SUBJECT: Part 303, Wetland Protection of the Natural Resources and Environmental Protection Act (NREPA), 1994 PA 451, as amended, (Formerly the Goemaere-Anderson Wetland Protection Act [203])

Petition of Jean Smart and Jeri Spitzer

File Nos. WBD-BER-31; WC12-89-015; Violation #910342
______________________________________________________________________________

At a session of the Final Decision Maker for the Department of Environmental Quality held in Lansing, Michigan, on July 30, 1996, Acting Chief Administrative Law Judge, Richard G. Lacasse, Presiding

The above-entitled matter has been the subject of a contested case hearing resulting in a Proposal For Decision dated June 4, 1996. The matter is now before the Chief Administrative Law Judge of the Office of Administrative Hearings for review and decision pursuant to Executive Order 1995-18, Delegation Letter No. OAH-324.101 et seq.-01.

The Petitioners and the Permittee filed exceptions to the Proposal for Decision. The Department did not file exceptions to the Proposal For Decision. None of the Parties requested Oral Argument regarding issues of law or policy.

The Chief Administrative Law Judge of the Office of Administrative Hearings has considered the Proposal For Decision as well as appropriate exhibits, transcripts, submissions and arguments of the Parties. The Petitioner's exceptions contain facts not in evidence, e.g. a color photograph taken after the close of proofs. Extra-record facts were not considered in this decision.

It is DETERMINED the Chief Administrative Law Judge of the Office of Administrative Hearings ADOPTS and incorporates by reference the attached Proposal for Decision and those findings of facts and conclusions of law supporting the decision that the Department of Environmental Quality has no jurisdiction to regulate the subject property and a permit is not necessary for the proposed activity. Because the Department lacks jurisdiction over this matter, it is unnecessary to address other legal issues raised by the Parties.

NOW, THEREFORE, IT IS ORDERED the Department of Environmental Quality has no jurisdiction over the subject property pursuant to Part 303, Wetland Protection, of the Natural Resources and Environmental Protection Act; 1994 PA 451, as amended. MCL 324.30301 et seq; MSA 13A.30301 et seq.

Dated: July 30, 1996 /signed

Richard G. Lacasse
Acting Chief Administrative Law Judge
DEQ-Office of Administrative Hearings

RE: Part 303, Natural Resources and Environmental Protection Act, PA 451 of 1994, as amended, (Formerly the Goemaere-Anderson Wetland Protection Act [203])
Petition of Jean Smart and Jeri Spitzer

File Nos. WBD-BFR-31 WC12-89-015

Violation #910342

Dated: June 4, 1996
Richard A. Patterson
Administrative Law Judge

This matter is a contested case concerning the petition of Jean Smart and Jeri Spitzer as aggrieved persons pursuant to MCL 281.717 (2), as to a determination of the then MDNR that regulated wetlands were not present on properties owned by Petitioners and adjacent properties owned by Mr Michael K. Cook.

The hearing was conducted pursuant to Part 303 of the Natural Resources and Environmental Protection Act (NREPA) (formerly the Goemaere-Anderson Wetland Protection Act, (WPA) 1979 PA 203, as amended).

The professional staff of the Department of Environmental Quality (formerly the Department of Natural Resources) is charged with the day-to-day implementation of the aforementioned act. Petitioners filed for a contested case hearing as aggrieved parties pursuant to Sec. 17(2) of part 303.

Petitioner Jean Smart testified on her own behalf, introducing 11 exhibits.

Respondent's case was presented by Mr. Albert Massey, Supervisor, Land and Water Management, Region III. Mr. Steven G. Sadewasser, Manager of the Wetland Protection Program for the Department of Environmental Quality, testified on behalf of Respondent. Respondent introduced 4 exhibits. An exhibit list is attached to this Proposal for Decision.

The subject property is located in St. Joseph Township, Berrien County, Michigan, and is comprised of approximately 40 acres, bordered on the north by Nelson Road, Washington Avenue on the east and Cleveland Avenue on the west. On June 27, 1989, a wetland determination was performed by Mr. Lloyd Wilson at the request of Donald Kamp of Meredith & Kamp Realtors in Stevensville, Michigan. The determination concluded that there were no regulated wetlands on the Cook property. It was Mr. Wilson's conclusion that, although wetlands were present as indicated by the presence of Gilford sandy loam and Granby loamy fine sand with the presence of American elm, red maple, silver maple and green ash, they were neither greater than 5 acres nor contiguous to a lake or stream (Respondent's Exhibit 2). Subsequently, Wilkens & Wheaten Engineering performed a wetland determination on the subject property on November 22, 1989 at the request of Mr. Michael Cook. They too determined the site was not regulated by the WPA, stating they were in agreement with the determination of the Department of June 27, 1989 (Exhibit R-1). In reliance of the above, Mr. Cook purchased 30 acres of the property and commenced development of a residential subdivision.

Petitioner Jean Smart and her husband own adjacent property to the northwest of the subject property. Petitioner Jeri Spitzer held a power of attorney from her aunt, Mrs. Garlanger, who owned 10 acres of the 40 acre parcel which were not sold to Mr. Cook. (That 10 acre parcel was subsequently sold to Mr. Cook.)

In November, 1989, Petitioners requested that the Department revisit the determination of Mr. Wilson. Due to the fact Mr. Cook denied access to the property to Department staff, a reevaluation was performed using available existing data. The determination was confirmed in a letter to Ms. Smart from Jeffery King, District Supervisor, January 3, 1990. On February 3, 1990, Petitioners wrote Mr. Dennis Hall, Chief of the Land and Water Management Division, a detailed letter addressing their continued concerns and "confusion" with the previous determinations and, again, requested a re-determination. In response, Mr. Hall had Mr. Steve Sadewasser review the determination. His concurrence was promptly conveyed to Petitioners and Mr. Hall sent a summary of findings by letter to Petitioners April 2, 1990.

In addition to the above, Petitioners filed a civil action in the Berrien County Circuit Court naming Mr. Cook, the MDNR, the St. Joseph Township Board, the Berrien County Drain Commission and others as Defendants. That case was dismissed by Stipulation and Order with Prejudice.

On October 10, 1991, Petitioners filed a request for a contested case hearing challenging the wetland determination on the Cook property. That request was denied in that the request had been filed nearly two years after the determination, which was well in excess of the requisite 60 day period and, in the opinion of the Department, the order of dismissal in the Berrien County Circuit Court barred the claim.

On December 19, 1991, and December 26, 1991, Ms. Spitzer and Ms. Smart filed complaints with the Department regarding construction of a drain and possible impact to adjacent wetlands on the Garlanger and Smart properties. Department staff contacted the Berrien County Drain Commissioner, Lowell Bruce. Mr. Bruce advised the staff that he had spoken to Ms. Spitzer and he would have the plans revised so that the drain pipe through the Garlanger property would be a solid pipe to prevent the draining of groundwater. The drain was being constructed to facilitate the development of the Cook property. It runs north from the Cook property through the Garlanger property which is adjacent to the Smart property. It ultimately connects to an existing enclosed drain under Nelson Road. The drain commissioner further advised the staff that the Nelson Road drain is a solid pipe drain which was constructed in 1976. That drain empties into a open ditch drain approximately 1200 feet west of the Smart property adjacent to Cleveland Road. The ditch flows north approximately 600 feet and empties into Hickory Creek, a designated county drain.

Department staff in the person of Kim Rice inspected the Smart and Garlanger property on January 14, 1992. She determined that the wetland on the Garlanger property was a low depression comprised of less that five acres and not contiguous to a lake, stream or pond. There is a swale between the wetland and Nelson Road, but the area is vegetated with no evidence of continued water flow. There was no road side ditch, no curb or gutter in the road and no catch basins or manholes in the road to collect water. The wetland on the Smart property is also less that 5 acres in size and not contiguous to a lake, stream or pond. There is a ditch which runs from the wetland to approximately 30 feet south of Nelson Road. From a visual inspection, it appeared that the ditch slopes south toward the wetland. The ditch was not surveyed. There was no evidence of water flow in the ditch and no wetland vegetation. Therefore, the Department determined that the wetlands on the Garlanger and Smart properties were not regulated wetlands.

On March 10, 1992, Petitioners filed a new petition for contested case hearing, alleging Mr. Cook's activities were draining what they considered regulated wetlands on their property. The matter progressed its normal course but was delayed at the request of Petitioners due to probate proceedings. The matter was ultimately scheduled and heard October 6, 1995.

In the meantime, the second civil action was filed in March of 1995. It named Mr. Cook and L.E. Barber, Inc. as defendants. The suit, again filed in Berrien County Circuit Court, was resolved by settlement by which Petitioners received approximately $19,000 in consideration of their releasing trespass and drainage claims.

Neither Mr. Cook nor his counsel appeared for the contested case hearing. Counsel, however, did file a brief in opposition to the Petitioners raising three legal issues. First, Petitioners are barred by the Doctrine of Res Adjudicata; secondly, as a matter of law, there are no regulated wetlands on either the Cook property or Petitioners property and; thirdly, Petitioner Spitzer lacks legal capacity to pursue this matter, having sold her aunt's property to Mr. Cook. Petitioners objected to the filing of the above brief.

While Section 72 of the Michigan Administrative Procedures Act (24.272) provides

"1. If a party failes to appear in a contested case after process of service of notice, the agency, if no adjournment is granted, may proceed with the hearing and make its decision in the absence of that party."

it further provides

"3. The parties shall be given an opportunity to present oral and written arguments on issues of law and policy..."

The basis of Petitioners' objection is the timeliness of the brief. There is no time frame recited in the APA and the intention to file a brief was immediately conveyed to the undersigned. Based on the prompt filing and the above provisions, the objections are overruled and the brief has been considered as part of the case.

Michael Cook's counsel, in his brief asserts the requests for review of the wetland determinations on both the Cook and Petitioners' property are barred by Res Adjudicata through the disposition of the two previous civil actions involving the property.

The suit upon which the argument is predicated was filed May 21, 1990 in the Berrin County Circuit Court against Mr. Cook, the MDNR, the St Joseph Township Board and its individual members and Lowell Bruce as Berrien County Drain Commissioner. That suit was dismissed by stipulation and order with prejudice April 30, 1991. The record is silent as to the disposition of the case which resulted in the stipulation and order. While the Department was a named party to the suit, the stipulation is signed only by counsel for Plaintiffs (Petitioners here) and Defendants Cook and Bruce. Therefore, it is assumed that the Department was not served and the Court did not obtain jurisdiction over it. Therefore, the Department was not a party to the previous action as required by the doctrine. While, in most instances, a dismissal with prejudice may act to bar a relitigating the issue, there must be a hearing and decision on the merits. Reich v. State, 43 Mich App 284, 204 NW2nd 226 (1972), American Mutual Liability Insurance Co. v. Michigan Mutual, 64 Mich App 315, 235 NW2d 769 (1975).

Counsel has cited Brownridge v Michigan Mutual Insurance Company, 115 Mich App 745; 321 NW2d 798 (1982) for the proposition that a voluntary dismissal with prejudice may be final judgement for res judicata purposes. However, in that the Department was never technically a party or privy, it cannot be said to have consented to the dismissal. Even if a prior disposition is considered binding on subsequent administrative proceedings under City of Troy v Herschberger, 27 Mich App 127, 183 NW2d 430 (1970), again, because the Department was not a party and there was no ruling on the wetland issue, res judicata does not apply.

During the pendency of this action, Petitioners filed a second suit in Berrien County Circuit Court against Michael Cook and L.E. Barber, Inc. alleging trespass, nuisance, breach of contract as a result of the draining of Petitioners' pond by activities on the Cook property. Again this case was settled and concluded without the Department being named. Due to the disparity of issues and the lack of identical parties or privies being involved, I find, as a matter of fact, as to both determinations, that res judicata does not apply in this proceeding. Similarly, the payment and release between Petitioners and Cook has no effect herein.

This issue was raised by Mr Masey in the contested case hearing and ruled upon. (Transcript pages 8-10) I ruled, based on the fact that Ms. Spitzer, as attorney in fact, had standing as an aggrieved party under Section 17 (2) at the time of the filing of the petition that she could participate in the hearing.

While the term "aggrieved" is not defined under part 303, it could arguably pertain to anyone whose interest is affected regardless of ownership of adjacent land. However, in reality, she participated more as a witness. Therefore, her standing in a technical sense is of no real importance.

Petitioners are the proponents for the proposition that there are regulated wetlands present and, therefore, have a burden of proof. Lafayette Market and Sales Co. v. City of Detroit, 43 Mich App 129, 203 NW2d 745 (1972). Superior Public Rights, Inc. v. DNR, 80 Mich App 72, 263 NW2d 290 (1977).

A wetland in Berrien County, which has a population over 100,000, is regulated by the Department if it is either greater than five acres or contiguous to a Great Lake, an inland lake or pond or a river or stream. MCL 324.301 (section 30301[d]). The Department determined there were isolated wetlands on the Cook, Smart and Garlanger (Spitzer) properties, but that none of them were greater than five acres. It further determined that none met the definition of contiguous.

First, Petitioners assert that the wetland on the original Cook property is greater than five acres, but have presented no evidence to support that assertion. (Transcript pages 40-41) This supposition is based, in part, on their review of the Berrien County Soil Survey which was utilized by the Department. This writer takes notice that soil surveys, while utilized, are not definitive as to precise borders or extent of a wetland. With respect to the wet areas on the Smart and Garlanger properties, the Petitioners admitted that each was smaller than five acres. They assert, however, that all of the wet areas were joined by surface water connections, and that collectively they exceed five acres in size. They also assert that the Cook wetland and the Garlanger wetland were contiguous to Hickory Creek by way of a system of man-made drains.

Neither Mr. Wilson nor Ms. Rice observed surface water connections. Moreover, Mr. Sadewasser, the manager of the state's wetland protection program and a trained expert on wetland delineations (Transcript page 87), testified that he independently studied infrared aerial maps, soil survey maps, and soil boring information and compared these with Mr. Wilson's report. (Transcript pages 102-103, 115) Mr. Sadewasser's review confirmed the initial determination as to the original Cook property. (Transcript pages 103-104, 115-116) Mr. Sadewasser also testified he could find no evidence of surface water connections between any of the wet areas. He also noted that Petitioner's own testimony suggested that there was a "topographical break" between the Cook wetland and the Garlanger wetland and, thus, no surface water connection. (Transcript page 119)

Petitioners presented copies of 100 year-old county drain records showing the "Garlanger" drain existed as early as 1893. They presented no evidence, however, showing the old drain is still being maintained, nor did they establish the existence of a continuous drain connection to Hickory Creek.

Mr. Sadewasser testified his review of aerial maps revealed there are breaks in what Petitioners claim is the 'Garlanger" drain which negate the possibility of a surface water connection. (Transcript page 118).

Petitioners finally assert the wet area on the Garlanger Property is contiguous to Hickory Creek through the swale that flows north to a series of man made drains along Nelson Road, ultimately connecting to Hickory Creek. As previously indicated, the evidence shows the existence of a finger-like projection extending to the north toward Nelson Road from the Garlanger wet area, and Department staff determined the wetland on the Garlanger property is a low depression of less than five acres.

In summary, Petitioners assert a surface water connection by way of a man made drainage system within the meaning of section 2(g) of the Wetland Protection Act, and therefore, the wetland is regulated even if it is smaller than five acres.

In the Louis Smith case (File No. 87-6-208W), the Natural Resources Commission issued a final order regarding the issue of "contiguous wetlands" for purposes of regulation. The question in Smith was whether "an unbroken ditch, culvert, stream bed and drainpipe system stretching from the wetland to a nearby creek rendered a wetland "contiguous" for purposes of the Wetland Protection Act. The analysis began by determining that the term "contiguous" is not a term or art nor a technical term. Therefore, it must be given its "plain and ordinary meaning" which is to "touch" or "come into contact" with something else. A review of case law construing the term led to the following observation at page 20.

"The common thread in all cases is when the word "contiguous" is used in a statute as a standard, there must be an actual touching or contact of borders. Although the amount of touching or contact of borders may vary with the application, a touching or contact is always required."

It was further stated at page 23:

"To accept the proposition that a storm water drainage ditch is a 'surface water connection' would work to greatly expand jurisdiction under the Act. All lands connected to drainage ditches would be considered 'contiguous' to the lake or stream where the drain system discharges. This interpretation is contrary to the finding that the word 'contiguous' is used as a limitation to jurisdiction. This expansive view would render the limitation meaningless.

Smith was decided before the promulgation of rules under what is now part 303. Rule 1 contains definitions among which is "contiguous." 1988 AACS, R 281.921(1). Under the facts of this case, these wetlands are not "contiguous" even under the rule definitions because:

1. There is no permanent surface water connection. (1)(b)(i)

2. There is no direct surface water connection to an inland lake or pond, river or stream, one of the Great Lakes or Lake St. Clair. (1)(b)(ii)

3. The wetlands are not located either partially or wholly within 500 feet of the ordinary high water mark of an inland lake, pond, river or stream or within 1,000 feet of the ordinary high water mark of a Great Lake or Lake St. Clair. (1)(b)(iii)

4. There are not two or more areas of wetland separated by artificial barriers from a contiguous wetland as defined in subsection (1)(b)(iv).

Based on the foregoing discussion, I find, as a Matter of Fact, there are no regulated wetlands on either the Cook, Smart or Garlanger properties, in that none is greater than five acres and/or contiguous to an inland lake, stream, pond or Great Lake.

1. Both petitioners Jean Smart and Jeri Spitzer are proper parties and have standing as aggrieved parties.

2. Petitioners are not barred by the doctrine of res judicata to assert their claims.

3. Based on the Findings of Fact, I conclude the DEQ has no subject matter jurisdiction over the parcels under Part 303.

Based on the foregoing, it is proposed that a final determination be made that there are no regulated wetlands on the subject properties and, therefore, no jurisdiction vested in the DEQ under part 303 of NREPA.

Richard A. Patterson
Administrative Law Judge

Petitioner 1. Aerial Photo of immediate area
Petitioner 2. Aerial photo of general area
Petitioner 3. Not introduced
Petitioner 4. Board of numerous pictures
Petitioner 5. Copy of record of Garlanger Drain
Petitioner 6. Board of numerous pictures
Petitioner 7. Board of numerous pictures
Petitioner 8. Board of numerous pictures
Petitioner 9. Pictures of Garlanger Pond
Petitioner 10. Pictures of Garlanger Pond
Petitioner 11. Picture of stuck bulldozer
Respondent 1. Wilson report of original determination
Respondent 2. Letter January 3, 1990 from Jeffery King to Ms. Jean Smart
Respondent 3. Letter April 2, 1990 from Dennis Hall to Ms. Smart
Respondent 4. Engineering report of Wilkins and Wheaton