SUBJECT: Part 305, Natural Resources and Environmental Protection Act
(NREPA), 1994 PA 451 as amended, Natural Rivers.

Petition of Wayne Shugars

File No. PM-94-20

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. The Department of Natural Resources (Department) filed its exceptions to the PFD on May 1, 1998, but did not request oral argument. 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.

In rendering this Final Determination and Order, the Natural Resources Commission, on June 11, 1998, has considered the proposal for decision, the exceptions filed on behalf of the Department, and exhibits and pleadings.

The Natural Resources Commission ACCEPTS the Proposal for Decision dated April 1, 1998.

THEREFORE, IT IS ORDERED:

1. The Proposal for Decision dated April 1, 1998 is hereby ACCEPTED, as provided in this Final Determination and Order.

2. The request for a variance allowing the existence of the stairway and the deck adjacent to the residence is GRANTED.

2. The variance request to maintain the additional two decks closest to the bank of Sanborn Creek and to continue mowing in the vegetative strip is DENIED.

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

Dated:

Keith J. Charters, Chairman
Natural Resources Commission

SUBJECT: Part 305, Natural Rivers, of the Natural Resources and Environmental Protection
Act, (NREPA), 1994 PA 451, as amended

Petition of Wayne Shugars

File No. PM-93-19

Richard A. Patterson
Administrative Law Judge
Dated: April 1, 1998

This matter is a contested case concerning the petition of Mr. Wayne Shugars for review of the Pere Marquette River Zoning Board's (Board) denial of an application for a variance. The variance was sought to allow him to retain three decks totaling 340 square feet and a 64 square foot wooden stairway installed within 50 feet of Sanborn Creek. Mr. Shugars also requested to be allowed to mow within a natural vegetation strip on the subject parcel. The hearing in this matter was held on June 19, 1997 in the Jay Room of the Thomas M. Cooley Law School in Lansing.

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., MSA13A.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.

The Department of Natural Resources asserts this matter should be limited to a review of the Board's actions, specifically whether it was arbitrary and capricious. It must be noted that 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. In addition, 1992 AACS, R281.352 and the Part 5 rules of the 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. Shugars is entitled to a variance from the Pere Marquette Natural River Zoning rules. The purpose of this contested case hearing process is to provide the Petitioner with a de novo review of his request for the variance. 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. Shugars' 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 professional staff of the Department of Natural Resources (Department) is charged with the day-to-day implementation of Part 305 of NREPA. Mr. Wayne Shugars (Petitioner) timely filed a petition for a contested case hearing from the Board's denial of the aforementioned variance.

The Petitioner is represented by Mr. Edward J. McNeely, III, Esq., of Grand Rapids. In addition to testifying on his own behalf, the Petitioner called as witnesses Donna Shugars, his wife, and Ms. Janice Fenske, DNR, Natural Rivers Administrator for the northern half of the lower peninsula.

Respondent Department is represented by John Fordell Leone, Assistant Attorney General. Testifying on the Department's behalf was: Ms. Janice Fenske, Mr. Daniel Pearson, DNR, Natural Rivers state coordinator; Mr. Thomas Rozich, DNR, Fish Habitat Biologist; and Mr. John David Allen, Ph.D., fresh water ecologist from the University of Michigan.

There were 13 exhibits entered during the hearing. A list of those exhibits is attached to this Proposal for Decision.

Sanborn Creek, as part of the Pere Marquette River system, was designated a Natural River by the Natural Resources Commission in July of 1978. The designation was made under the provisions of the then 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. Pursuant to section 13 of the then Natural Rivers Act, and after public hearings in the counties affected, the Pere Marquette Natural River Zoning Rules were promulgated effective July 15, 1981. Exhibit R-2. The rules were subsequently revised effective July 17, 1992. Exhibit R-3.

Previous to the evidentiary phase of the hearing, counsel for the Petitioner made an argument that Part 305 is unconstitutional in three respects. First, Petitioner contends Part 305, as it is applied, denies him equal protection, in that other residents in the area have been allowed to build in violation of the rules. Second, Part 305 constitutes an improper delegation, in that the rules promulgated define family as related people living together and have nothing to do with the purpose and intent of the statute. Last, Petitioner asserts Part 305 unconstitutionally deprives local municipalities of their rights to establish zoning regulations. It was understood by the Parties, and stated on the record, that it is well established that an administrative tribunal lacks subject matter jurisdiction over constitutional claims. Dation v. Ford Motor Company, 314 Mich 152, 2ZN.W.2d 514 (1946). However, it is noted that the Petitioner's purpose in making these arguments are to preserve them for possible future proceedings.

The Petitioner testified he has owned the subject parcel on Sanborn Creek since February of 1990, having purchased it from a Mr. Gamer, who had owned it for the previous 12 years. The Petitioner entered into evidence an aerial photograph, obtained from the Lake County Courthouse, of the area taken in either 1982 or 1983. Exhibit P-1. His property and house are marked by a circle on the photograph. The photograph indicates that the front yard is open. Shortly after he purchased the property, the Petitioner built the decks at issue in this case without first applying for, or receiving, either a permit or permission. The Petitioner testified no one talked to him regarding a pen-nit requirement prior to that point. Subsequently, he applied for a permit in order to erect a privacy fence on the property. Mr. David MacLean, the then Natural Rivers Zoning Administrator for the Department, visited the site pursuant to that application. Mr. Shugars testified that during the on-site inspection Mr. MacLean advised him to remove the outer (creek side) deck and to re-locate it between the upper deck and the house. He complied with Mr. MacLean's directive. According to Mr. Shugars, during the on-site inspection Mr. MacLean also expressed concern over the mowing in the vegetative strip. According to Mr. Shugars, once he explained he mowed the strip because his wife is "deathly afraid of snakes", Mr. MacLean gave him permission to mow in the area depicted by a blue line on Exhibit R-6 (37^th page).

In the summer of 1993 Ms. Janice Fenske, Mr. MacLean's successor, visited the property. She advised Mr. Shugars that he would need a variance to maintain the decks and stairs. He applied for the variance to the Department by way of a letter to Mr. Daniel Pearson dated September 20, 1995. In the application Mr. Shugars requested permission to maintain the decks and stairs and to continue mowing the vegetative strip. Exhibit R5. The request was brought before the Pere Marquette River Zoning Review Board at its October 18, 1993 meeting, at which there was considerable discussion which is recorded in the minutes of the meeting. Exhibit R-5. The Board decided to grant a modified variance allowing Mr. Shugars to retain the deck next to the cabin and the stairs, but requiring that he discontinue mowing in the vegetative strip and plant the area with native species trees. As to the requirement of planting on the site, there is no evidence the Petitioner cut down any trees or large vegetation. In fact, the aerial photograph, Exhibit P-1, demonstrates the area was not heavily wooded previous to Petitioner's ownership. Therefore, there appears to be no reason to require the planting of trees.

Petitioner, in his petition for a contested case hearing and by testimony in the hearing, alleges that the condition of the site as it presently exists was sanctioned by Mr. David MacLean, who was the Natural Rivers Administrator at time of the initial construction. In response to that proffered testimony, counsel for the Department filed a Motion In Limine and argued at the hearing that the testimony should be excluded because Mr. MacLean's statements, if made, were ultra vires. Furthermore, if the statements were ultra vires, they would not be binding on the Department and would not serve as a proper basis for estoppel.

A review of the record indicates that there was, in fact, discussion between Mr. Sh7tigars and Mr. MacLean (Testimony of Mr. Shugars and notes of Mr. MacLean). It is also evident that Mr. MacLean was, at the very least, cloaked with apparent authority to make the representations he did. He presented himself to Mr. Shugars as a representative of the Department. At that time, Mr. Shugars had no way of knowing whether there were any limitations on Mr. MacLean's authority. Later, Mr. MacLean advised Mr. Shugars he could not issue a special exception permit and that only the Board of Review could grant that relief. Therefore, the Motion in Limine to exclude testimony as to Mr. MacLean's representations is denied.

In reviewing the testimony and exhibits it is evident, however, that there was neither a sanctioning of Mr. Shugars' proposal by the Department, nor a final resolution of the problem. Mr. MacLean's notes dated August 22, 1991, part of Exhibit R-6, indicate three things:

Talked to Mr. Shugars and he

1. Agreed to remove outer (river side) deck and place it between the upper deck and house.

2. to stop mowing the down stream area of his yard and allowing (sic) it to grow back natural.

3. He would resubmit a sit (sic) plan with storage shed next to house on one side or the other.

Later, on January 6, 1992, Mr. MacLean further indicated:

He has some illegal activity-he would try to conform-never received new plans.

The above cannot be fairly interpreted as permission to continue the situation that existed, but is more of a memorandum of continuing negotiations toward a possible resolution. Mr. Shugars did remove the one deck and relocated the shed, but failed to submit a site plan and further failed to cease mowing in the protected vegetative strip. Mr. Shugars characterized his understanding of Mr. MacLean's statement as expressing a "desire" that he stop mowing as opposed to a demand. This assertion is belied by Mr. MacLean's notes and, regardless, Mr. Shugars admitted on the record that he continued to mow as usual. Based on the above scenario, it was incumbent on Mr. Shugars to follow through and comply in good faith with the agreement so far as it went. However, Mr. Shugars failed to comply with the agreement.

The issue, therefore, is whether a variance should be granted to allow the Petitioner to maintain the structures presently on the subject property and to mow the vegetative strip adjacent to the creek. To reiterate, there are presently 3 decks, one adjacent to the house, 2 closer to the creek, a stairway adjacent to the two creek front decks, all of which are in the protected greenbelt area.

I find, as a Matter of Fact, the deck adjacent to the existing residence and the wooden stairway can be maintained under the rules without a variance. That deck consists of 160 square feet and is adjacent to the residence which is 586 square feet in size. An increase of 160 square feet to an existing 586 square feet structure computes to an increase of the square footage of 27%. The residence is a legal non-conforming use and may be increased to a maximum of 50% of the existing square footage under 1992 AACS, R 281.350 (4) (a). The wooden stairway can be considered a private footpath of natural materials under 1992 AACS, R 281.347 (a) (vi). However, the remaining two decks closest to the creek, as well as the mowing activity, can only be maintained if a variance is granted.

The criteria for granting the requested variance are found in 1992 AACS, R 28-1.349. Each of the six criteria therein will be reviewed below.

1992 AACS, R 281.349 (2) (a) states:

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

1992 AACS, R 281.346 (b) (i) (D) prohibits construction of a appurtenances and accessory buildings incidental to a dwelling within the required setback. The decks and stairway meet the definition of "appurtenance" under the Rules. 1992 AACS, R 281(b) defines appurtenance and accessory building as a "structure that is incidental to a dwelling." "Structure" is defined by 1992 AACS, R 281.341 (dd) as "anything which is constructed, erected or moved ... which is located above, on or below the ground".

The setback in the area of the decks is established at 88 feet. Exhibit R-6, 31^st page. The three decks remaining are at 24, 34 and 48 feet from the creek bank and, therefore, encroach into the set back by 64, 54, and 40 feet, respectively.

The natural vegetative strip on Sanborn Creek is set at 50 feet from the bank and, pursuant to 1992 AACS R 281.344 (6), cutting of natural vegetation in this area is prohibited with certain exceptions, none of which are applicable in this case. Photographs, Exhibit R-10, reveal a large area immediately adjacent to the edge of the creek has been mowed.

I find, as a Matter of Fact, the stairway and decks, as well as the mowing in the natural vegetation buffer zone, constitute a substantial variance in relation to the zoning requirements.

1992 AACS, R 281.349 (2) (b) states:

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

The mowing has affected a substantial change in the character of the area. If one compares the creek's edge on Petitioners' property to the property on the opposite bank (bottom left picture of Exhibit R-10) the change is well demonstrated. According to Dr. John D. Allen, the loss of vegetation diminishes shade and can elevate water temperature. Such activity can also accelerate surface water runoff, thereby increasing sediment and nutrient load to the stream. Further, leaf litter from vegetation fosters propagation of microbes and bacteria upon which insects feed which, in turn, provides a food source for fish. Dr. Allen considers regulation providing a vegetative strip reasonable and valuable.

Mr. Shugars testified to other apparent violations in the area, but other testimony indicated these are either in areas that are not regulated by natural rivers regulation or are existing non-conforming uses. Further, if there are violations of the Natural River Rules they must be addressed in the proper forum. Mr. Shugars further testified that his neighbors were supportive of his obtaining a variance but did not want to get involved. The Department did not introduce any testimony or exhibits from neighbors complaining of the structures.

I find that it is evident that there has been a substantial change in the character of the area, but there is no evidence of a substantial detriment to adjoining properties.

1992 AACS, R 281.349 (2)(c) states:

(c) Whether the difficulty can be overcome by some feasible method other than a variance.

Although it would be less attractive to the Petitioner, there does not appear to be any reason why the two decks closest to the creek could not be moved so that they comply with the setback. Therefore, I find, there is a feasible alternative available which would comply with Rules as to those structures. There does not appear to be any feasible method to alleviate the Petitioner's concerns, other than a variance, to allow for mowing in the vegetative strip.

1992 AACS, R 281.349 (d) states:

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

It is evident that the difficulty at issue in this case arose solely through the actions of the Petitioner and that despite being advised of the unauthorized activity, he took no action to control this other than to move one of the decks. Furthermore, the Petitioner has not availed himself to the modified variance offered by the Board. I find, as a Matter of Fact, based on Petitioner's activities in the set back and natural vegetative zone, the interests of justice would not be served by granting a variance.

1992 AACS, R 281.349 (e) states:

(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.

The circumstances at hand are not unique to the Petitioner's property and his plight has been created solely through his own activities and I so find, as a Matter of Fact.

1992 AACS, R 281.349(f) states:

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

The decks and stairway do not adversely effect the environment other than aesthetically, which is a subjective standard. Obviously, the Petitioner prefers that they exist. However, others may object based on a preference for a pristine bank.

The mowing activity poses a greater environmental impact based on the testimony of Dr. Allen. Testimony as to fragmentation of the riverine corridor and resultant impact on wildlife is, for the most part, speculative and sketchy, but as stated by Ms. Sargent, is a matter of concern. I find, therefore, the mowing activity constitutes a material adverse effect on the environment.

The two decks closest to the creek and the mowing activity have been found to have adverse effects under each of the six criteria analyzed, except for creating a detriment to adjoining property. Therefore, in balancing these considerations, the evidence is overwhelmingly against the issuance of the variance in respect to those activities.

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

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 existing stairway and deck adjacent to the residence are permissible under the Rules cited in the Findings of Fact.

4. The two decks closest to Sanborn Creek and the mowing activity in the vegetative strip are in violation of the Rules in the manner discussed in the Findings of Fact.

5. Under the criteria of Rule 381.349, the variance to maintain the two decks closest to Sanborn Creek and to continue mowing in the vegetative strip should be denied.

Based on the foregoing Findings of Fact and Conclusions of Law, it is proposed that a Final Order and Determination allowing the existence of the stairway and the deck adjacent to the residence be GRANTED. However, the variance request to maintain the additional two decks closet to the bank of Sanborn Creek and to continue mowing in the vegetative strip should be DENIED.

April 1, 1998

Richard A. Patterson
Administrative Law Judge

P-1- Aerial Photograph
P-2 Copy of article Michigan Farm News, January 3 0, 1997
R-1 Copy of three cases.
R-2 Copy of Pere Marquette Natural River Plan.
R-3 Copy of Pere Marquette Natural River Zoning Rules July 15, 1981
R-4 Copy of Pere Marquette Natural River Zoning Rules July 17, 1992
R-5 Copy of Department's Pre-Hearing Statement and attachments
R-6 Copy of Petitioner's Pre-Hearing Statement and attachments
R-7 Not Admitted.
R-8 Biographical Sketch J. David Allen, Ph.D.
R-9 Photographs of site
R-10 Photographs of site
R-11 Video Tape
R-12 Resume-Lori G. Sargent.