IN RE: NATURAL RIVERS ACT APPEAL ON
SPECIAL EXCEPTION PERMIT APPLICATION
OF SCOTT AND DAVID PERSCHBACHER
File No. 86-S-2

The Natural Resources Commission, having considered the Proposal for Decision dated April 18, 1989, of the Administrative Law Judge, and the files, pleadings, briefs, and oral argument in this matter, hereby determines and orders that:

The Proposal for Decision is rejected, and that the permit application for the construction of the footbridge is granted. (See Proposal for Decision, File No. 86-S-2, dated April 18, 1989, attached hereto.)

Raymond Poupore, Chairman
Natural Resources Commission

IN RE: Natural Rivers Act Appeal
of Scott and David Perschbacher
Cause No. 86-S-2

William C. Fulkerson
April 18, 1989 Administrative Law Judge

This matter is a contested case concerning the application of Scott and David Perschbacher to construct a footbridge across the Pere Marquette River in an area subject to Natural River Zoning.

JURISDICTION

The hearing was conducted pursuant to 1970 PA 231, the Natural Rivers Act.

PARTIES

The professional staff of the Department of Natural Resources is charged with the day-to-day implementation of the Natural Resources Zoning Plans. Scott and David Perschbacher requested a hearing pursuant to the Natural Rivers Act.

FINDINGS OF FACT

The Petitioners own a five-acre parcel of land in Yates Township, Lake County, Michigan. The land is approximately 350 feet wide X 675 feet deep. The Pere Marquette River traverses the property parallel to the narrow side of their lot, at distances between 235 feet and 120 feet from the east lot line. The road access to the property is on the east side. Thus, approximately two-thirds of the Perschbacher's property is on the opposite side of the river from their access. The Perschbachers applied for a permit to construct a foot-bridge across the Pere Marquette River and build a cabin on the west side of the river. Subsequently, they abandoned the proposal for a west side cabin site and have completed a cabin on the east side. The only issue remaining is the foot-bridge.

The foot--bridge is to be 4 feet wide X 30 feet long, of free-span construction with no cut in the banks. Due to a misunderstanding of the Natural Rivers Law by the Perschbachers, the bridge was actually constructed. They were of the belief that if no negative comments were received within the twenty-day comment period, and no public hearing was set, that they were entitled to a permit. They waited thirty days following the Public Notice and, not having received comments, proceeded to construct the bridge.

The Pere Marquette at this location, is 15 to 20 feet wide and ranges from 6 inches to 3 feet in depth. The Perschbachers purchased this property to enjoy hunting and fishing. They testified that the foot-bridge is necessary to have reasonable access and use of the majority of their property, which lies on the other side of the river. Additionally, their property, across the river, abuts some federal land, which is open to public hunting. They testified that a drive of 1.5 miles in either direction was necessary to reach a bridge to cross to the other side. Although the river could be forded, they believed this to be a considerable inconvenience to gain access. Many of the properties, in the area span both sides of the river similar to theirs and there are several foot-bridges. The Perschbachers believe they are asking for nothing different than that which their neighbors already have. The Pere Marquette Natural Rivers Zoning became effective in 1981. Any structures existing at that time were entitled to remain. There was no evidence that any new foot-bridges had been permitted.

The construction of the foot-bridge requires a "Special Exception" to the zoning rules. An Inland Lakes and Streams Permit is also required. "Special Exception" requests are sent to the zoning review board, which may or may not conduct a Public Hearing on the application. The Zoning Review Board denied the Perschbacher's request, leading to the administrative appeal.

The Perschbacher's application was denied for several reasons. The overall intent of The Natural Rivers Act is to maintain designated rivers in as wild and natural a condition as possible. This is accomplished by set-backs for structures, vegetation buffers, and limitations on activities within sight of the mainstream of the watercourse. The Department was of the opinion that the construction of a foot-bridge across the river is inconsistent with maintaining the natural character of the stream. Additionally, a foot-bridge is not necessary to reach a structure or residence on the other side of the river. They also expressed concern about the cumulative effect of such bridges. For example, the residential zoning density is one residence per acre in a natural river area. This means that there could be a residence every 200 hundred feet along the river. If each were allowed a foot-bridge, the cumulative effect of a foot-bridge at every parcel would have a substantial negative aesthetic effect on the wild and scenic character that is sought to be preserved. A further concern expressed by the Department was that should the bridge become washed-out, it would litter the stream and could lodge in the bank and cause erosion. There have been problems in the past with washed-out bridges. Out of a concern for aesthetics and, the cumulative effects of such similar proposals, the application was denied.

The Perschbachers make a point that there are numerous other bridges and that those bridges have washed out and been reconstructed. It appears that other bridges have been damaged and reconstructed without benefit of a permit. This, however, is not a reason to allow a further proliferation of bridges, but is an indication that further investigation, concerning potential rule violation, should be made. Those foot-bridges constructed prior to the implementation of the zoning plan have a right to be there, and to be rebuilt, if damaged, under certain conditions. The Perschbachers maintain that they have constructed their bridge in a clean, unobtrusive, and as aesthetically pleasing manner as possible. While it is true that the bridge has been constructed in as unobtrusive fashion as possible, the fact remains that the bridge is aesthetically incompatible with the wild and scenic nature of the river, sought to be preserved.

I conclude, as a matter of fact, that the bridge is inconsistent with the zoning rules and the Pere Marquette River Natural River Plan.

CONCLUSIONS OF LAW

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.

The Pere Marquette River, that flows through the Petitioner's property, was designated as a Natural River and zoned by rules, which became effective July 15, 1981.

2. Rule (8) of the Natural River Rules for the Pere Marquette, R 281.108, Special Exception Permits states:

(1) Special exception permits may be granted to allow a use in the natural river district which is not specifically permitted by R 281.106 if implementation of that use does not contravene the purposes of these rules as specified in R 281.102.

Among the purposes, at R 281.102, Rule 2 (d) "To provide for residential and other compatible permitted uses that compliment the natural characteristics of the natural river system."

3. The Zoning Review Board, after considering all the relevant factors and the intent of the Act, should also consider R 281.108 Rule 8:

(5) (d) The cumulative effect upon the natural river district from the potential development of holdings in a legal position similar to the applicant's, if the applicant's request is approved by the zoning review board.

(5) (e) Reasonable alternatives available to the applicant.

4. I conclude, as a matter of law, that the construction of a new foot-bridge, across the Pere Marquette, is inconsistent with the goals of the Natural River Act and rules, particularly the maintenance of the natural, scenic and aesthetic values of the watercourse. I further find that the cumulative effect of such proposal could have a significant effect on the river. Additionally, a reasonable alternative is for the Petitioner to build steps to the stream and ford the stream to reach the other side.

PROPOSAL

Based on the foregoing, it is proposed that the permit application for the construction of the foot-bridge be denied.

Dated:

William C. Fulkerson
Administrative Law Judge