STATE OF MICHIGAN
NATURAL RESOURCES COMMISSION
SUBJECT: Part 305, Natural Resources and Environmental Protection Act
(NREPA), 1994 PA 451 as amended, Natural Rivers.
Petition of John M. Clement
File No. PM-94-20
FINAL DETERMINATION AND ORDER
The above-captioned matter was the subject of a contested case hearing resulting in the issuance of a proposal for decision (PFD) dated April 1, 1998. Petitioner Clement filed his exceptions to the PFD. The matter is now before the Natural Resources Commission for a final agency decision pursuant to the Administrative Procedures Act.
The application request in this matter was filed under the provisions of Part 305 of the Natural Resources and Environmental Protection Act, MCL 324.30501 et seq, MSA 13A.30501. et seq, and its administrative rules.
On May 14, 1998, the Natural Resources Commission heard oral argument in this matter by counsel for the Department and the Petitioner.
In rendering this Final Determination and Order, the Natural Resources Commission has considered the proposal for decision, the exceptions filed on behalf of the Petitioner, exhibits, pleadings, and arguments of the parties.
Determination
For the reasons articulated by the Commission on May 14, 1998, the Natural Resources Commission REJECTS the Proposal for Decision dated April 1, 1998, insofar as that proposal did not find credible evidence that Petitioner was told by DNR employee McClean that he could build the walkway in question. The Commission believes the Petitioner did have the conversation with employee McClean and, although employee McClean was without legal authority to authorize the construction of the structure, the Commission finds that Petitioner relied on that conversation in constructing the same.
THEREFORE, IT IS ORDERED:
1. The Proposal for Decision dated April 1, 1998 is hereby REJECTED, insofar as it is inconsistent with this Final Determination and Order.
2. The Petitioner's request for a variance is GRANTED provided, however, the variance shall continue until May 14, 2008, or the conveyance of the property, whichever is earlier.
3. The Natural Resources Commission does not retain jurisdiction in this matter.
Dated:
Keith J. Charters, Chairman
Natural Resources Commission
STATE OF MICHIGAN
DEPARTMENT OF NATURAL RESOURCES
OFFICE OF ADMINISTRATIVE HEARINGS
SUBJECT: Part 305, Natural Rivers, of the Natural Resources and Environmental Protection
Act, (NREPA), 1994 PA 451, as amended
Petition of John M. Clement
File No. PM-94-20
PROPOSAL FOR DECISION
Richard A. Patterson
Administrative Law Judge
Dated: April 1, 1998
This matter is a contested case concerning the petition of Mr. John M. Clement or review of his request for a variance from the Pere Marquette Natural Rivers Rules. The variance was sought, after the fact, to allow the continued use of a walkway and deck installed adjacent to the river. The contested case hearing in this matter was held April 25, 1997.
JURISDICTION
The hearing was requested under, and is governed by, Part 305, Natural Rivers, of the Natural Resources and Environmental Protection Act (NREPA), MCL 324.30501, et seq.; MSA 13A.30501 et seq. The hearing was conducted pursuant to the provisions of the Michigan Administrative Procedures Act., MCL 24.201 et seq.; MSA 3.560 (101), et seq.
PARTIES
The professional staff of the Department of Natural Resources (Department) is charged with the day-to-day implementation of Part 305 of NREPA. Mr. John M. Clement (Petitioner) timely filed a petition for a contested case hearing from a denial by the Pere Marquette Zoning Review Board (Board) of the aforementioned variance.
Mr. Clement and his wife Elizabeth appeared in pro persona and testified on their own behalf. In addition, their son Howard Clement testified on their behalf.
The Department is represented by Mr. John Fordell Leone, Assistant Attorney General. Testifying on behalf of the Department at the hearing were: Mr. Douglas Carter, MDNR, Forest Management Division, Natural Rivers Specialist; Ms. Janice Fenske, MDNR, Fisheries Division, Natural Rivers Zoning Administrator; Mr. Richard Schwikert, Chair, Pere Marquette River Zoning Review Board and President of the Pere Marquette River Watershed Council; Mr. James Hostelling, Lake County building inspector and soil erosion agent; Mr. Mark Eidelson, Landscape Architect and Planner; Mr. Thomas Rozich, MDNR, Fisheries Habitat Biologist, River Rehabilitation Program; and Ms. Lori Sargent, MDNR, Wetland Biologist, Wildlife Division.
Petitioner entered 13 exhibits and the Department entered 19 exhibits. A list of those exhibits is attached to this Proposal for Decision.
Previous to proceeding with the proofs, Petitioner made a Motion to Dismiss and a Motion for a Permanent Injunction against the Department prohibiting enforcement. In support of his motion, Petitioner argued he had been deprived of a hearing without undue delay as required by section 71 of the Michigan Administrative Procedures Act. The motion was denied on this Tribunal's finding there was no undue delay, but only the usual time span between filing and hearing attributable to this Tribunal's extensive docket, and the fact that for some period of time there was no mechanism in place for conducting hearings for the MDNR. In that this Tribunal is one of limited jurisdiction and not empowered to grant injunctive or equitable relief, the Motion for a Permanent Injunction was denied.
FINDINGS OF FACT
Petitioner John M. Clement and his wife Elizabeth are owners of property in the Leisure Addition Plat of Weber Township, Lake County, Michigan. The property is approximately 200 feet wide and 600-700 feet deep and fronts on the Baldwin River. The Baldwin River is a tributary of the Pere Marquette River system and included in the Natural Rivers Plan (Plan). Exhibit R-16. The Plan was adopted and the river designated as a wild-scenic river by the Natural Resources Commission in July 1978. Therefore, the property is subject to the Pere Marquette Natural River Zoning Rules. Exhibit R-17. Petitioner does not dispute these considerations.
TESTIMONY ON THE RECORD
Mrs. Clement testified that she and her husband purchased the subject property in 1960. They had previously used her brother-in-law's property next door for access to the Baldwin River. However, after he died and the property was sold they discontinued the use of the neighboring property. In July of 1994 their sons built the subject walkway to traverse a wet area adjacent to the river. They felt the walkway was necessary due to the wetness of the area and the fact that her husband had two knee replacements and needed a level surface for access to the river. Mrs. Clement described the walkway as an extension of their pathway to the river. According to her, this was done subsequent to a conversation with Mr. David Maclean, the Department's then Zoning Administrator. Mr. MacLean, who is now retired from the Department and residing out of the state did not participate in the hearing, supposedly advised the Petitioners to use natural material, as opposed to concrete, and not to cut brush or hardwoods in constructing the walkway.
Mr. Clement testified he first became familiar with the area in 1940 when he fished there with his father. In 1960 he and his wife were in the area on vacation and bought the subject parcel. They then did some clearing of the parcel, and intended to build on it in 1961 or 1962. However, his father gave him other property and so they delayed building on the subject parcel 4 until 1988. At that time, discussion and correspondence ensued with Mr. Maclean. That culminated in his suggestion that they set the house back 10 to 20 feet from the original proposed location "...in order to avoid problems with any construction which you might anticipate in the future". Exhibit R-2.
A zoning permit was issued to construct a vacation home, subject to "...no cutting in the 75' vegetative strip-allow area to revegitate naturally." Exhibit R-3. Subsequently, Mr. Clement wrote to Mr. Maclean advising him of his progress. Exhibit R-4. That correspondence indicated, in pertinent part:
The foundation for the house in now in place ready for the modular home we have selected. We followed your suggestion as to the placement from the river. We hope to add a deck as soon as possible, so we moved the location 14' further back from the river. This should be ample as we expect to have a deck extend only 8' to 10' from the front of the house.
The plan ultimately submitted depicts the house with a 24' by 40' footprint 155 feet from the river, a well and septic system. However, the plan does not indicate the presence of a deck or walkway. Mr. Clement testified that he relied on a conversation with Mr. Maclean in which they discussed the deck and/or walkway. The conversation was summarized in a memorandum dated November 12, 1988, and indicated, in pertinent part:
Rec'd phone call this date from Mr. David Maclean in reference to this letter.
He discussed Rules & Regulations that apply to the Baldwin River. He had been to our proposed building site and suggested that if we wanted to add a porch or deck to the home we should build our home an additional 12' to 14' further back (162' - 164' feet from the rivers edge). This we agreed to do.
I also asked about building a walkway to the river over the swampy area near to the river. He requested that we not pour a cement walkway. I told him that I wanted a wooden ramp that would blend in with the surroundings. He gave his approval based on a walkway with a "tee" on the end for chairs. "Tee" not to be in excess of 8' wide and 20' long. I gave him my assurance that this would be -very ample for my purposes.
I was laid up with knee surgery at this time and could not meet with Mr. MacLean at the proper ...
Exhibit R- 1.
Based on this conversation, the walkway was installed 6 years later, apparently, without any further contact with Mr. Maclean or the Department. Shortly after construction of the walkway, Ms. Janice Fenske received a complaint regarding the project. She, in the company of Mr. Steven Spencer, met with the Petitioners on site. Ms. Fenske explained that she, as the zoning administrator, did not have authority to grant a variance and suggested they apply for one. The Petitioners followed that suggested course and requested a variance in two respects:
1. A variance of 150 feet from the building setback standard of 150 feet, for a already constructed raised walkway and connected deck across a wetland to the edge of the river. The walkway is 42 feet one inch long by 3 feet 10 inches wide and the deck is 12 feet 9 inches long by 6 feet 7 inches wide. The lot area is approximately 207 feet wide by 672 feet deep (2 lots), making this a legal, conforming lot.
2. A variance of 75 feet to the greenbelt standard of 75 feet.
Exhibit R- 1 8
A meeting of the Pere Marquette River Zoning Review Board was held January 23, 1995. After considerable discussion on the request for a variance, the Board found:
1. The variance request was substantial in relation to the zoning requirements (unanimous);
2. The variance would cause a substantial change in the character of the area (four out of five members);
3. The variance would create a substantial detriment for adjoining properties (three out of five members);
4. The difficulty could not be overcome by a feasible method other than a variance (three out of five members);
5. The variance would result in a material adverse effect on the environment (four out of five members);
6. The difficulty was due to circumstances unique to the property, not created by the landowner (three out of five members); and
7. Considering how the difficulty arose, granting the variance would not serve the interests of justice (four out of five members).
Exhibit R-18.
Based on those findings, the Board denied the variance and the Petitioners filed a petition for a contested case hearing.
Mr. Clement considers his conversation with Mr. MacLean as granting him permission to install the walkway. However, none of the documents submitted in support of the request for a zoning permit address or disclose the presence of the walkway and deck as required under 1992 AACS, R 281.346. Additionally, while there were statements that others dealing with Mr. MacLean considered him thorough and conscientious, there was testimony that such oral permission is contrary to Department procedure and if true constitutes an ultra vires act not binding on the Department. The record further indicates the walkway was installed some 6 years after the conversation, absent any further inquiry as to whether it would still be permissible, or addressing details such as its dimensions. Mr. MacLean's lack of memory of the conversations is understandable due to the passage of time. Exhibit P-7.
I conclude that based on the extent of the conversation between Mr. Clement and Mr. MacLean portrayed on the record, and the nature of the other correspondence, it was incumbent upon Petitioner to obtain written permission to install the walkway and deck. In that this was not accomplished, he acted at his peril.
The question then becomes whether a variance should be granted. Preliminary to that determination, it must be established that the walkway is in violation of the zoning rules. Under 1992 AACS, R 281.347 (D) (iii) a private boat dock is considered an exempt use, meaning it is permitted by right and not subject to the receipt of a zoning permit. But the Petitioner's project is not intended as a dock. Therefore, it is a "structure" as defined under 1992 AACS R 281.341(dd) which states:
A 'structure' is included in the definition of 'appurtenance' or 'accessory building' under R 281.347 (D).
Under 1992 AACS, R 281.347 (b)(i)(D) an appurtenance structure cannot be placed within 150 of the ordinary high water mark. Therefore, the "structure" in question is in violation of the Pere Marquette Natural River Zoning Rules, and I so find, as a Matter of Fact.
The provisions regarding variances and hearings on application are contained in 1992 AACS, R 281.349. As a dimensional variance was requested, it is governed by the enumerated criteria of subsection (2) (a) through (f). Those criteria are:
Variances and variance hearings.
Rule 9. (1) A dimensional variance from any standard established in these rules may be granted by the zoning review board after a public hearing of, in certain instances, by the zoning administrator as provided in subrule (3) of this rule to allow a modification from a standard that establishes an area, yard, height, floor space, frontage, setback of similar numerical restriction, but only after substantive evidence establishes that there are practical difficulties in carrying out the strict letter of these rules. A variance shall be permitted only when it is consistent with the general purposes and intent of these rules.
(2) The zoning review board or zoning administrator shall consider all of the following factors in determining if there are practical difficulties in carrying out the strict letter of these rules as specified in subrule (1) of this rule.
(a) How substantial the variance is in relation to the zoning requirements.
(b) Whether a substantial change will be affected in the character of the area or a substantial detriment created for adjoining properties.
(c) Whether the difficulty can be overcome by some feasible method other than a variance.
(d) Whether, in view of the manner in which the difficulty arose, and in considering all of the factors specified in subdivisions (a) to (c) of this subrule, the interests of justice will be served by allowing the variance.
(e) Whether the plight of the landowner is due to circumstances which are unique to his or her property and which are not created by the landowner.
(f) Whether the variance may result in a material adverse effect on the environment.
The minutes of the meeting, Exhibit R-18, reflect considerable discussion and that each member of the Board addressed each criteria in a checklist prepared by Ms. Fenske. Exhibit R-19. The findings are summarized at page 5 of Exhibit R-18 and have been previously stated herein.
It is incumbent upon this Tribunal to address each of the above criteria in determining whether a variance should be granted. Before performing that analysis, the Department's assertion that this matter should be limited to a review of the Board's actions and whether they were arbitrary and capricious must be addressed. First, the proceeding before the Board does not provide a full factual record, consisting of sworn testimony and exhibits. Thus, there is no complete record of the Board's decision which can be reviewed under any standard. Second, 1992 AACS, R 281 3 52 and the Part 305 rules of NREPA are clear in providing for a contested case hearing under the Administrative Procedures Act, 1969 PA 306, as amended; MCL 24.201 et seq. MSA 3.560(101) et seq. The issue in this case is whether Mr. Clement is entitled to a variance to the Part 305 regulations. The purpose of this contested case hearing process' is to provide the Petitioner with a de novo review of his request. The hearing in this matter occurred in a setting where a formal record was created. Based on that record, a final agency decision will be rendered on Mr. Clement's request for a variance. MCL 24.285; MSA 3.560(185). That decision is subject to appeal in the circuit courts, pursuant to the Administrative Procedures Act, once all administrative remedies are exhausted. Based on the foregoing, I conclude, as a Matter of Law, the proper standard of review in this case is de novo.
The following is the analysis of the criteria of Rule 9 as it relates to the Petitioner's request for a variance:
(a) How substantial the variance is in relation to the zoning requirements.
As stated, Pursuant to 1992 AACS, R 281.347 (b) (i) (D) dictates that any appurtenance must be set back not less than 150 feet from the ordinary high water mark. According to Mr. Clement, the structure at issue here, which by definition is an appurtenance, is at or adjacent to the ordinary high water mark and, in fact, extends, into the river at times of high water. Therefore, it is a substantial variance in relation to the set back requirements and I so find, as a Matter of Fact.
(b) Whether a substantial change will be affected in the character of the area or a substantial detriment created for adjoining properties.
Four property owners in the immediate area wrote in opposition to the variance. Exhibits R-8 through R-13. Mr. Clement testified that some of his neighbors have no objection or approve of his project. Concerns regarding aesthetics are subjective, but it is obvious the project constitutes a substantial change in the character of Petitioners' property. A pristine portion of the riverine corridor has been built upon. As to the consideration of it constituting a detriment, both Mr. Schwikert and Mr. Rozich testified that the structure would serve to obstruct water flow and to catch and accumulate debris, which could increase soil erosion. Ms. Sargent testified plant life would be effected in the shaded areas.
I find, as a Matter of Fact, that the structure has affected a substantial change in the character of the area and will create a substantial detriment for adjoining properties.
(c) Whether the difficulty can be overcome by some feasible method other than a variance.
Mr. Clement testified that due to his physical condition, he needed the structure in order to access to the water front. Private footpaths of natural materials and private boat docks are allowed under 1992 AACS, R 281.347.1 find, therefore, that feasible methods, in the nature of a footpath or dock, exists to facilitate access.
(d) Whether, in view of the matter in which the difficulty arose, and in considering all of the factors specified in subdivisions (a) to (c) of this subrule, the interests of justice will be served by allowing the variance.
This Tribunal's finding under subdivisions (a) to (c) all militate against the granting of a variance. As previously indicated, Petitioner's acted at their peril in not obtaining specific written permission to install the walkway and deck. In addition, as later pointed out, Mr. Clement's physical infirmities cannot be a basis for a variance under the law. Therefore, I find, as a Matter of Fact, the interests of justice would not be served by granting a variance.
(e) Whether the plight of the land owner is due to circumstances which are unique to his or her property and which are not created by the landowner.
The Petitioners property is not unique and is typical of river front property in the area and their plight has been solely created by themselves.
Whether the variance may result in a material adverse effect on the environment.
The concerns of Mr. Schwikert and Mr. Rozich have been previously pointed out. Others testified to concern about unwise building patterns and the cumulative effect of allowing the structure to exist. However, the overall impact to the environment appears to be speculative. Mr. Clement testified he has not noticed any impact caused by the structure on wildlife and fisheries values. Although concerns were expressed as to possible environmental impacts, there was no evidence that any impact had actually occurred. I find, as a Matter of Fact, based on this record there would not appear to be a material adverse effect on the environment.
The cardinal principal of Part 305 is expressed in section 30502:
The commission, in the interest of the people of the state and future generations, may designate a river or portion thereof, as a natural river area for the purpose of preserving and enhancing its values for water conservation, its free flowing condition and its fish, wildlife, boating, scenic, aesthetic, flood plain, ecological, historic recreational values and uses.
The denial of the variance fulfills this purpose.
Lastly, Petitioner requested the variance which, in effect, would allow the structure to remain to enable him to access the river with his disabilities. He testified he is 71 years old, has had both knees replaced, a quadruple heart by-pass and that both rotator cuffs have deteriorated. As compelling as those reasons may be, the personal condition of the occupants is not a proper basis upon which to grant a variance which will run with the land. The consideration must be limited to conditions of the land itself. Davenport v. Grosse Pointe Farms, 210 Mich App 400, 534 N.W.2d 143 (1995).
Should this Proposal for Decision be adopted by the Natural Resources Commission as a Final Order, enforcement action may ensue. Mr. Clement testified that he suggested a Potential resolution of the Department allowing the structure to remain so long as he is alive. However, the Petitioner points to no legal authority for the Natural Resources Commission to provide such a remedy.
CONCLUSIONS OF LAW
Based on the foregoing, I conclude, as a Matter of Law, the following:
1. Petitioners' property is subject to a Natural Rivers designation, the Pere Marquette River Natural River Zoning Rules and the Department of Natural Resources jurisdiction.
2. The Petitioner's filed for an after-the-fact dimensional variance with the Pere Marquette River Zoning Review Board. That request was denied, and the Petitioner's timely filed a petition for a contested case hearing on said denial.
3. The structure currently in place is violation of the rules in the manner discussed in this Proposal for Decision.
4. Under the criteria of the applicable rules, a variance is not merited for the reasons stated in the Findings of Fact.
PROPOSAL FOR DECISION
Based on the above Findings of Fact and Conclusions of Law, it is proposed that a final order be entered denying the Petitioner's request for a dimensional variance to the Pere Marquette River Natural River Zoning Rules.
April 1, 1998
Richard A. Patterson
Administrative Law Judge
EXHIBIT LIST
R-1 Memo 11/12/88 re: conversation Mr. Clement and Mr. David MacLean
R-2 Letter Mr. MacLean to Mr. Clement 11/16/88
R-3 Zoning Permit
R-4 Letter Mr. Cement to Mr. MacLean 5/18/89
R-5 Letter Mr. Clement to Office of Administrative Hearings received 4/28/95
R-6 Letter Mr. James Mervenne to MDNR
R-7 Letter Mr. Dennis Hall to Mr. Clement 11/8/88
R-8 Letter Mr. Robert Wieliard to Janice Fenske 4/14/95
R-9 Letter Robert and Katherine Michael to Mr. Clement 5/24/95
R-10 Letter Reuben Craig to Richard Schwikert 1/20/95
R-11 Letter Robert Michael to John Leone, Esq. 4/8/97
R-12 Letter Reuben Craig to John Leone, Esq. 4/2/97
R-13 Letter Reuben Craig to John Leone, Esq. Received 4/11/97
R- 14 Zoning Permit Application
R-15 Site Plan
R-16 Pere Marquette River Natural River Plan
R-17 Pere Marquette River Natural River Zoning Rules
R-18 Minutes of Pere Marquette River Zoning Review Board meeting 1/23/95
R-19 Form filled out by each member of review board re: criteria for consideration of variance
P-1 Photograph
P-2 Photograph
P-3 Photograph
P-4 Photograph
P-5 Photograph
P-6 Photograph
P-7 Letter from David MacLean to Petitioner 3/1/95
P-8 Certified letter from Petitioner to David MacLean (returned undelivered)
P-9 Letter from Senator Harry Gast to Mr. Russell Harding 2/13/97
P-10 Letter from Mr. Harding to Senator Gast 2/26/97
P-11 Letter from Mr. Cool to Senator Gast 3/20/97
P-12 Letter from Petitioner to Senator Gast 1/31/97
Unmarked Video tape of subject property displayed during hearing