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SUBJECT: Natural Resources and Environmental Protection Act, 1994 PA 451, as amended; Part 31, Water Resources Protection

Petition of Jack W. and Mary J. Blair.

File No. 91-9-367

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This contested case involves the denial of an application for a permit to construct a residential structure within the floodplain of the Muskegon River. The Application For Permit was denied under the provisions of the Floodplain Occupancy Act, now Part 31, Water Resources Protection, Natural Resources and Environmental Protection Act. Jack W. and Mary J. Blair, hereinafter, Petitioners, requested a hearing pursuant to the Act. The Parties stipulated to the facts in this case, including exhibits; there was no formal hearing held. This Final Determination and Order is based solely upon the Parties' stipulations. Pursuant to Section 85, MCL 24.285; MSA 3.560(185), of the Michigan Administrative Procedures Act, this is the Final Determination and Order of the Michigan Department of Environmental Quality (Department) in this matter.

This matter was brought under the Floodplain Occupancy Act, 1929 PA 245, as amended. MCL 323.2a, 323.5a and 323.5b; MSA 3.522(1), 3.525(1) and 3.525(2). These sections have been recodified; Natural Resources and Environmental Protection Act; 1994 PA 451, as amended, Part 31, Water Resources Protection, MCL 324.3101 et seq.; MSA 13A.3101 et seq.

The Administrative Procedures Act, 1969 PA 306, as amended, MCL 24.201 et seq., MSA 3.560(101) et seq., provides the authority for submitting a case on stipulations in Section 78(1). MCL 24.278(1); MSA 3.560(178)(1). Stipulations entered into by the Parties shall be used as evidence at the hearing and are binding. MCL 24.278; MSA 3.560(178); Dana Corporation v Employment Security Commission, 371 Mich 107, 110; 123 NW2d 277 (1963). I find, as a Matter of Fact, these stipulations are complete and legally correct, and I adopt them as findings for the record.

Jack W. and Mary J. Blair are the Applicants for a permit pursuant to the Act and are the Petitioners in this case. The professional staff of the Department (former Department of Natural Resources) is responsible for administering Part 31 of the statute.

The Petitioners represented themselves throughout the course of this case. The Department was represented by Daniel H. Morgan of the Land and Water Management Division, Department of Environmental Quality.

The Parties filed a "Stipulation Of Facts" in this case, including exhibits. The Petitioners indexed and submitted 29 exhibits, and the Department submitted 7 exhibits. A listing, Stipulated Exhibits, with a description of each exhibit entered, is attached to this Final Determination and Order. Petitioners' exhibits are labeled "P," and the Department's exhibits are referenced with an "R".

The Petitioners are owners of property located in Brooks Township, Newaygo County, Michigan. They own Lots 6, 7 and 8 of Artesian Springs Subdivision (Petitioners' Exhibits 1 and 2). The Lots are located in the floodway of the Muskegon River. The Application filed by the Blairs proposes to place a mobile home for residential purposes on the property, specifically on Lot 7. The Blairs purchased the Lots on September 30, 1988, from Richard and Faith VanWormer and Charles and Virginia VanWormer (Petitioners' Exhibit 3).

From a review of the exhibits and the briefs filed, a synopsis of the facts of this case are: 1) the Blairs filed an application with the Department, on or about July 23, 1991, to construct a residential structure within the "Riverine Flood Plain" of the Muskegon River (Department's Exhibit 1-b); 2) the proposed building site is located within the floodway portion of the 100-year floodplain of the Muskegon River, illustrated on Department's Exhibits 4 and 5; 3) the Petitioners agree the proposed site is within a floodway, as is defined in the public document entitled Flood Insurance Study for the Township of Brooks, Newaygo County (Department's Exhibit 6a). Also see Department's Exhibit 4b.

Lot 7 is the location where formerly there had been a mobile home dwelling; this dwelling existed at the time of the 1986 100-year flood. Immediately following the 1986 100-year flood, Petitioners represent the nearly new mobile home on Lot 7 was completely destroyed and an insurance settlement determination was made to remove and replace the structure, rather than repair it. The mobile home was removed from the site and no residential dwelling has existed there since November, 1986.

Respondent has verified, again through stipulated exhibits, that floodway conditions exist for Lots 6, 7 and 8. The Department confirmed the floodway conditions through field inspections and engineering surveys. It has been determined regulatory flood depths to be 3.7 feet at the building site, Lot 7, and 2.9 feet on Main Street, which is the access road (Department's Exhibit 5).

The Petitioners allege, despite the property being located in the floodway of the Muskegon River, they are entitled to replace a residential dwelling on the property because: 1) one had existed prior to the 1986 100-year flood; 2) the mobile home that had been located on the site was only removed because it was not feasible to repair it, and 3) other mobile home owners along the Muskegon River were permitted to replace their dwellings within the floodplain/floodway after the 1986 100-year flood. The Blairs conclude, therefore, the Application For Permit, requesting to replace the dwelling on Lot 7 should be approved.

As demonstrated in the Parties' pleadings and stipulated exhibits, during the course of proceedings in this matter, the Parties have communicated in an attempt to resolve the issue of locating a mobile home on the property. The Department offered an alternative for settlement. The proposal would allow residential occupation at the landward fringe of the floodway, if safe ingress and egress were available at times of flooding (Respondent's Brief, p 1). A request for permission to cross adjacent owners' property, in case of impending flooding, was made by the Petitioners. The owners of both lots adjoining the Petitioners' property refused to grant permission for an escape route to be placed upon their property. (Petitioners' Exhibits 28 and 29). Therefore, the Department determined a permit, allowing a mobile home to be placed on the property at an alternative site, could not be issued.

The purpose of this Final Order is to determine whether the Petitioners have the lawful right to place a residential structure on property (specifically Lot 7) located within the floodway portion of the 100-year floodplain of the Muskegon River. The Parties stipulated a proper Application For Permit was filed with the Department on July 23, 1991.

It is stipulated the subject property is located directly within the floodway portion of the 100-year floodplain of the Muskegon River. The Parties have agreed the boundary of the floodplain and floodway is defined by a public document entitled, Flood Insurance Study for the Township of Brooks, Newaygo County. There does not appear to be any dispute the Parties are both aware a floodway refers to a portion of the channel of a river, or stream, and the portions of floodplain adjoining the channel which are measured to reasonably contain the discharge and flow of a 100-year flood, as occurred in 1986. The specific portion of the floodplain characterized by moving water during times of flooding, the most hazardous portion of the floodplain, is called the floodway.

In its brief the Department describes why it does not issue permits for the building of residential structures in a floodway. The areas defined as floodways are those where interference or obstructions could cause restriction of the capacity of the flooding waters, or could alter the stage characteristics of the river, stream or adjoining channel. Any additional obstacles in the floodway portion of the floodplain are a real threat to the lives of inhabitants.

1984 AACS, R 323.1311(h), defines "harmful interference":

`Harmful interference' means causing an increased stage or change in direction of flow of a river or stream which causes, or is likely to cause, any of the following:

(i) Damage to property.

(ii) A threat to life.

(iii) A threat of personal injury.

(iv) Pollution, impairment, or destruction of water or other natural resources.

The assertion made by the Petitioners is, notwithstanding the charge to the Department to scrutinise permits for building structures intended for habitation in a floodway, they should be exempt because the Application is to replace a dwelling that existed at the time of the 1986 100-year flood. Petitioners' reference other property owners, having dwellings within the floodway of the Muskegon River, that have been exempted under circumstances they assert are analogous to theirs, (Petitioners' Exhibit 23; Department's Exhibit 1h--1r); the Floodplain Occupancy Act Appeal of James Wood, et al., Case Nos. 86-9-731, 86-9-745, 86-9-746, 86-9-749, 86-9-758, 86-9-766; Final Orders 10/6/87. The Petitioners' Stipulated Exhibits demonstrate the Department permitted other floodway inhabitants to rebuild or replace complete dwellings for habitation in floodplains and/or floodways of the Muskegon River. See Petitioners' Exhibits P-24, P-25 and P-26. Based upon this fact, the Blairs conclude their Application to place a mobile home dwelling within the floodway of the Muskegon River should be permitted.

At the time of the 1986 100-year flood, Lots 6, 7 and 8 were being purchased by Edwin Anthony and his wife, from the VanWormers, on a land contract. The Anthonys had a mobile home on this residential site. Accessories included the support slab; a water well and pump house; a storage barn measuring 8' x 20' and a septic system. All of these property appendages remain on Lot 7. The Petitioners' record of Stipulated Exhibits demonstrates the former land contract holders, the Anthonys, were denied permission to rebuild on this site following the removal of their destroyed mobile home after the 1986 100-year flood. Their attempts to seek relief did not include filing a proper application for permit with the Department. The Anthonys canceled their land contract and the lots reverted to the holder of legal title, the VanWormers.

The Blairs purchased the property in 1988. In March, 1990, they sent correspondence to the Department requesting to replace the mobile home that had existed on the lot prior to the 1986 100-year flood. The Department replied to the Blairs promptly, informing them such a dwelling would not be permitted and the reasons why. (Petitioners' Exhibits 16 and 17). Pursuant to Part 31, Section 3104(3) of the Act, the Petitioners filed a Permit Application "on a form approved by the department . . ." on July 23, 1991, requesting a permit be granted to place a mobile home on Lot 7. Their Application was filed some 4 1/2 years following the 100-year flood of 1986.

The Department and the Petitioners reference and present evidence of other inhabited dwellings that have been rebuilt or extensively repaired within the Muskegon River floodplain/floodway. The pleadings and exhibits show this area generally contains residential development.

The Petitioners do not argue about the risks to residents if flooding were to occur. They offer Petitioners' Exhibit 27, a letter of introduction and intent from Consumers Power Company along with the Hydro Plant Emergency Planning booklet for explanation of the "Public Warning System" that was installed along the Muskegon River, to warn residents when flood conditions exist.

Section 2a, 1929 PA 245, as amended, currently recodified in 1994 PA 451, as amended, Part 31, Section 3104, MCL 324.3104(1); MSA 13A.3104(1) states in part:

The department shall have control over the alterations of natural or present watercourses of all rivers and streams in the state to assure that the channels and the portions of the floodplains that are floodways are not inhabited and are kept free and clear of interference or obstructions that will cause any undue restriction of the capacity of the floodway.

I find, as a Matter of Fact, the proposed project, placing a residential structure on the subject property located within the floodway of the Muskegon River, will cause, or is likely to cause, property damage. The threat of personal injury and, potentially, a threat to life will occur if placement of a structure were to be permitted in this floodway. The referenced Hydro Plant Emergency Planning booklet for explanation of the "Public Warning System" is for those residents and structures already present in the floodway. Permitting an additional residential structure to be placed in this area would further the impending threat to all residents and would cause a "harmful interference" as defined by administrative rule; 1984 AACS, R 323.1311(h).

Petitioners reference the Wood, supra., matter to demonstrate there were times when permits were granted to replace or extensively repair inhabited mobile home dwellings existing on the Muskegon River, following the time of the 1986 100-year flood. The Woods and others were owners and inhabitants of mobile home dwellings on the Muskegon River, in Garfield Township, Newaygo County, within the floodway at the time of the 1986 100-year flood. The statute clearly allows for repair, 50% to 100% in some cases, where there was an existing, inhabited structure. In the Final Order in Wood, supra., the Natural Resources Commission (Commission) determined new mobile homes could replace ones that existed at the time of the 1986 flood. The Final Order cited Peterson v Lapeer, 106 Mich App 148; 307 NW2d 744 (1981), which states:

A prior nonconforming use is a vested right to continue the lawful use of real estate in the manner it was used prior to the adoption of a zoning ordinance. Though the ordinance be reasonable, it cannot operate to oust the property owner of his vested right. Id, p 155 (quoting Dusdal v City of Warren, Mich 354, at 359-360 (1972).

The Commission's Final Order in the Wood, et al., supra., matter which balanced vested property rights with that of the police power. The Commission determined that because of the nature of manufactured housing, it would be easier to replace it than to repair it if the structure had been completely destroyed. It was concluded the nonconforming use, where there was an existing property interest, took precedent when balanced against the police power. The replacement, rather than 100% repair of the mobile dwellings, was found to be lawful and the Commission permitted such activity.

The primary statutory intent to discourage the building of dwellings for the purpose of habitation in a floodway, is to protect the public. The language of the statute, at MCL 323.2a (currently MCL 324.3104(1)), is clear; the State is, "to assure that the channels and the portions of the floodplains that are the floodways are not inhabited and are kept free and clear of interference or obstruction . . .." Repair, and in some instances replacement, of dwellings inhabited at the time of a severe flood is not an alteration of the floodplain/floodway as it existed at the time the flood occurred. It does not create an additional impediment to the floodplain/floodway. The State generally has an established regulatory flood elevation and reviews applications for permit to ensure that new or substantially improved structures are elevated consistent with flood resistant construction standards of building codes (Respondent's Brief, p 3). In fact, repairs to existing structures are exempt from the mandates of the statute, unless there is a modification of the structure, or unless a structure is built for the purpose of habitation. If the residential area already exists, only changes to that existing area would be evaluated and regulated. Even in a residential area where there is a change in a structure or the addition of a structure designed for habitation, construction is a direct violation of the language and intent of the statute. A permit for such an addition to, or building or placement of, a dwelling is properly denied.

In Michigan an agency's power to license is inherently an aspect of the government's police power. See LeDuc, Michigan Administrative Law, Sec. 7:02, pg 2. Furthermore, if the licensing is reasonably necessary to protect the public welfare, it should be recognized as a legitimate exercise of the agency's police power. Prawdzik v City of Grand Rapids, 313 Mich 376 (1946). Citing 21 Circuit Court, Heydenburg Builders, Inc., v Department of Natural Resources; Opinion and Order on Petitioner's Appeal from a Decision of the Michigan Department of Natural Resources, 92-6914-AA, October 16, 1995, p 5, id.

The Department alleges in its brief, the Flood Plain Occupancy Act Appeal of Stephen M. Hughes, File No.: 87-9-32/87-16-c, Final Determination of the Natural Resources Commission, September 22, 1988, is analogous to the matter being reviewed herein. The decision in Hughes, while reiterating the intent of the statute is to prevent residential building in a floodplain, involved the question of "the floodplain elevation for this property." Hughes, Final Order, p 4. There are no such facts controverted in the matter being reviewed herein.

The matter before this Tribunal, while initially similar in its facts to the Wood case, is absent the timely filing of a permit application for replacement as factually existed in Wood. The lapse in time since the 1986 100-year flood, the change in ownership, and, most importantly, the unambiguous language of the statute would be directly violated if a dwelling for habitation were to be placed on Lot 7 in 1996.

There has not been an inhabited dwelling on this site, regardless of whether the other appendages remain, for approximately 10 years. It was 4 1/2 years to the time a proper Application For Permit was filed by the Blairs, though they purchased the property in 1988. The fact the Blairs owned property and a dwelling on the Muskegon River that was also destroyed in the 1986 100-year flood is not relevant, as pertaining to the lapse of time since the flood and the filing of a proper application for replacement of a dwelling on Lot 7.

The application of the laws of nonconforming use are intended to protect established property interests. Allowing Petitioners to bring a mobile home on Lot 7 would defeat the intent of the Floodplain Regulatory Authority and could allow other proposed projects to be constructed that may cause harmful interference where floodplain/floodway conditions are found to exist.

While the Parties reference the issue of whether a "takings" has occurred, the Office of Administrative Hearings is not the proper legal forum for review of constitutional issues. Wikman v City of Novi, 413 Mich 617; 322 NW2d 103 (1982).

1.) The subject property is located in a floodway, within the floodplain of the Muskegon River, as delineated by the Flood Insurance Study for the Township of Brooks, Newaygo County. The subject of floodplain/floodway regulation and permitting authority is provided under provisions of the State's Floodplain Regulatory Authority as found in Sections 2a, 5a and 5b of 1929 PA 245; MCL 323.2a, 323.5a and 323.5b; MSA 3.522(1), 3.525(1) and 3.525(2). These sections have been recodified in the Natural Resources and Environmental Protection Act, Part 31, Water Resources Protection, MCL 324.3101 to 324.3119, in Sections 3104, 3107 and 3108.

2. I conclude, as a Matter of Law, the proposed activity is not in the public interest, as it would directly violate Part 31, Section 3104(1) of the Act, directing the Department to deny projects that would cause further alterations of watercourses of all rivers and streams within the State. The Department is charged to, "assure the channels and portions of the floodplains that are floodways are not inhabited and are kept free and clear of interference or obstructions . . .."

3. I conclude, as a Matter of Law, there is no binding precedent set in prior Final Determinations of the Commission made pursuant to the Act. The facts of this matter are not analogous to prior Commission decisions allowing a permitted alteration of a floodway by building a structure for the purpose of habitation. Floodplain Occupancy Act Appeal of James Wood, et al.; Final Order 10/6/87. Part 31, Section 3108, MCL 324.3108, gives the Department the discretion to evaluate facts and alternatives on a case by case basis.

As always, reference to the statute in question is the starting point for all analysis. The statute will be the source of the licensing authority, and it will be determinative of most substantive licensing issues, including the terms, conditions, and circumstances of licensing and the dispositive powers of the agency. See D. LeDuc, Michigan Administrative Law Section 7:01, p 2 (1993).

The Flood Plain Occupancy Act Appeal of Stephen M. Hughes, File No.: 87-9-32/87-16-c, Final Determination of the Commission, September 22, 1988, matter is not factually on point with the stipulated facts in this matter.

4. I conclude, as a Matter of Law, the alternative offered by the Department for building a dwelling for habitation on the subject property at the landward fringe of the floodway is properly denied. The Petitioners cannot obtain a route of safe ingress or egress from the property.

5. I conclude, as a Matter of Law, the Office of Administrative Hearings does not have jurisdiction to address the constitutional question of inverse condemnation.

Based upon the stipulated Findings of Fact and the Conclusions of Law, it is determined the Petitioners' Application to build a dwelling intended for habitation (mobile home) on Lot 7 within the floodway portion of the Muskegon River, Newaygo County, Michigan, be denied.

THEREFORE, IT IS ORDERED, the Petitioners' request to place a mobile home structure on Lot 7, located within the floodway of the Muskegon River, Newaygo County, is DENIED.

Dated: May 30, 1996

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Richard G. Lacasse, Acting Chief

Administrative Law Judge

IN RE: Floodplain Occupancy Act, Part 31, Water Resources Protection, of the Natural Resources and Environmental Protection Act, 1994 PA 451, Petition of Jack W. and Mary J. Blair.

File No. 91-9-367

PETITIONERS' EXHIBITS:

P-1 Devil's Hole Peninsula Plat--reduced size copy.

P-2 Devil's Hole Plat (reduced size copy) referencing Lots 6, 7 and 8 of Artesian Springs.

P-3 Warranty Deed copy, dated September 30, 1988, conveying Lots 6, 7 and 8 to Jack W. and Mary J. Blair.

P-4 Correspondence from Newaygo County Building Inspector to Edwin J. Anthony, former land contact purchaser of Lots 6, 7 and 8, regarding flood damage at 7811 Main Street.

Dated October 14, 1986.

P-5 Correspondence from Newaygo County Building Inspector to Edwin J. Anthony, former land contact purchaser of Lots 6, 7 and 8, regarding flood damage at 7811 Main Street.

Dated October 30, 1986.

P-6 Correspondence from Richard VanWormer, title holder of Lots 6, 7 and 8, to the Newaygo County Commissioners, requesting clarification of reasons why replacement of mobile dwelling cannot be secured for Lots, following 1986 100-year flood.

Dated October 4, 1986.

P-7 Correspondence from Newaygo County Building Inspector to Richard VanWormer, title holder of Lots 6, 7 and 8, responding to letter of October 4, 1986.

Dated October 9, 1986.

P-8 Correspondence from Donald Van Singel, House of Representatives, Republican Floor Leader, to Edwin Anthony, land contract purchaser of Lots 6, 7, and 8, responding to phone inquiries made concerning the Devil's Hole flood area and dwelling replacement.

P-9 Correspondence from D. Gregor MacGregor III, attorney at law, to Newaygo County Building Inspector, in representation of Edwin Anthony, advising the County a "taking" has occurred as a result of the Anthony's being unable to rebuild on Lot 7 of Devil's Hole.

Dated August 17, 1987.

P-10 Correspondence from D. Gregor MacGregor III, attorney at law representing Edwin Anthony, to Thomas Emery, Assistant Attorney General, regarding inverse condemnation by the State of Lots 6, 7 and 8 and requesting the State's intent for reimbursement of property value.

Dated October 6, 1987.

P-11 Correspondence from Duane H. Cruzan, C.B.I., Newaygo County Building Official to Attorney D. Gregor MacGregor III, response to inquiry regarding the Anthony's Lots 6, 7 and 8 and compensation for their property--as alleged "taking" had occurred.

Dated November 5, 1987.

P-12 Correspondence from Daniel H. Morgan, P.E., Chief, Floodplain Control Unit, LWMD, MDNR, to Edwin J. Anthony, regarding explanation of the law, regarding rebuilding in the floodplain, reference to provisions in the Federal Disaster Assistance programs and providing information regarding floodplains/floodways and the law. Note: letter noted no record of a permit application or denial was on file with the MDNR.

Dated April 11, 1988.

P-13 Correspondence from Senator Phil Arthurhultz, Senate Majority Floor Leader, State of Michigan, to Edwin Anthony advising he had requested a copy of the MDNR's response to Anthony's inquiry and there would be follow up from his office following receipt of same.

Dated March 14, 1988.

P-14 Correspondence from Senator Phil Arthurhultz, Senate Majority Floor Leader, State of Michigan, to Edwin Anthony, advising the Department's charge for assuring new residential construction is not allowed in a floodplain. He confirmed new construction is not consistent with the mandates of the National Flood Insurance Program either.

Dated April 13, 1988.

P-15 Correspondence from Edwin J. Anthony to Governor J.J. Blanchard, Gordon Guyer, MDNR Director, regarding recovery costs for relocation and itemized costs associated with the alleged inverse condemnation of the property at 7811 Main Street, Devil's Hole, Newaygo County, occurring from 1986 100-year flood on property being purchased on land contract in Devil's Hole, Newaygo County, and asking what the State intended to do to compensate for same.

Dated June 1, 1988.

P-16 Correspondence from Edwin J. Anthony to Department of Natural Resources from Jack W. Blair, purchaser of Lots 6, 7 and 8 of Artesian Springs, Brooks Township, Newaygo County, to the Michigan Department of Natural Resources, regarding the building of a mobile home on stilts on the property, response requested.

Dated March 7, 1990.

P-17 Correspondence from MDNR, Flood Hazard Management, LWMD, Wallace A. Wilson, Chief to Jack W. Blair, regarding response to March 7th letter, advising county, State, and Federal laws prohibit the use of these properties for residential purposes. A copy of Act 167 of 1968 was enclosed.

Dated March 7, 1990.

P-18 Correspondence from David C. Janunese, Attorney for Blairs, to Department of Natural Resources Water Management Division, regarding application for permit to build on property, Lots 6, 7 and 8 in Devil's Hole. Reference made to In Re Flood Plain Occupancy Act Appeal - James Wood, et al., as having facts analogous to the current Blair application request and stating permit should be granted based on same.

Dated July 22, 1991.

P-19 "Project Site Location" with map directions for MDNR to come to site for further evaluation of request to build dwelling on Lots 6, 7 and 8, Devil's Hole, Newaygo County.

July 23, 1991.

P-20 "Application for Permit" submitted by Blairs to MDNR.

Received as complete July 23, 1991.

P-21 "Public Notice" to interested parties for response to Blairs' request to place dwelling for habitation on Lot 7 of Devil's Hole, Newaygo County. Notations of phone conference with Dan Morgan part of exhibit (September 23, 1991).

Dated August 23, 1991.

P-22 "Advisory Notice" to persons "contemplating residential or commercial construction utilizing on-site sewage disposal in conjunction with your filling or alteration activities" from Department of Public Health to potentially interested parties contemplating construction.

Dated received August 26, 1991.

P-23 "Proposal For Decision" IN RE: Flood plain Occupancy Act Appeal of James Wood, et al.

Dated October 6, 1987.

P-24 Photographs of James Wood's mobile home dwelling in Anderson Flats. Pictures taken from varied positions, featuring the stabilized structure of the dwelling.

P-25 Photographs of Stan and Donna Marks' mobil home dwelling/foundation from varied views at 9074 Felch Avenue.

P-26 Photographs of Wayne Arnold's mobile home dwelling (doublewide) as it was being raised, along with the 1992 Building Permit.

P-27 Correspondence from Consumers Power Company, Charles J. Smith, Hydro System Superintendent, advising of the enclosed publication, "Hydro Plant Emergency Planning" booklet, explaining the warning system put in place to warn residents if potential threat of flooding could occur and alerting them to seek safety--out of the floodplain/floodway.

P-28 Notice--signed by adjoining property owners of Lots 6, 7 and 8 denying permission for a planned walkway for ingress and egress across Lot 005, from Lots 6, 7 and 8 in case of threat of flooding. Signed by property owner, Katherine R. McCaffrey.

Undated.

P-29 Notice--signed by adjoining property owners of Lots 6, 7 and 8 denying permission for a planned walkway for ingress and egress across Lot 5, from Lots 6, 7 and 8 in case of threat of flooding. Signed by property owner, Ann Tonkin, in care of Joseph Mueller.

Undated.

RESPONDENT'S EXHIBITS:

R-1a Cover Letter for Application for Permit, filed by Blairs Attorney, David C. Janunese.

Dated July 22, 1991.

R-1b "Application for Permit."

Received by MDNR July 23, 1991.

R-1c "Application for Permit" continued, signed by Jack W. Blair, March, 1991.

R-1d "Project Site Location"--Directions.

Dated March 1991.

R-1e Map site and plans for proposed project

Received by MDNR July 23, 1991.

R-1f Plat copy, illustrating Lots 6, 7, and 8 owned by Blairs, applicants for permit.

R-1g Photographs, with detailed descriptions on back of each, regarding the Blair property, its appendages and general layout.

R-1h "Proposal For Decision" IN RE: Flood Plain Occupancy Act Appeal of James Wood, et al.

Dated October 6, 1987.

R-1i--1r "Proposal For Decision" IN RE: Flood Plain Occupancy Act Appeal of James Wood, et al. Dated October 6, 1987. Exhibit reference is made to each page of the Proposal.

R-2 "Public Notice" cover sheet.

Dated August 23, 1991.

R-3 Correspondence from Charles Kenney, R.S., Environmental Sanitarian, District Health Department No. 5, to Jack Blair, regarding notice "the sewage system is not adequate for the proposed usage."

Dated September 9, 1991.

R-4a "Department of Natural Resources Interoffice Communication"--"Staff Findings," for filing following site visit to Blair property, Lots 6, 7, and 8, in Devil's Hole, Artesian Springs Subdivision Newaygo County.

Dated November 26, 1991.

R-4b Illustration of the Blair's property as it is located within the 100-year Regulatory Floodplain/Floodway.

R-4c Table of flood water elevation levels from data for the Muskegon River, 1986 100-year Flood Study, with notation of the levels shown for the Blairs' property.

R-4d Table of flood water elevation levels from data for the Muskegon River, 1986 100-year Flood Study, with notation of the levels shown for the Blairs' property. Notation of "encroachment stations" and "flow distribution"--with reference to the Blair property site.

R-4e Devil's Hole Plat Map, with inset of Artesian Springs Subdivision backlots.

R-5a Department of Natural Resources, Floodplain Regulation, Field Investigation Form, submitted following site inspection

Dated December 3, 1991.

R-5b Department of Natural Resources, Floodplain Regulation, Field Investigation Form, submitted following site inspection--flood water elevation table for Blair property.

Dated December 3, 1991.

R-6a-6b Correspondence from Daniel H. Morgan, P.E., Supervisor, Floodplain Regulation, LWMD, MDNR, to Jack W. Blair, regarding the follow up of the permit application, on-site investigations and other pertinent materials, statute citations and relevant explanations of projected flood water velocity, the proposed project is denied. The Blairs were further advised they had the right to file an administrative appeal within 60 days under the provisions of the Administrative Procedures Act, 1969 PA 306, as amended. Reference was made to attachments.

Dated December 9, 1991.

R-7 Listing of "Factual Findings Regarding Residential Occupation of Lot 7, Artesian Springs Plat #1, Brooks Township, Newaygo County." Findings 1 through 5 are provided.

Dated January 1, 1995.