IN RE: Inland Lakes & Streams Act Appeal of Herbert Dow
File No. 87-5-351

The Natural Resources Commission, having considered the Proposal for Decision dated April 16, 1990, of the Administrative Law Judge, and the files, pleadings, briefs, and written/oral arguments in the matter, hereby determines and orders that:

The Proposal for Decision is adopted and affirmed in its totality 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. 87-5-351, dated April 16, 1990, attached hereto.)

_____________________ ____________________________________
Date Thomas J. Anderson, Chairman
Natural Resource Commission

______________________________________
In Re: INLAND Lakes and Streams
Act Appeal of Herbert Dow
______________________________________

Frederick J. Griffith, Administrative Law Judge:

This contested case hearing in the nature of an appeal arises from the Department's disapproval of residential use for a portion of petitioner's boathouse/residence situated over the water's edge. Construction of the boathouse/residence, with the portion of the enclosed structure over the water's edge designated as a boathouse storage area, had previously been approved by the Department. The construction, as approved, was complete at the time of this hearing.

The contested case hearing in this case occurred on October 19 and 20,, 1989. At the hearing Department witnesses Bradford Wilkins and Hal Harrington testified. Lester Puhl, Norman Probert, and Robert Silver testified for Intervenor Watch, Inc. Robert Yvon, David Chryst, John Campbell, and Harvey Wood testified for petitioner. Evidentiary exhibits were Introduced by the parties, being specifically designated in the record (see T, 2, 3) as Department's 1-9B and petitioner's 1-4.

Petitioner's newly constructed boathouse is located on the north shore of Round Lake, a small lake situated on the Pine River connecting Lake Michigan and Lake Charlevoix. The shores of the lake, particularly the south shore, are greatly developed with businesses, residences and private and public marinas and docks. Due to its central location. Round Lake is a busy lake for navigation of boats, situated in both a commercial and tourist area.

The originally proposed structure was to be built at the same location as a pre-existing boathouse and was finally constructed, at this site. The proposed boathouse did not differ significantly from that finally built. In its initial form it was designed as a boathouse/residence allowing for the docking of two large boats with an upper floor level to be used for residential purposes. The structure as presently built and approved by the DNR allows for residency but not over the portion of the boathouse that sits above the water surface. Petitioner filed his initial application to construct a combined residence/boathouse with the Department, pursuant to the Inland Lakes and Streams Act, MCLA 281.951 et seq; MSA 11.475(l) et seq, on November 23, 1987. The Department denied the application for the permit on March 28, 1988. In his letter of denial, Brad Wilkins, of the Department, stated in part:

After due consideration of the permit application, onsite investigation and other pertinent materials, the Department finds that the proposed boathouse and residence structure is not the public interest and will adversely effect the public trust and the waters of Round Lake and your application is hereby denied.

"The Department finds that the adverse effects to the environment and the public trust are not minimal nor are they mitigated to the extent possible; the public interest in the proposed development is not greater than the public interest in the unavoidable degradation of the resource; and that a feasible and prudent alternative is available.

The Department of Natural Resources has the perpetual duty to preserve and protect riparian rights in the public lake and streams. The proposed residential use of a structure over the bottomlands is not a right which is associated with riparian ownership."

Petitioner subsequently filed an amended permit application, in accordance with the above nature of the Department's ruling (to deny residential use). But, at the same time, in a letter of April 28, 1988 petitioner indicated its intention to contest the Department's decision as it pertained to the denial of residential use on the premises. (Petitioner's right to raise the cited issue, which is the focus of these proceedings, is a contested Issue In this case. Pertinent facts to the issue will be noted in the discussion which follows.) Petitioner's modified plan, which Involved only boathouse storage usage above the surface water, was approved by the Department. Pursuant to these plans, petitioner constructed the boathouse on the premises where the prior, unsightly, boathouse had existed. The Department issued its permit to construct the boathouse, without residential usage, on June 13, 1988. The petition for contested case hearing of petitioner was filed on May 3, 1988.

Brad Wilkins, the principal Department reviewer in this case, testified to the nature of his review of the petitioner's application, as follows:

"The Inland Lakes and Streams Act requires the Department to make certain findings. And it's my responsibility to review those criteria and make those determinations on each application for review. And that's what I did do in this case.
The Inland Lakes and Streams Act, Section 7, requires us to consider whether or not the proposed project will have an adverse effect on the environment and the public trust. And in making a review of that criteria we're to include potential impacts on fisheries, wildlife, commerce, industry, aesthetics. The Section 7 also specifically indicates that we shall not issue a permit if a project will unlawfully imperil, destroy, or impact natural resources or the public trust.
Rule 4 of the Administrative Rules requires us to consider another set of criteria. And that rule specifically requires us to determine if the project is in the public's interest. And it requires us to determine if the project, if the public's interest in the proposed project is greater than the public's interest in the degradation of the resource. It requires us to determine if the project's resources impacted upon a rare resource. It requires us to determine if there is a feasible and prudent alternative available to the project. It requires us to determine the public interest in the project.T, 49-50

Witnesses, Jerry Puhl and Norman Probert testifying on behalf of Intervenor Watch, Inc., generally attested that the residential use involved in the Dow property would have an adverse affect on the Charlevoix area because it would set an unfavorable precedent, permitting construction over the water line. e.g., T, 185; T, 32,33. Robert Silver, a resident near petitioner's site, testified that the view from his home, and other homes, to the water is obstructed by elaborate over the water boathouses as petitioner's and that approval of residential use over the water will generally lead to the development of boathouses as homes. T, 255, 261. Robert Yvon, the architect employed by petitioner to design his boathouse, testified that additional work would be necessary to adapt the Present structure to a boathouse/residence T, 286, 287. David Chryst, the engineer on petitioner's project, testified that the volume area occupied by the present storage room in the boathouse is structurally necessary to support the roof. T, 310-312. John Campbell, a landscape architect, employed by petitioner, stated that the boathouse was designed to permit housing of large boats. He coordinated the development of the design. He did not believe the public interest in allowing residences over the water should be any different than having a boathouse over the water, noting that there were many such structures in existence. T, 340. Finally, Harry Wood, a landscape architect employed by petitioner, explained that he had told Mr. Wilkins that he was going to contest the ruling of the Department with respect to residential use. T, 359.

The above testimony of witnesses is not set forth to be definitive. As explained below, this Administrative Law Judge believes that the true issues in this case are quite focused, and the essential facts are not in dispute.

The parties have stated the issues somewhat differently, yet it appears that there is a common thread which, in the statement of the issues, can be identified as follows:

I. WHETHER PETITIONER IS ESTOPPED FROM PURSUING A CONTESTED CASE HEARING IN VIEW OF THE NATURE OF PROCEEDINGS IN THIS MATTER?

II. DID THE DEPARTMENT OF NATURAL RESOURCES EXCEED THE SCOPE OF ITS DELEGATED POWERS, OR ABUSE ITS DISCRETION, IN DENYING PETITIONER'S PERMIT FOR THE PRIMARY REASON THAT A PART OF THE BOATHOUSE STRUCTURE WOULD BE USED FOR RESIDENTIAL PURPOSES?

An important issue which is identified by the parties with regard to the above, is what effect the "built" nature of the boathouse structure has on petitioner's request for residential use of the premises as incidental to the recognized ownership or use.

Petitioner argues: the powers of administrative Boards are limited by the statutes creating them to such powers as are expressly indicated or necessary by fair Implication. Coffman vState Board of Examiners in Optometry, 331 Mich 582 (1951). The Inland Lakes and Streams Act empowers the Department only "to regulate inland lakes and streams to protect our riparian rights and the public trust in inland lakes and streams."  The activities requiring a permit are set forth in the act itself.  Once the Department has granted a permit the scope of authority granted to the Department under the act ceases. The intended use of the structure is not a variable upon which the Department may pronounce judgment. See, e.g. McKibbin v Corporation and Securities Commission, 369 Mich 69 (1963) and Sterling Secret Service, Inc. v Department of State Police, 20 Mich App 502 (1969). In the former case the court held that the commission had no power to adopt a rule prohibiting discrimination by real estate brokers because of race, religion, etc. This was so because the discrimination was not commonly regarded "unfair dealing" within the meaning of the statute which empowered the commission to revoke a broker's license for any conduct "which constitutes dishonest or unfair dealing." In Sterling the court invalidated a rule of the Department of State Police requiring that badges worn by private security personnel be square or rectangular in shape. The court reasoned that a statute which required that insignia worn by private police shall not "deceive or confuse the public or be identical with that of (other] law enforcement officer(s]" did not intend to confer upon the Department the "broad power" to standardize the shape of the insignia. Applying these authorities to the instant case, the question is whether or not the structure is intended to be used for storage, residence or some other purpose; the dimensions would not be altered. Nor would there be an effect on the waterway or bottom lands as a result of the use to which the structure would be put. The Inland Lakes and Streams Act does not confer upon the DNR the broad power to regulate the use of a structure, providing that the structure meets Physical environmental requirements in all ways. The Legislature has not delegated to the DNR the task of standardizing the use of wharfage structures. Providing that the structure question is suitable, it is not reasonable under the statutory terms to deny the application simply because the area above its wharfage is to be used as a seasonal residence. Such use of a residence can have no effect upon the use of the waters for recreation, fishing, aesthetics, commerce or industry.

Petitioner continues: The right of wharfage appears to be undisputed in this matter inasmuch as the DNR has approved and allowed to be built a large boathouse structure to house two boat slips. A riparian owner may construct a dock and a wharf or pier for purposes of facilitating his use and enjoyment of the waters of the lake. Burt v Munger, 314 Mich 659 (1946). The issue is the use of the space in the existing facility above the boat slips themselves. Because the boathouse demonstrates DNR's agreement that petitioner has an absolute right to his wharfage, the sole issue is then the use to which the area above the wharfage may be put. Mr. Wilkins of the DNR was unable to point to any guidance or criteria that the DNR used in evaluating what use to which areas over wharfage may be put. Administrative rules must not provide standards which do not provide meaningful guidance and permit unbridled discretion. Civil Service Commission v Pitiock, 44 Mich App 410, 412 (1973). Hearing testimony indicated that there are at least two structures extended over the bottom lands of Round Lake which are exclusively residential. T, 69, 71. Here the sole issue before this Tribunal is the use to which the "attic" area over the boat slips should be put. There is nothing in the Inland Lakes and Streams Act, nor in common logic, which would permit the DNR to deny a project simply because that area was to be used for residential purposes.

Petitioner continues: Petitioner is not taking the position that he could usurp the surface area of Round Lake for purely residential purposes. The primary purpose of the area of lake water occupied by the project is wharfage. The use of a small attic area for residential purposes is truly a deminimus intrusion into the surface area, would in no different structure than that which currently exists "as built", and the denial of such use by the DNR exceeds the scope of its delegated powers. It is noteworthy that section 12 of the Inland Lakes and Streams Act does not refer specifically to riparian rights but rather admonishes that the act shall not deprive a riparian owner of "rights associated with his ownership". Included in those rights is the right to use space incidental to dockage, for whatever purposes the landowner, in his discretion, should so choose. it is a red herring to indicate that were petitioner allowed a residential use of his storage area, the aesthetic character of the north shore of Round Lake would be destroyed. It is unlikely that the DNR would allow any project which "stacked' condominiums on top of boathouses.

Petitioner concludes: Intervenor, joined by the Department, has moved for Summary Disposition of this case on the basis that petitioner was estopped from pursuing his legal remedies. Correspondence sent to the DNR on April 28, 1988 by petitioner's agent clearly reserved petitioner's right to contest the Department's decision regarding the non-water dependent residential use of the Proposed structure." The petition for contested case hearing was submitted to the Department by petitioner on May 3, 1988. Thus, the mechanism was in motion for a contested case hearing prior to the Department's issuance of a Permit to build on June 13, 1988. It is apparent that the DNR did not rely upon the fact that Dow was or was not pursuing a contested case hearing with regard to the residence issue in issuing its permit. Accord: Testimony of Brad Wilkins, T, 65. Assuming some sort of promise was made by petitioner, these are not the sort of circumstances that would require an enforcement of the promise if justice is to be served. People aggrieved by the action of the DNR should always find free access to a contested case hearing. The DNR has conceded that its permit was not granted on the basis that the petitioner's letter accompanying the plan represented that It superceded all others. This fact accords with Mr. Wilkins' testimony that he did not grant or deny the Permit based upon the likelihood or certainty of an appeal. T, 64. It simply would not be reasonable for the DNR to approve or not approve a permit based upon a representation by any permit seeker that a review would not be taken.

The Department argues: Section 7 of the Inland Lakes and Streams Act directs the Department to issue a permit if it finds that a structure or project will "not adversely affect the public trust or riparian rights". The act further states that It shall not "modify the rights and responsibilities of any riparian owner to the use of his/her riparian waters." Riparian rights include the rights of wharfage. But case law falls to disclose that residential structures on lake bottom lands are a riparian right. This is not surprising, because riparian rights are those which are intimately associated with the water. To do as petitioner suggests, is to modify the definition of riparian rights. A riparian owner's title is subject to the public trust and preservation of public rights. At the hearing concerns were identified as to the potential effect of residential structures over the lake surface.

The Department continues: An administrative agency's interpretation of a statute Is given considerable-weight due to the agency's expertise. PSB State Bank v Comerica, Inc., 151 Mich App 452, 460 (1986). To require the DNR to adopt an interpretation which adds or changes the uses to which ripartans may make of the surface waters of this state's navigable lakes is to effect a change in recognized "rules of property" which have induced extensive reliance. Bott v Natural Resources Commission, 415 Mich 45 (1982) is significant because in that case the court identified the significance of the reliance of riparian owners on established "Property" rights.

The Department continues: Petitioner's claim that the DNR abused its discretion in not allowing the boathouse to be used as a residence because no basis for the agency's decision can be found within the act is erroneous. The act provides definitions for what constitutes riparian rights in the public trust. These definitions do not disclose justification for petitioner's request to allow residential use. The act also provides notice to persons seeking a permit of what standards and criteria must be met. An important part of the standards is the requirement that the proposed use must be a reasonable one. Section 2 of the act defines riparian rights. These rights are further identified In Rule I adopted pursuant to the act. Section 7 of the act directs the Department to consider possible effects of the proposed action upon "the uses of all such waters, including uses for recreation, fish and wildlife, aesthetics, local government, etc." The definition of "reasonable use" in these circumstances was addressed by the Michigan Supreme Court in Thompson v Enz, 379 Mich 667 (1967). The northern shore of Round Lake has remained quite open in the sense that only wharfs or boathouses occupy a major portion of the shore; by contrast, the southern shoreline has considerable commercial development. The only reason that the current structure was permitted was because it was petitioner's right to have such structure as a riparian. Petitioner's right to wharf on navigable waters allowed for this invasion of the public trust. But residential use is another thing. It will add to potential pollution. A feasible and prudent alternative existed In the ability to construct upland. The public interest in the residential use was not greater than the public interest in avoiding degradation of the resource.

The Department concludes: Petitioner should be estopped from pursuing a contested hearing in this matter. Petitioner, upon being denied his initial application to construct a residential structure over the surface waters, submitted a set of modified plans. In submitting this modified plan he represented that the plan superceded all others, including his earlier residential use plan. The DNR granted the permit on the modified plans not on the basis that petitioner's letter accompanying the plan represented that it superceded all others. Petitioner, in submitting the modified plans represented that the plans were in the combination of our efforts to develop the property in a reasonable way . . ." .  Accordingly, petitioner should now be estopped from arguing that the DNR's original denial was not only unreasonable, but also an abuse of discretion. Petitioner's strategy was to manipulate the regulatory process so as to "boot strap" himself into the position that he has now taken.

Intervenor, Watch, Inc., argues: The Inland Lakes and Streams Act confers power upon the Department to insure that persons granted permits do not alter the state or condition of the structures which were allowed by permit. Thus, MCL 281.956(3) and MCL 281.958 were enacted. In this case, the permit requirement is that space over the surface of Round Lake be used only for storage purposes. The petitioner's argument that the Department has no right to determine uses is misplaced. Petitioner must comply with the permit that was granted. MCL 281.958 provides that a permit may be revoked after a hearing for violation of any of its provisions for "misrepresentation in application." The broad discretion identified in the Inland Lakes and Streams Act distinguishes McKibbin v Corporation and Securities Commission, 369 Mich 69 (1963) relied upon by petitioner. Administrative Rule 4, under the Inland Lakes and Streams Act, identifies the nature of the Departments scrutiny of a permit application. Petitioner's argument ignores the balancing test set forth in Rule 4, which requires that the public interest in the proposed development be weighed against the public Interest in the unavoidable degradation of the resource. Mr. Wilkins explained that where a boathouse is used solely for riparian purposes the balancing test fails in favor of the landowner's riparian rights. But where the use of a structure is not related to riparian rights of the landowner, the scale tips in favor of avoiding degradation of the public resource. Petitioner's argument ignores the language of pertinent legislation. Where a use of a structure goes beyond those uses associated with riparian rights, the Department has authority to deny the permit.

Intervenor continues: Where uses are not related to riparian rights, the Department is not prohibited from denying the application. See Administrative Rule 4 and the test stated therein. In this case citizens and landowners of Charlevoix took time off from work to testify at the hearing as to the potential adverse effect of building this type of property. The potential adverse effect on the area tips the balancing test against petitioner.

Intervenor concludes: Petitioner should be estopped from pursuing a contested case. In submitting a modified plan to the Department, petitioner represented that this plan " superceded" all other plans. Accordingly, Brad Wilkins of the Department was Ju5tified in relying on the representations made by petitioner. See T, 62. Brad Wilkins indicated that he was not aware that a contested case hearing petition had been filed and that it may have been a month or more before he would have been informed by the Executive staff of such filing. T, 67, 68. Petitioner's claim that Mr., Wilkins was fully aware of the appeal is simply not supported by the record. Mr. Wilkins indicated that after granting the permit he inspected the premises. When he did so, and was fully aware of the character of the premises, and its easy adaptability into a residential area, he might have delayed his course of action and perhaps not approved the permit. T, 116, 117. A review of the record shows that it was petitioner's intent all along to deceive Mr. Wilkins into granting an application for what was essentially going to be a residential unit over the water. Relying upon the representations of petitioner, Mr. Wilkins granted the permit based upon the plan submitted on May 26, 1988. Petitioner has effectively withdrawn his first request for a permit and therefore should be bound by his representations and estopped from proceeding with an appeal of the denial of the first application.

Intervenor, Watch Inc., and the Department present to this Administrative Law Judge a strong case for concluding that the petitioner's case should be dismissed on the basis of estoppel. The essential facts are that petitioner. subsequent to denial of its initial application, by letter of April 28, 1988, indicated through his agent, his intention to seek a contested case hearing as to the non-water dependent residential use of the structure. Petitioner next filed a petition for contested case hearing on May 3, 1988. Then petitioner, by letter of his agent H. Traver Wood, dated May 26, 1988 submitted a new plan, without "residential use", stating:

"This plan represents the culmination of-our efforts to develop the property in a reasonable way and meet the requirements of the City of Charlevoix, the Department of Natural Resources and the U.S. Army Corps of Engineers. This plan supercedes all others including our submittal April 28, 1988 Plan dated March 30).(Emphasis supplied.)

I find on this record that Petitioner's misstatement or misrepresentation in the letter of May 26, 1988 was potentially misleading. Furthermore, it appears to have placed petitioner in a strategically advantageous posture. But the Department reviewer, Mr. Wilkins, did not rely upon this representation in any critical sense. Furthermore, the Department's executive office gave no notice to Mr. Wilkins of contested case status although there was ample time in which to give such confirming notice. For the above reasons, I find that the reliance aspect of promissory estoppel is not established on this record. Accordingly, I would deny the motion for summary disposition.

Turning to the merits of the Department's ruling, the initial determination of Brad Wilkins, set forth In his letter of denial of March 28, 1988 was as follows:

After due consideration of the permit application, onsite investigation and other pertinent materials, the Department finds that the proposed boathouse and residence structure is not in the public interest and will adversely effect the public trust in the waters of Round Lake and your application is hereby denied.

a) The adverse effects to the environment and the public trust are minimal and will be mitigated to the extent possible.
b), The public interest in the proposed development is greater than the public interest in the unavoidable degradation of the resource.
c) No feasible and prudent alternative is available.

The Michigan Environmental Protection Act, supra, requires the Department to deny application for activities that will cause pollution, impairment, or destruction to the State's natural resources when there exists a feasible and prudent alternative consistent with reasonable requirements of the public health, safety, and welfare. The Department finds that the proposed project will cause pollution, impairment, or destruction to the State's natural resources and there is a feasible and prudent alternative.

The Department of Natural Resources has the perpetual duty to preserve and protect riparian rights and the public trust in lakes and streams. The-proposed residential use of a structure over bottomlands is not a right which Is associated with riparian ownership. The riparian rights of a property owner Include:

i) access to the navigable waters;
ii) dockage to boatable waters;
iii) use of the water for general purposes, such as bathing and domestic use;
iv) title to natural accretions.

Petitioner contends that the Department's actions taken here are beyond the scope of authority as set forth In the statute because residential use incidental to established riparian usage for wharfage purposes is involved in this case. Petitioner asserts that the riparian usage is established by the Department's acknowledgment in granting the permit and permitting construction of the structure. Petitioner. also asserts that the Department abused its discretion because the incidental use in the case would have no effect upon the public trust.

Section 7 of the Inland Lakes and Streams Act, MCL 281.957, authorizes the Department's review using the following language:

The department shall issue a permit if it finds that the structure or project will not adversely affect the public trust or riparian rights. In passing upon an application the department shall consider the possible effects of the proposed action upon the inland lake or stream and upon waters from which or into which its waters flow and the uses of all such waters, including uses for recreation, fish and wildlife, aesthetics, local government, agriculture, commerce and industry. The department shall not grant a permit if the proposed project or structure will unlawfully impair or destroy any of the waters or other natural resources of the state. This act shall not modify the rights and responsibilities of any riparian owner to the use of his riparian water.

I find that the determination of the Department was within the scope of powers conferred on the Department under the act. McKibbin v Corporation Securities Commission, 369 Mich 69 (1963) and Sterling Secret Service, Inc. v Department of State Police, 20 Mich App 507 (1969), cited by petitioner, are distinguishable given the unique statutory authority here granted by the Inland Lakes and Streams Act to regulate riparian and other "uses." The prior granting of authority to build the boathouse pursuant to wharfage rights concedes to the owner only a riparian wharfage "use." Where another use, here a residential use above the water surface is sought, the Department has jurisdiction to consider the matter on its merits under the statute. Potential difficulties in enforcing the law as to such rights may arise, but the fact of such difficulty, and a lack of potential implementing standards, does not serve to diminish the public right.

Next, I find that the Department did not abuse its discretion in denying residential usage in the storage area of the newly constructed boathouse. Mr. Brad Wilkins testified that on his review, under the statute, he concluded that the project was not in the public interest because: (1) it was not a riparian usage; (2) it would have a detrimental affect upon other riparian5; (3) there were feasible and Prudent alternatives in upland construction available; and (4) the public interest in the property was not greater than the public interest in the degradation of the resource. T, 50-51. Neighbors and other Charlevoix residents testified that the approval of residential use such as petitioner's could reshape the nature of waterfront ownership by encouraging residential construction over the water with resultant detriment to the aesthetic character of the shoreline and loss of view to inland residences. T, 255, 260-262; T,228-230. While petitioner points to some other area properties which were identified as being of a residential character, and were located over the water, they are few in number. Accordingly, their existence does not countervail other evidence of record identifying the nature of the public's interest in avoiding degradation of the resource. The Department was entitled, in its consideration of the public interest in the public trust to consider the precedential effect of its approval of residential use above the public water, taking note that here the boathouse has at all times been presented (i.e., considering-the reservation of the right to appeal) with residential use in mind. The Department is also entitled to consider that upland construction is an available alternative In most instances, as here. I conclude that petitioner has failed to sustain its burden of proof in establishing that the Department's actions were unreasonable. See Lafayette Market & Sales Company v City of Detroit, 43 Mich App 129, 133 (1972), Identifying the pertinent burden of proof.

For reasons indicated above, I conclude and recommend that the action of the Department as indicated in Mr. Wilkins' letter of March 28, 1988, in denying petitioner's petition seeking residential usage over the water on the subject premises, be sustained.

____________________________________
Frederick J Griffith
Administrative Law Judge
Dated:-__________________

1. A photo-copy of the Petition for Contested Case Hearing dated May 3, 1988 by Scott T. Beatty, Attorney at Law for property owner DCW.
2A. A 3 1/211 x 5 1/411 color photograph, no description or date written on photograph.
2B. A 3 1/211 x 5 1/411 color photograph, no description or date written on photograph.
3A. Four 3 1/211 x 5 1/411 color photographs taped together to give a panoramic view of winter scene, film permitted date January 14, 1989.
3B. Two 3 1/211 x 5 1/411 color photographs taped together to give a view of winter scene, film printed date January 1 4, 1989.
3C. A 611 x 411 color photograph, no description or date written on photograph-
4. A 3 1/211 x 5 1/411 color photograph, no description or date written on photograph -

DEPARTMENT EXHIBITS
1. Joint Public Notice dated January 6, 1988. Applicant: Site Planning Inc., Agent for Herbert H. Dow. Process No. 872274A/87-5-351, Section: 10 and 404.
2. Notice of Public Hearing, Michigan Department of Natural Resources, dated February 3, 1988 and signed by Hal F. Harrington, Chief, Lakes and Streams Protection Unit, Land and Water Management Division.
3. Letter from Mr. Gerry Harsch, City Planner, City of Charlevoix to Hal F. Harrington dated May 3, 1989.
4. A black and white photography of aerial photograph of lake and surrounding

INTERVENOR'S EXHIBITS
1. A photocopy of the Application for Permit dated Nov 20, 1987. Agent/Contractor Name: Site Planning Development, Inc. , DNR File No. 87-5-351.
2. A photocopy of a letter sent Certified Mail dated March 28, 1988 to John W. Campbell, Site Planning Development, Inc. from Brad Wilkins, Land and Water management Division, Department of Natural Resources, Gaylord District Headquarters.
3. A photocopy of a letter dated May 26, 1988 to the attention of Brad Wilkins, Michigan Department of Natural Resources f rom H. Traver Wood, III, L. A., Site Planning Development, Inc.
4. A photocopy of the State of Michigan, Department of Natural Resources Revised Permit issued to Traver Wood Campbell, John Permit No. 87-5-351. Issue date June 13, 1988.
5. A photocopy of a letter dated April 28, 1988 Brad Wilkins, Department of Natural Resources from H. Traver wood, III, L. A., Site Planning Development, Inc.
6. A photocopy of a letter dated February 2, 1988 to Mr. H. Traver Wood, III from William H. Davy Jr., Chief, Processing Section A, Regulatory Functions Branch, Department of the Army, Detroit District, Corps of Engineers.
7A. One 8" x 12" color photograph, no description or date written on photograph.
7B. One 8" x 12" color photograph, no description or date written on photograph.
8A. One 4" x 6" color photograph, no description or date written on photograph.
8B. One 4 11 x 611 color photograph, no description or date written on photograph.
9A. One 4 11 x 611 color photograph, no description or date written on photograph.
9B. One 4 11 x 611 color photograph, no description or date written on photograph.