SUBJECT: Part 301, Inland Lakes and Streams of the Natural Resources and Environmental Protection Act (NREPA), 1994 PA 451, as amended.

Petition of Dennis Phillips

File No. 98-15-0081-11/98-11-302

___________________________________________________________________

The above captioned matter was the subject of a contested case hearing resulting in the issuance of a Proposal For Decision (PFD), dated February 18, 2000. Subsequent to the issuance of the PFD the Office of Administrative Hearings gave the Parties until March 13, 2000, to file written Exceptions. Mr. Dennis Phillips (Petitioner), through his counsel Mr. Douglas D. Cameron, filed Exceptions on March 13, 2000. Neither the Land and Water Management Division of the Department of Environmental Quality nor the Intervenors, Ms. Beverly Miller and Mr. Leon and Mrs. Irene Sredzinski, filed Exceptions.

The Petitioner requested Oral Argument before this Tribunal. Oral Argument is addressed in §§ 72(3) and 81(1) of Administrative Procedures Act, 1969 PA 306, as amended; MCL 24.201 et seq. Section 72(3) mandates the Parties be given the opportunity to present written and oral argument on issues of law and policy in the contested case hearing process. This case does not present any issues of policy. The Parties made written and oral argument on issues of law in the following manner: the motion filed on May 20, 1999; during the hearing on July 26, 1999; in their written Closing Arguments; and in the Exceptions to the PFD. Section 81(1) allows Oral Argument before the final decision maker at the agency's discretion. As discussed, the Parties were provided ample opportunity to make their legal arguments during this process, additional argument in this regard is unnecessary to render the final agency decision in this matter. Therefore, the Petitioner's request is denied.

The matter is now before the Director of the Department of Environmental Quality for a final agency decision pursuant to Executive Order 1995-18. In rendering the decision in this case consideration has been given to the PFD, the Petitioner's written Exceptions, exhibits, pleadings and arguments.

The activity proposed in the application for a permit is to maintain an existing wooden dock and boat hoists at or below the ordinary high-water mark of Lake Chemung. The upland from which the proposed activity is to service is a common area, dedicated to the backlot owners of Black Oaks Subdivision in Genoa Township, Livingston County. The Petitioner is a backlot owner in the subdivision. The PFD recommends that the application be denied because the proposed activity would adversely affect the interests of adjacent riparians.

The Petitioner raises 7 points in his Exceptions, the first being the PFD fails to address whether the denial of the application is a taking of private property for public use without just compensation. US Const, Am V and XIV; Const 1963, art I, § 23 and art X, § 2. It appears the Petitioner is arguing that if the PFD is adopted he would be denied a use of his property. However, the issue in this case is whether the structure can be permitted under Part 301. Other uses of the Petitioner's riparian interests, such as a dock located entirely within the interests from which fishing and swimming could be accomplished, are not an issue here. Obviously, the Petitioner's use of the land above the ordinary high-water mark is not regulated under Part 301, and its use is unaffected by this decision.

The Petitioner's first Exception need not be decided here because it is axiomatic that an administrative tribunal, as a quasi-judicial body, lacks subject matter jurisdiction over constitutional claims. Dation v. Ford Motor Co., 314 Mich 152, 22 NW2d 514 (1946), and its progeny: an administrative tribunal has "no power to determine constitutional questions or hold a statute unconstitutional."; Consumers Power v. ABATE, 205 Mich App 571, 518 NW2d 514 (1994); an administrative tribunal has "no authority to resolve controlling constitutional issues." Michigan Supervisors Union OPEIU Local 512 v. Department of Social Service, 209 Mich App 573, 531 NW2d 790 (1995). Given this clear limitation on an administrative tribunal's jurisdiction, this Exception is rejected.

The second line of the Petitioner's Exceptions pertains to the issue of whether the proposed activity is exempt as a pre-existing structure under § 30103(a), and as a seasonal structure under § 30103(b). As to the former contention, the record indicates some activity occurred on this site prior to regulation. However, the activity was not of the magnitude of what is proposed in the application for a permit now before this Tribunal. The PFD's legal analysis on the relevance of the expansion of the structure over the years is sound, and not countered by the Petitioner. As to the latter contention, the Petitioner maintains that even if the structure encroaches on the riparian rights of others, it does not constitute an unreasonable interference on said rights. The Petitioner interprets the term "unreasonable interference" as something that precludes other riparian's from engaging in their rights, which in this case is the domestic right to wharf out to boatable-fishable water.

The Petitioner's second Exception conflicts with the fact the legislature did not utilize the overly broad standard he espouses. First, "unreasonable interference" by its own terms means something that in some manner inhibits, or meddles. Second, other provisions in Part 301 require an examination of how a proposed activity interacts with the rights of other riparians. For instance, § 30106 states:

The department shall issue a permit if it finds that the structure or project will not adversely affect the public trust or riparian rights. Emphasis added.

Finally, the protection of a diminution of the riparian rights of others was addressed in Pierce v Riley, 81 Mich App 39; 264 NW2d 110 (1978). The Pierce Court held:

When there are several owners to an inland lake, such proprietors and their lessees and licensees may use the surface of the whole lake for boating, swimming, fishing and other similar riparian rights, so far as they do not interfere with the reasonable use of the waters by other riparian owners. Id. at 44. Emphasis added.

Therefore, a structure encroaching upon adjacent riparian interests, as opposed to the total depravation standard advanced by the Petitioner, may constitute the unreasonable interference of the use of the waters.

The question then becomes whether the structure at issue in this case equates to the unreasonable interference of the use of the waters by others, which is essentially the final theory advanced in the Petitioner's Exception. The Petitioner contends the proposed activity is all within his riparian interest area. In support he contends the common area is 14.8 feet wide and the hoist is 9 feet wide. No figure is given for the width of the dock. Significantly, the Petitioner does not cite to any evidence on this record to support this Exception, but merely claims his testimony on the width of his hoist is mis-characterized. The PFD noted the discrepancy in the measurements of these three features, but using the figures most favorable to the Petitioner found the structure encroached on the adjacent riparian's interest. The Petitioner has not provided a basis to overcome this finding.

The Petitioner also challenges the PFD's finding that one of the adjacent riparians, Mr. Williams, moved his dock in response to the activity emanating from the structure. The effect of the relocation of the William's dock was that his neighbors, the Sredzinski's, moved their dock and discontinued the use of their swim raft. The PFD finds this to be a further instance of the structure's, and attendant activities, unreasonable interference on the riparian interests of others. The Petitioner notes that Mr. Williams' motivation for moving his dock is unknown because he did not testify. However, the fact that Mr. Williams did not testify does negate the reasonable inference of interference drawn from the circumstances in this case. Additionally, Mrs. Sredzinski's testimony also supports this inference. The remaining Exceptions of the Petitioner are conclusory and need not be addressed to render the final agency decision in this matter.

The Director of the Department of Environmental Quality ADOPTS AND INCORPORATES BY REFERENCE the Proposal For Decision including the Findings of Fact and Conclusions of Law. Based upon those Findings of Fact and Conclusions of Law, it is DETERMINED the application for a permit of Dennis Phillips is DENIED under the permitting criteria of Part 301.

NOW, THEREFORE, IT IS ORDERED:

1. The Proposal for Decision of February 18, 2000, is ADOPTED and INCORPORATED by reference into this Final Order.

2. The application for a permit submitted by Dennis Phillips is DENIED.

3. The Department of Environmental Quality does not retain jurisdiction in this matter.

Dated: April 25, 2000

Russell J. Harding, Director
Department of Environmental Quality

SUBJECT: Part 301, Inland Lakes and Streams of the Natural Resources and Environmental Protection Act, 1994 PA 451, as amended.

Petition of Dennis Phillips

File No. 98-15-1429-11/98-11-0302

Dated: April 25, 2000
Richard A. Patterson
Administrative Law Judge

This contested case involves a petition filed by Mr. Dennis Phillips relative to the Department of Environmental Quality, Land and Water Management Division's (LWMD) denial of an application for a Marina Operating Permit (MOP). The application was submitted by Mr. Andrew Meyer and Mr. Phillips acting on behalf of themselves and others. Mr. Meyer did not join as a Party to this contested case, but testified in the hearing. The application for a permit was made under Part 301, Inland Lakes and Streams, of the Natural Resources and Environmental Protection Act. MCL 324.30101 et seq.

The application seeks a permit to maintain an existing wooden dock and adjoining mooring facilities. The structure is perpendicular to the shoreline and extends into Lake Chemung from the terminus of a pathway. The pathway is a common area dedicated to the use of the lot owners in the Black Oaks Subdivision in Genoa Township, Livingston County. The subdivision is depicted in Exhibit R-25. As will be discussed below, the exact length and width of the dock and hoists, along with the width of the pathway, are somewhat in dispute. However, the dock is at least 175 feet long and 2 feet wide. The testimony regarding the width of the pathway varies from 12 to 14 feet. The dock together with the ancillary hoists will be referred to collectively as the "structure" throughout this Proposal for Decision.

Leon and Irene Sredzinski and Beverly Miller are property owners in Black Oaks Subdivision and riparian owners on Lake Chemung. On July 19, 1999, they filed a Motion to Intervene in this contested case. Due to time constraints between the filing of the motion and the hearing date, the Parties were given the opportunity to argue the motion at the commencement of the hearing. After argument was made, the Motion to Intervene was granted.

The hearing was requested under the provisions of Part 301, Inland Lakes and Streams, of the Natural Resources and Environmental Protection Act (NREPA), MCL 324.30301 et seq.; MSA 13A.30301, et seq. The petition was filed under the provisions of § 30110(2) of Part 301 and 1985 AACS, R 281.843(4). The hearing was held on July 26, 1999 and was governed by the Administrative Procedures Act, 1969 PA 306, as amended; MCL 24.201 et seq.; MSA 3.560 (101) et seq.

Written Closing Statements were filed by the Parties after the conclusion of the hearing. Although those were reviewed and considered in formulating this Proposal for Decision, that consideration was limited to the testimony and exhibits entered on the record during the hearing. Statements not supported by the record and additional exhibits beyond the record, as it existed at the conclusion of the hearing, were not considered. The final agency decision must be based solely on the evidence elicited during the hearing and on matters officially noticed. MCL 24.285; MSA 3.560(185).

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.

Dennis Phillips (Petitioner) is represented by Douglas D. Cameron, Esq. The Petitioner testified on his behalf at the hearing, and offered the testimony of Mr. Jeffery McNamara, the grandson of James McNamara, subdivider of Black Oaks; and Mr. Andrew Meyer, the co-applicant for the permit.

The professional staff of LWMD administers Part 301 and is the Respondent in this case. LWMD is represented by Ms. Carrie Hardigan, Statewide Specialist-Inland Marinas. In addition to Ms. Hardigan, Mr. Thomas Kolhoff, District Representative, Shiawassee District Office, LWMD, testified on behalf of the Department. Both Mrs. Beverly Miller and Mrs. Irene Sredzinski (Intervenors) testified on their own behalf.

There were 36 exhibits entered into the record. A list, including a description of those exhibits, is attached to this Proposal for Decision.

In its "closing statement" the LWMD begins by reasserting its position that Petitioner is not a proper applicant for a permit. First, it contends he does not represent all other persons with an equal interest in the path. Second, his and others use of the pathway exceeds the scope of the plat dedication. This Tribunal, by Order dated July 13, 1999, denied the Department's Motion to Dismiss on these bases. It was determined that summary disposition was not appropriate because the pleadings at that time created issues of fact.

The central issue addressed, as framed in the aforementioned Order, is whether the Petitioner is aggrieved by the LWMD's denial of the application. This issue also involves an analysis of whether he lacks authority to carry out the activity. In addition to Mr. Phillips and Mr. Meyer's testimony that they and others have maintained a dock for a number of years, the plat of Black Oaks states: "[T]he paths and drives as shown on said plat are hereby dedicated to the use of the lot owners." Exhibit S-3. Lastly, a number of warranty deeds and land contracts were entered on the record. Exhibits S-1, S-2 and S-5 through S-14. These documents convey property in the subdivision, both riparian and back lots, and state with minor differences in verbiage which are not material:

Said parties of the first part agree to give or convey to the parties of the second part the right to enjoy the fishing, swimming, boating and dockage on Long Lake (also called Lake Chemung) so far as they have a right this day to grant. Exhibit S-5.

The precise import of the dedication and the covenants can only be established by determining the intent of the grantor. Thies v. Howland, 424 Mich 282, 380 NW2d 463 (1985). A copy of a handwritten letter from Mr. Phillips' predecessor in title, Theodore McNamara, was admitted by stipulation as Exhibit S-16. This letter, dated October 12, 1995, expresses Mr. McNamara understanding that the path was dedicated to the "...exclusive use of the back lot owners to use as excess (sic) to the lake to have a dock and keep a boat". A letter of the same effect, dated January 6, 1996, was written by John E. Tripp. Exhibit S-17.

Mr. Jeffery McNamara, grandson of the Black Oaks subdivider and son of Theodore, testified his father had boats at both paths in the subdivision back in the 1950's, and he helped his father and others install and remove docks. In his experience, this use of the pathway was a selling point for potential buyers of subdivision property. On the other hand, Mrs. Sredzinski testified she is of the opinion all owners in Black Oaks, as opposed to only the back-lot owners, are entitled to use the pathway. However, even if that is the case, this would not prevent the Petitioner from using the pathway as proposed.

These above referenced exhibits and testimony are not definitive and do not address what the nature of the use might be in a strict legal sense. For instance, the question whether the Petitioner is a joint riparian owner, or the grantee of an easement upon which one of the uses is dockage is not answered from this evidence. Regardless, based on this record the Petitioner has demonstrated a colorable right to use the property in the manner he wishes to continue through the activity proposed in the application for a permit. The Department has not produced any evidence that there is any specific intent contrary to Mr. McNamara's testimony or any prohibition which would prevent continuation of the activity. Therefore, I find, as a Matter of Fact, the Petitioner is a proper applicant for a permit.

Any further analysis of the relative rights of Petitioner vis a vis the Intervenors or other property owners necessarily involves determination of relative property rights. This issue is beyond this Tribunal's limited jurisdiction and is vested in courts of general jurisdiction. The only issue properly before this Tribunal is whether the Petitioner is entitled to a permit under the criteria of Part 301 regulating activities at or below the ordinary high water mark of Lake Chemung.

The Petitioner makes two arguments that the structure is exempt from the permitting requirements of Part 301. First, the structure preexisted regulation and is exempt under § 30103(a). Second, it is exempt as a seasonal, private, and noncommercial structure under § 30101. Secondary to that argument, he asserts the structure does not constitute a marina subject to regulation under Part 301. These arguments are addressed as follows:

The Petitioner's first claim of exemption is governed by § 30103, which states in pertinent part:

A permit is not required for any of the following:

(a) Any fill or structure existing before April 1, 1966, in waters covered by former Act No. 291 of the Public Acts of 1965, and any fill or structures existing before January 9, 1973, in waters covered for the first time by former Act No. 346 of the Public Acts of 1972.

In addition to the anecdotal testimony of Mr. McNamara indicating that some sort of dock had likely been in existence on the site as early as the late 1940's or the early 1950's, the Petitioner testified a wooden dock was present when he bought his property in 1975. This dock was primarily maintained by Jack Tripp and the LeBlanks, and the Petitioner recalls being advised it belonged to the back-lot owners. He could not recall specifically how many boats were present or at what time they might have been there, but he used the facility consistently until the fall of 1998. The dock was not reinstalled the following spring pending the permit application and the contested case hearing. The Petitioner admits that over the years the dock has been rebuilt and altered by additions. He estimates it to have been 170 feet long and 30 inches wide when last installed, and admits it was shorter when he first observed it after purchasing his property in the 1970's.

Mr. Meyer bought his property in 1984 and has used the pathway for 15 years. Without recalling the precise length, he described the dock as it existed in 1984 as "small". Mrs. Sredzinski testified she and her husband have been permanent residents there since 1963 and previously as cottagers since the 1940s. She could not state when the dock was initially installed on the pathway, but testified it was much smaller when she initially observed it than it has become in recent years. She observed the use change when the Petitioner and Mr. Meyers moved into the subdivision. She also testified that in the past boats were there only on an occasional basis.

Although she admitted a lack of precision, Ms. Carrie Hardigan testified a review of a series of aerial photographs for the period of 1970 to 1999 conducted by another LWMD staff member, Bryan Armstrong, and herself failed to indicate any significant historical use of the property in the manner most recently conducted. Exhibit R-15. Mr. and Mrs. Ford point out in their letter to Mr. Armstrong of July 7, 1995, that the property has not historically been used as a marina in the 30 years they have lived on the Lake. Exhibit R-1.

Based on the foregoing, it would appear that the extent of the use of the pathway has evolved and escalated over the years. It is clear whatever activity existed years previous has little resemblance to the present use.

The exemption is similar to the zoning concept of non-conforming use, which allows the continuance of a structure or use predating current zoning. Those provisions commonly, if not always, contain language providing that a non-conforming use may not be materially altered or enlarged. See MCL 125.583a (City and Village Zoning Act); Austin v Older, 283 Mich 667; 278 NW 727 (1938). While § 30103(a) does not specifically so provide, if the Petitioner were allowed to invoke this exemption on these facts, it would render the provision meaningless. A statute creating rights is to be accepted according to its common terms and most obvious meaning, and limited to the objects fairly within its terms as gathered from it and the context. Clearwater Township v Board of Supervisors of Kalkaska County, 187 Mich 516; 153 NW 824 (1915). The clear and obvious intent of this section is to allow a specific activity to continue in its form and substance at the time of the enactment, as opposed to an authorization to escalate and improve the structure at will. Essentially, the provision is to prevent the imposition of ex post facto regulation. I find, therefore, as a Matter of Fact, the structure as it presently exists did not predate regulation, and this claimed exemption is not applicable to this structure.

As to the second claim of exemption, § 30103(b) provides:

A permit is not required for any of the following:

(b) A seasonal structure placed on bottomland to facilitate private noncommercial recreational use of the water if it does not unreasonably interfere with the use of the water by others entitled to use the water or interfere with water flow.
 

"Seasonal structure" is defined under § 30101(m) as including:

...any type of dock, boat hoist, ramp, raft, or other recreational structure that is placed into an inland lake or stream and removed at the end of the boating season.

There is no dispute that the structure is removed in October of each year and reinstalled the following spring. Therefore, there is no issue that it is placed in the water and removed at the end of the boating season. Therefore, I find, as a Matter of Fact, the structure is placed into an inland lake and removed at the end of the boating season.

The testimony indicates the dock is designated for the lot owners in the subdivision to use, and to the exclusion of the general public. The term "Private" is defined in the American Heritage College Dictionary: Third Edition as, among other things:

3. Not available for public use, control or participation; 4(b). Conducted and supported primarily by private individuals...

Black's Law Dictionary (7th ed) defines "Private" as:

Relating or belonging to an individual, as opposed to the public or government.

Under these definitions and based on the facts of this case, there is equally no question the structure is private and I so find, as a Matter of Fact.

Third, the structure must be noncommercial. Messrs Phillips and Meyer testified there is no charge or fee for maintenance, use, or privileges. Further, no assessment is made of the subdivision lot owners. No services such as fueling or repair are provided. Thus it appears to be a cooperative effort spearheaded by Mr. Phillips and Mr. Meyer. Therefore, the record is devoid of any semblance of a commercial activity, and I find the structure is noncommercial, as a Matter of Fact.

There is also no evidence that there is any activity on the structure other than the facilitation of access, mooring of recreational water craft, and ancillary activities. I find, therefore, the activity constitutes a recreational use.

Last and most important, the statute requires that the structure not unreasonably interfere with the use of water by others entitled to use the water or interfere with water flow. The structure is an elevated dock on open supports and is not an impediment to water flow and I so find, as a Matter of Fact. However, the testimony and analysis detailed later in this Proposal for Decision establishes the structure encroaches on adjacent riparian interests which, ipso facto, constitutes an unreasonable interference of the use of the waters by those riparians. Therefore, I find, as a Matter of Fact, the seasonal structure exemption is inapplicable as well.

As a corollary to the foregoing discussion, the Petitioner argues the structure is not a marina under the August 3, 1999, unpublished opinion of the Michigan Court of Appeals in Michigan Department of Natural Resources v. Chalet du Paw Paw Condominium Association and Beachfront Development, Inc., Docket No. 205384. In raising the Chalet du Paw Paw decision, the Petitioner asserts the Court's holding essentially invalidates Part 301 jurisdiction over the type of project at issue in this case. As a preface, unpublished decisions are not precedent, nor are they binding on this Tribunal. MCR 7.215(C)(1). However, a review of Chalet du Paw Paw indicates the underlying facts upon which the Court based its decision are not sufficiently set forth to allow for a determination if those facts are similar to this particular case. For this reason, the Chalet du Paw Paw decision is not instructive.

Further, it is unnecessary to resolve the "marina" issue because this Proposal for Decision determines the structure is neither exempt nor permittable because of its interference with adjacent riparian interests. This finding renders the question of whether the facility is a marina or whether it is consistent with 1985 AACS, R 281.819 regarding Marina Operating Permits, moot. However, even if it is considered a marina, it would not comply with 1985 AACS, R 281.819(b) as the activity is not confined to the owners riparian interest area.

Having found the structure is not exempt, it necessarily follows that the Department has jurisdiction and a permit under Part 301 is necessary to continue the activity. Therefore, the activity must be analyzed under the provisions of Part 301 and applicable rules.

The application for permit was precipitated by complaints concerning what were termed continuing unpermitted activities which were investigated and addressed by LWMD staff. As a result the Petitioner and Mr. Meyer were advised of the need for a Marina Operating Permit (MOP) for the structure. On July 17, 1998, LWMD received an application for such a permit. Exhibit S-4. On March 30, 1999, the application was denied. In addition to the argument that Messrs Phillips and Meyer were not proper applicants, the articulated reasons were first, there was no evidence of "historical use" and second, the structure interfered with riparian interests both on the subject property and others. Exhibit R-10.

Section 6 of Part 301, MCL 324.30106, MSA 13A 30106, provides as a preface:

The department shall issue a permit if it finds that the structure or project will not adversely affect the public trust or riparian rights.

Under the holding in Illinois Central Railroad Company v. Illinois, 146 US 387, 19 S CT 110 (1892) as adopted in Michigan in Collins v. Gerhardt, 237 Mich 38; 211 NW 115 (1926), there must be a substantial impact to the waters remaining to deny a permit under the Public Trust doctrine. Collins states that the public trust consists of the right of the public to navigate or use the surface and to fish and fowl thereon.

There is nothing on this record to indicate Lake Chemung is impressed with the public trust. However, even if it is, it would not be adversely affected if the structure was permitted. The structure, which involves a dock and mooring facilities, would not adversely, or perhaps even to any extent at all, affect any of the above aspects of the public trust. It could even be argued it would enhance the public trust by facilitating additional access to the Lake.

The overarching thrust of the LWMD's position goes to the scope of the dedication and whether Petitioner's proposed activity is violative of same. The flaw with this argument is twofold. First, this Tribunal has no jurisdiction to determine the scope of any dedication. Second, so far as this argument might be interpreted as an assertion that the activity involves an unreasonable exercise of Petitioner's riparian rights, if any, it conflicts with Director Harding's holding in the Petition of Shadyview, Inc., File No. 97-15-1364-7 and 94-7-53 (1999 WL 389895). The decision holds that considering the reasonableness of the Petitioners's proposed activity is not a proper consideration under Part 301. Rather, the analysis under Part 301 is whether the activity will adversely affect riparian rights of others.

Generally speaking, riparian rights include right to access and wharf out to boatable waters and, once there, to use the entire surface of the lake, and to use the water for domestic purposes. Hilt v. Weber, 252 Mich 198, 225; 233 NW2d 159 (1930). There is no argument or contention that the structure will adversely impact the riparian right to domestic use of the water and I so find it will not, as a Matter of Fact.

The LWMD and Intervenors assert the dock, boats, hoists, and activity on and around them adversely affect adjacent riparian rights to access boatable waters, moor boats and to conduct related activities. Apropos to this are the concerns of Mr. and Mrs. Sredzinski, who are riparian owners of multiple lots to the northwest of the pathway and structure. There is another parcel, owned by Mr. Williams, between their property and the subject pathway. Mrs. Sredzinski testified that after the activity on the pathway increased it spread onto the Williams property. In response, Mr. Williams moved his dock away from the pathway onto his property line adjoining theirs. This, she stated, has made it difficult for them to put their dock where they prefer. She expressed her concerns over the resulting creation of "confusion" and a "busy" atmosphere, leading to her to worry about her grandchildren swimming in the Lake. This caused her to forego installing a swimming raft within her riparian interest area because of heavy boat traffic.

Mrs. Sredzinski also noted the storage of the dock, boats, and hoists on the pathway during the winter exceeds its use as a walkway for lake access. However, this issue, while seemingly legitimate, relates to land use as opposed to activity at or below the ordinary high water mark regulated under Part 301. It also appears she has properly addressed these concerns to the Genoa Township authorities. Exhibit R-7. Limiting her concerns to those pertinent to Part 301, they, for the most part, relate to activity on the surface of the Lake being "confused" and "busy". It is also important to note that Mrs. Sredzinski is not a riparian immediately adjacent to the structure in question. She has expressed a problem with the dock placement that is attributable to her immediate neighbor moving his dock closer to hers. In sum, Mrs. Sredzinski's testimony consists of a "ripple" effect relative to the Lake surface which coincides with the increase of activity on and around the subject dock and Mr. Williams moving his dock closer to her property in response to the same activities.

Mrs. Beverly Miller is more directly affected by the presence of the structure. She is a riparian owner immediately adjacent to the pathway and dock to the southeast, where she has resided as a permanent resident for 10 years. She testified the increased use of the pathway spilled over onto her property, thus necessitating the placement of a chain link fence along the property line between the pathway and her property. Exhibit R-15. Again, these activities relate to land use as opposed to activity at or below the ordinary high water mark. Regarding the activity regulated under Part 301, she testified she has a list of 7 boats, 1 paddleboat, and a canoe present at the subject site. In her letter to Mr. Armstrong dated May 6, 1998 she listed a total of 15 boats, several hoists, and two docks. Exhibit R-3. In response to this activity, she moved her dock to the extension of her property line adjacent to the pathway "to reclaim her property and riparian rights".

In his Project Review Report Mr. Thomas Kolhoff under "Notes/Comments", stated:

Site is narrow easement, between existing homes, with long seasonal dock. Dock extends 190' waterward of OHWM. Existing boats and hoists on east side appear to extend over adjacent riparian bottomland. Dock appears to be along west riparian line w/swim ladder & mooring bumpers on west side of dock. There appears to be no ingress or egress that would not impact adjacent riparians. Dock is unusually long for inland waters and does not appear consistent with adjacent or other visible structures on lake. Need M.O.P. Dock is existing. TK (see photos) Exhibit R-6

During his site review Mr. Kolhoff testified he observed the structure to be on the west side of the pathway at a right angle to the shore. He measured it at 190 feet in length, and stated it was longer than others in the immediate area, most of which were more similar to Mrs. Miller's dock which is 40 to 50 feet long. He observed a single boat and hoist on the subject structure, but his visit was on October 22, 1998, which he characterized as outside the boating season.

Mr. Kolhoff viewed the activity mainly as a riparian issue. He considered the structure as a possible navigation hazard because of its length, and was of the opinion access to it could not be accomplished without impacting adjacent riparians. On cross examination, Mr. Kolhoff admitted that Mr. William's dock (depicted in Exhibit R-15), which is approximately as long as the one in question, was not present at the time of his review and that a shallow embayment to the east impedes boating. He was steadfast, however, that the dock and hoists were too wide for the narrow pathway and, therefore, constituted an infringement on adjacent riparians.

Ms. Carrie Hardigan testified to her concerns regarding the use by Petitioner and others as opposed to all owners in the subdivision. As previously ruled, under the holding in Shadyview

this is not a proper consideration under Part 301. She considers the structure as unreasonably impacting safety and navigation and agrees with Mr. Kolhoff that it is a riparian issue. She characterized Lake Chemung as a busy lake, and she is wary of the any activity that would exacerbate the situation. See Exhibit R-8, communication from the Livingston County Office of the Sheriff stating Lake Chemung is "...one of the public use lakes in our county that receives the heaviest traffic."

Ms. Hardigan shares Mr. Kolhoff's opinion that the structure is overly large for the area and constitutes an infringement on adjacent riparians. She offered Exhibit R-27 to illustrate the invasion of Mrs. Miller's riparian interest by the structure. While the accuracy of the exhibit might be disputed, the angle of the dock depicted therein seems to follow what is shown on the aerial photograph of the area entered as Exhibit R-26. These exhibits indicate an angling of the dock from perpendicular to the shore and onto the bottomland in front of Mrs. Miller's shore.

Central to resolving the issue of the structure's affect on the riparian rights of others is determining the exact width of the dock, hoists and pathway. These dimensions are somewhat in dispute, as evidenced by the following estimates of the Parties:

1. The Petitioner initially estimated the dock to be 2 feet to 30 inches wide, the hoists are 13 feet wide, while the pathway is 14.8 feet wide at the water. Based on this testimony the total width of the structure is a minimum of 15 feet.

2. The scale on the detailed drawing submitted with the Application for Permit is 1 inch to 20 feet. Using that scale, the width of the dock measures between 2/16 and 3/16 of an inch which computes to between 2.5 and 3.75 feet or 3.125 feet. Exhibit R-6.

3. Mrs. Sredzinski measured the width of the pathway at a little over 12 feet, the dock at 40 inches wide, and the hoists on each side of the dock at 9 feet each, or a total width for the structure at 21 plus feet.

4. Mrs. Miller estimates the width of the subject dock and hoists at 23 1/2 feet and the width of the pathway at 12 feet.

5. Mr. Kolhoff testified the dock appeared to be a "typical 36 inch wide dock". Further, in assuming the existence of a hoist on each side of the dock at the end, the total width would be 23 feet. Exhibit R-6.

All of the foregoing estimates concerning the widths of the the dock, hoists and pathway are probably self-serving to some extent, with the actual dimensions being somewhere in between. However, giving the Petitioner the benefit of the doubt and granting him a best case scenario, I find, as a Matter of Fact, the pathway is 14 feet wide, the dock is 2 feet wide, and the hoists are 13 feet wide. These dimensions render it physically impossible for the structure, even if it is as narrow as Petitioner asserts, to be confined to the riparian area of the pathway. Therefore, I find, as a Matter of Fact, the dimension of the dock, hoist and pathway necessarily results in the structure and its use resulting in an encroachment and resultant adverse affect on the riparian interests of others.

The import of the foregoing finding regarding the width of the structure, irrespective of the access issue, is that it encroached on the adjacent riparian owners property. This results in interference with Mrs. Miller's rights of access and wharfage. By placing her dock on the riparian line (Exhibit R-15), which is well within her rights, Mrs. Miller may have exacerbated her problem with the subject dock. This is tempered, however, by her testimony that she did this in an effort to block her riparian area from the activity surrounding the structure. This is borne out by the fact that the structure invades her bottomland, which is certainly an adverse affect on her riparian rights. See third photograph of Exhibit S-15; numerous photographs in Exhibit R-1.

The adverse affects were not confined to Mrs. Miller's riparian interests. To escape the activity resulting from the structure Mr. Williams, who is not a Party to this case, moved his dock. The effect of that action, which is attributable to the increased activity waterward of the pathway, is Mrs. Sredzinski's inability to place her dock where she prefers and discontinuing use of her swim raft. This supports a finding the activity interferes with Mrs. Sredzinski's riparian interests, which could possibly sustain a cause of action for nuisance. This record clearly establishes, and I find as a Matter of Fact, the structure and related activities have adversely affected the riparian rights of others.

Having found the public trust would not be substantially impacted and considering the adverse affects on riparian rights, the statute requires review of the proposed structure under the specific criteria enumerated in § 30106, which provides:

In passing upon an application, the department shall consider the possible effects of the proposed action upon the inland lake or stream and upon waters from which or into which its waters flow and the uses of all such waters, including uses for recreation, fish and wildlife, aesthetics, local government, agriculture, commerce, and industry. The department shall not grant a permit if the proposed project or structure will unlawfully impair or destroy any of the waters or other natural resources of the state. This Part does not modify the rights and responsibilities of any riparian owner to the use of his or her riparian water. A permit shall specify that a project completed in accordance with this part shall not cause unlawful pollution as defined by Part 31.

As discussed, the structure itself encroaches upon adjoining riparian interests. Consequently, watercraft using the structure necessarily interface with the riparian uses of the adjoining property. In so doing, the recreational aspects associated with those parcels, boating, swimming, and related activities, would be adversely affected.

I find, as a Matter of Fact, the structure, as proposed by the Petitioner, would adversely effect the recreational aspects of the adjoining parcels. 

There is no contention the dock and consequent boating activities have any impact on fish and wildlife.

The structure, but for its length, is not so different than others on the Lake. Aesthetics is a subjective determination and no party addressed this standard one way or another.

There is no contention the activity is causing any impact, adverse or otherwise, on agriculture.

There was no evidence presented regarding any commercial, industrial, or local government use of the waters of Lake Chemung that may be affected by the proposed activity.

Section 30106 prohibits the issuance of a permit "...if the proposed project or structure will unlawfully impair or destroy any of the waters or other natural resources of the state." To implement this part of § 30106, the Department promulgated 1985 AACS, R 281.814 (Rule 4), which states:

In each application for a permit, all existing and potential adverse environmental effects shall be determined and a permit shall not be issued unless the department determines all of the following:

(a) That the adverse effects to the environment and the public trust are minimal and will be mitigated to the extent possible.

(b) That the resource affected is not a rare resource.

(c) That the public interest in the proposed development is greater that the public interest in the unavoidable degradation of the resource.

(d) That no feasible and prudent alternative is available.

This Tribunal has consistently held that where there is no environmental harm, Rule 4 is inapplicable to the application review process. See In Re: Inland Lakes and Streams Act (346), Appeal of Harold Kreeger, File No. 90-9-409 (1994); In Re: Inland Lakes and Streams (Part 301), Appeal of James M. Schenden, File No. 94-10-733 (1998). Based on the testimony of Ms. Hardigan that there are no potential adverse effects to the environment, the criteria of Rule 4 need not be reviewed.

1. I conclude, as a Matter of Law, based on the Findings of Fact, the Petitioner is a proper applicant for a permit under Part 301.

2. I conclude, as a Matter of Law, the structure, for the reasons stated in the Findings of Fact, is not subject to the exemptions provided under §§ 30103(a) nor 30103(b).

3. I conclude, as a Matter of Law, for the reasons stated in the Findings of Fact, the structure would adversely affect the interests of adjacent riparians.

4. I conclude, as a Matter of Law, the activity poses no potential adverse environmental impact and, therefore, 1985 AACS, R 281.814 is not applicable in this case.

Based on the Findings of Fact and Conclusions of Law, it is proposed that a Final Order be entered DENYING the permit as applied for by Dennis Phillips under File No. 98-15-1429-11/98-11-0302.

Dated: April 25, 2000 

Richard A. Patterson

Administrative Law Judge

Petition of Dennis Phillips

File No. 98-15-1429-11/98-11-0302

State Exhibits

S- 1 Warranty Deed, Liber 154, 570, received June 23, 1926 from James R. and Hazel E. McNamara to J.S. Jaglay, et al. Lot 5, ours.
S- 2 Warranty Deed, Liber 154, 314, received March 26, 1926 from James R. and Hazel E. McNamara to Paul W. Rein. Lot 6.
S- 3 Plat of "Black Oaks", Register's Office; Livingston County, received on October 27, 1923.
S- 4 State of Michigan, Department of Environmental Quality [DEQ], Land and Water Management Division [LWMD], Public Notice on File No. 98-11-0302/98-15-1429 dated September 30, 1998.
S- 5 Warranty Deed, recorded May 20, 1937 from James R. McNamara and Wife to Paul Whitcomb and Wife.
S- 6 Warranty Deed, recorded February 27, 1939 from James R. McNamara and Wife to Fred L. Vogelsberg, et al.
S- 7 Warranty Deed, Dateded November 13, 1946 from Hazel E. McNamara, Survivor of herself and James B. McNamara, Deceased.
S- 8 Warranty Deed, dated July 18, 1946 from Hazel E. McNamara, Survivor of herself and James B. McNamara, Deceased and William E. Strachan and Marion Strachan.
S- 9 Warranty Deed, recorded August 14, 1950, from Hazel E. McNamara, Survivor of herself and James B. McNamara, Deceased and Theodore J. McNamara and Anita J. McNamara, husband and wife.
S-10 Land contract and deed in pursuance thereof, dated July 3, 1954, between Theodore J. McNamara, Administrator of the estate of Hazel E. McNamara, deceased and William E. Strachan and Marion I. Strachan.
S-11 Land Contract, dated July 27, 1951 between Theodore J. McNamara and Anita J. McNamara and Walter R. Helm and Evelyn D. Helm.
S-12 Warranty Deed, dated January 28, 1946, between Hazel E. McNamara, Survivor of herself and James B. McNamara, Deceased and William Bell and Rose Bell.
S-13 Warranty Deed, dated January 28, 1946, between Hazel E. McNamara, Survivor of herself and James B. McNamara, Deceased and William Bell and Rose Bell.
S-14 Warranty Deed, dated March 26, 1963, between William Bell and Rose Bell and Ray E. Thompson and Dorothy N. Thompson.
S-15 Four color photographs, 3½" x 4¼".
S-16 Letter dated October 12, 1995 from Theodore J. McNamara To Whom It May Concern.
S-17 Letter dated January 6, 1996 from John E. Tripp to Dennis Phillips.

Respondent's Exhibits

R- 1 Letter dated July 12, 1995 from Tim and Sharon Ford to Bryan Armstrong, Department of Natural Resources [DNR], Submerged Lands Unit.
R- 2 Not Entered.
R- 3 Letter dated May 6, 1998 from Beverly Miller to Bryan Armstrong, DNR, Submerged Lands Unit.
R- 4 Not Entered.
R- 5 Not Entered.
R- 6 Department of Environmental Quality [DEQ], Land and Water Management Division [LWMD], Project Review Report dated October 22, 1998 from Thomas Kolhoff.
R- 7 Letter dated October 9, 1998 from Leon and Irene Sredzinski to Bryan Armstrong.
R- 8 Fax Sheet and Statistics for Lake Chemung dated March 22, 1999 from Karen, Office of the Sheriff, Livingston County to Bryan Armstrong.
R- 9 Copy of the Natural Resources and Environmental Protection Act, Act 451 of 1994 beginning at Article I General Provisions.
R-10 Letter dated March 30, 1999 from Bryan Armstrong to Andrew A. Meyer and Dennis Phillips.
R-11 Not Entered.
R-12 Not Entered.
R-13 Not Entered.
R-14 Photocopies of nine photographs, 3 pages.
R-15 Photocopies of four photographs and aerial photo review report, 3 pages.
R-16 Standard sheet of paper, listing Total Frontage and Total Acreage with Black Oaks and Paths in feet measurements.
R-17 Highlighted Page 73, Michigan Boat Launch Directory, Livingston County, Lake Chemung.
R-18 Letter dated June 3, 1998 from Bryan Armstrong to Warren Williams.
R-19 Not Entered.
R-20 Not Entered.
R-21 Critique on Drawing in Marina Application By Back Lotters.
R-22 Copy of photograph with notations, Note Dock Placement of Lot 8, Miller & Lot 7.
R-23 Copy of photograph.
R-24 Copy of photograph, noted #7.
R-25 Aerial photograph, overlay of lot numbers, Path, Lakeside Drive, North Drive, Hilltop Drive, and Public Highway.
R-26 Aerial photograph.
R-27 Aerial photograph, overlay of lot numbers, Path and Hilltop Drive.