STATE OF MICHIGAN

NATURAL RESOURCES COMMISSION

SUBJECT: Part 305, Natural Resources and Environmental Protection Act

(NREPA), 1994 PA 451 as amended, Natural Rivers.

Petition of William E. Medendorp

File Nos. B93-7 and B 93-16

FINAL DETERMINATION AND ORDER

The above-captioned matter was the subject of a contested case hearing resulting in the issuance of a proposal for decision (PFD) dated March 23, 1998. The Department of Natural Resources (Department) filed its exceptions to the PFD on April 24, 1998. The matter is now before the Natural Resources Commission for a final agency decision pursuant to the Administrative Procedures Act.

The application request in this matter was filed under the provisions of Part 305 of the Natural Resources and Environmental Protection Act, MCL 324.30501 et seq, MSA 13A.30501 et seq, and its administrative rules.

On May 14, 1998, the Natural Resources Commission heard oral argument in this matter by both counsel for the Department and the Petitioner.

In rendering this Final Determination and Order, the Natural Resources Commission has considered the proposal for decision, the exceptions filed on behalf of the Department, exhibits, pleadings, and arguments of the parties.

Determination

The Natural Resources Commission REJECTS the Proposal for Decision dated May 23, 1998, and adopts the proposed Findings of Fact and Conclusions of Law set forth in the Exceptions filed by the Department to the Proposal for Decision dated April 24,1998.

THEREFORE, IT IS ORDERED:

1. The Proposal for Decision dated November 3, 1997 is hereby REJECTED, as provided in this Final Determination and Order.

2. The Request for a Variance is DENIED.

3. The Natural Resources Commission does not retain jurisdiction in this matter.

Dated:

Keith J. charters, Chairman

Natural Resources Commission

STATE OF MICHIGAN

DEPARTMENT OF NATURAL RESOURCES

OFFICE OF ADMINISTRATIVE HEARINGS

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

Petition of William E. Medendorp

File No. B93-7 and B93-16

PROPOSAL FOR DECISION

Dated: March 23, 1998 Richard A. Patterson

Administrative Law Judge

This matter is a contested case concerning the petition of William E. Medendorp (Petitioner) for review of his request for a variance from the Betsie River Zoning Natural Rivers Zoning. The variance was initially sought to allow the construction of a 28 foot by 5 foot addition to an existing house and a 24 foot by 40 foot pole barn in place of an existing shed. While the addition to the house was allowed, the pole barn was denied by the Betsie River Zoning Review Board (Board). Petitioner subsequently revised the proposal to construct a 20 foot by 20 foot addition to an existing shed. That proposal was denied by the Zoning Administrator and is the subject of the hearing which was held on May 30, 1997.

JURISDICTION

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

STANDARD OF REVIEW

The Department of Natural Resources asserts this matter should be limited to a review of the Board's action. Further, it argues the decision should be overturned only if the Board acted in an arbitrary and capricious manner. The proceeding before the Board does not provide a full factual record, consisting of sworn testimony and exhibits. Thus, there is no complete record of the Board's decision which can be reviewed under any standard. Second, 1992 AACS, R 281.352 is clear in providing for a contested case hearing under the Administrative Procedures Act, 1969 PA 306, as amended; MCL 24.201 et seq.; MSA 3.560(101) et seq. The issue in this case is whether Mr. Medendorp is entitled to a variance from the Betsie River Natural River Zoning Rules. The purpose of this contested case hearing process is to provide the Petitioner with a de novo review of his request for a variance. The hearing in this matter occurred in a setting where a formal record was created. Based on that record, a final agency decision will be rendered on Mr. Medendorp's request for a variance. MCL 24.285; MSA 3.560(185). That decision is subject to appeal in the circuit courts, pursuant to the Administrative Procedures Act, once all administrative remedies are exhausted. Based on the foregoing, I conclude, as a Matter of Law, the proper standard of review in this case is de novo.

PARTIES

The professional staff of the Department of Natural Resources (Department) is charged with the day-to-day implementation of Part 305 of NREPA. The Petitioner timely filed a petition for a contested case hearing from the Board's denial of the aforementioned variance.

William E. Medendorp appeared in propria persona and testified on his own behalf. In addition, Mr. Albert Miller testified on behalf of Petitioner.

Respondent Department is represented by Mr. John Fordell Leone, Assistant Attorney General. Mr. Douglas Carter, DNR, Forest Management Division, Natural Rivers Specialist; Ms. Janice Fenske, DNR, Fisheries Division, Natural Rivers Zoning Administrator; Mr. David A. Neiger, Benzie County Planner; Mr. Mark Eidelson, Landscape Architect and Planner and Ms. Lori Sargent, DNR, Wetland Biologist, Wildlife Division, testified on behalf of the Department.

Petitioner entered 7 exhibits and the Department entered 12. A list and description of those exhibits is attached to this Proposal for Decision.

PROCEDURAL HISTORY

The Betsie River Natural Rivers Plan (Plan) was adopted and the river was designated as a wild-scenic river by the Natural Resources Commission on August 10, 1973. Therefore, the property is subject to the Betsie River Natural River Zoning Rules (Exhibit Dept. 2). Petitioner does not dispute the Department's jurisdiction.

Petitioner is the owner of Lots Number 1 and 129 of Old Grade Crossing Subdivision which is located in Springdale Township, Manistee County, Michigan. The lots are large and rectangular and abut on the narrow end. Lot 1 is improved and located to the north of Lot 129. Lot 1 has 584 feet of frontage on the Betsie River. The existing house and shed on Lot 1 are closer to the river bank than the required building set backs under the Natural River Zoning Rules. However, both buildings are legal non-conforming structures, as they have existed previous to the Betsie River's Natural Rivers designation and regulation. The proposed additions or replacements are, therefore, subject to the limitations of 1992 AACS, R 281.140, which, in pertinent part, 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 building, is not more than 50% of the gross floor area of the nonconforming structure... Expansion of a lawful, nonconforming structure shall be treated as a variance pursuant to the provisions of R 281.139. 1992 AACS, R 281.140 (4)(a).

The Petitioner submitted an application for variance on April 16, 1993 to allow for the construction of a 28 by 5 foot addition to the landward side of the existing residence and a 24 by 40 foot pole barn to replace an existing 12 foot by 12 foot shed. Exhibit D-4. The application was placed on public notice and a public hearing was held on June 1, 1993 by the Betsie River Zoning Review Board. The Board granted the Petitioner a variance to construct the addition to the house. The variance to allow construction of the pole barn was denied for the following reasons:

1. The variance requested was a substantial variance relative to the zoning standard (involving a deviation of 65 feet from the 185 foot structural setback as well as a 90% increase in the existing floor space of an non conforming structure which allows only a 50% increase.

2. The difficulty could be overcome by some feasible method other than a variance in that Petitioner has sufficient area on his property to construct the pole barn in conformance with the required setback.

3. The difficulty is not due to circumstances unique to the property, but rather was created by the landowner. (Exhibit D-3).

Mr. Medendorp again applied for a variance on June 16, 1993, to construct an addition to the existing 12 foot by 12 foot shed, which is located in the same location as the formerly proposed pole barn. That request was denied by the State Natural Rivers Zoning Administrator in that, in her opinion , it did not represent a substantial change from the original proposal. (Testimony of Janice Fenske).

FINDINGS OF FACT

The sole issue in this contested case is whether the revised 1993 application for a variance to construct an addition to the existing storage building should be approved. The application proposed an addition of 20 by 20 feet to the existing 12 by 12 foot shed, for an increase of 400 square feet. The proposed 28 by 5 foot addition to the existing 1224 square foot residence would add an additional 140 square feet to that structure. Thus, both projects constitute a total addition of 540 square feet. The total additions would, therefore, involve a 44% increase in the gross floor area, an amount which is within the 50% limitation set in 1992 AACS, R 281.149 (4)(a).

While the total square footage of both projects is within the amount allowed under the rules, the proposal to construct an addition on the existing storage building necessarily entails it being within the required setbacks from the Betsie River. The Betsie River initially flows by Petitioner's property on the north and bends to the south on the western portion of the property. The proposed structure would be approximately 110 feet from the river to the north, where the set back is 185 feet (as adjusted to factor in the bank), and approximately 127 feet from the river on the west, where the set back is 200 feet. (Exhibit D-3). it is not disputed that the proposed addition to the existing storage building would be closer to the river than the required setbacks. However, the Petitioner denies that the building would be visible from the river anymore than the existing non-conforming structure. Additionally, he also does not contest the fact that a storage building could be placed farther back on the property and thus be beyond the set back. However, he expressed a concern that if the structure is placed further from the cabin, the risks of break-ins, which he testified has occurred twice before, will increase.

The Petitioner entered evidence of two physical conditions which limit his mobility as an additional reason for having the storage structure closer to the cabin. In addition to arthroscopic pictures of his right knee showing the condition before and after surgery, (Exhibits P-2 and P-3), he submitted three letters from treating physicians (Exhibits 2-4, P-5 and P-6) attesting to a problem with the knee. The knee problem, together with the replacement of his aorta and femoral vessels and resultant neurological damage, makes traversing uneven ground and walking long distances difficult for him. However, as compelling as those reasons may be, Mr. Medendorp's physical condition is not a proper basis upon which to grant a variance. The consideration must be limited to conditions of the land itself. Davenport v Grosse Pointe Farms, 210 Mich App 400, 534 N.W.2d 143 (1995).

Therefore, the proposal must be analyzed as to its impact as an addition to a non-conforming use which exists within the required setback. As previously indicated, the increase in square footage is within the allowable increase for non conforming uses. Much testimony concerned the effect the requested building might have on cumulative impacts or what was termed "unwise building patterns". There was also testimony and argument as to the effect of a decision which might undermine the Board's decision regarding future activity in the Betsie River Natural River District. While the Department's concerns regarding cumulative impacts are with merit, they are best addressed to new building and development as opposed to enhancement of a non-conforming use. In support of this finding it is noted that the rationale for distinguishing the limited expansion of non-conforming structures, as opposed to new building, is clearly expressed in the initial paragraph of 1992 AACS, R 281.140, which states:

It is recognized that there exists, within the natural river district, lots, structures, and uses of land and structures which were lawful before these rules were promulgated or amended and which would be prohibited, regulated, or restricted under the terms of these rules or future amendments. It is the intent of these rules to permit nonconforming uses, structures, or lots to continue until they are brought into conformity and, in certain instances, to permit the limited expansion of certain legal nonconforming uses and structures.

In order to complete its review of the Petitioner's request, this Tribunal must address the criteria for review contained in 1992 AACS, R 281.139 governing variances and, particularly subsection (2) regarding dimensional variances.

Each of these six criteria contained in 1992 AACS, R 281.139 governing variances is discussed below.

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

As previously indicated, the proposed 20 x 20 addition to the storage shed is within the 50% limitation of increases to non-conforming uses. It does, however, constitute an increase of more than 2½ times the size of the existing shed. Confining the analysis to the shed itself, as opposed to the increase of the total non conforming living area on the property, it is substantial. As previously indicated, there are two set backs applicable, of which the proposed structure would encroach in two directions by 65 and 73 feet. The encroachments into the set backs are, therefore, substantial in both respects.

I find, therefore, as a Matter of Fact, that the proposal is substantial in relation to the zoning requirements.

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

There is a structure in place to which the addition would be built which has been there previous to the Natural Rivers designation. A review of the testimony and exhibits, particularly Exhibit D-12, indicates the existing shed is barely visible from the river, while the residence is a larger structure and closer to the river bank. Additionally, Mr. Medendorp testified that during a site visit by the Board members, they could not see the structure from the shore. There was no testimony as to the effect on adjoining properties. However, the Petitioner owns a substantial amount of property, which would militate against any direct impact on adjoining properties. I find, therefore, as a Matter of Fact, there would be no substantial change in the character of the area or any material effect on adjacent properties.

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

Petitioner acknowledges there is room to build the proposed structure in compliance with the set back requirements. Although the precise location of the alternative site was not Miller estimated the walk alternative site was not determined on the record, Mr. Miller estimated the walk would entail approximately 200 feet. I find, therefore, as a Matter of Fact, that the difficulty can be overcome by a feasible method other than a variance.

(d) 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 interests of justice will be served by allowing the variance.

While it may seem to serve the interests of fairness and justice to allow the variance, the law is clear that Mr. Medendorp's physical condition cannot be a proper legal basis for a variance. In light of such a clear and unequivocal pronouncement, to contravene that will not serve the interests of justice. Essentially, what Mr. Medendorp is requesting is an accommodation of a temporary situation which necessarily entails a permanent structure that will run with the land and transcend his ownership and use of the property. I find, as a Matter of Fact, that allowing the variance will not serve the interests of justice on the basis of Mr. Medendorp's physical condition alone. But, I find, by allowing the variance based on the purpose and intent of the Rules as later analyzed, the interests of justice would be served.

(e) Whether the plight of the landowner is due to circumstances which are unique to his property and which are not created by the landowner.

The plight of Mr. Medendorp is not due to circumstances on the property, but to him physically. He did not create his condition, but rather is a victim of physical infirmities which limit his mobility. He is also motivated to place the structure close to- the house for security reasons. These circumstances are unique to him, but not to the property. I find, as a Matter of Fact, that the Petitioner's plight is not due to circumstances unique to his property.

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

The Department engaged in considerable testimony regarding perceived adverse environmental impacts. Ms. Lori Sargent is a wildlife biologist who reviewed the pictures of the property and determined it to be part of a riverine corridor which she described as a sensitive ecosystem in which plants and wildlife are linked. She testified the Department is currently reviewing endangered species and that their number appear to be on the increase. She speculated that the building of structures could effect loss of habitat. However, these were general considerations and not related to this particular site. Mr. Medendorp testified that skunks, woodpeckers, ducks, and deer are evident on the premises.

Ms. Janice Fenske, Natural Rivers Zoning Administrator; Mr. David Neiger, co-chair of the Betsie River zoning review board and Mr. Mark Eidelson, planner and landscape architect, all testified to their concern of fostering unwise building patterns and the cumulative environmental impact inherent in such activities. While the prevention of unwise "development" patterns is a purpose of the Betsie River zoning rules under 1992 AACS, R 281.132 (1) (a), the Petitioner's proposal can hardly be considered as developing an unwise pattern. Rather, he is developing nothing and merely desires to improve upon an existing non-conforming use.

The testimony as to wildlife impact was, at best, speculative. Ms. Sargent admitted she could not address Petitioners specific proposal and did not know what species are present. I find, therefore, there is no proof on this record to support any finding of an adverse environmental impact.

Of the six criteria enumerated in the rules, three, (a), (c), and (f), favor the issuance of a variance and three,(c) and (d), and (e), do not. None of the criterion is an absolute prohibition if it is found to be adverse. Rather, these considerations are to be utilized in weighing the need and propriety of a variance. For instance, the finding of the existence of a feasible alternative is not an absolute prohibition as it might be under other statutes, but only one consideration. Here, where the criteria are balanced the final analysis must involve consideration of the purpose and intent of the rules. As stated in 1992 AACS, R 281.139:

A variance shall be permitted only when it is consistent with the general purpose and intent of these rules.

Purpose and intent of the rules are outlined in 1992 AACS, R 281.132 and state they are:

(a) To promote the public health, safety, and general welfare, to prevent economic and ecological damage due to misuse, unwise development patterns, overcrowding, and overuse within the natural river district, and to preserve the values of the natural river district for the benefit of present and future generations.

(b) To protect the free-flowing condition, fish and aquatic and wildlife resources, water quality, scenic and aesthetic qualities, and historical and recreational values of the Betsie river and adjoining land.

(c) To prevent flood damage due to interference with the natural floodplain characteristics by excluding developments which are vulnerable to flood damage and which may reduce the capacity of the floodway of the river to withstand flooding conditions

(d) To provide for uses that complement the natural characteristics of the natural river system.

(e) T o protect individuals from investing funds in structures that are proposed for location on lands which are unsuited for such development because of high groundwater, erosion, or vulnerability to flood damage.

(f) To achieve the goals and objectives of the Betsie river natural river plan.

Subparagraphs (c) and (e) are not relevant as the proposal would have no effect on those considerations. There is no evidence on this record to indicate that this proposal will interfere with the floodplain characteristics, that high groundwater exists or that the structure will impact erosion or flood risks.

As previously indicated, the proposal is an enlargement of an existing non-conforming use which does not exceed the size allowed by the rules. I find, as a Matter of Fact, the proposal would have no effect on public health or general welfare. I further find, as a Matter-of Fact, that it will not promote economic or ecological damage, is not a misuse of the property nor does it foster an unwise development pattern. I find the a variance will not result in overcrowding or overuse of the property and will not have any effect on future generations. The proposal will not affect river flow, water quality, fish, aquatic or wildlife resources. There was no testimony as to historical values and there would not appear to be any such impact. In that at least part of the building may be seen from the river, it might be said to affect the scenic, aesthetic or recreational values or to not compliment the natural characteristics, but those would be minimal. The proposal, in sum, will not materially effect the purpose of intent of Betsie River Natural River regulation.

CONCLUSIONS OF LAW

Based on the above Findings of Fact, I conclude, as a Matter of Law, the following:

1. Petitioner' s property is subject to a Natural Rivers designation, the Betsie River Natural River Zoning Rules and the jurisdiction of the Department of Natural Resources.

2. The Petitioner filed for a dimensional variance with the Betsie River Zoning Review Board. Upon the denial of that request, the Petitioner timely filed a petition for a contested case hearing.

3. The standard of review before this Tribunal is de novo.

4. The proposed project presents practical difficulties in carrying out the strict letter of these rules.

5. A variance is necessary to enable the Petitioner to construct the proposed project.

6. The proposed project involves an addition to a legal nonconforming structure, the size of which is permissible under 1992 AACS, R 281.140 and is allowable under the criteria of Rule 281.139. Therefore, the proposed project is consistent with the intent and purpose of Part 305, Natural Rivers, of the Natural Resources and Environmental Protection Act and its administrative rules.

PROPOSAL FOR DECISION

Based on the Findings of Fact and Conclusions of Law, it is proposed that a Final Order be entered by the Natural Resources Commission granting the Petitioner a variance for the construction of a 20 by 20 foot addition to the existing shed.

Dated: March 23, 1998

Richard A. Patterson

Administrative Law Judge

EXHIBIT LIST

Petitioner 1 Copy of picture of back of site

Petitioner 2 Before arthroscopic photos

Petitioner 3 After arthroscopic photos

Petitioner 4 Letter from H. Hoeksema, M.D.

Petitioner 5 Letter from F. Brown, M.D.

Petitioner 6 Letter from E. Fugate, M.D.

Petitioner 7 Copy of Pre-Hearing statement

Department 1 Natural River Report Betsie River July 1973

Department 2 Betsie River Natural River Zoning Rules

Department 3 Minutes Betsie River Zoning Review Board 6/1/93

Department 4 Application for variance

Department 5 Excerpt from American Law of Zoning 3d , sec. 20.30

Department 6 Excerpt from American Law of Zoning 3d, sec. 20.28

Department 7 Excerpt from American law of Zoning 3d, sec. 20.55

Department 8 Copy of Davenport v Grosse Pointe ZBA

Department 9 Copy of National Boatland, Inc. v Farmington Hills ZBA

Department 10 Not entered

Department 11 Copy of Independence Township v Murdock

Department 12 Series of pictures

Department 13 Check list.