IN RE: GOEMAERE-ANDERSON WETLAND PROTECTION ACT APPEAL OF
FIRST CHURH OF WELLSTON
Cause No. 87-Ei-126W

The Natural Resources Commission, having considered the Proposal for Decision dated April 10, 1989, of the Administrative Law Judge, and the files, pIeadings, briefs, and oral argument in this matter, hereby determines and orders that:

The Proposal for Decision is adopted and affirmed in its totality and is further incorporated into this reference and is adopted by the Department of Natural Resources as its findings of fact and conclusions of law. (See Proposal for Decision, Cause No. 87-6-126W, dated April 10, 1989, attached hereto.)

Raymond Poupore, Chairman
Natural Resources Commission

IN RE: Goemaere--Anderson Wetland Protection Act
Appeal of First Church of Wellston
Cause No. 87-6-126W

William C. Fulkerson
April 10, 1989 Administrative Law Judge

This matter is a contested case concerning the application of The First Church of Wellston for a Wetlands Permit.

JURISDICTION

The hearing was conducted pursuant to 1979 PA 203, the Goemaere-Anderson Wetland Protection Act.

The professional staff of the Department of Natural Resources is charged with the day-to-day implementation of the Goemaere-Anderson Wetland Protection Act. The First Church of Wellston filed for a contested case hearing pursuant to the act.

FINDINGS OF FACT

Introduction

The Petitioner, First Church of Wellston, is the owner of lands in the Village of Wellston, Norman Township, Manistee County, Michigan. The church is the only church in the area for eight or ten miles in any direction and has experienced a significant growth in membership over the past few years. The church has been in existence for over seventy years. The recent growth in church membership, particularly during the summer months, prompted the Church Leaders to decide to build a parking lot for parishioners. In the past, church attendees parked on the village streets. The streets are fairly narrow and become quite congested during church services. The Church Leaders believe this to be a safety hazard that should be remedied with off-street parking. The Church owned land adjacent to the church building where they decided to construct a 100 feet by 100 feet parking lot. This land is separated from Crystal Lake by a street and township beach.

The Church property is approximately 300 hundred feet in length, running along Pine Street, between Sixth and Seventh Streets. The portion proposed for fill is approximately 125 feet in width. The church is located at the corner of Seventh and Pine, with the parsonage adjacent, on Seventh Street. The other side of Pine Street and Seventh Street is developed residential property. Proceeding from the back of the church towards Sixth Street, the property slopes and eventually slopes precipitously. The ground elevation, near the corner of Pine and Sixth Street is approximately 10 feet below the grade-level of the road. The property immediately west of the proposed lot is undeveloped land, owned by Norman Township.

The Church applied for a permit to fill for the parking lot, pursuant to the Wetlands Act. As a result of the Department's review, a modified permit was issued, for an area 25 feet wide and 75 feet long, to be filled adjacent to Pine Street. This subsequently was re-evaluated and a second modified permit was issued, for an area of fill 75 feet X 100 feet. The Church is of the opinion that a 100 X 100 feet parking lot is necessary to accommodate their- needs and, thus, filed this appeal. Wellston is an unincorporated village, with a population of around 500 people. This small village is laid out around Crystal Lake, which is in the center of the community. Wellston is situated in the midst of the Manistee National Forest. Exhibit #4, shows that Norman Township is primarily public lands with sparse development. The population of the area swells in the summer as people occupy seasonal residences.

The Department maintains that approximately one-half of the proposed parking area is wetland. The Department witness, who made the field investigation, described the land as a shrub-scrub wetland with some emergent vegetation contiguous to Crystal Lake. The principle value he ascribed to the area was for wildlife; he believed the vegetation provided good cover, nesting area, and a food source for wildlife. A neighbor to the property testified that he believed that it was a wetland. He testified that he had seen turtles, snakes, and cattails, and that he considered it to be a swamp. The Department testified the area is a wetland contiguous to Crystal Lake. The wetland was determined to be contiguous because of its historical connection to Crystal Lake. The connection was severed by the installation of a road separating the land from Crystal Lake. It is undisputed that the wetland is under five acres and that if it is not contiguous, it is not regulated.

I find, as a matter of f act, that a portion of the area proposed to be filled for a parking lot is a wetland. I further find that the Department's interpretation that the wetland is contiguous to Crystal Lake is a reasonable one, thus, the filling of this wetland requires a permit. The Wetlands Act contains criteria for the review of permit applications and mandates that findings be made with regard to each criterion.

Sec. 9 (1) A permit for an activity listed in section 5 shall not be approved unless the department determines that the issuance of a permit is in the public interest, that the permit is necessary to realize the benefits derived from the activity, and that the activity is otherwise lawful.

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A determination of whether the project is in the public interest is made by applying criteria discussed in the "Act". A permit is necessary to engage in the activity requested, and it is otherwise lawful activity.

(2) In determining whether the activity is in the public interest, the benefit which reasonably may be expected to accrue from the proposal shall be balanced against the reason-ably foreseeable detriments of the activity. The decision shall reflect the national and state concern for the protection of natural resources from pollution, impairment and destruction. The following general criteria shall be considered:

(a) The relative extent of the public and private need for the proposed activity.

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Several witnesses testified that both the Church and the community had need for the parking area. The Church members testified that the parking area was necessary to relieve the congestion on streets, caused by the roadside parking. They also saw the parking lot as a safety measure. The streets are narrow. Although this is a quiet country town, the presence of parked cars on both sides of the street could be a hazard. Additionally, across the road from the proposed parking area is a township beach, on Crystal Lake. This area is apparently used for community events, such as the Fourth of July Celebration, therefore, the Township Officials also support the parking area as a means of providing a place to park for use of the beach and for special events.

(b) The availability of feasible and prudent alternative locations and methods to accomplish the expected benefits from the activity.

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The Church owns no additional property, and there is none available near the church. They hope sometime to acquire land to the north, 'but there currently is none available. If a parking lot is to be built for the Church, this is the only likely place to construct it. The Church firmly believes that the entire proposed parking lot is necessary to accommodate their needs.

(c) The extent and permanence of the beneficial or detrimental effects which the proposed activity may have on the public and private uses to which the area is suited, including the benefits the wetland provides.

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The filling proposed would eliminate approximately 5000 square feet of wetlands. This would permanently eliminate a portion of the wetlands. The wetland was identified as an area potentially filtering water and having wildlife values. These values would be affected to some extent. The current use of the property for public or private utilization is minimal. Most of the local residents who testified viewed the area as an eyesore. The filling would change the wetland area to a parking lot. The parking lot has both public and private value, in that it would provide parking for the church and for the general public who might use the beach at Crystal Lake. Additionally, the off-street parking would reduce a potential safety hazard.

(d) The probable impact of each proposal in relation to the cumulative effect created by other existing and anticipated activities in the watershed.

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The wetland of which the proposed parking lot is a part is a small wetlands amidst a developed area. The wetland exists in the center of an urbanized area. This wetland is disturbed and is separated from Crystal Lake, by the road which serves as a barrier. The township has proposed to fill portions of their lot, which is al!5o part of the same wetlands to create a park for the community

(e) The probable impact on recognized historic, cultural, scenic, ecological or recreational values and on the public health or fish or wildlife.

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The historic and cultural impact of the proposed development is probably minimal. The scenic impact is a subjective one. One neighbor viewed the area as one he would like to see in its natural state, while others testified they believed it to be an eyesore. The area was identified as having wildlife value, although the wildlife usage in this urbanized setting is probably not extensive.

(f) The size of the wetland being considered.

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This wetland is probably no more than two acres in size.

The amount of remaining wetland in the general area.

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There are several small pockets of wetlands throughout the Village of Wellston. The township is primarily undeveloped national forest with many, many acres of wetlands.

Proximity to any waterway.

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The wetland is across the street from Crystal Lake.

(i) Economic value, both public and private, of the proposed land change to the general area.

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There was no testimony as to the economic value of the proposed land change.

(3) In considering a permit application, the department shall give serious consideration to findings of necessity for the proposed activity which have been made by other state agencies.

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There have been no findings by any other state agencies.

(4) A permit shall not be issued unless it is shown that an unacceptable disruption will not result to the aquatic resources.

In determining whether a disruption to the aquatic resources is unacceptable, the criteria set forth in section 3 and subsection (2) shall be considered. A permit shall not be issued unless the applicant also shows either of the following:

(a) The proposed activity is primarily dependent upon being located in the wetland.

A feasible and prudent alternative does not exist.

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Based on the foregoing discussion, I find that the proposed activity will not cause an unacceptable disruption of the aquatic resources. I further find, that the proposed activity is not primarily dependent upon being located in a wetland. The building of parking lots and parking of cars obviously is not an activity that has to be conducted in a wetlands

The deciding question is whether "a feasible and prudent alternative does not exist". This question is a difficult one in this particular case. The Department did offer some fill so that the Church could have a 100 foot X 75 foot parking lot. There was no testimony, as to how many cars could be parked in the alternative configuration, that is, the 75 foot X 100 foot lot. The record is silent as to whether the 100 foot square lot would accommodate the parishioners. The Church and the Township had proposed that a pond be dug as part of the filling of township and Church properties. That apparently never reached the state of a formal proposal and the Department apparently was unreceptive to such proposals. By inference, the Department, by saying that the Church has a feasible and prudent alternative, must be saying that continued on-street parking and a lesser amount of fill are an acceptable alternative. The record simply does not show that there are no feasible and prudent alternatives to the larger amount of fill. This is especially true in light of the fact that the Wetlands Act is basically prohibitive. The clear intent of the Act is to prohibit fill of wetlands, when other measures can achieve the desired result. The modified permit does accommodate some portion of the need for parking for church and community events. I find that the 100 foot by 75 foot parking lot, permitted by the modified permit, is a feasible and prudent alternative.

CONCLUSIONS OF LAW

1. The Petitioner has applied for a permit to engage in an activity which requires a permit under the Goemaere-Anderson Wetland Protection Act.

2. Based on the foregoing "Findings of Fact", I conclude as a matter of law, that the proposed fill of 100 feet X 100 feet is unacceptable and that a feasible and prudent alternative is to allow a parking area of 100 feet X 75 feet.

Based on the foregoing, I conclude that the Department properly issued a modified permit to the applicants.

Dated:

William C. Fulkerson
Administrative Law Judge

RE: Goemaere-Anderson Wetland Protection Act Appeal of
First Church of Wellston
Cause No. 87-6-126W

STIPULATED EXHIBITS

Respondent DNR'S

1. Packet of information that illustrates the procedures and correspondence, with evaluations, map, graphs, Public Notice, and copies of modified permits that were issued.
2. Graphic outline of the "Proposed Fill Area by First Church of Wellston", scaled.
3. Graphic outline of the "Approved Fill Area in DNR Modified Permit Dated 7/17/87 and approved Fill Area in DNR Modified Permit Dated 10/20/87".
4. Manistee National Forest Map, illustrating the area and the topography.
5-17. Photographs, showing the proposed fill area at different seasons and at various points.
18. Hand-drawn illustration of the Village--church, lakes, residences, streets, and area #1 and #2, re: proposed fill area.