In Re: Inland Lakes & Streams Act [346] Appeal of
Warren L. and Carolyn A. Lowry

File No. 89-9-117

At a session of the Department of Natural Resources held at Lansing, Michigan, on January 24, 1992, William C. Fulkerson, Administrative Law Judge, Presiding

The Petitioners, Warren L. and Carolyn A. Lowrey have requested that their contested case hearing be withdrawn.

THEREFORE, IT IS ORDERED that the within cause is dismissed, without prejudice.

Date: January 24, 1992 

William C. Fulkerson
Administrative Law Judge

cc: Warren & Carolyn Lowry, 2411 Elder Lane, Rockford, IL 61107
 

Bill Larsen, Land & Water Management Division, MDNR
Al Massey, Region III, Chief, Land & Water Management, MDNR
Warren L. and Carolyn A. Lowry
2411 Elder Lane
Rockford, IL 61107

December 16, 1991

Natural Resources Commission

Dennis A. Conway, Commission Liaison
P.O. Box 30028
Lansing, MI 48909-7258

RE: Inland Lakes and Streams Act 346

Appeal of Warren L. & Carolyn Lowry
File No. 89-9-117

Dear Sirs:

We have in our possession a permit for the requested dock as requested and as constructed. It is our understanding that the D.N.R. has decided to accept Judge Patterson's recommendation that we be permitted to retain the dock as requested and as constructed in error. Sue Klco issued a permit on November 22, 1991.

In a telephone conversation between Mr Massey and me (Carolyn) it is my understanding that it will not be necessary for him (D.N.R.) or us to appear before your Commission on January 8, 1992. As we believe this to be true, we do not intend to be there unless otherwise advised by you.

We thank you for your kind consideration of this matter. Please send us a confirmation of this case being dropped as we withdraw our request for a hearing. If it is necessary for us to attend the commission meeting for this to be formally dropped, please notify us of that requirement. Thank you.

Sincerely,

Warren L. Lowry
Carolyn A. Lowry
Copy: Mr. Al Massey, Region III

Department of Natural Resourses
 

December 17, 1991

TO: Dennis Conway, Assistant to the Natural Resources Commission

FROM: Albert Massey, Land and Water Management Supervisor, Region III

SUBJECT: Contested Case Hearing - Mr. Warren L. and Carolyn Lowry

In the matter of the subject Contested Case Hearing for Mr. Warren L. and Carolyn Lowry, Inland Lakes and Streams Act 346, File Number 89-9-117, the Department of Natural Resources has issued a permit. The decision to issue was based on the Hearing record and discussion with staff.

On December 12, 1991, Mrs. Lowry contacted me to confirm she had received the permit. It is her desire, as well as the Department's, to withdraw the appeal. Mrs. Lowry will be sending a letter to you formally requesting this action. Mrs. Lowry can be reached by telephone at 815-877-6110 or 815-877-6112.

If you require additional information or have questions, do not hesitate to contact me.

AM:slp

IN RE: Inland Lakes and Streams Act Appeal
of Warren and Carolyn Lowry
Cause No. 89-9-177

Richard A. Patterson
Administrative Law Judge

This matter is a contested case hearing concerning an Inland Lakes and Streams Act permit denial of Warren and Carolyn Lowry to construct a thirty-nine (39) foot dock extension and to dredge approximately two hundred twenty-five (225) cubic yards of lake bottom to allow for boat access.

The Respondent, Department of Natural Resources, is charged with the day to day implementation of the Inland Lakes and Streams Act, and was represented in this case by Ms. Sue Klco and Mr. Albert Massey.

The original dock consisted of open timber pile construction and was ninety feet in length. Due to changes in lake level and bottom conditions, it became impossible or impractical for the Lowrys to use their four boats without gaining access to deeper water. Therefore, on March 2, 1989, Lowrys, through their appointed agent Joe Walsh of Lake Michigan Contractors, filed an application for permit to

"Construct a 39 ft. dock extension & dredge approx. 255 cu. yd. to allow for boat access due to low water"

A copy of the application for permit and ancillary documents has been admitted as an exhibit in this case as "Respondent's Exhibit A." After receipt of the application for permit, Matthew J. MacGregor, DNR Land and Water Management Division, inspected the property and generated a Project Review Report which is Respondent's Exhibit C. His comments, subsequent to that review, were

"Proposed dock extension = 129' dock. Neighboring dock 100' R, 80' L 90' L. Proposed extension is excessive in (comparison) to neighboring docks. Send modification letter. 100 max extension. No (objection) to more dredging."

Field staff notified the Petitioners by a letter dated April 24, 1989, that the Department could not authorize the request but would consider issuance of a modified permit for a fifteen (15) foot dock extension. Upon receipt of that letter, due to a either miscommunication or misunderstanding between Dr. Lowry and Joe Walsh, the proposed extension was installed to the full twenty-nine (29) foot length. On June 21, 1989, the Department of Natural Resources denied the proposed twenty-nine (29) foot extension and contemporaneously issued a Modified Permit for a fifteen (15) foot dock extension and dredging of a maximum of two hundred twenty-five (225) cubic yards of material (Respondent's Exhibit B and F respectively).

In the denial letter, the Department stated

"No other docks in the immediate area are as long as the proposed structure. Such an additional encroachment into the waters of Lake Macatawa is considered by this Department to be unreasonable.

Rule 4 (R281.814) of the Administrative Rules for the Inland Lakes and Streams Act, supra, states, in pertinent part: . . . a permit shall not be issued unless. . .

a. The adverse effects to the environment and the public trust are minimal and will be mitigated to the extent possible.

c. The public interest in the proposed development is greater that the public interest in the unavoidable degradation of the resource.'

The Department finds that the adverse effects to the environment and the public trust are not minimal nor are they mitigated to the extent possible; and the public interest in the proposed development is not greater than the public interest in the unavoidable degradation of the resource."

The Department also ordered the removal of the unauthorized portion of the dock which extended beyond the permitted fifteen (15) foot extension and pointed out a likelihood of enforcement action against both Petitioners and their contractor.

Petitioner makes no issue with the fact a permit would be required for the dock extension. They do take issue, however, with the Department of Natural Resources findings and argue that the dock does not unlawfully impair or destroy the waters or other natural resources of Lake Macatawa and does not adversely affect riparian rights or the public trust. They further state that there is not an unreasonable encroachment into the waters of Lake Macatawa.

For purposes of discussion, I will break down the considerations into three separate parts and discuss them separately. These considerations are

1. Does the dock as it now exists impair or destroy the waters or other natural resources of Lake Macatawa.

2. Does the dock constitute an unreasonable encroachment into the waters and therefore effect the public trust.

3. Does the dock adversely effect riparian rights.

This criteria is articulated in the Michigan Inland Lakes and Streams Act (1972 PA 346, Section 7) as follows:

"The Department shall issue a permit if it finds that the structure or project will not adversely affect the public trust or riparian rights. In passing upon an application, the Department shall consider the possible effects of the proposed action upon the inland lake or stream and upon waters from which or into which its waters flow and the uses of all such waters, including uses for recreation, fish and wild life, ascetics, local goverment, agriculture, commerce and industry. The Department shall not grant a permit if the proposed project or structure will unlawfully impair or destroy any of the water or other natural resources of the state. This act shall not modify the rights and responsibilities of any riparian owner to the use of his/her riparian water."

There is no contention that there is any adverse effect on the fish and wild life, ascetics, local government, agriculture, commerce or industry. There is no, nor could there be, any contention that the dock or pier will adversely effect the quality of the water. The concern of the Department of Natural Resources is that the dock at its present length is substantially longer than those in adjacent areas. This would or could effect those traversing the surface of the water and, further, will set a precedent for longer docks than presently exist on Lake Macatawa.

As to the first consideration as to a perceived interference with surface transportation, the testimony indicates that general boat traffic follows that shipping channel which is indicated on a map with aerial pictures (Exhibit 1). It is evident that boat traffic following the channel is very close to the opposite shore. In addition, the map indicates that the dock at 1156 Waukazoo is in a bay with a significant point immediately to the east thereof. (This is depicted well in Respondents Exhibit 1 - aerial photo) It is therefore unlikely that the dock would significantly interfere with boat traffic or water skiing except, perhaps, for those in the immediate area for ingress and egress to their particular property. Mrs. Lowry testified that she had talked to fishermen as to whether or not it would interfere with fishing and that they denied that was the case and, as will be more fully explored later, none of the adjacent riparian owners object to the existing dock.

I therefore find that the dock, as it presently exists, does not impair and certainly does not destroy any water or any other natural resources.

For the reasons stated above, the dock also, in my opinion, does not constitute an unreasonable encroachment affecting the public trust. So far as the concerns of the Department of establishing a precedent for longer docks, numerous exhibits and testimony were entered as to docks on the lake that are significantly longer than the one existing on the Lowry property. These are contained in Petitioner's Exhibit 1 (map and aerial photographs), Petitioner's Exhibit 3 (group of aerial photographs) and Petitioner's Exhibit 7 (list). Some of the longer docks are commercial in nature and other longer docks are in areas significantly away from the major part of boat traffic and in different topographical areas. The existence of these does not establish a precedent for the Lowry dock. Similarly, since each such dock is unique, there does not appear to be any significant danger of establishing precedent by allowing the Lowry dock to exist. Each future permit application will be separately evaluated and stand on its own merits.

While the Department has expressed concern that the Petitioner's dock is longer than adjacent docks, none of the adjacent riparian owners have objected to the existence of the Lowry dock and assumedly, therefore, there is no adverse impact perceived by them.

For all the above reasons, the existence of the dock does not, in my opinion, adversely affect either the riparian owners or the public trust. Regrettably, the dock was constructed without benefit of the permit which would compel one reviewing this matter to have a less favorable view of the Petitioner and/or their contractor. However, on the evidence before me, it appears this was done due to an inadvertence or lack of communication. Apparently, Dr. Lowry called the contractor without fully reading the permit, stating, in essence, that permission had been granted. There does not, therefore, appear to be a culpable and willful violation. Admittedly, the Lowrys did not remove the additional portion of the dock and the DNR should be commended for foregoing enforcement action pending resolution of this matter.

Mrs. Lowry has stated that, at this point, they have no intention of dredging and do not need that as part of the permit. I would also observe that it would seem that the dredging would have much more impact on the natural resources than allowing the maintenance of the dock as it presently exists.

Based on the foregoing, it is proposed that the Lowrys be issued a permit as applied for, therefore allowing the dock to be maintained as it exists.

Richard A. Patterson
Administrative Law Judge
Dated: October 15, 1991

PETITIONER

1. Large map of lake with pictures.
2. Proposal from contractor to extend dock dated 3/3/89.
3. Large Poster board of pictures of other docks, etc.
4. Note from Dee Horne
5. Copies of real estate tax bills and checks in payment.
6. Drawings of dock and photo of shoreline.
7. List of other docks.

RESPONDENT

A. Application for permit and ancillary documents.
B. Modified permit issued 6/21/89.
C. Project review report.
D. Marina and dock plan instructions, etc.
E1. Aerial photo of lake.
E2. Second aerial photo of lake.
F. Denial letter dated 6/21/89.