian rights and would provide adequate protection for the shoreline and existing trees.

6. The Petitioner raised several factual issues that relate to the jurisdiction of the Department to require a permit. It was the position of the Petitioner that the Department must demonstrate that the proposed project is not in one of the exempt categories. One category of exemption for permit requirements is for minor drainage structures. Apparently the Petitioner believes because a drain is present on the property and would be affected by this project that the project is a minor drainage structure. I find the project is not a minor drainage structure or facility since it is not a culvert ditch or appurtenance for storm water drainage. The Petitioner further asserts that the Department must show that there is no bulkhead line established for this area of Portage Lake. If a bulkhead line is established as a result of a local ordinance and approved by the State, the administration of permits is through the local unit of government. The Department witnesses testified that they knew of no bulkhead line being established for Portage Lake. The Petitioner further asserted that the Department must show that the structure was not existing on April 1, 1966. That section is a savings clause, that is, it relates to projects completed pursuant to prior law or previously unregulated. There is absolutely no evidence in this record that there has ever been any fill placed at this property; if there was, it no longer exists. Therefore, this savings clause is inapplicable to this application. I find that Portage Lake is an inland lake or stream and that the proposal of Mr. Brzeski is to dredge or fill bottomland and that such proposal requires a permit.

1. The Inland Lakes and Streams Act 1972 PA 346, as amended, and the promulgated rules 1979 AC R281.811 provide the standards for permit consideration. The Petitioner has applied to dredge or fill bottomland which requires a permit pursuant to Section 3 of ILSA.

2. I conclude as a matter of law that the proposed bulkhead and fill are not exempt pursuant to Section 4 of the Act because it does not involve a fill or structure existing prior to April 1, 1966. Further, I conclude as a matter of law that the proposed project is not construction and maintenance of minor drainage structures and facility as defined by Rule 7. I further conclude that there is no evidence that the application is within an area landward of an established bulkhead line.

3. Section 7 of ILSA states "The Department shall issue a permit if it finds that the structure or project will not adversely affect the public trust or riparian rights." Based on the findings of fact, I conclude as a matter of law that the proposed project will substantially impair the public trust in two ways: (1) the proposed project would destroy valuable shallow water habitat; (2) the proposed project would be an unreasonable encroachment into the lake. The project would adversely affect riparian rights by encroaching in the lake, reducing surface area, and extending 85 feet into the lake creating a potential hazard to navigation.

4. The Petitioner has suggested that as a riparian he has a right to fill bottomlands that were once exposed but are now below the water surface. I am unaware of any such riparian right. The only parallel law would be that relating to accretion and reliction. One of the most important criteria when gaging the relative rights of riparians is the reasonable use doctrine. That is, riparians may make use of their property so long as it does not interfere with reasonable use of the lake by other riparians. Pierce v. Riley, 81 MICH APP 39, 1978. I conclude as a matter of law that the Petitioner's proposal will interfere with the reasonable use of the lake by other riparian owners. The case of Burt v. Munger, 314 MICH 659, 1946 cited in the brief by the Attorney General is on point. The proposal of the Petitioner is a violation of the riparian rights of other owners on the lake.

5. Rule 4 of the Rules promulgated pursuant to ILSA state that a permit shall not be issued unless the Department determines all of the following:

"(A. ) That the adverse effects to the environment and the public trust are minimal and will be mitigated to the extent possible."

Based on the Findings of Fact, I conclude that the adverse effects to the environment and the public trust are significant and will not be mitigated to the extent possible by the proposal.

"(B.) That the resource affected is not a rare resource."

There is no evidence that Portage Lake is a rare resource.

"(C.) That the public interest in the proposed development is greater than the public interest in the unavoidable degradation of the resource."

There is no public interest in the filling in of a portion of Portage Lake and the degradation is entirely avoidable by much lesser filling to meet the Petitioner's need.

Next section of the Statute.

"(D.) That no feasible and prudent alternative is available."

There is a feasible and prudent alternative in that the seawall can more closely follow the existing shoreline, be placed out in the water no more than 40 feet from the existing home and angled back towards the existing shoreline. This would provide a reclamation of lost shoreline, remove any concern about the current nonconformity of the structure and minimize the environmental effects.

Based on the foregoing Findings of Facts and Conclusions of Law, it is proposed that the amended permit of the Petitioner be denied. Further it is proposed that as an alternative the Petitioner be allowed to bulkhead and back fill commencing immediately in front of his structure to a distance not greater than 40 feet out from the structure, curving back to the natural shoreline and following the shoreline for the remainder of the parcel.

Dated:
William C. Fulkerson
Administrative Law Judge

RE: Inland Lakes and Streams Act Appeal of Robert Brzeski

Cause No. 86-6-199

PETITIONERS EXHIBIT

1. Title Insurance Commitment
2. Land Contract
3. Highway Easement Release
4. Highway Drawing
5. Revised Application
6. Aerial Photo print

RE: Inland Lakes and Streams Act Appeal of Robert Brzeski

Cause No. 86-6-199

EXHIBIT LIST

DEPARTMENT OF NATURAL RESOURCES

1. Application
2. Joint Public Notice
3. July, 1986 letter Sutfin to Harris
4. July 8, 1986 letter Pacific to Harris
5. Project review report
6. Interoffice memo from Wolverton
7.
8.
9. October 10, 1986 letter Wolverton to Brzeski
10. May, 1987 letter Sanchez to Onekama Township
11. June, 1987 letter Onekama Township to Sanchez