Halleck

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 Norman and Barbara Halleck

File No. A-96-14

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 November 3, 1997. The Department of Natural Resources (Department) filed its exceptions to the PFD on January 20, 1998. The matter is now before the Natural Resources Commission for a final agency decision pursuant to the Administrative Procedures Act.

The application 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 February 12, 1998, the Natural Resources Commission heard oral argument in this matter by both counsel for the Department and counsel for the Petitioners, and the Natural Resources Commission delayed making a final determination in this matter until its meeting on March 12, 1998, after being informed that a delay until March 12, 1998 would not adversely impact the Department nor the Petitioner. At its meeting on March 12, 1998, the Natural Resources Commission again afforded both counsel for the Department and counsel for the Petitioner five minutes each to summarize their arguments on behalf of their clients in this matter.

This matter is a contested case concerning the denial of an application for a variance to the administrative rules for Au Sable River Natural River plan for a parcel owned by Herman and Barbara Halleck (Petitioners). The Petitioners requested the variance to allow for excavation and placement of fill to facilitate the construction of a home and septic field on a parcel adjacent to Lower Chub Lake in Otsego County. A contested case hearing in this matter was held on May 16, 1997 in the Department of Natural Resources (DNR) district headquarters in Gaylord.

JURISDICTION

The hearing was requested under, and is governed by, Part 305 of the Natural Resources and Environmental Protection Act (NREPA), MCL 324.30501, et seq.; MSA 13A. 30501, et seq., and its administrative rules. The contested case 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 DNR is charged with the day-to-day implementation of Part 305 of NREPA. The Petitioners timely filed a petition for a contested case hearing from a denial of the aforementioned variance. The DNR is represented by Christopher Dobyns, Assistant Attorney General. During the hearing the Department called: Mr. Kevin Sagasser, an adjacent neighbor; Ms. Gloria Torello, Land and Water Management Division, Department of Environmental Quality; Ms. Janice Fenske, Natural Rivers Administrator for the northern half of the lower peninsula for the DNR; Mr. Daniel Pearson, Natural Rivers state coordinator for the DNR; and Mrs. Barbara Halleck. The Petitioners are represented by Susan Hlywa Topp, Esq., of the firm of Plunkett & Cooney, P.C. Testifying on behalf of the Petitioners were: Mrs. Barbara Halleck; Steven Halleck, the Petitioners son; Robert A. Dobrzelewski, Otsego County Building Department Administrator; and Mr. Dale Franz, Otsego County Zoning Administrator.

There were 38 exhibits entered during the hearing, many being duplicate documents which were entered by each side. A list of those exhibits is attached to this Proposal for Decision.

FINDINGS OF FACT

In 1987, the Natural Resources Commission ("NRC") designated the Au Sable River system a natural river area pursuant to the Natural River Act of 1970, now Part 305 of the Natural Resources and Environmental Protection Act (NREPA), 1994 PA 451, MCL 324.30501 et seq.; MSA 13A. 30501, et seq. The Au Sable River Natural River Plan was formulated and approved by the NRC later that year.

Pursuant to § 13 of the then Natural Rivers Act, now Part 315, and after public hearings in the counties affected, the Au Sable River Natural River Zoning Rules were promulgated effective August 15, 1990. (MDNR Exhibit 2). 1990 AACS, R 281.321-281.334. Mark and Marjorie Ely were owners of a parcel containing more than 300 feet of frontage on Lower Chub Lake, a tributary of the Au Sable River. Lower Chub Lake is part of the Au Sable Natural Rivers Designation and subject to the Plan and Rules. In 1994 the Elys split the parcel into three lots and sold the middle portion upon which their home was located to Mr. Kevin Sagasser. On March 20, 1995, the Ely's sold one of the two remaining parcels to Mr. and Mrs. Halleck. The third parcel was sold to Steven and Tanna Stuck on May 18, 1995. The parcel purchased by Mr. and Mrs. Halleck is 100 feet wide and over 300 feet deep and is comprised of approximately 37,000 square feet.

Prior to their purchase of the property, the Petitioners made a number of inquiries and applied for various permits. As a result, the District Health Department issued a well and septic permit and the Otsego County planning and zoning department issued a permit for the placement of a camping trailer on the parcel. Although the dimensions and location of the site were disclosed in both permit applications, neither addressed the criteria of the Natural River Zoning regulations. Mr. Dale Franz, Otsego County zoning enforcement officer, testified he was not aware, at that time, Lower Chub Lake was included in the Au Sable Natural River designation.

The Petitioner's initiated the involvement of the DNR on June 3, 1995, by applying for a permit to place a walkway and dock on the shore of the lake. The permit application was put on public notice June 23, 1995 and comment was received from Mr. Franz objecting to the application as violative of the green belt requirement of the Otsego County zoning ordinance, unrelated to Natural Rivers zoning. Written comment received from the Otsego County Soil Conservation District also alluded to the green belt requirements of the Otsego County zoning ordinance. (Exhibit P-7). Similarly, there was no mention of the Natural Rivers criteria in that submission. The permit was denied by DNR based on the criteria contained in Part 301, Inland Lakes and Streams, and Part 303, Wetland Protection, of NREPA. The denial made no mention of Natural Rivers regulation. (Exhibit P-8).

Ms. Gloria Torello, Land and Water Management Division, DNR (now the Department of Environmental Quality), inspected the site on July 19 and September 21, 1995. Ms. Torello testified she was not aware the property was regulated by the Natural Rivers Act and attributed that to the fact the permit application was not properly routed by the DNR Permit Consolidation Unit. Subsequently, she became aware of Natural Rivers jurisdiction in a telephone conversation with Ms. Janice Fenske, the Natural Rivers Zoning Administrator. Thereafter, on April 2, 1996, Ms. Torello and Ms. Fenske met with Mr. Halleck on the subject parcel. They reaffirmed Natural Rivers jurisdiction and provided him with a copy of the rules. There was also discussion of his submitting an application to build a residence on the upland portion of the property. However, on April 10, 1996, Ms. Fenske wrote to Mr. Halleck advising that his lot could not be built upon because it was below the minimum of 50,000 square feet and less than an average width of 150 feet required by the Natural Rivers rules. Mr. Halleck then applied for a Natural Rivers Zoning variance on October 4, 1996. In a letter dated October 14, 1996, Ms. Fenske denied the application. Since the denial, Mr. Halleck has attempted unsuccessfully to purchase property from adjacent landowners to increase the lot size.

There is no question the parcel as it currently exists does not meet the minimum size and frontage requirements and, at the time it was created, was subject to the Natural Rivers zoning rules. The parcel consists of 34,680 square feet, which is 15,320 square feet less than the required 50,000 square feet for the minimum lot size. The issue in this contested case hearing is whether a variance under these facts and circumstances should be granted.

A dimensional variance is governed by 1990 AACS, R 281.329(l) which provides:

A dimensional variance from any standard established in these rules may be granted by the Zoning Review Board, after a public hearing, or in certain instances by the Zoning Administrator, to allow a modification from such standard establishing area, yard, height, floor space, frontage, setback, or 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 in harmony with the general purposes and intent of these rules.

The rules further provide the Zoning Review Board or the Zoning Administrator consider several factors in determining whether practical difficulties exist. Rule 281.329(2) enumerates those factors, as follows:

(a) How substantial the variance is in relation to the zoning requirements.

(b) Whether a substantial change will be effected in the character of the area or a substantial detriment created for adjoining properties.

(d) Whether, in view of the manner in which the difficulty arose, and considering all of the factors specified in subdivisions (a)- (c) of this subrule, the interest of justice will be served by allowing the variance.

(e) Whether the plight of the landowner is due to circumstances unique to the property not created by the landowner.

(f) Whether the variance may result in a material adverse effect on the environment.

The letter denying the variance does not address any of these criteria, but relies solely on 1990 AACS, R 281.333 which states, in pertinent part:

After the effective date of these rules, a building or structure or land shall not be used or occupied, and a building or structure or part thereof shall not be erected, constructed, reconstructed, moved, or structurally altered, unless the building, structure or land is in compliance with the provisions of these rules. A permit or variance shall not be approved if approval of the variance violates the provisions of these rules. (Emphasis supplied).

The Department denied the variance and argues in this hearing the language underlined above prohibits the issuance of a variance if the variance would constitute a violation of the rules. Essentially, its position is that variances can only be allowed to accommodate legal non-conforming uses and that, pursuant to Rule 281.329 (1) ". . . a variance shall be permitted only when it is in harmony with the general purposes and intent of these rules".

Petitioner argues that the rule governing dimensional variances and the language underlined above are provisions with separate purposes and intent. They further argue that to adopt the Department's interpretation would vitiate the variance provisions because a variance necessarily involves a deviation from the rules. These arguments raise a legal issue involving interpretation of the two rules. Rules must be interpreted similarly to statutes and the rules of statutory construction apply. The Michigan Administrative Procedures Act so provides under MCL. 24.232 (1) by stating:

Definitions of words and phrases and rules of construction prescribed in any statute, and which are made applicable to all statutes of this state, also apply to rules unless clearly indicated to the contrary.

To determine this issue, this Tribunal must look to the legislative intent of the language itself. Victorson v Department of Treasury, 439 Mich 131; 482 NW2d 685 (1992). If the language is clear and unambiguous, then the language as written must be applied and interpretation is forbidden. id. at 137. Further, when considering the meaning of statutory language, consideration must be given to each provision in light of the statute as a whole. Nelson v Grays, 209 Mich App. 661; 531 NW2d 826 (1995).

I conclude that the language of the two provisions is clear and unambiguous and each must be given its plain meaning. The provision upon which the Department relies is titled "Violations; Effect; Remedies". The rule read in its entirety indicates that uses and structures in violation of its provisions are nuisances per se and it prohibits any activity violative of the rules after the date of their effective date. While the rule both prohibits variances which are violative and provides for remedies, it does not address non-conforming uses. Non-conforming uses are governed by other rules. Therefore, the provision relied upon by the DNR must be read as part of the entire body of the rules which, as stated, govern non-conforming uses and dimensional variances. To read the rule otherwise would, as Petitioner argues, vitiate the variance provision.

Obviously, a variance is only necessary in the instance where, in limited circumstances, strict compliance with the rules is impossible. That is why the rule governing variances contains the criteria which must be considered in reviewing a variance request. When Rule 281.333, upon which the Department relies, is read together with the remainder of the rules as a whole, common sense dictates that it only prohibits a variance granted without consideration of the specific criteria of Rule 281.329 (2). To say it another way, the proper variance procedure and standards must be followed. If that occurs, and the standards dictate a variance is appropriate, the variance would be in "harmony with the general purpose and intent of the rules" as required.

Therefore, this matter must be reviewed and analyzed under the criteria in the rule governing dimensional variances:

1. Would the variance be substantial in relationship to the zoning requirements?

As stated, the square footage of the parcel is 15,380 less than the required 50,000 square feet, which computes to approximately 30% below the minimum lot size requirement. In addition, the parcel has only 100 feet of frontage, which is one-third less than the required 150 feet on average. Based on these numbers, I find there is a substantial difference between the size of the parcel, the frontage and that required by the rules.

2. Would the variance effect a substantial change in the character of the area or a substantial detriment to the adjoining properties?

From a review of the site plans submitted as part of the petition for contested case hearing (Exhibit DNR 11) and the Public Notice (Petitioner Exhibit 5), the Sagasser house is to the south of the subject parcel, with vacant land to the north. As to the Sagasser home, while the building would be in proximity to it, there is presently a house trailer on subject parcel and the footprint of the proposed dwelling, 28 feet x 48 feet, would not be materially different. (Petitioner Exhibit 5). Additionally, the subject parcel has a steep bank, estimated from the above referenced exhibits at 18 to 20 feet high. The bank serves to reduce visibility from Lower Chub Lake and its shoreline to the back of the parcel. The character of the area is currently that of a sparsely populated residential locality. If the proposed activity were permitted, the character of the area would be unchanged in relation to how it currently exists. Therefore, I find, as a Matter of Fact, the variance would not effect a substantial change in the character of the area nor would it create a substantial detriment to the adjoining properties.

3. Can the difficulty be overcome by a feasible method other than a variance?

Mr. Halleck has attempted to purchase property from adjoining owners in order to increase the size of his lot without success. Therefore, the only alternative available to remedy the substandard lot size is not available. I find, in order to build a variance is necessary because no other feasible method exists.

4. Would allowing the variance, in view of the manner in which the difficulty arose, and considering all of the factors specified above, serve the interests of justice?

Throughout this proceeding the subdivision of the Ely property and its subsequent sale has been referred to as an "illegal lot split". See Rule 281.324(2). The lot split was inconsistent with the rule, however, there is no evidence the Petitioners willingly and knowingly participated in the subdividing of the property. Rather, they merely purchased the parcel as legally described and as it existed. The evidence also shows they made a diligent, albeit incomplete, investigation as to the requirements to build and were not advised by any local authority of Natural Rivers jurisdiction. In fact, the DNR, for a considerable period of time, was not aware of the Natural Rivers zoning on the parcel.

The Petitioners committed themselves to purchasing the parcel based on a false sense of security that their plans could be accomplished. Petitioner's unawareness, as well as that of local officials and, initially, the DNR, of the existence of Natural Rivers zoning restrictions on the parcel caused the difficulty. This situation is contrary to the facts in Webb v. Smith, __ Mich App __; 568 NW2d 378 (1997). In Webb, the court held that the defendants did not act in good faith and as a result of an honest mistake in building a home after having notice of deed restrictions which prohibited building in a particular location. id. at 381. Based on Petitioner's actions in purchasing the parcel, in contrast to the facts in Webb and considering the factors enumerated above, I find, as a Matter of Fact, that the interests of justice would be served by granting the variance.

5. Is the plight of Hallecks due to circumstances unique to their parcel not created by them?

As previously discussed, there is no evidence that the Petitioners had anything to do with the creation of the parcel. Rather, they merely purchased the parcel in good faith with the intention of building a home. While it cannot be denied that they were constructively on notice of any and all regulations effecting the property, they lack culpability and I find, as a Matter of Fact, that their plight is due to circumstances unique to the parcel for which they had no fault in creating.

6. Will the variance result in a material adverse impact to the environment?

Based on the evidence presented at the hearing, notwithstanding the proposed activity on the waterfront, building a home, the accessory building and the installation of an approved well and septic system will have little, if any, environmental impact, and I so find. The record as to the proposed activity of construction on the water front is inconclusive. The original proposals were denied by the Department under Part 301 and Part 303 considerations, and said denials are not at issue in this contested case. There has been no further discussion or request for review thereof. There was testimony pertaining to discussion between Mr. and Mrs. Halleck, their son, Ms. Fenske, Mr. Pearson and Ms. Torello, on the issues regarding the Part 301 and Part 303 considerations. However, as Ms. Torello testified, Mr. and Mrs. Halleck failed to follow through with revised plans or explore possible alternatives. It should be noted, however, that any activity or construction including, but not limited to, a dock or walkway may only be done in strict conformance with the applicable Natural Rivers Rules and Part 301 and Part 303 criteria.

The Petitioners' proposal to build is within the required setbacks of local ordinances and the site is located on upland. If the building were placed far enough back on the lot it would not be visible from the Lower Chub Lake. Based upon the findings regarding the above criteria, I find there are practical difficulties in carrying out the strict letter of these rules. I also find constructing a residence, accessory building well and septic system consistent with this Proposal for Decision is in harmony with the general purpose and intent of these rules.

CONCLUSIONS OF LAW

Based on the above Finding of Fact, I conclude, as a Matter of Law, the following:

1. Petitioners are proper parties and timely requested a Contested Case Hearing.

2. Petitioners' property is subject to the Natural Rivers designation and Rules governing the Au Sable River.

3. That a variance is necessary to enable Petitioners' to construct the proposed project.

4. Rule 281.329 (1) governing dimensional variances and Rule 281.333 govern different

considerations and are not in conflict. The clear and unambiguous language of each must be given its plain meaning.

5. The proposed project presents practical difficulties in carrying out the strict letter of these

rules.

6. The granting of a variance in this case is permissible under the criteria of Rule 281.329 (1) and is not prevented by Rule 281.333 as the variance is in compliance with the former rule and, therefore, not in violation of the Rules.

7. The building of a residence, accessory building and the installation of an approved well and septic system, in an area not visible from Lower Chub Lake and its shoreline, would not circumvent and is in harmony with the intent and purpose of Part 305 and its administrative rules.

8. The proposed construction of a dock or walkway is activity which may be regulated under Part 305, Natural Rivers, Part 301, Inland Lakes and Streams, and Part 303, Wetland Protection, of the NREPA. The activity is not the subject of this contested case and the record is insufficient to make a determination of whether a variance should be granted.

PROPOSAL FOR DECISION

It is proposed that the Natural Resources Commission enter an Order granting the variance that limits construction to that of a residence, a detached garage, well and septic system in a location that will not be visible from Lower Chub Lake. Any construction at the waterfront and in the greenbelt should be strictly limited to that allowed by the Part 315 and its administrative rules.

Dated: November 3, 1997 ___________________________

Richard A. Patterson

Administrative Law Judge

EXHIBIT LIST

PETITIONER

1. Septic and well permit.

2. Warranty Deed from Ely to Petitioners.

3. Camp trailer permit.

4. Tax receipts and notice of assessment.

5. Public Notice.

6. Letter from Dale Franz to DNR. (7/7/95)

7. Letter from Otsego Soil Conservation District to DNR. (7/13/95)

8. Certified letter from DNR to Petitioners denying application. (8/21/95)

9. Letter from Janice Fenske to Petitioners. (9/22/97)

10. Memo Gloria Torello to Janice Fenske with attachments. ( 2/27/96)

11. Memo re: Meeting with Petitioners. (4/10/96)

12. Letter from DNR to Petitioners. (4/10/96)

13. Au Sable Natural Rivers Plan. (Same as DNR 1)

14. Au Sable Natural River Zoning Rules. (Same as DNR 2)

15. Letter from DNR to Supervisor, Oscoda Township. (8/14/90)

16. Letter from DNR to Supervisor, Bagley Township. (I 1/16/90)

17. Interoffice communication from Gerald Thiede to Dennis Hall. (5/23/96)

18. Letter from Dennis J. Hall to A. Michael Leffler. (6/7/96)

19. Application for Natural River variance

20. Certified letter from Jan Fenske to Susan Topp, Esq. (10/14/96)

DNR

1. Au Sable River Natural River Plan. (Same as Petitioner 13)

2. Ausable River Natural River Zoning Rules. (Same as Petitioner 14)

3. Letter from DNR to Supervisor, Oscoda Township 8/14/97. (Same as Petitioner 15)

4. Letter from DNR to Supervisor, Bagley Township 11/16/90. (Same as Petitioner 16)

5. Public Notice. (Same as Petitioner 5)

6. Certified letter from DNR to Petitioners. (9/22/95) (Same as Petitioner 8)

7. Letter from Janice Fenske to Petitioners. (9/22/95) (Same as Petitioner 9)

8. Letter from DNR to Petitioners. (4/10/96) (Same as Petitioner 12)

9. Application for Natural River variance. (Same as Petitioner 19)

10. Certified letter from Jan Fenske to Susan Topp, Esq. (10/14/96) (Same as Petitioner 20)

11. Letter enclosing Petition for Contested Case Hearing.

12. Warranty Deed from Hanson to Tracey.

13. Warranty Deed from Motz to Ely.

14. Recorded Warranty Deed from Ely to Halleck.

15. Warranty Deed from Ely to Stuck.

16. Warranty Deed from Ely to Sagasser.

17. Otsego County camp trailer application.

18. Letter from Kevin Sagasser to District Health Dept. No. 3. (5/15/95)

STATE OF MICHIGAN

DEPARTMENT OF NATURAL RESOURCES

OFFICE OF ADMINISTRATIVE HEARINGS

SUBJECT: Part 305, Natural Resources and Environmental Protection Act,

(NREPA), 1994 PA 451, as amended, Natural Rivers.

Petition of Norman and Barbara Halleck

File No. A-96-14

PROPOSAL FOR DECISION

Richard A. Patterson

Administrative Law Judge

Dated: November 3, 1997

In rendering this Final Determination and Order, the Natural Resources Commission has considered the proposal for decision, the exceptions filed on behalf of the Department, exhibits, pleadings, and arguments of the parties.

Determination

The Natural Resources Commission REJECTS the Proposal for Decision dated November 3, 1997 and adopts the proposed Findings of Fact and Conclusions of Law set forth in the Exceptions filed by the Department to the Proposal for Decision dated January 20, 1998.

THEREFORE, IT IS ORDERED:

1. The Proposal for Decision dated November 3, 1997 is hereby REJECTED, as provided in this Final Determination and Order.

2. The Application for a Permit for File No. A-96-14 is DENIED.

3. The Natural Resources Commission does not retain jurisdiction in this matter.

Dated: March 12, 1998 ___________________________

Keith J. Charters, Chairman

Natural Resources Commission

STATE OF MICHIGAN

DEPARTMENT OF ATTORNEY GENERAL

FRANK J. KELLEY

Attorney General

January 20, 1998

Teresa Gloden

Assistant to the Commission

Natural Resources Commission

Mason Building, 7^th Floor

P. 0. Box 30028

Lansing, MI 48909

Dear Ms. Gloden:

Re: Part 305 Natural Rivers of the Natural Resources and Environmental

Protection Act (NREPA), 1994 PA 451, as amended.

Petition of Norman and Barbara Halleck

File No. A-96-14

Enclosed for filing the Commission, please find MDNR'S EXCEPTIONS TO PROPOSAL FOR DECISION. We are requesting oral argument in this matter.

Thank you.

Very truly yours,

Christopher D. Dobyns

Assistant Attorney General

Natural Resources Division

Knapp's Office Centre

300 S. Washington, Suite 530

Lansing, MI 48913

(517) 335-1488

CDD/cmp

Enc.

c: Susan Hlywa Topp

Daniel Pearson, MDNR

STATE OF MICHIGAN

NATURAL RESOURCES COMMISSION

IN THE MATTER OF:

Part 305, Natural Rivers of the

Natural Resources and

Environmental Protection Act (NREPA) File No. A-96-14

1994 PA 451, as amended.

Petition of Norman and Barbara Halleck,

ORAL ARGUMENT

Petitioners. REQUESTED

_________________________________________/

MDNR'S EXCEPTIONS TO PROPOSAL FOR DECISION

INTRODUCTION

This case arose from a contested case hearing which was requested by Norman Halleck and Barbara Halleck ("Hallecks") to challenge a denial of the Michigan Department of Natural Resources ("MDNR") of the Hallecks' request for a variance under the Au Sable River Natural River Zoning Rules, 1990 AACS, R 281.321 et seq ("Rules"). The Hallecks requested the variance for the purpose of building a house on their newly acquired property on Lower Chub Lake in Otsego County. (MDNR Exhibit 11.) The MDNR denied the Hallecks' request for the reasons that the Hallecks' lot, which was created several years after the effective date of the Rules, failed to meet the dimensional requirements of Rule 4 and that under Rule 13(2), no permit or variance could be granted because the creation of the Hallecks' lot violated the Rules. (MDNR Exhibit 10.)

The contested case hearing was held on May 16, 1997. On November 3, 1997, Administrative Law Judge ("ALJ") Richard A. Patterson issued a Proposal for Decision which recommends that the Natural Resource Commission ("Commission") enter an Order granting the variance that limits construction to that of a residence, detached garage, well and septic system in a location that will not be visible from Lower Chub Lake." Proposal for Decision, p 11. These exceptions and written arguments are filed with the Commission by the MDNR for the reason that the findings of fact and conclusions of law contained in the Proposal for Decision are clearly erroneous. The MDNR requests that the Commission enter an Order affirming the MDNR's denial of the Hallecks' request for a variance.

EXCEPTIONS TO FINDINGS OF FACT

The MDNR respectfully submits that the Findings of Fact contained in the Proposal for Decision are deficient for the reasons that material facts established on the record are omitted or ignored; immaterial and irrelevant facts are given great weight; and certain purported findings of fact are erroneous and not supported lay the record.

To the extent possible, MDNR's Exceptions to the Findings of Fact are presented on an issue-related basis and are enumerated as follows:

On page 5 of the Proposal for Decision is stated: "The issue in this contested case hearing is whether a variance under these facts and circumstances should be granted." The ALJ misconstrues the issue. The threshold issue is whether the MDNR has the legal authority to grant a variance for construction of a residence on an illegally created undersized lot. The question before the Commission is not whether a dimensional variance is appropriate. Rule 13(2) precludes the MDNR from issuing a permit or a variance for an undersized lot that was created after the effective date of the Rules. See Rule 4. The instant case does not involve a request for a variance for construction on a legal, non-conforming lot. The very creation of the Hallecks' lot was done in plain violation of Rule 4, and the variance procedure contained in Rule 9 is not the remedy to the Hallecks' predicament.

On page 6 of the Proposal for Decision, it is represented that the MDNR denied the Hallecks' variance request because it would have involved a deviation from the dimensional requirements of the rules. Specifically, the ALJ appears to adopt Petitioners' argument that the "Department's interpretation would vitiate the variance provisions because a variance necessarily involves a deviation from the Rules." Proposal for Decision, p 6. Here, again, the central issue is misconstrued. The approval of a variance by its very nature allows for a deviation from the dimensional standards of the Rules. However, a variance or permit may not be approved for construction on a lot that was previously created in violation of Rule 4 and the variance procedures contained in Rule 9. The Hallecks are not requesting a variance to create an undersized lot. Rather, the Hallecks would have the MDNR ignore the requirements of Rule 4.

In this regard, it is noteworthy that for the property in question, a variance application to create an undersized lot after the effective date of the Rules could only have been submitted by the Elys prior to any contemplated subdivision. However, under these circumstances it is extremely doubtful that the Elys would have been able to meet any of the criteria set forth in Rule 9. Indeed, it appears that the sole purpose for the subdivision was to maximize capital gain for the Elys.

Throughout the Findings of Fact, the ALJ appears to accept the Hallecks' claim that they relied on the actions of state and local officials to their detriment in their plans to purchase the property in question and construct a residence.

1. On page 3 of the Proposal for Decision, it is stated that prior to their purchase of the property, the Hallecks obtained a septic and well permit from the District Health Department and a camping trailer permit from the Otsego County Planning and Zoning Department to place the trailer on the property they intended to purchase. This is correct. Then, however, the ALJ states: "Although the dimensions and location of the site were disclosed in both permit applications, neither addressed the criteria of the Natural River Zoning regulations. Mr. Dale Franz, Otsego County zoning enforcement officer, testified he was not aware, at that time, Lower Chub Lake was included in the AuSable Natural River designation." While this is true, it is plainly irrelevant. Neither of these county departments had any responsibility whatsoever regarding the administration of Part 305 of NREPA.

In this regard, it is important to note that the ALJ ignores two material facts. First, on the face of the sewage and well permit obtained by the Hallecks is the following notice: "DNR PERMIT(S) MAY BE REQUIRED. CALL (517) 732-3541." (Petitioners' Exhibit 1.) Notwithstanding the foregoing notice, which was provided prior to the purchase of the property, the Hallecks made no effort to discuss potential permit or zoning issues with the MDNR. Second, notwithstanding Mr. Franz's unawareness, the MDNR sent to Otsego County officials a copy of the Au Sable River Zoning Rules in August 1990 and copy of the Zoning Map in November 1990. See MDNR Exhibits 3 and 4.

2. Similarly, on pages 3 and 4 of the Proposal for Decision, the ALJ reviews Hallecks' first contacts with the MDNR regarding their application for a permit to place a walkway and dock on the shore of the property that they had purchased from the Elys on Lower Chub Lake. The Hallecks applied for this permit on June 3, 1995. (MDNR Exhibit 5.) On August 21, 1995, the MDNR denied Hallecks' permit application on the basis that "the proposed project will have a significant adverse impact on the natural resources associated with lower Chub Lake and its associated wetlands (MDNR Exhibit 6). The ALJ is correct that the regulatory review of the MDNR was based on Part 301 (Inland Lakes and Streams) and Part 303 (Wetlands Protection) of NREPA. However, the ALJ places great significance on the fact that neither Gloria Torello, Land and Water Management Division, Gaylord District, nor the persons who filed objections to the Hallecks' proposed project objected to the project on the basis of Part 305 or the Au Sable River Natural River Zoning Rules. This is irrelevant and immaterial to the claim of detrimental reliance. The Hallecks had already purchased the parcel in question, which had been illegally subdivided by the Elys, on March 20, 1995. Thus, it cannot be seriously argued that the MDNR's initial silence on the applicability of Part 305 of NREPA and the Au Sable River Natural River Zoning Rules was in any way prejudicial to the Hallecks. They had already purchased the property, but had not yet begun with their building plans.

In this regard, the Proposal for Decision also ignores the fact that on September 22, 1995, the Hallecks were advised by Jan Fenske, Regional Rivers Administrator, Natural River Program, Gaylord District, MDNR, that their property on Lower Chub Lake was subject to the requirements of the Natural River Act and the zoning rules. (MDNR Exhibit 7.) At that time, Ms. Fenske was not aware that the property in question was an illegally subdivided, undersized parcel. This fact came to Ms. Fenske's attention in the following spring. Accordingly, on April 10, 1996, Ms. Fenske advised the Hallecks that their lot was illegally created under Rule 4 and that under Rule 13 a variance could not be approved for an illegally created lot. (MDNR Exhibit 8.)

3. On pages 8 and 9 of the Proposal for Decision, the ALJ persists with the notion that the Hallecks relied to their detriment on the actions or inactions of local and state officials in the pursuit of their plans to purchase and develop the parcel on Lower Chub Lake. Specifically, the ALJ states: "The Petitioners committed themselves to purchasing the parcel based on a false sense of security that their plans could be accomplished. Petitioner's (sic) unawareness, as well as that of local officials and, initially the DNR, of the existence of Natural River's zoning restrictions on the parcel caused the difficulty." The only element of factual truth in the foregoing finding is that Petitioners' "unawareness ... caused the difficulty." The Hallecks had purchased the property more than ten weeks before they first contacted the MDNR, notwithstanding the fact that several months prior to their purchase of the property, the Hallecks were issued a sewage and well permit that, on its face and in bold type, advised them that "DNR PERMIT(S) MAY BE REQUIRED." Moreover, the local officials neither administered the Natural Rivers program nor did they have any responsibility in advising the Hallecks .about possible zoning requirements. The responsibility of obtaining actual knowledge of pertinent zoning requirements rested solely with the Hallecks. Thus, any "false sense of security" or "unawareness" of the part of the Hallecks was due to their own inaction, including the decision not to contact the MDNR prior to the purchase of the property or to obtain legal counsel to assist them in the acquisition of real estate.

In this regard, the Court of Appeals decision in Nickola v Grand Blanc Twp, 47 Mich App 684 (1973) is instructive. In the Nickola case, plaintiffs argued that they purchased property based on the representation made by the township supervisor that rezoning the property for the desired use would not be a problem. The Court found this representation to be "undeterminative of any decisional issue" and further stated:

Again plaintiffs represent that they were led to believe that when these two factors no longer existed rezoning would be granted. We mention this so that prospective purchasers and their counsel be aware of the general unenforceability of such claimed representations. It would be well for purchasers to heed the ancient adage caveat emptor in this area of law, and get their rezoning problems adjudicated before purchase and not after.

47 Mich App at 686 (Emphasis added).

PROPOSAL FOR DECISION

On pages 7 through 10 of the Proposal for Decision, the ALJ has analyzed the Hallecks' variance request under the criteria set forth in Rule 9(2). The MDNR disputes the applicability of these criteria for the reason that the lot in question was illegally created under Rule 4, and, thus, under Rule 13 a variance cannot be approved. Nevertheless, the MDNR will address the ALJ's analysis of the six criteria set forth in Rule 9(2).

1. The ALJ is correct in finding that there is a substantial difference between the size and dimensions of the parcel in question and what is required by Rule 4.

2. The MDNR disputes the finding that a variance would not effect a substantial change in the character of the area nor would it create a substantial detriment to the adjoining properties for the reason that it is direct conflict with the evidence established at the contested case hearing. The ALJ finds that "there is presently a house trailer (actually it is a 19' x 8' camping trailer) on the subject parcel and the footprint of the proposed dwelling, 28 feet x 48 feet, would not be materially different." The evidence established at the hearing leads to the opposite conclusion.

At present, the Hallecks have a 19 foot x 8 foot (152 square feet) camping trailer on the property. The Hallecks propose to construct a residence with the dimensions of 26 feet x 52 feet (1,352 square feet); a 12 foot x 40 foot deck (480 square feet); 10 foot x 15 foot mud room (150 square feet); and a 30 foot x 40 foot garage (1,200 square feet). Thus, the Hallecks' proposed construction totals 3,182 square feet: more than 20 times (2000%) the square footage of the camping trailer that :is presently on the property. The suggestion that this proposed change "would not effect a substantial change in the character of the area or create a substantial detriment to the adjoining properties" defies both fact and logic. Indeed, it is totally inconsistent with the previous finding that a 30% difference in lot size versus regulatory requirement is in fact substantial. Moreover, Mr. Kevin Sagasser, the adjoining property owner, testified at the hearing that he believed that the Hallecks' proposed building plans would have a detrimental effect of his property.

3. Third, the ALJ has found that "in order to build a variance is necessary because no other feasible method exists." The ALJ is led to this conclusion by the Hallecks' purported inability to purchase adjacent property to increase their lot size. This analysis totally misses the point. The Hallecks, purchased an illegally created lot under the applicable zoning rules, of which the ALJ has found Petitioners had constructive notice. The Hallecks' present alternative is to seek rescission and restitution with the sellers, the Elys.

4. In reviewing the fourth criterion, the ALJ relies on two findings of fact, the first of which is irrelevant and the second of which is erroneous. First, the ALJ relies on the Hallecks' good faith unawareness. However, it is not relevant whether the Hallecks had knowledge of the fact the subdivision of the Elys lot was illegal under the zoning rules. The Hallecks had constructive knowledge of those rules and are thus bound by those rules. Second, the ALJ relies on the notion that the Hallecks detrimentally relied on the actions of local and state officials in their decision to purchase and develop the property in question. As discussed, supra, this finding is clearly erroneous. The Hallecks first contacted the MDNR more than two months after they had purchased the property. In analyzing the fourth criterion, the ALJ relies on the recent case of Webb v Smith, (After Second Remand) 224 Mich App 203; 568 NW2d 378 (1997). For a number of reasons, reliance on Webb v Smith is misplaced. First, Webb is not a zoning case; the issue before the Court was the enforcement of reciprocal negative easements. Second, the issue of good faith arose in Webb only because defendants, on appeal the third time, made the obviously false claim that they had no knowledge of the deed restrictions during the course of the construction of their home. The Court took obvious delight in rejecting this claim, noting that defendants' house had already been framed at the time that the trial court issued its first decision. Finally, the Court followed the ruling of an earlier panel, which had ruled in the first Webb v Smith appeal that defendants were on constructive notice of the deed restrictions and were thus bound by those restrictions. On the basis of this constructive knowledge, defendants were ordered to demolish their home because "the applicable deed restrictions were readily ascertainable." Webb v Smith, supra, p 214. Here, the Hallecks had constructive knowledge of the applicable zoning requirements when they purchased the property, but fortunately did not proceed to build. Clearly, the Webb v Smith case does not support the notion that a variance in the instant case would serve the interests of justice.

5. In reviewing the fifth criterion set forth in Rule 9(2), whether "there are Practical difficulties in carrying out the strict letter of the rules," the ALJ found that the plight of the Hallecks was due to circumstances unique to the parcel not created by them. While it is acknowledged that the Hallecks had constructive notice of the applicable zoning requirements, the ALJ ignores the effect of this constructive notice and finds that the Hallecks' plight is due to circumstances unique to the parcel for which they had no fault in creating." The ALJ's sympathy for the Hallecks' predicament is understandable, but this finding is both contrary to the Court of Appeals holding in Webb v Smith and a host of zoning cases. For example, in Johnson v Robinson Twp, 420 Mich 115 (1984), a very similar situation was presented to the Michigan Supreme Court. In the Johnson case, a family decided to split their grandfather's lot. As with this case, the original lot complied with the dimensional requirements of the existing zoning ordinance, but the three subdivided parcels all failed to meet the 99-foot wide dimensional requirement of the zoning ordinance. The Zoning Board of Appeals denied the Johnsons' request for a variance to obtain a permit to build a residence on the undersized lot. The circuit court reversed, citing the practical difficulties" in carrying out the. strict letter of the zoning ordinance. The Court of Appeals affirmed, also pointing to these purported "practical difficulties." In a unanimous decision, the Supreme Court reversed the Court of Appeals and circuit court, stating:

In the present case, the property owners have not mounted a frontal assault on the entire zoning statute, arguing that it was improperly enacted or suffers from some other fundamental flaw. Neither have they persuaded us that the 99-foot width requirement is unconstitutional throughout the zoned district.

What is presented here is thus a routine variance case-routine. in the sense that owners of a single lot are attempting to demonstrate that a general requirement ought to be waived as to their particular lot.

* * *

In Puritan-Greenfield Ass'n v Leo, 7 Mich App 659, 670-71; 153 NW2d 162 (1967) (a case involving a request for a use variance), the Court of Appeals examined authorities that explain the requirements that hardships not be self-created and that the plight of the landowner be due to the unique circumstances of the property. There is no sound reason why those principles ought not to be considered by a board of appeals in the exercise of its discretionary power to grant area, as well as use, variances.

There was no abuse of discretion in denying this request for an area variance. The Zoning Board of Appeals was surely correct in foreseeing that. if these plaintiffs could obtain the requested variance, there would be little basis to ever deny a subsequent similar request. A township board of appeals is authorized to issue a variance where there are "practical difficulties or unnecessary hardship in the way of carrying out the strict letter" of the zoning ordinance. In this case, the only practical difficulty or hardship is one that was produced by the p1aintiffs' family. See 3 Rathkopf, The Law of Zoning and Planning, pp 39-1 ff.

The zoning ordinance preceded the division of this property. Thus the plaintiffs' problems were not caused by the township, but were caused by the division. Since, prior to the split, this land was being properly used in conformance with the zoning ordinance, we can see no sense in which the township can be said to have unconstitutionally deprived the plaintiffs of their property rights. On the facts of this case, neither can it be said that the Zoning Board of Appeals abused its discretion. The facts are undisputed and serve as a competent, material, and substantial evidentiary basis for the decision of the board.

420 Mich at 125-126. (Emphasis added; footnote omitted.)

Likewise, in the instant case the "practical difficulty" arose from the illegal lot split. Moreover, as with the Johnson case, if the Hallecks were to obtain a variance to circumvent the lawfully promulgated dimensional requirements of Rule 4, then there would be no basis whatsoever for the MDNR to deny a similar request in the future. Indeed, parties could blatantly ignore lawfully promulgated zoning rules and then have the requirements waived by a variance with the claim of "unawareness" and "practical difficulties." Under such a scenario, the legislative purpose of the Natural River Act and the administrative rules promulgated thereunder would be thwarted.

6. In reviewing the final criterion set forth in Rule 9(2), the ALJ makes the astonishing finding that Hallecks' building proposal would have "little, if any, environmental impact" and would be "in harmony with general purpose and intent of this rules." Proposal for Decision, pp 9-10.

The stated purposes of the Rules and intent of the Rules is stated by Rule 2. Specifically, Rule 2(l) and (2) state:

Rule 2. (1) The commission, on its own motion, in order to implement the intent of Act No. 231 of the Public Acts of 1970, being §281.761 et seq. of the Michigan Compiled Laws, and in the absence of the local zoning to protect the Au Sable river, a designated natural river, promulgates these zoning rules for the following purposes:

(a) To promote the public health, safety, and general welfare, to prevent economic and ecological damage due to misuse, unwise development patterns, overcrowding, and overuse within the natural river district, and to preserve the values of the natural river district for the benefit of present and future generations.

(b) To protect the free-flowing condition, fish, aquatic and wildlife resources, water quality, scenic and aesthetic qualities, and historical and recreational values of the Au Sable river and adjoining land.

(c) To prevent flood damage due to interference with the natural floodplain characteristics by excluding developments which are vulnerable to flood damage and which may reduce the capacity of the floodway of the river to withstand flooding conditions.

(d) To provide for uses that complement the natural characteristics of the natural river system.

(e) To protect individuals from investing funds in structures proposed for location on lands unsuited for such development because of high groundwater, erosion, or vulnerability to flood damage.

(f) To achieve the goals and objections of the Au Sable river natural river plan.

(2) It is the general intent of these rules to define terms used and to regulate and restrict lot coverage and use, population distribution and density, and the size and location of all structures by the delineation of permitted uses and development standards so as to promote the purposes identified in this rule. It is further intended to provide for the administration and enforcement of these rules and to provide penalties for their violation.

(Emphasis added.)

The stated goals and objectives of the Au Sable Natural River Plan are as follows:

IV. NATURAL RIVER PLAN - AU SABLE RIVER

A. Goal.

To preserve, protect and enhance the river environment in a natural state for the use and enjoyment of present and future generations.

B. Objectives

1. To maintain water quality consistent with the designated classification of the river and adhere to the concept of non-degradation of water quality.

2. To prohibit development or activity which may damage the ecologic, aesthetic or historic values of the river and adjacent lands.

3. To ensure that any development which may occur shall be done in an orderly manner consistent with the natural environment and aesthetic qualities of the stream.

4. To ensure that recreational uses which occur, be done in an orderly manner consistent with the natural environment and aesthetic qualities of the stream, and that a quality recreation experience is maintained.

Au Sable Natural River Plan, p 33. (MDNR Exhibit 1.)

It is patently clear that the granting of the Hallecks' proposed variance would fly in the face of both the purpose and intent of the Rules, as stated in Rule 2(l) and (2) and the foregoing goals and objectives of the Au Sable Natural River Plan.

Indeed, its just this type of unorderly overdevelopment and density that the Plan and the Rules were intended to prevent when the Natural River Act was enacted and the Rules were promulgated. If the Hallecks' variance request were granted, the residential density at this portion of Lower Chub Lake would be tripled, for both Hallecks and the Stucks purchased lots that were illegally created by the Elys.

II.

EXCEPTIONS TO CONCLUSIONS OF LAW

The MDNR respectfully submits that the Conclusions of Law contained in the Proposal for Decision are clearly erroneous for the reasons stated below. The MDNR's exceptions address the conclusions of law contained in the Proposal for Decision in the order that they appear.

The ALJ first concludes, as a matter of law, that the Hallecks are the proper parties and timely requested a contested case hearing. While it is true that the Hallecks are the present owners of the property and requested a hearing on a timely basis, for the reasons discussed, supra, the only proper party to make a request for a variance to subdivide the property in question would have been the Elys, and that request would have had to have been made prior to the subdivision. As already stated, the issue is not whether a variance is appropriate; rather, the issue is whether, under the present circumstances, a variance is even authorized under Rule 13.

The ALJ is correct that the Hallecks' property is subject to the requirements of Part 305 of NREPA and the zoning requirements of the Au Sable River Natural River Zoning Rules, promulgated effective August 15, 1990.

In finding that "a variance is necessary to enable Petitioners' (sic) to construct the proposed project," the ALJ ignores the prohibition against approval of variances that violate the rules, as set forth in Rule 13. Indeed, this conclusion of law is clearly indicative of the result oriented nature of the Proposal for Decision. While the ALJ's sympathy for the Hallecks' self-created predicament is understandable, the question before the ALJ, and now the Commission, is whether consideration of a variance request is possible under the present facts and applicable law.

The MDNR agrees that Rule 9(l) and Rule 13 are not in conflict, but respectfully submits that the ALJ has misconstrued the significance of this conclusion of law.

As noted, supra, this case does not involve a request for a dimensional variance for construction on a le-al, non-conforming lot. The Hallecks' lot was illegally created, and the variance procedure set forth in Rule 9(l) is not the mechanism to remedy this problem.

The MDNR agrees that the Rules on their face preclude the Hallecks' plan to develop their property as they propose. Further, the Rules prohibited the creation. of their lot and for the reasons discussed, supra, the proposed. development neither meets the criteria set forth in Rule 9(2) nor comports with the purpose ad intent of the Rules.

The MDNR disputes the conclusion of law that the granting of a variance is permissible under Rule 9(l) and is not prevented by Rule 13 because the variance is in compliance with Rule 9(i) and therefore not in violation of the rules. This conclusion of law plainly ignores the fact that the lot in question was illegally created under Rule 4. It is beyond dispute that the lot is substantially undersized and was created several years after the effective date of the Rules.

For the reasons discussed, supra, the MDNR disputes the conclusion of law that the Hallecks' proposed building plans are in harmony with the intent and purpose of Part 305 and the Rules.

The ALJ's conclusion of law that the proposed construction of a dock or walkway is not subject to this contested case ignores the relief requested by the Hallecks in their Petition. (MDNR Exhibit 11.) However, this is irrelevant to the question of whether the MDNR properly denied the Hallecks' request for a variance under the existing facts and applicable law.

III.

PROPOSED FINDINGS OF FACT

In view of the erroneous nature of the Findings of Fact contained in the Proposal for Decision, the NMNR offers the following proposed findings of fact:

1. In 1987, the Natural Resource Commission ("NRC") designated the Au Sable River system, a natural river area, pursuant to the Natural River Act of 1970, now Part 305 of the Natural Resources and Environmental Protection Act ("NREPA"), 1994 PA 451, MCL 324-30501 et seq. The Au Sable River Natural River Plan was prepared in July 1987 and approved by the NRC in that year. (NMNR Exhibit 1.)

2. Pursuant to §13 of the Natural River Act of 1970, the Au Sable River Natural River Zoning Rules ("Rules") were promulgated, effective August 15, 1990, 1990 AACS, R281.321 et seq. (MDNR Exhibit 2.) In accordance with the provisions of the Administrative Procedures Act of 1969 ("APA"), 1969 PA 306, as amended, MCL 24.201 et seq, public hearings on the provisions of the Rules were held in the Au Sable River District, namely at the county seats of Alcona, Crawford, Iosco, Montmorency, Oscoda, Otsego and Roscommon counties.

3. From 1984 to 1994, Mark Ely and Marjorie Ely, husband and wife ("Elys"), owned a parcel of property on Lower Chub Lake that was more than 300 feet wide.

4. In 1994, the Elys subdivided their parcel of property on Lower Chub Lake into three parcels and sold these parcels in 1944 and 1995.

5. In 1994, the Elys sold the middle portion of their original lot, on which the house was located, to Kevin Sagasser. In 1995, the Elys sold the remaining two lots as vacant building lots. On March 20, 1995, the Elys sold one of the two remaining parcels to the Petitioners. On May 18, 1995, the Elys sold the remaining lot to Steven Stuck and Tanna Stuck, husband and wife ("Stucks").

6. The parcel of property on Lower Chub Lake which was purchased by Petitioners from the Elys has an approximate average width of 100 feet and an approximate area dimension of 37,000 square feet.

7. Petitioners did not consult with an attorney for the purpose of determining potential zoning or permit issues relative to the property in question prior to its purchase.

8. On October 27, 1994, prior to the purchase of the property in question, Petitioners were issued a sewage and well permit by District Health Department No. 3. (Petitioners' Exhibit 1.) On the face of the sewage and well permit obtained by Petitioners is the following notice: "DNR PERMIT(S) MAY BE REQUIRED. CALL (517) 732-3541."

9. Notwithstanding the notice of the possibility of MDNR permit requirements, Petitioners made no effort to contact the MDNR to discuss potential permit or zoning issues prior to the purchase of the property in question.

IV.

PROPOSED CONCLUSIONS OF LAW

In view of the erroneous nature of the Conclusions of Law contained in the Proposal for Decision, the MDNR offers the following proposed conclusions of law.
1.Rule 4 provides that for designated tributaries of the Au Sable River, the minimum lot size for parcels of property created after August 15, 1990, shall be 50,000 square feet with an average width of 150 feet. Lots that do not meet these requirements, which were created prior to August 15, 1990, were "grandfathered" as nonconforming but legal lots. Rule 4(4).

2. Lower Chub Lake is part of a designated tributary of the North Branch of the Au Sable River and is therefore subject to the zoning requirements of the Rules. Rule 5(l)(o).

3. The Elys' property prior to its subdivision was a legal lot under Rule 4.

4. The subdivision of the Elys' property in 1994 resulted in the creation of three undersized parcels in violation of Rule 4, both in terms of average width and square footage.

5. Petitioners were legally obligated to heed the ancient adage of caveat emptor when they purchased a parcel of property which had been subdivided in violation of Rule 4. Nickola v Grand Blanc Twp, 47 Mich App 684, 686 (1973).

6. Rule 13 prohibits the granting of a variance if approval of the variance would violate the provisions of the Rules.

7. The granting of Petitioners' requested variance would violate Rule 4 and would thus be prohibited under Rule 13.

8. Petitioners' proposed variance would be contrary to the stated intent and purpose of the Rules as stated in Rule 2(l) and (2) and the stated goal and objectives of the Au Sable Natural River Plan, p 33.

9. The Rules were promulgated prior to the division and sale of the Ely property and thus any purported practical difficulties complained of by the Petitioners were caused by the division of property and not by the promulgated Rules. Johnson Robinson Twp, 420 Mich 115, 126 (1984).

10. In view of the facts presented and the provisions of the Rules, the MDNR was correct in denying Petitioners' application for a variance.

CONCLUSION

For all the foregoing reasons, the NONR respectfully requests that the Natural Resources Commission issue a final decision upholding the decision of the MDNR to deny the Hallecks' request for a variance.

Respectfully submitted,

FRANK J. KELLEY

Attorney General

Christopher D. Dobyns (P27125)

Assistant Attorney General

Natural Resources Division

Knapp's Office Centre

300 S. Washington, Suite 530

Lansing, MI 48913

(517) 335-1488

January 20, 1998