SUBJECT: Part 305, Natural Rivers, Natural Resources and Environmental Protection Act, (NREPA), 1994 PA 451, as amended.

Petition of Donald J. La Liberte

File No. PM-93-19

Dated: March 4, 1999 Richard A. Patterson

Administrative Law Judge

This matter is a contested case concerning the denial by the Pere Marquette River Zoning Review Board of an application for an after the fact variance submitted by Mr. Donald J. La Liberte (Petitioner). The variance is requested to allow for a two story garage and associated concrete pads constructed 49 feet from the edge of the Middle Branch of the Pere Marquette River on Lots 13 and 14 of Watkins Addition, Yates Township, Lake County, Michigan.

The Petitioner timely filed a petition for a contested case hearing on the denial. The hearing was held October 12 and 13, 1998. The Parties were allowed time after the conclusion of the hearing to file written Closing Arguments, affidavits and counter-affidavits. The last of these filings was received by this Tribunal on February 4, 1999.

The hearing was requested under and is governed by Part 305 of the Natural Resources and Environmental Protection Act (NREPA), MCL 324.30501, et seq.; MSA 13A.30501, et seq. Procedurally the hearing was conducted pursuant to the provisions of the Michigan Administrative Procedures Act, MCL 24.201 et seq.; MSA 3.560 (101), et seq.

Pursuant to the Property Rights Preservation Act, 1996 PA 101, MCL 24.421 et seq.; MSA 24.421 et seq., in formulating this Proposal for Decision, the undersigned has reviewed the Takings Assessment Guidelines and considered the issue of whether this governmental action equates to a constitutional taking of property.

The professional staff of the Department of Natural Resources (DNR) is charged with the day-to-day implementation of Part 305 of NREPA. The DNR is represented by John Fordell Leone, Assistant Attorney General. During the hearing the DNR offered the following witnesses; Ms. Janice Fenske, DNR, former Natural Rivers Administrator for the northern half of the lower peninsula; Mr. James Hotelling, Building Inspector for Lake County; Mr. Richard Schwikert, Chair, Pere Marquette Zoning Review Board and President of the Pere Marquette Watershed Council; Mr. Thomas Rozich, DNR, Fish Habitat Biologist and member of the Pere Marquette Natural River Board; Ms. Lori Sargent, DNR, Wildlife Biologist; and Michael J. Wiley, PhD., Associate Professor University of Michigan.

The Petitioner is represented by Mr. Thomas C. Kates of Scottville, Michigan. The Petitioner testified in his own behalf, and also presented the testimony of his wife Gerry; Mr. Roger Beiltuss, former owner of the Baldwin Canoe Livery; Mr. Charles Wolverton, Consultant; and Mr. John R. Weeks, Real Estate Broker.

There were fifty five (55) exhibits entered during the hearing. A list of those exhibits is attached to this Proposal for Decision.

At the commencement of the hearing the parties stipulated that the subject property is regulated pursuant to the Natural Rivers Act and that the rules of the Pere Marquette Natural River Zoning (1992 AACS, R 281.341, et seq.)

I find this stipulation is legally correct, and I adopt it as a finding. Stipulations entered into by the parties shall be used as evidence at the hearing and are binding. MCL 24.278; MSA 3.560(178); Dana Corporation v Employment Security Commission, 371 Mich 107, 110 (1963).

The Natural Resources Commission designated the Middle Branch as a Natural River as being part of the Pere Marquette River system in July of 1978 under the provisions of the then Natural River Act of 1970, now Part 305 of NREPA. MCL 324.30501 et seq.; MSA 24A. 30501 et seq.

Pursuant to §13 of the then Natural Rivers Act, and after public hearings in the counties affected, the Pere Marquette Natural River Zoning Rules were promulgated effective July 15, 1981. The rules were subsequently revised effective July 17, 1992. Respondent's Exhibit O.

The Petitioner testified he purchased the property on land contract in 1981 and is now the fee owner. He described the immediate area as being comprised of large parcels ranging from 10 to 80 acres. The Petitioner testified he considers the Middle Branch nothing more than a "creek". Further, he does not consider it navigable as it cannot be traversed by canoe. Mr. Roger Beiltuss supported this conclusion testifying that, in his years as owner of the Baldwin Canoe Livery, neither he nor, to his knowledge, had anyone else canoed the Middle Branch.

When the Petitioner purchased the property the existing cabin was merely framed in, and he subsequently installed running water and electricity. Mr. La Liberte testified that he believed he had obtained a building permit for these activities, but recalled difficulty obtaining an inspection. The building inspector, Mr. James Hotelling, testified his office had no record of such a permit or application in Mr. La Liberte's name.

In the fall of 1996, the Petitioner built the structure, which is essentially a garage with a storage/living space above, at issue in this case. During the final stages of construction he received a letter from Ms. Janice Fenske dated April 28, 1998, advising the structure was in violation of the Pere Marquette Natural River Zoning Rules. That letter stated, in pertinent part:

It has come to the attention of the Department of Natural Resources that there has been recent activity on the above referenced parcel of property. You have been identified as the legal owner and/or contractor who did the following unauthorized activity:

Constructed a garage and associated cement pads, which do not meet the building setback standard and are within the 75 feet of natural vegetation strip.

A natural river zoning permit must be issued prior to the construction of any structure within 400 feet of the river. Structures which do not meet the building setback standard of 150 feet must receive a variance from the Pere Marquette Natural River Zoning Board before a natural river zoning permit can be issued.

In order to come into compliance with the Natural River Act, you have one of two options. You may remove the unpermitted structure and rehabilitate the site to previous condition. You also have the option of requesting a variance from the Zoning Review Board. I have enclosed an Application for Variance form for your use should you choose to pursue the second option. (Emphasis in original) Respondent's Exhibit A.

The Petitioner chose the latter option and filed an Application for Natural Rivers Variance and forwarded same to Ms. Fenske on May 4, 1997. Respondent's Exhibit B. The letter listed the names of neighbors within 300 feet and stated:

Both buildings are approximately 30-35 feet tall. The new construction sets about 15 feet above the river bed.

I started building my barn last August. I didn't think about a building permit. Because we are out in the woods with very few people around and a fairly long ways off a dirt road, I didn't think it mattered. I didn't think that building a barn on my property was going to be a problem. We have saved our money for a long time to build this barn. Our reason for building this barn now is so that my wife and I can retire and move to our cabin within 2 years. Our cabin and the river mean a lot to us. I will appreciate any help that you can give us.

In response, Ms. Fenske wrote letters to Mr. La Liberte on May 20, 1997 (Respondent's Exhibit C) and again on July 29, 1997 (Respondent's Exhibit D), both of which requested additional information. Mr La Liberte responded to those requests on August 2, 1997. Respondent's Exhibit E. On August 28, 1997, Ms. Fenske sent a certified letter to Mr. La Liberte enclosing a notice that a public hearing on his request for variance would be held on September 15, 1997. Before the public hearing Ms. Fenske prepared a Natural River Program-Permit review Checklist to which she attached a number of documents and pictures. Respondent's Exhibit G. The Petitioner, who attended the public hearing with Mrs. La Liberte, testified that nobody appeared in opposition. The Board voted unanimously to deny the variance and each member completed a form containing their findings on each of the criteria and comments. Respondent's Exhibit I.

Prior to reviewing the application under the statutory criteria, a finding must be made on whether the structure is expressly prohibited under the administrative rules. To that end, the DNR argues that under 1992 AACS, R 281.347 (b)(i)(A), the structure constitutes a second dwelling. That rule states: "[O]nly one dwelling shall be permitted per lot of record". The administrative rules define "single family dwelling" as:

...a detached building, or portion thereof, which is used exclusively for residential purposes, which is designed for, or occupied by 1 family and which contains housekeeping facilities. 1992 AACS, R 281.341(bb)

The definition requires the building be used "...exclusively for residential purposes".

Petitioner's testimony and his statements to the Zoning Review Board, regarding the structures intended use are vague. They indicate that he intended to use the structure for storage, accommodating guests and as an area for his computer. At some point he intends to heat and air condition the structure, and has installed bath facilities. There is no designated kitchen area. There is, therefore, some doubt as to whether the use can be construed as a single family dwelling as defined under the administrative rules. Much of this would depend on Petitioner's actual use. While the configuration of the building lends itself to domestic use, it is designed for multiple purposes other than purely residential purposes.

Based on the foregoing, I find, as a Matter of Fact, the structure should not be considered as being exclusively used for residential purposes and is not a forbidden second dwelling. However, the nature and extent of its use and potential use should and will be considered as a factor under 1992 AACS, R 281.349 (2)(a) considering the substantiality of the variance in relation to zoning requirement.

The issue now becomes whether a variance should be granted to allow Petitioners to maintain the structure. To make that determination each of the six criteria to be considered under 1992 AACS, R 281.349 must be reviewed.

(2)(a) How substantial the variance is in relation to the zoning requirements.

The set back is established under 1992 AACS R 281.347(b)(i)(D) which provides:

Building setback...shall not be less that 150 feet from the ordinary high watermark on...the Middle Branch...The setback may be decreased 1 foot for every 1 foot rise in bank height to a maximum of...75 feet from the ordinary high water mark.

Ms. Fenske measured a 6 foot bank height thereby establishing a 144 foot setback. Respondent's Exhibit G. The structure is only 49 feet from the river bank and, therefore, would require a variance of 95 feet. This computes to a variance of 65% of the required setback.

The greenbelt or vegetation strip on the Middle Branch is at 75 feet pursuant to 1992 AACS R 281.344 (6). The structure, therefore, invades that requirement by some 26 feet.

The limitation on increasing a non-conforming structure is governed by 1992 AACS R 281.350 (4)(a) which states:

The structure shall not be enlarged or altered in a way which increases its nonconformity; however, when a single-family dwelling...is classified as nonconforming, alterations, repairs, and additions, including accessory buildings, may be erected if the gross floor area of all such alterations, repairs, and additions, including accessory buildings, is not more than 50% of the gross floor area of the nonconforming structure, cumulative from the date of nonconformance to the date of the request if any enlargement to a lawful nonconforming structure, to the extent possible, is in compliance with all setback and other building requirements. Expansion of a lawful, nonconforming structure shall be treated as a variance pursuant to the provisions of R 281.349. (Emphasis supplied)

The structure is clearly an accessory building under 1992 AACS R 281.341(b). According to the sketch prepared by Ms. Fenske the building has a footprint of 36 by 24 feet for a total square footage of 840 square feet. Respondent's Exhibit G. The existing cabin is shown to have a footprint of 24 by 30 feet for a total square footage of 720 feet. Therefore, the increase in square footage computes to 116%, which is, obviously, greatly in excess of 50%. As previously addressed, the building also presents the potential for additional living space. While the Petitioner has been unspecific regarding his precise intentions, the potential of the building being utilized for dwelling purposes substantially varies from the spirit of the zoning requirements should that come to fruition.

Because the structure exists well within the required set back by almost 100 feet; invades the greenbelt or natural vegetation strip by some 26 feet; is greatly in excess of 50% of the pre-existing structure; and is designed for and can potentially be used as a dwelling, I find, as a Matter of Fact, the structure is substantial in relation to all of the above considerations.

The next consideration is 1992 AACS R 281.349(2)(b), which states:

(b) Whether a substantial change will be affected in the character of the area or a substantial detriment created for adjoining properties.

Mr. John R. Weeks, a local realtor, testified that in his opinion the building would not negatively effect property values or change the character of the neighborhood. A large barn type structure, which was allowed by the Zoning Board, is present on adjacent property owned by Mr. Penny. Exhibit 11. The Petitioner also presented photographs of other buildings and structures in close proximity to the stream. Exhibits 19-24 and 26-29. Mr. Scott Gumser, owner of the property immediately upstream of the Petitioner's parcel, filed an affidavit objecting to Petitioner's structure because of its large size, vinyl siding and its proximity to the river. However, the photographs attached to the affidavit of the Petitioner show this structure is barely visible from the Gumser property. It would appear the Mr. Gumser's concerns are more of a subjective and aesthetic nature and do not elevate to a substantial change in the character of the area.

Based on the foregoing, I find, as a Matter of Fact, that the building neither substantially changes the character of the area nor constitutes a substantial detriment for adjoining properties.

The next analysis turns to AACS, R 281.349 (2)(c), which states:

(c) Whether the difficulty can be overcome by some feasible method other than a variance.

The feasibility of physically moving the building or the cost thereof was not addressed in detail on the record. The Petitioner's consultant, Mr. Charles Wolverton, testified that he saw no other location on Petitioner's property that would allow compliance with the rules or that was not wetland. Therefore, I find, as a Matter of Fact, that a structure of this size on this parcel can only be maintained by a variance.

1992, R 281.349 (2)(d) states:

Whether, in view of the manner in which the difficulty arose, and considering all of the factors specified in subdivisions (a) to (c) of this subrule, the interest of justice will be served by allowing the variance.

There is no question on this record that the difficulty arose solely through the actions of the Petitioner. Although he disclaims having any knowledge of the Natural Rivers rules, he has admitted being aware of the requirement of a building permit and that the did not apply for one. Mr. Hotelling testified that if Petitioner had so applied for a building permit he would have been advised of the Natural Rivers requirements. Therefore, if Petitioner had complied with the law he would have been informed and could have dealt with the rules in a proactive manner. The interests of justice would clearly not be served by allowing a person who, at worst, may have knowingly and deliberately violated the law or, at best acted in ignorance, relief. Rigo v. De Gutis, 341 Mich 126, 67 NW2d 224 (1954). I find, as a Matter of Fact, that the interests of justice would not be served by granting the Petitioner an after the fact variance under these circumstances.

1992, R 281.349 (2)(e) states:

Whether the plight of the landowner is due to circumstances which are unique to his or her property and which are not created by the landowner.

The circumstances are not unique to Petitioner's property and his plight has been created solely through his own unpermitted activities and I so find, as a Matter of Fact.

1992, R 281.349 (2)(f) states:

Whether the variance may result in a material adverse effect on the environment.

Ms. Fenske testified that creating an impervious surface in proximity to the stream would lessen absorption of run off, especially in a deluge. In addition, sanctioning such a structure created a precedent for what she termed "unwise building practices".

In addition to the testimony of Janice Fenske, the principal witness espousing environmental concerns was Michael J. Wiley, Ph.D. Dr. Wiley is an associate professor at the University of Michigan with expertise in river and flood plain hydrology and plant and animal aquatic corridor life forms. Although he was never on site, he reviewed numerous documents and data as well as pictures and a video. His major concern in this case was the displacement of what he termed the water dissipation buffer with an impervious surface. The result of the Petitioner's activities is an increased run off of precipitation and accelerated delivery of water to the stream. This, in turn, can result in disruption of rooted plant communities on the stream bottom which can effect insect production, food supply and ultimately, a loss of species diversity. These considerations could also be exacerbated by the existence of a vertical channel incision or deepening of the banks which he testified was present in the stream.

To the contrary, Mr. Wolverton testified that from his observation of the building and surrounding area no indication is present of any evidence of run off from the building to the stream. He observed only a trough where the water came off the eaves. He did not notice any negative impacts to the stream habitat. Dr. Wiley applied the HEC hydraulic modeling system. (Exhibit R-AA). Based on that, he testified the contribution of the subject building to the increase or acceleration of run off to be calculable but "very small" and that he would be worried if you "began to approach a hundred such units in the watershed". (Transcript, October 13 page 176-178).

Ms. Lori Sargent testified as to wildlife considerations and concerns involving fragmentation of habitat. She viewed the videotape of the area in question but had not been on site. (Exhibit R-U). She was of the opinion that such a building can serve to displace certain species and that a single building could have some effect on species such as mice and insects in the immediate area. That, to her, is material. She assumed a greater disruption of the canopy than had actually occurred and acknowledged that future building (i.e. 50 buildings on each side of the stream every 300 yards or so) would have a substantial impact. Her concerns were general and speculative and do not constitute a basis for concluding a significant wildlife impact.

The testimony of Ms. Fenske and Dr. Wiley, in sum, is more concerned with the potential establishment of unwise development patterns. The prevention of these is a purpose and intent of the rules under 1992 AACS R 281.341(1)(a). Variances are made subject to the general purposes and intent of the rules under 1992 AACS R 281.349 (1). While the building on Petitioner's property, in and of itself, would not appear to materially adversely effect the environment the structure, if allowed, could create a potential for the continuation of unwise development patterns and I so find, as a Matter of Fact.

Based on the Stipulations of the Parties and the Findings of Fact, I conclude, as a Matter of Law, the following:

1. Petitioner's property is on the Middle Branch, a part of the Pere Marquette River system and subject that river's Natural Rivers designation and Natural Rivers Zoning Rules.

2. That a variance is necessary to maintain the structure.

3. That under the criteria of Rule 281.349 governing variances, the variance should be denied for the reasons stated in the Findings of Fact. Specifically, the variance would be substantial in relation to the zoning requirements and the difficulty and plight of Petitioner arose solely through his failure to obtain a building permit or ascertain the existence of Natural Rivers Zoning. Therefore, justice would be ill served by awarding a variance after the fact.

It is proposed that the Natural Resources Commission issue a final order denying the variance.

Dated: March 4, 1999

Richard A. Patterson

Administrative Law Judge

RE: Part 305, Natural Rivers, of the Natural Resources and Environmental Protection Act (NREPA), 1994 PA 451, as amended.

Petition of Donald J. La Liberte

File No. PM-97-8

Respondent's Exhibits

A Letter to Donald La Liberte dated April 28, 1997 from Jan Fenske, Rivers Administrator, Northern Lower Peninsula, Michigan Department of Natural Resources [MDNR].

B Letter to Jan Fenske dated May 04, 1997 from Donald La Liberte.

C Letter to Donald La Liberte dated May 20, 1997 from Jan Fenske.

D Letter to Donald La Liberte dated July 29, 1997 from Jan Fenske.

E Letter to Jan Fenske dated August 02, 1997 from Donald La Liberte.

F Certified letter to Donald La Liberte from Jan Fenske.

G Natural River Program -- Permit Review Checklist for File Number: PM97-8 and Date File Received: May 7, 1997.

H Draft Minutes (Approved October 20, 1997), Pere Marquette River Zoning Review Board Meeting, September 15, 1997, 4:30 p.m., Pleasant Plains Township Hall, Baldwin.

I Seven pages, signed by various Zoning Review Board Members on various dates and labeled: Consideration of Dimensional Variance Application No. PM97-8.

J Letter to Donald La Liberte dated September 16, 1997 from Jan Fenske.

M Report of Site Investigation and Recommendations, November 10, 1997, prepared for: Ronald Wilson, Attorney at Law, Scottville, MI. Prepared by: Charles L. Wolverton, Northern Ecological Services, Inc., Reed City, MI for Petitioner.

O A copy of the rules for the Department of Natural Resources, Land and Water Management Division, Pere Marquette River Natural River Zoning

P Photocopy of Supreme Court case, January Term, 1853, entitled, Moore v. Sanborne et al., Page 590 - 603.

Q Photocopy of case, January Term 1889, George W. Roby Lumber Company (A Corporation) v. Edgar L. Gray., Pages 356 - 363. (Also labeled 73 Mich 356.)

S Resume for Lori G. Sargent, MDNR, Wildlife Division.

U VCR tape labeled: John Leone, Natural Resources, Original, La Liberte Property (Original).

W Photograph envelope, labeled DNR, Forest Management, containing 4" x 6" colored photographs labeled W1 - W14 of the area.

Z Resume for Michael J. Wiley.

AA Computer generated diagram, captioned: HEC-HMS, Project: pm, Basin Model 3_basinsbest.

BB USGS, Historical Streamflow Daily Values Graph for Pere Marquette River at Scottville, Mich.. (04122500), dated October 9, 1998.

CC Diagram entitled, Upper Pere Marquette: MRI-VSEC Ecological Units.

DD Diagram, Page 33 of 35, dated Tuesday, October 13, 1998.

Petitioner's Exhibits

1 Colored photograph, 4" x 6".

2 Colored photograph, 4" x 6".

3 Colored photograph, 4" x 7".

4 Letter to Donald La Liberte dated April 28, 1997 from Jan Fenske.

5 Letter to Donald La Liberte dated July 29, 1997 from Jan Fenske.

6 Application for Natural River Variance signed by Donald J. La Liberte on May 04, 1997.

7 Letter to Donald La Liberte dated July 29, 1997 from Jan Fenske.

8 Photocopy of a diagram.

9 Draft Minutes (Approved October 20, 1997), Pere Marquette River Zoning Review Board Meeting, September 15, 1997, 4:30 pm, Pleasant Plains Township Hall, Baldwin.

10 Large aerial photo of the area, Section 10, Yates Township, Lake County.

11 Various Colored Photographs.

29

30 Draft Work Product by Charles l. Wolverton, dated March 25, 1998. Donald La Liberte Natural Rivers Act Violation Report.

31 Resume of Charles L. Wolverton, PWS, President and CEO, Northern Ecological Services, Inc.

32 Law Enforcement Division, Public Rights on Michigan Waters.