SUBJECT: Part 323, Shorelands Protection and Management of the Natural Resources and Environmental Protection Act (NREPA), 19-1)4 PA 451, as amended.

Petition of North Shore Dunes Associates Property

File No. 94--OT-04A

The above captioned matter was the subject of a contested case hearing resulting in the issuance of a Proposal For Decision dated April 25, 1997. In a letter dated April 25, 1997, the Office of Administrative Hearings gave the Parties to May 19, 1997, to file written Exceptions to the Proposal for Decision. On May 12, 1997, the Petitioner filed a Motion to Reconsider, which was denied by Judge Patterson by Order dated May 15, 1997. On May 18, 1997, Dr. Seibold was granted his request that the Motion for Reconsideration be accepted as the Petitioner's written Exceptions. The Department of Environmental Quality (Department) did not file written exceptions to the Proposal for Decision. The matter is now before the Chief Administrative Law Judge of the Office of Administrative Hearings for a final agency decision pursuant to Executive order 1995-18 and Delegation Letter No. OAH-324.101 et seq. -01.

This Tribunal has considered the Proposal For Decision, exhibits, pleadings and arguments of the Parties. Proposed findings and conclusions not addressed in this Final Determination and order were found to be unsupported by the record or unnecessary in making a final decision in this contested case.

In its written Exceptions the Petitioner asserts the Department did not use data from a 1938 study in its 1989 update research. However, in the Proposal for Decision it is noted that Ms. Penny Holt testified she used data from a 1980 study in the 1989 study she conducted. The 1980 study did utilize the 1938 aerial photographs, and therefore, said data was included in the 1989 study. Furthermore, as stated in the Proposal for Decision, subsequent to the filing of a petition for a contested case hearing, the U.S. Army Corps of Engineers conducted a study utilizing data from 1938 to 1996. That study resulted in a decrease in the annual recession rate to 3.1 feet at transect 90 and 2.9 feet at transect 89. Using that data, and pursuant to 1992 AACS, R 281.22(2), a new projected recession rate of 105 feet for the 30-year period of recession and 195 feet for the 60-year period of recession was established for the subject property.

The second issue raised by the Petitioner is the exclusion data generated by a Global Positioning System (GPS) study conducted on its behalf. An evidentiary basis for the admission of the GPS report did not exist, nor were its author(s) available for cross examination. Therefore, the exclusion of the report was proper.

The Chief Administrative Law Judge of the Office of Administrative Hearings ADOPTS AND INCORPORATES BY REFERENCE the attached Proposal For Decision including the Findings of Fact and Conclusions of Law.
 

THEREFORE, IT IS ORDERED:

1. The Proposal For Decision dated April 25, 1997, is adopted by reference and incorporated into this Final Order.

2. The setback distances of 105 feet for the 30-year period of recession and 195 feet for the 60-year period of recession, are valid pursuant to Part 323, Shoreland Protection and Management, Natural Resources and Environmental Protection Act (NREPA) , 1994 PA 451, as amended, and constitute the Final Agency Decision in. the matter of File No. 94-OT-04A.

3. The office of Administrative Hearings does not retain jurisdiction in this matter.

Dated: June 10, 1997

Richard G. Lacasse, Chief
Administrative Law Judge, MDEQ
Office of Administrative Hearings

Petition of North Shore Dunes (David Seibold)
File No. 94-OT-04A

Richard A. Patterson
Administrative Law Judge
Dated: April 25, 1997

This contested case concerns the petition of the North Shore Dunes Associates, which is comprised of four individuals: William Keck, Robert J. Landman, William M. Creason and David M. Seibold. The contested case hearing in this matter was held on January 15 1997.

The hearing was requested under and is governed by Part 323 of the Natural Resources and Environmental Protection Act (NREPA), MCL 324.30301; MSA 13A.30301 and was conducted pursuant to the provisions of the Michigan Administrative Procedures Act, MCL 324.32301 et seq.

The professional staff of the Department of Environmental Quality (Department) is charged with the day-to-day implementation of Part 323 of NREPA. The Petitioners filed a timely petition for a contested case hearing. The Petition contested the Department's increasing the set back distances on their properties of 65 feet for 30 years and 115 feet for 60 years to 135 feet and 255 feet respectively. Subsequently, as is detailed in the Findings of Fact, those increases were revised downward to 105 feet and 195, respectively.

Petitioner was represented at the hearing in the person of Dr. David Seibold, Dr. William Creason and Mr. Robert Landman. Dr. Seibold presented the Petitioner's case.

Respondent Department was represented by Assistant Attorney General James R. Piggush. Mr. Martin Jannereth and Ms. Penny Holt, both of the Shorelands Management Unit of the Land and Water Management Division, testified on behalf of the Department.

There were 18 exhibits entered, a listing of which is attached to this Proposal for Decision. In addition, Petitioners utilized enlargements of Exhibits 2 and 6 during the hearing as demonstrative evidence.

This case involves a review of the latest determination by the Department of setback lines of 135 feet for 30 years and 195 feet for 60 years on the Petitioners properties. The four individual Petitioners each own a I00 foot lot on the Lake Michigan shoreline between the Grand Haven Channel and Hoffmaster State Park. The setbacks were originally established in 1989 at 65 feet for 30 years and 115 feet for 60 years. In 1994 the Department increased the setback for Petitioners' properties to 135 feet for 30 years and 255 feet for 60 years after having conducted further projected recession distance and on-site studies. As stated, those were later revised downward to 105 feet and 195, respectively. Petitioners do not contest the designation of their properties as an high risk erosion areas, or the original setbacks of 65 feet and I15 feet, but challenge the present setbacks by the last determination of 105 and 195 feet.
 

TESTIMONY ON THE RECORD
 

Mr. Martin Jannereth is a land and water quality manager and has spent 22 years in the employ of the Department and its predecessor. His entire tenure has been involved with Great Lakes and Shoreland Protection. The act required the Department to identify and designate high risk erosion areas. 1992 AACS R 281.22. The designation must be made "if the recession of the landward edge of the zone of active erosion has been occurring at an average annual rate of I foot or more based on a minimum period of 15 years." The designation must also contain a 30 year and 60 year setback for any future construction of large permanent structures. 1992 AACS R 281.22. In 1980, utilizing aerial photographs from 1938 and 1970, and a bluff study of Spring Lake Township performed in May of 1977, Mr. Jannereth made such a designation and established a set back of 65 feet. That designation and setback distance was not challenged.

The rules promulgated iii April of 1992 require an update of shoreland recession studies every 10 years. 1992 AACS R 281.22[22]. Ms. Penny Holt, a land and water management analyst, has been with the Department and its predecessor since 1984, during which time she has been involved with the Great Lake and Shorelands Act administration. Ms. Holt was involved in the update research conducted in the fall of 1989, during which she compared a 1970 aerial photograph previously utilized by Mr. Jannereth, to a 1988 aerial by means of a zoom transfer scope, which superimposes the aerials. She did not use the 1938 aerial, but incorporated that data from the previous study. This enabled her to utilize data from 1938 to 1988. She verified the scale of the aerials by actual round measurements. The result of this study is embodied in Exhibit 6.

On November 23, 1994, the owners of the subject properties were notified of the redetermination (Exhibits 9 through 14). On December 13, 1994, Dr. Seibold wrote to the then Department of Natural Resources appealing the redetermination. Subsequent to that appeal, the Army Corps of Engineers took aerial photographs in 1996 which were incorporated into another recession study of the area. This study increased the time frame for examining the recession rate to approximately 58 years (1938 to 1996) and is embodied in Exhibit 18. At transacts 89 and 90, which involve the subject properties, the average annual recession rate decreased to 3.1 feet at 90 and 2.9 feet at 89 due to the new data. Rule 281.22(2) calls for the multiplication of the annual average by 30 and 60 years, and then adding 15 feet to provide protection from severe short-term erosion losses. The computation on the subject parcels using these provisions results in the current projected recession distance of 105 feet for 30 years and 195 feet for 60 years. It is these recession distances which are the subject of this contested case hearing.

In response to the above testimony, Petitioners, through Dr. Seibold, questioned the validity of those determinations as follows:

1) The recession rate is based on an average that may or may not actually occur. That is, based on Petitioner's observations over a number of years that the beach "comes and goes" and does not actually recede in line with the average. Ms. Holt acknowledged that point on cross examination, but expressed confidence in her figures.

2) Petitioners assert that a different crew may come up with a different result and that Global Positioning System (GPS) technology is more accurate. They proffered a report which they asserted was generated by GPS, but this tribunal upheld a hearsay objection and the report did not become part of the record.

3) The only area of the some three miles of shoreline originally designated that was increased is in the immediate area of their properties. Why, they query, if the Department is correct, is there not a large slice of beach missing?

As stated, Petitioners do not contest the designation of their property as being a high risk erosion area, or the original 65 foot set back established in 1980. The task before this Tribunal is to determine the proper setback distance for certain structures on the subject property. The 30 year setback governs placement of small permanent structures and the 60 year pertains to large structures as defined.
 

R 281.22(22) states:

The department shall update shoreland recession studies every 10 years to reflect varying lake levels and changes in erosion rates. Areas of the shoreland having updated long-term recession rates below one foot per year shall have the high risk erosion area designation removed by the department. The department shall notify affected property owners and local units of government of changes in projected recession distances as a result of updated information. Notification to property owners shall be sent by certified mail to the address listed in the last tax assessment roll.

I find, as a Matter of Fact. the updated shoreland recession study was performed in compliance with R 281.22(22)

R 281.22(l) requires:

Not less than 30 days before the designation of a high-risk erosion area, the department shall mail predesignation letters to the affected landowners of record as shown in the last assessment rolls. The letters shall explain that the property is being considered for designation as a high-risk erosion area and shall invite comments from the affected landowners. The department shall schedule a meeting before the designation is made to explain the proposed designations to property owners and local governmental agencies.

I find, as a Matter of Fact, the predesignation letters are of sufficient form and content and were provided to the Petitioners within the proper time-fraine. I further find a timely petition for a contested case hearing was filed by the Petitioners as set forth by R 281.22(20).

Lastly, R 281.22(2) provides:

The department shall designate a high-risk erosion area upon its finding that recession of the landward edge of the zone to active erosion has been occurring at an average annual rate of I foot or more per year, based on a minimum period of 15 years. Similar recession rates along a reach of shoreland shall be grouped and an average calculated for each reach. The designation shall contain the projected recession distance used to establish the setback line for any future permanent structure. The projected recession distance shall be based on a projected 30-year period of recession for small permanent structures and a projected 60-year period for large permanent structures. An additional 15 feet shall be included in the Losses. This additional 15 feet shall replace, and not be in addition to, the 15 feet previously added due to recession rate variability. If this change results in an increase in the projected recession distance, it shall not be effective until the landowner receives written notice.

Neither Part 323 or the Rules address specifically the means or science to be utilized in making a designation.

Section I of Part 323, MCL 324.32301(c) defines "High Risk Area" as:

..An area of shoreland which is determined by the department to be subject to erosion on the basis of studies and surveys...

A high risk erosion area may be removed or a projected recession distance may be modified upon ... presentation of topographic surveys, low-altitude, vertical, aerial photographs, or other documentation which the department can readily use to determine recession rate or rates...

Regarding the assertion or query as to why there is not a large slice of beach missing at the point of the increase of the setbacks on Petitioners' properties, if one compares the 1988 aerial (Exhibit 5) to the 1996 aerial (Exhibit 16) it is evident that substantial erosion greater than the area to the north and south of Petitioners properties has, in fact, occurred on the site and I so find, as a Matter of Fact.

I further find, as a Matter of Fact, the proper setback for these parcels, as modified by the latest study, is 105 feet for the 30 year setback and 195 feet for the 60 year setback.

Based on the foregoing, it is proposed that a final order be entered establishing the setback on the subject parcels at 105 feet for 30 year setback and 195 feet for 60 year setback.

1 . Petitioners are the proper Parties to this matter and a petition for a contested case hearing was filed in a timely manner.

2. The rate or recession on these sites require the Department of Environmental Quality to determine the setback distance.

3. The Department of Environmental Quality has jurisdiction over these sites.

4. The Department of Environmental Quality followed procedures in establishing the setbacks.

5. The setback distance of 105 feet for the 30 year setback and 195 feet for the 60 year setback are in accordance with Part 323, Shoreland Protection and Management of the Natural Resources and Environmental Protection Act, 1994 PA 451, as amended.

Based on the foregoing, it is proposed that a Final Order be entered establishing the setback on the subject parcels at 105 feet for the 30 year setback and 195 for the 60 year setback.

Date: April 25, 1997 _____________________________
Richard A. Patterson
Administrative Law Judge

1. 1939 Aerial
2. Copy of bluff study of Spring Lake Township, May 1977
3. 1970 Aerial (southerly portion)
4. 1970 Aerial (northerly portion)
5. 1988 Aerial (color)
6. Recession rate update study of Spring Lake Township, January 1995
7. List of properties in high risk erosion areas in Spring Lake Township
8. Plat of North Shore Estates
9. Notice of high risk erosion designation November 23, 1994
10. Copy of above with certified mail receipts to William Creason
11. Same as above to William Keck
12. Same as above to David Seibold
13. Same as above to Robert J. Landman
14. Same as above to North Shore Dunes Associates
15. Letter to MDNR from Dr. Seibold December 13, 1994
16. Letter to MDNR from Dr. Seibold April 15, 1995
17. Color aerial May 1996
18. Memorandum from Ms. Penny Holt to file September 24, 1996