IN RE: GREAT LAKES SHORELANDS PROTECTION AND
MANAGEMENT ACT APPEAL
OF LEWIS C. RUDEL

The Natural Resources Commission, having considered the Proposal for Decision dated October 31, 1988, 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 be rejected, and directs staff to designate the parcel. (See Proposal for Decision, dated October 31, 1988, attached hereto.)

Date
David D. Olson, Chairman
Natural Resources Commission

IN RE: Shorelands Protection And Management Act Appeal of Lewis C. Rudel

This case involves an appeal from the designation of property owned by Mr. Lewis C. Rudel as lying in a high-risk erosion area along the Lake Huron shoreline. As part of that designation, a minimum setback of 40 feet was established for the construction of any future permanent structure on the property. A structure which lies in part within the designated setback currently exists on the property. Mr. Rudel challenges both the designation or the property as being high-risk and the establishment of the setback. He further argues that the existence of a long-established erosion control device has protected and will protect this property, justifying an exception from the designation or the setback. Finally, he argues that the 40-foot setback should be measured from other lines of demarcation than those established by the Department.

A hearing was held in this matter on August 18, 1988, following a pre-hearing conference on July 22, 1988. At the hearing Mr. Rudel, who is an attorney, represented himself. The Department of Natural Resources was represented by its chief witness, Mr. Martin Jannereth, Head of the Shorelands Management Unit, Land and Water Management Division, who is not an attorney. The Assistant Attorney General assigned to this case withdrew prior to the prehearing conference. At both the prehearing conference and the hearing, time was taken to explain the purpose and procedures of the contested case provisions of the Michigan Administrative Procedures Act to the parties, since Mr. Rudel is not familiar with administrative practice and Mr. Jannereth has no legal training.

The Department presented two witnesses, both of whom are employees of the Department - Mr. Jannereth and Ms. Penny Houck, who works with Mr. Jannereth in the Shorelands Management Unit. The Petitioner, Mr. Rudel, testified as his only witness.

The parties stipulated to the entry of 6 joint exhibits. A total of 21 exhibits were admitted in behalf of the Department as Respondent's Exhibits 1-21. Another 10 exhibits were admitted in behalf of the Mr. Rudel as Petitioner's Exhibits A-J.

The parties also stipulated that all procedural requirements imposed on the Department regarding the designation process were met, as well as all procedural requirements imposed on the Petitioner to perfect his rights under the Shorelands Management and Protection Act.

This case falls under the Shorelands Protection and Management Act of 1970, Act No. 245, P.A. of 1970, as amended by Act No. 270, P.A. of 1974, which is MCLA 281.631 et seq. Administrative Rules R 281.21 and 281.22 (Rules 1 and 2), which were promulgated pursuant to section 11 of the Shorelands Act, also apply to this case.

This Act was passed to provide for the protection and management of shorelands and to establish a zoning system for certain shorelands. In particular for this case, the Act sought to protect high risk areas - "an area of the shoreland which is determined by the commission to be subject to erosion" (Sec 2(e)). The land to be zoned or regulated is "the land in this state which borders or is adjacent to a Great Lake or a connecting waterway and which except for flood risk areas are (sic) situated within 1,000 feet landward from the ordinary highwater mark (as defined in another act) 11 (Sec. 2 (f ) )

Section 3 of the Act required that the Commission (now meaning the Natural Resources Commission) make or cause to be made "an engineering study of the shoreland to determine: (a) the high risk areas; (and) (b) the areas of the shorelands which are platted or have buildings or structures and which require protection from erosion."

Section 5 provides:

The commission pursuant to section 3 shall determine if the use of a high risk area shall be regulated to prevent property loss or if suitable methods of protection shall be installed to prevent property loss. The commission shall notify a local agency, the department of licensing and regulation, the department of labor, the department of treasury, and the department of commerce or other affected state agencies of its determinations and recommendations relative to a high risk area which is in a local agency.

The Act allowed local zoning of any shoreland until July 1, 1975 (Secs 7-9). All existing local zoning ordinances, future zoning ordinances, and modifications or amendments of current or future zoning ordinances were made subject to review by the commission, which could disapprove them if they failed to adequately prevent property damage or prevent damage to a high risk area (Sec 10). Section 11 gave the commission the authority to promulgate rules "in order to regulate the uses and development of high risk areas . . . and to implement the purposes of this act."

Section 12 of the Act required the development of a plan for the use and management of the shoreland, including the identification of high risk areas. Section 13 authorized the commission to enter into agreements with federal, state, local, and private agencies to make studies and plans regarding the shoreland, with those studies and plans to be used to guide the local agencies and the commission in zoning.

Under the rulemaking power delegated to it the Commission promulgated rules in December, 1981 defining bluffline, minimum required setback, moveable structure, nonconforming use, parcel, permanent structure, and substandard lot. In those rules the Commission also set forth the regulatory system under which it has proceeded to implement and administer the Shoreland Protection and Management Act. The key provision pertinent to this hearing is Rule 2(2), which contains two major provisions.

The first provides that: "The department shall designate a high-risk erosion area upon its finding that bluffline recession has been occurring at an average annual rate of 1.0 foot or greater per year, based on a minimum period of 15 years." In this matter the Department designated the Petitioner's property as being in an area with recession at an average of more than 1.0 foot per year.

The second provision in Rule 2(2) states that "the designation shall contain the minimum required setback from the bluffline for any future permanent structure. The setback shall be based on a projected 30-year period of bluffline erosion." In this matter the Department established the setback at 40 feet, based on its determination that the recession was 1.3 feet per year.

Rule 2(6) allows the modification of any regulatory measure "upon presentation of engineering studies acceptable to the department documenting annual recession rates at variance with department recession rate data." It further provides "upon department acceptance of the data as accurate and compatible with the objectives of the act, a structure's setback from the bluffline shall be calculated and implemented based on the new recession rate information."

Rule 2(11) restricts the expansion of a nonconforming structure if that increases the nonconformity. Mr. Rudel's structure is a nonconforming structure under the designated setback for this area.

Mr. Rudel owns property located at 1248 N. U.S. 23, which is in Section 7, T22N R9E, Baldwin Township, Iosco County. The property is located on the Lake Huron shoreline and falls within the 1000 foot zoning line established in the Shoreland Management and Protection Act.

In 1976 a study of bluff recession rates along the shoreline of Baldwin Township was made at the request of the Township authorities. The results of that study apparently were incorporated into the local zoning ordinance. In 1985 an update of the bluff recession study was undertaken by the Department of Natural Resources as part of the effort to complete an erosion study of the entire Great Lakes shoreline (Joint Exhibit 5). That study led to the designation and setback at issue here.

Mr. Jannereth testified regarding the two studies which led to the designation of this shoreline as a high risk area. The area was not designated until the study of all of Iosco County was completed, since the entire state was being done on a county by county basis. He stated that the Department's methodology included using the longest period, or time-span, available for study, which in this instance was from 1938 to 1973 in the initial study and to 1979 in the follow-up.

Mr. Jannereth also described the system used to determine bluffline erosion. 'The bluffline is defined in Rule 1(b) as "the line which is the edge or crest of the elevated segment of the shoreline above the beach which normally has a precipitous front inclining steeply on the lakeward side." The process used is to compare aerial photographs though a device called a zoom transfer scope.

In the first study Respondent's Exhibits 1, 2 and 3 were used. Field trips were made to determine landmarks to aid in establishing control points. Mr. Jannereth said that this study presented no difficulties. The relevant shoreline had abundant control points and an easily identifiable bluff, which shows on the photographs as the lakeward edge of solid vegetation. The on-site comparison assures that the scale used in the photographs is accurate.

The zoom transfer scope is then used in the office to superimpose one photograph over the other on the same scale. The blufflines are then compared and a ruler with a .01 scale is used to measure the extent of retreat of the bluffline landward. The total retreat is then divided by the number of years which elapsed between the photographs to determine the annual recession rate.

In the first study of section 7, which includes the Rudel property, rates of recession at sites about 400 feet apart were established (Joint Exhibit 5). The Rudel property lies between sites 152 and 153. The rates at sites 151, 152, and 153 were 1.6, 1.1, and 2.4, respectively.

In the 1985 study the Respondent's Exhibit 4 was used, a 1979 photograph. This photograph was compared to the 1938 photograph, so the bluffline erosion was measured over an additional six year period. The process was otherwise the same. The new rates for sites 151, 152, and 153 were 1.7, 0.9, and 2.1, respectively. There had been almost no erosion over the past six years.

Department witness Penny Houck testified that she checked the rates of the first study and found general correlation between that study and her findings, although she noted greater erosion at site 151 than did the first study, which was done by Mr. Jannereth.

Mr. Jannereth then testified as to the method of determining the recession rate for a particular area to determine if it fell within the high risk definition. The process is set forth in Respondent's Exhibit 21, which describes a method grouping rates of similar magnitude. This process led to placing the Rudel property in Area A4, as shown in Joint Exhibit 5. All recession rates in an area are averaged to determine the recession rate for the area as a whole. In this instance the rate was set at 1.3 feet per year for the period beginning in 1938 and ending in 1979. This was based upon the average rates of the two sites in the area, which were site 151 with 1.7 and site 152 with 0.9 feet per year.

Mr. Jannereth testified that the setback was determined at 401 by multiplying the recession rate of 1.3 by the required projection of 30 years and rounding to the nearest 5 feet. This calculation is not challenged. What was challenged was the use of the grouping methodology. If the closest site were selected it would be site 152, which had a rate of 0.9. After rounding up to the nearest foot, this would yield a setback of 30 feet, and without rounding would yield a setback of 27 feet.

In regard to the bases for the premises used in the methodology Mr. Jannereth testified that he followed recommendations from other authority, as well as the training and education he had received. He cited the technical recommendations of the erosion/insurance study conducted by the Erosion/Hazard Management Subcommittee of the Great lakes Basin Commission Standing Committee on Coastal Zone Management (Respondent's Exhibit 18), which at page 35 states: "the longest period for which accurate data points exist should be employed." He also cited the OCRM Natural Hazards Issues Study Group information memorandum recommendation of March/April, 1988 that coastal managers should "base the setback on long-term average annual recession rates." (Respondent's Exhibit 19, P. 2) Finally, he cited his own analysis of similar programs in the Great Lakes states (Respondent's Exhibit 20), which was prepared for the Committee on Coastal Erosion Zone Management. That study showed the established use of long-term periods of measurement.

Mr. Jannereth recognized that Mr. Rudel's property had a long-established and well-maintained device for shore protection. He stated that shore protection which works affects the rate of erosion and that in turn is reflected in the recession rates. His view is that if the device works, the bluffline stops retreating, which reduces the average recession over the period to be measured. He also stated that erosion devices are susceptible to failure and that they are imperiled when the land along adjoining shorelines erodes. Several exhibits of both the Department and the owner were entered to show the general orientation of the property and the shore protection. The current and past effectiveness of the protection is not disputed. The Petitioner's Exhibits G and H establish effective shore protection over at least the past 20 years. It is clear from the photographs and testimony that the shoreline extends further lakeward on Mr. Rudel's property than on the adjoining properties.

If the setback is maintained, Mr. Rudel is not required to remove his structure or take any other action. If he desired to make an addition to his house, he would be required to get a state permit and would not be permitted to add to the house in the setback area of 40 feet, according to Mr. Jannereth. Further, there are rules in process which, if passed, would add 15 feet of setback to certain properties. The property under consideration would be included in that additional requirement.

Although the issue is not directly presented by this appeal, the question of how to measure the 401 setback is important to the parties. Rule l(c) defines the minimum required setback as "the distance between the bluffline and the lakeward edge of the permanent structure" (which refers to the structure on the land, not the erosion control device). Since the bluffline is not well-established at the Rudel property, because the erosion control device extends lakeward from the shore, the Department rejected the argument that the bluffline be determined to be the lakeward edge of the skip-pole wall. The device projects lakeward from the shore, making the exact location of the bluffline hard to establish as the Department conceded.

From the testimony and the photographs it appears to be most likely that the bluffline and the shoreline are identical at this site. The shoreline is defined in the Act (Sec. 2(i)) as "that area of the shorelands where land and water meet." The same sources show that the shoreline is behind the rock crib. I find that it is located at the landward edge of the wall behind the wood deck. This wall is located 281 from the structure on the property, as shown on Respondent's Exhibit 17.

I find that the Department did calculate the rate of erosion at 1.3 feet per year for this property, making it a high risk area. The Department did calculate a setback of 40 feet. It followed its established procedures in so doing. Its determinations are based on established methods of shoreland erosion evaluation. I find that the property has suffered no erosion for a period of at least 20 years, due to an effective shoreline erosion device, which remains in good condition and is not likely to fail in the immediate future.

Under the rules promulgated by the Department a person aggrieved by the designation of a high risk area is entitled to a contested case hearing. The scope of this hearing is not set forth, so the hearing must be intended to allow any legal or factual issue which might show that the designation was inconsistent with the Shorelands Protection and Management Act or the rules promulgated under the Act.

The first issue raised is whether the designation of this area as high risk was proper - As the record and findings of fact show, the Department conducted two recession studies of this area. in conducting those studies it followed accepted methodology and used modern technology. While the testimony established that there is some room for interpretation and error in the methods and technology, there is no showing that faulty interpretation or error occurred here.

Both witnesses for the Department agreed that the rate of recession for the site on which this property is located was correctly fixed. Both agreed that the rate for the area in which the property is located was correctly fixed. The methods used to determine the rate to be applied to the property was explained. The grouping of recession rates is done to minimize anomalies and irregularities in fixing the overall erosion rates. While the specifics of the methodology used were not included within the rules, it seems reasonable and consistent with the requirements of the Act and the rules which were promulgated.

The petitioner, Mr. Rudel, offered no testimony which rebuts the scientific or technical validity of the Department's approach. The use of the zoom transfer scope is unchallenged by expert testimony. The selection of long-term measurement for determining rates of recession is within the agency's discretion under the Act, and it is also unchallenged by expert testimony. The record establishes a common practice among experts and the states that supports using the longest period of measurement available.

The Rules do not make clear the effect which erosion control devices have on the designation. The testimony makes it clear that effective erosion control devices have an effect. Here, for instance, the device has been effective for 20 years, at least. In the 41 years between 1938 and 1979 this area recessed some 53.3 feet. Assuming that the device was in since 1968, and that no erosion took place thereafter, the methodology gives 11 years of credit to the device. For the period from 1938 to 1968 the rate was nearly 1.8 feet annually. Should it be effective for another 10 years, its usefulness will further reduce the rate. And 30 years would reach the protection horizon set forth in the rules.

The record contains an unsworn statement attributed to the Department employee responsible for administering the Act (Petitioner's Exhibit J). The statement was that the Department has de-designated a number of homes along the shoreline where shore protection has been effective for a 10 or 15 year period. Mr. Jannereth contradicted that statement in his sworn testimony. The unsworn and hearsay nature of this document make it unreliable for deciding the facts in this hearing.

But it does point out the absence of specific reference to shore protection in the rules. I suggest that the Department issue guidelines on its intended consideration of shore protection in the administration of the Act, especially in regard to its effect on designation. Under the circumstances of this case and in light of the testimony in the record by Mr. Jannereth concerning the danger of failure of shore protection devices (which is a premise of the remarks quoted in Exhibit J, also), the focus may be more appropriately on setbacks than on de-designation. Thus, a long-protected property with approved or accepted shore protection could receive a waiver or reduction of setback requirements conditioned on the maintenance of well-constructed and sufficient shore protection. Ultimately, the Department might wish to incorporate the system into the rules.

The absence of such a rule or guideline, however, does not lead to a conclusion that the designation of this property as lying in a high risk area wag improper. I conclude that the rate of recession was appropriately fixed at 1.3 feet per year in this area and that Mr. Rudel's property lies within the area and is therefore subject to the designation.

The second issue of law is whether the setback was properly fixed at 40 feet - In general the findings as to designation sustain the findings as to setback. The rules clearly establish the setback system, especially Rule 2(2), which states that the department shall include a minimum setback in any designation of a high risk area (where recession has occurred at an average annual rate of 1.0 foot or more for a minimum period of 15 years). It then says that "the setback shall be based on a projected 30-year period of bluffline recession."

The Department fixed the setback at 40 feet. In doing so, it multiplied the rate of recession (1.3 feet) by the 30-year period required in the rule. This was well within the authority expressed in the rule. However, the Department then rounded to the nearest 5 foot interval, meaning that it added 1 foot in this case. The methodology introduced to support this step is found in Respondent's Exhibit 21 and is explained in Mr. Jannereth's testimony. I do not believe that this step violates the rules. The idea of multiplying the rate of recession times the 30-year period is implicit in the rule and it is rational to conclude that the process is what the rule contemplated. The rounding process represents a well-established part of the setback procedures and allows for some uniformity in setback distances.

I see no reason why a rounding process could not be included in a rule, and the testimony establishes that proposed changes in the rules would add a flat 15 foot addition to the setback established by the recession rate times 30 years. It would be better if the rules or published guidelines contained the rounding step, but I do not conclude that the failure to publish the guideline use here is of such significance as to affect the outcome of this matter. At most, it can only add 2.5 feet to a setback.

Accordingly, I conclude that the Department fixed the setback at the right distance.

The next issue of law is where the Point should be fixed for the measurement of the 40 foot setback - As discussed above the shore protection device has apparently obscured the bluffline, which under the rules is the benchmark for the measurement of the setback. In the findings of fact I found that the shoreline and bluffline were fixed at a point just landward of the wall behind the wooden deck, which is 28 feet lakeward of the current structure on the property. I conclude that the Department set the line at the appropriate place under the circumstances. The petitioner's contention that the line extend to the skip pole wall is not logical, since the wall extends into the water and is lakeward of the water's edge. The bluffline cannot be located where the petitioner urges.

The last issue of law is whether the Department should have granted an exemption or exception from the setback - The only arguable basis for doing so provided in the rules and appropriate under the facts presented is found in Rule 2(6), which provides:

A regulation may be modified upon presentation of engineering studies acceptable to the department documenting annual recession rates at variance with department recession rate data. Upon department acceptance of the data as accurate and compatible with the objectives of the act, a structure's setback from the bluffline shall be calculated and implemented based on the new recession rate information.

Mr. Rudel's proofs consisted of challenges to the testimony of the Department during cross-examination and his testimony, supported by two affidavits, that no erosion had occurred at his property for a considerable period, at least not for 20 years.

I do not believe that this testimony satisfies the requirements set forth in the rule cited. The evidence offered no engineering study, not did it purport to establish a recession rate. No period was urged, no outside parameters or benchmarks were established.

What was offered was the general effect of the erosion control device in place at the property. The Department rejected that view, choosing to incorporate the effective device into the long-range measurement of recession.

I conclude that the Act leaves the discretion to consider the impact of erosion control devices upon shoreland erosion to the Department. I have commented earlier on the need for more explicit coverage of this topic in the rules, but in the absence of such language in the rules to sustain the point argued by Mr. Rudel, I cannot conclude that the Department should have granted an exception or recomputed the setback. The Act and the rules should not be administered on an ad hoc basis. Granting exceptions in the absence of some uniform set of standards which the Department intends to follow, whether by rule or in published guidelines, is a perilous practice. The Department probably has the prerogative to do so, but it chose not to in this case. The Commission may choose to determine whether to grant exceptions where effective shoreline protection devices are in place on a case by case basis. I recommend that they not do so without publishing guidelines first.

Based on the findings of fact and conclusions of law set forth above, the designation of this site as a high risk erosion area with an annual average recession of 1.3 feet should be upheld. The setback should be measure from the landward edge of the wall located 28 feet from the structure currently found on the property, not from the rock crib wall. The setback should remain at 40 feet. No exception should be granted at this time.

Date: Signature
Don LeDuc
Administrative Law Judge

JOINT EXHIBITS

Joint Exhibit 1 Site Location Map
Joint Exhibit 2 Letter from M. Jannereth to Citizens re Iosco County Planning Commission meeting held April 21, 1988 (undated)
Joint Exhibit 3 Letter from M. Jannereth to L. Rudel (November 4, 1985)
Joint Exhibit 4 Letter from M. Jannereth to L. Rudel (January 3, 1986)
Joint Exhibit 5 Bluff Recession Rate Study of Baldwin Township, Iosco County, Michigan (Amended 10/85)
Joint Exhibit 6 Shorelands Protection and Management Act of 1970 and Rules

PETITIONER'S EXHIBITS

Petitioner's Exhibits A-F Photographs of Property and Shore Protection
Petitioner's Exhibit G Affidavit of Richard Cooper
Petitioner's Exhibit H Affidavit of Lawrence J. Lavoie
Petitioner's Exhibit I Letter from C. Smith to L. Rudel (May 20, 1981)
Petitioner's Exhibit J Statement of Chris Shafer (June 9, 1988)

RESPONDENT'S EXHIBITS

Respondent's Exhibit 1 Aerial Photograph - BDT-4-74 (7-4-38)
Respondent's Exhibit 2 Aerial Photograph - 82-07 (10-14-73)
Respondent's Exhibit 3 Aerial Photograph - 82-08 (10-14-73)
Respondent's Exhibit 4 Aerial Photograph - 000358 (4-7-79)
Respondent's Exhibit 5 Photograph of Property
Respondent's Exhibit 6 Photograph of Property
Respondent's Exhibit 7(A-G) Photographs of Property
Respondent's Exhibit 8 Notice Letter of R. Skoog with Attachments (August 1, 1985)
Respondent's Exhibit 9 Notice Letter of R. Skoog with Attachment (August 1, 1985)
Respondent's Exhibit 10 Letter from L. Rudel to M. Jannereth (September 3, 1985)
Respondent's Exhibit 11 Memorandum from P. Houck to M. Jannereth (October 7, 1985)
Respondent's Exhibit 12 Letter from L. Rudel to M. Jannereth (December 16,1985)
Respondent's Exhibit 13 Letter from R. Skoog to L. Rudel (February 10, 1986)
Respondent's Exhibit 14 Letter of Appeal from L. Rudel to R. Skoog (March 4, 1986)
Respondent's Exhibit 15 Memorandum from P. Houck to Files (March 26, 1986)
Respondent's Exhibit 16 Letter from P. Houck to L. Rudel (August 4, 1986)
Respondent's Schematic Drawing of Site, MRJ, Exhibit 17 (November 13, 1987)

RESPONDENT'S EXHIBITS

Respondent's Exhibit 18 Erosion/Insurance Study - Great Lakes Basin Commission - Standing Committee on Coastal Zone Management (June, 1978)
Respondent's OCRM Natural Hazards Issues Study Group - Exhibit 19 Information Memorandum (March/April, 1988)
Respondent's Analysis of Great Lakes States Coastal Exhibit 20 Erosion Management Programs for the
Committee on Coastal Erosion Zone Management
Respondent's Exhibit 21 Procedures for Determining the Minimum and Recommended Building Setback Distances for High Risk Erosion Areas