IN RE: Natural Rivers Act 231
Appeal of Irene MacDougall
File No. 89-26C

The Natural Resources Commission, having considered the Proposal for Decision dated April 18, 1991, 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 is 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. 89-26C, dated April 18, 1991, attached hereto.)

_____________________ ____________________________
Date Marlene J. Fluharty, Chairperson
Natural Resources Commission

IN RE: Natural Rivers Act 231
Appeal of Irene MacDougall

File No. 89-26C

April 18, 1991
William C. Fulkerson
Administrative Law Judge

This matter is a contested case concerning the application of Irene MacDougall to construct a foot-bridge across the Pere Marquette River in an area subject to Natural River Zoning.

The hearing was conducted pursuant to 1970 PA 23 1, the Natural Rivers Act and the Pere Marquette River Natural River Zoning Rules.

The professional staff of the Department of Natural Resources is charged with the day-today implementation of the Pere Marquette River Natural River Plan. Irene MacDougall requested a hearing pursuant to the Natural Rivers Act.

The Petitioner and two others own an eighty acre parcel of land in Lake Township, Lake County, Michigan. This property has been in the MacDougall family since about 1910. The Pere Marquette River transacts the property diagonally from the northwest to the southeast. Approximately thirty acres are situated to the west of the River and fifty acres are on the east side. The Petitioner's dwelling and road access are situated on the west portion of the property. The east fifty acres of the property is not accessible by public road. Access to this portion of the property may be gained by using a two-track road which crosses several privately owned parcels. From the Petitioner's dwelling on the west side of the property it is approximately five miles by road to the east side of the parcel.

The Petitioner testified that there has been a foot-bridge across the River, to the east of her home, for about eighty years. At the foot-bridge location, the Pere Marquette River is approximately 60 feet wide and up to 6 feet deep.

In September of 1986 a large flood occurred which detached the bridge from the west bank of the River. The bridge remained affixed to the east bank. During this flood the River rose over the "high bank" on the west side and flooded the Petitioner's dwelling, causing extensive damage. Testimony revealed that thirteen public bridges in Lake County sustained damage during this flood. After the flood waters receded the Petitioner used most of her money to repair the house. Because most of the bridge remained intact, a tractor was used to pull it to the west bank. Once the bridge was secured, the decking and runners were then removed and stored in preparation for repair. The Petitioner testified that she intended to repair it in the fall but that her youngest son, the only person available to help, broke an ankle and could not assist in the repair. Her son was disabled for about nine months. The Petitioner testified that trespassers and off-road vehicles began frequenting her property on the other side of the River and she had no way to police it, but to make the five mile drive crossing private property.

Testimony was offered that an inventory of the bridge materials revealed that damage consists of 6 to 8 pieces of decking, 3 cross supports, cracked cedar pilings, and a couple of planks. An estimate of the cost of these materials is $95.51 as quoted by a local lumber company. The value of the materials in the bridge, before the flood, was estimated to be $768.34. Therefore, the flood destroyed about 12% of the bridge materials. Labor needed to complete the repairs was estimated at 1 and ½ to 2 days for 2 workers. Total labor cost to construct the entire bridge before the flood was estimated to be 4 to 5 days for 2 workers. Therefore, labor cost to repair damage to the bridge, is less than 50% of that for construction of the entire original bridge.

By reference to the Respondent's Exhibit 5 and testimony presented at the hearing, it is established that the two-track road leading to the east side of the Petitioner's property crosses 13 parcels of private property. The Petitioner and her witnesses testified the two-track road does not go through to the east side of her property, the Department's witnesses testified that it does. It is undisputed that the road does go as far as the Petitioners niece's 20 acre parcel, which is contiguous to that of the Petitioner. However, this two track road, nonetheless, transacts several private parcels the owners of which may terminate access at their discretion. Further, the Petitioner's niece could sell her parcel to a person who may not allow the Petitioner access. The Petitioner's east 50 acres is legally land-locked, except for permissive use of the two-track road and the subject foot-bridge. The Petitioner's real estate expert, a local broker, testified that the entire eighty acre parcel is worth 30% to 50% less if the acreage east of the River remains land locked.

The Pere Marquette Natural River Zoning became effective in 1981. Any structure existing at that time was entitled to remain. The parties stipulated to the fact that the foot-bridge at issue existed before the effective date of the zoning rules. Any structure damaged to an extent of greater than 50% of its value, requires a "Special Exception" to the zoning rules for its reconstruction. An Inland Lakes and Streams Act permit is also required. "Special Exception" requests are sent to the Zoning Review Board. The Board may or may not conduct a Public Hearing on the application . The Zoning Review Board denied the Petitioner's request by a vote of 4 to 2, leading to this administrative appeal. The application was denied because the intent of the Natural Rivers Act is to assure a designated river remain in as natural condition as possible. The Act's goal is accomplished by established set-backs for structures, vegetation buffers, and limitations on activities within sight of the designated watercourse. The Department's opinion is that the repair of the foot-bridge across the Pere Marquette River is inconsistent with maintaining its natural character. Additionally, a foot-bridge is not necessary for access to the east side of the River because the Petitioner has permissive access across private property by driving only five miles. The Department's witnesses expressed concern about both stream and bank erosion as a result of the foot-bridge. However, structures existing prior to the implementation of the Zoning Plan have a right to remain and, if damaged, have a right to be rebuilt under certain conditions. In denying the permit, the Department also asserts that pursuant to the Zoning Rules, the Petitioner was required to begin restoration of the foot-bridge within 1 year from the time of the damage. It asserts that the Petitioner did not do so and, therefore, is not entitled to a permit.

I find, as a matter of fact, that: (1) the Petitioner's foot-bridge is a pre-existing structure as defined by the Pere Marquette River Natural River Zoning Rules; (2) the structure was damaged to an extent of less than 50% of its value by the September 1986 flood; (3) the Petitioner's delay in beginning reconstruction of the foot-bridge is not unreasonable, in light of the facts and circumstances of the matter; (4) the Petitioner was not required, by Zoning Rules, to begin reconstruction within 1 year of the flood because the structure sustained less than 50% damage; (5) the Petitioner has no legal access, other than the foot-bridge, to reach the majority of her property.

1. The Natural Rivers Act, 1970 PA 231, provides at section 3:

The commission, in the interest of the people of the state and future generations, may designate a river or portion thereof, as a natural river area for the purpose of preserving and enhancing its values for water conservation, its free flowing condition and its fish, wildlife, boating, scenic, aesthetic, flood plain, ecologic, historic recreational values and uses.

2. Rule 10(3) of the Natural River Rules for the Pere Marquette River, R 281.110(3), Nonconforming Uses provides:

(3)  The granting of a special exception permit is required for the restoration of a nonconforming building or structure damaged or destroyed by more than 50% of its value due to flood. . .

3. I conclude, as a matter of law, that the reconstruction of the Petitioner's foot-bridge across the Pere Marquette River is an allowed nonconforming use. The Findings of Fact support that the bridge was damaged in the 1986 flood by less than 50% of its value. Rule 10(3) does not specify a time-frame in which reconstruction of a structure damaged less than 50% of its value must begin. In such cases, rules of statutory construction dictate that a "reasonable time" is an appropriate time-frame. This rule of statutory construction in Michigan dates back to 1842, in the case of Attorney General v The Bank of Michigan,Harr Ch (Mich) 315, 328. The court stated: "Where no time is prescribed in which an act is to be done, it must be done in a reasonable time . . . " Therefore, a "Special Exception", pursuant to subsection 10(3) of the Pere Marquette River Natural River Zoning, is not required to reconstruct the Petitioner's foot-bridge.

Based on the above, pursuant to the Natural River Zoning for the Pere Marquette River, a permit is not required for the reconstruction of the Petitioner's foot-bridge.
 

Dated: ___________________________
William C. Fulkerson
Administrative Law Judge

PETITIONER'S EXHIBITS

A. Photograph of foot-bridge as it existed in July of 1979.
B. Photograph of foot-bridge as it existed after the 1986 flood.
C. Permit under the Inland Lakes and Streams Act for 314 cubic yards of field stone along 349 feet of river bank on Petitioner's property; approved 05/09/88.
D. Similar permit as Exhibit C above for a different portion of Petitioner's river bank property; approved 05/09/88.

RESPONDENT'S EXHIBITS

1. Notice of Special Exception Application, with attachments, December 16, 1988.
2. Application for Special Exception, with attachment, October 11, 1988.
3. Pere Marquette River Natural River Plan, July 1978.
4. Letter, to the Land and Resources Programs Supervisor, from Owen Gusher, District Ranger, opposing construction of Petitioner's foot-bridge, December 2, 1988.
5. Copy of Plat Book page showing location of the Petitioner's property, a copy of an aerial photograph of the property, a hand-drawn location map, and a handdrawn plan view of the replacement bridge.
6. Letter, to David G. MacLean, from Irene MacDougall, re: reasons for repair of the foot-bridge, January 12, 1989.
7. Minutes of the Pere Marquette Natural River Zoning Review Board Meeting denying Petitioner's application, January 20, 1989.
8. Pere Marquette Natural River Zoning Review Board ballot accounting, re: denies Petitioner's application, January 22, 1989.
9. Letter, to Irene MacDougall, from David G. MacLean, re: denial of application, January 30, 1989.
10. Determination of Review Board regarding Petitioner's application, January 20, 1989.
11. Letter, to Irene MacDougall, from Charles L. Wolverton, re: right of appeal, February 10, 1989.
12. Petition for Contested Case Hearing, April 10, 1989.
13. General Memorandum of understanding between the State of Michigan, Department of Natural Resources and the Forest Service, United State Department of Agriculture concerning plan preparation and management of the Pere Marquette National Scenic River Area.
14. Forest Service Plan for Pere Marquette Natural River, page 16, discouraging food-bridges.
15. Chronology of events in the Petitioner's case.
16. Agreement among owners of property in Section I of Lake Township, Lake County, Michigan, re: locked gates, September 18, 1989.