STATE OF MICHIGAN DEPARTMENT OF ENVIRONMENTAL QUALITY OFFICE OF ADMINISTRATIVE HEARINGS

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1 STATE OF MICHIGAN DEPARTMENT OF ENVIRONMENTAL QUALITY OFFICE OF ADMINISTRATIVE HEARINGS SUBJECT: Part 353, Sand Dunes Protection and Management, of the Natural Resources and Environmental Protection Act (NREPA), 1994 PA 451, as amended. Petition of Jay and Barbara Smit File No. 98-MU-0378-C 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 dated March 8, Consistent with this Tribunal s filing schedule, Land and Water Management Division (LWMD) filed written Exceptions to the Proposal for Decision. Jay and Barbara Smit (Petitioners) did not file Exceptions, and neither Party requested oral argument before this Tribunal. The matter is now before the Director of the Department of Environmental Quality for a final agency decision pursuant to Executive Order In rendering the decision in this case consideration has been given to the Proposal for Decision, the written Exceptions, exhibits, pleadings and arguments. The application for a permit in this case proposes 232 ft. of toe protection with 883 cubic yards of rip-rap. Backfill with less than 300 cubic yards of clean fill...." Exhibit J-21. In its denial letter LWMD offered a permit for the installation of a 150 lineal foot revetment to be placed no closer that 50 feet south of the north property line and no closer than 25 feet north of the south property line. Exhibit J-6. That offer was subsequently withdrawn. However, the Proposal for Decision found that alternative was both feasible and prudent, and a permit should be issued accordingly. In its Exceptions LWMD raises three factual issues and two legal issues. Regarding the relevant factual points, the Exceptions assert: 1. The Proposal for Decision did not state that the initial 1996 application for a permit for the shore stabilization project (Exhibit J-2) was denied. Although the denial letter pertinent to that application was not entered as an exhibit, the record clearly indicates a disposition unfavorable to the Petitioners. Mr. Thomas Bennett recommended denial (Exhibit J-3), and a letter from Mr. Smit (Exhibit J-17) refers to a denial letter from

2 LWMD dated May 27, Based on this evidence, I find, as a Matter of Fact, the 1996 permit application was denied. 2. The Gancer property is not adjacent to the Petitioner s parcel, but is separated by two other parcels. Pursuant to Exhibit P-26, I adopt this as a finding of fact. 3. The Proposal for Decision found the project set forth in the application would provide minimal short-term stabilization of the dune, and would increase erosion of the dune. LWMD seeks a similar finding for the alternative project. In other words, it seeks a complete denial of the application. However, the finding in the Proposal for Decision that the alternative comports with the permitting criteria of Part 353 is supported by the evidence on this record and will not be disturbed. The second component of this argument is stabilizing with vegetation alone is a feasible and prudent alternative to any type of toe protection. Again, the evidence on this record does not support this assertion. The first legal issue is whether administrative rules have been promulgated under Part 353. The Proposal for Decision makes passing reference to such rules. However, as LWMD notes the codification of PA 222 of 1976 into the Natural Resources and Environmental Protection Act (NREPA) did not include any rulemaking authority for Part 353. Rather, that authority remained with Part 637, Sand Dune Mining, of the NREPA. See MCL The second legal issue concerns what constitutes a contour change. LWMD asserts it is any activity that alters the shape of a dune, while the Proposal for Decision concludes the activity must rise to something more. This Tribunal recently addressed, and rejected, this very argument in the recent decision in another Part 353 case, Petition of Eugene and Judy Jankowski, File No. 98-OC-0394-C. In the jurisdictional context of what level a use on a critical dune must reach to constitute a contour change, the Final Determination and Order in Jankowski held: A more consistent approach, both legally and administratively, is to make the determination of jurisdiction on a case-by-case basis. This approach will provide LWMD the opportunity to review the proposed activity and determine whether a permit should be issued as a matter of course, or whether a special exception is required. 2

3 That holding applies to the argument of LWMD in this case. DETERMINATION AND ORDER The Director of the Department of Environmental Quality ADOPTS AND INCORPORATES BY REFERENCE the Proposal For Decision including the Findings of Fact and Conclusions of Law. Based upon those Findings of Fact and Conclusions of Law, it is DETERMINED the Petitioner's application for a permit be DENIED. However, a permit consistent with the alternative contained in Exhibit J-6 shall be issued provided the Petitioners submit a written request for it within 30 days after the date of this Order. NOW, THEREFORE, IT IS ORDERED: 1. The Proposal for Decision of March 8, 2001, is ADOPTED and INCORPORATED by reference into this Final Determination and Order. 2. The application for a permit submitted by Jay and Barbara Smit, under File No. 98-MU 0378-C is DENIED. 3. Land and Water Management Division shall issue a permit consistent with the activity set forth as an alternative in its denial letter. See Exhibit J The Department of Environmental Quality does not retain jurisdiction in this matter. Dated: Russell J. Harding, Director Department of Environmental Quality 3

4 STATE OF MICHIGAN DEPARTMENT OF ENVIRONMENTAL QUALITY OFFICE OF ADMINISTRATIVE HEARINGS SUBJECT: Part 353, Sand Dunes Protection and Management, of the Natural Resources and Environmental Protection Act (NREPA), 1994 PA 451, as amended. Petition of Jay and Barbara Smit File No. 98-MU-0378-C PROPOSAL FOR DECISION March 8, 2001 Richard A. Patterson Administrative Law Judge 4

5 This contested case involves an application for a permit under Part 353, Sand Dunes Protection and Management, of the Natural Resources and Environmental Protection Act, 1994 PA 451, as amended (Part 353). MCL et seq. The application was submitted by Jay and Barbara Smit and proposed to install a 232 foot lineal rock revetment at the toe of a dune lakeward of their home and approximately 50 to 60 feet, on average, landward of the then existing water elevation of Lake Michigan. The revetment would be comprised of 833 cubic yards of rip-rap with less than 300 cubic yards of clean fill. The hearing in this matter was held on December 17, 1999, January 14 and 21, 2000, and February 4 and 29, After considerable delay while the Parties attempted to decide whether to order a transcript or partial transcripts, written closing arguments and proposed Findings of Fact and Conclusions of Law were filed as of August 25, JURISDICTION Part 353 grants the right to a contested case hearing to a person "...aggrieved by a decision of the department in regard to the issuance or denial of a...permit." MCL (1). A timely request for a contested case hearing was filed by Mr. and Mrs. Smit (Petitioners) on January 26, As mandated by 35305(1), the hearing was conducted in the manner provided for in the Administrative Procedures Act, 1969 PA 306, as amended. MCL et seq. PROPERTY RIGHTS PRESERVATION ACT CONSIDERATION Pursuant to the Property Rights Preservation Act, 1996 PA 101, MCL , et seq., in formulating this Proposal for Decision the undersigned has reviewed the Takings Assessment Guidelines and considered the issue of whether this government action constitutes a constitutional taking of property. PARTIES Jay and Barbara Smit (Petitioners) presented the case through their agents, Mr. Tim Bureau and Mr. Michael Hayes, both of whom are principals of Resource Management 5

6 Group, Inc. In addition to the testimony of Mr. Smit and Mr. Hayes, they presented three (3) witnesses: Mr. David L. Schultz, PE; Mr. Robert Gezon, designer and builder of shore structures; and the Honorable Harry Gast, 8th Senate District. The professional staff of the Michigan Department of Environmental Quality, Land and Water Management Division (LWMD) is charged with the day-to-day implementation of the statute. Representing LWMD is Mr. Hal F. Harrington, Unit Chief. The LWMD presented three witnesses: Ms. Leah Ording, the owner of the adjacent property to the north of the Petitioners' property; Mr. Ray Moleski, Architect; Dr. Guy Meadows, Ph.D., Professor of Physical Oceanography at the University of Michigan. In addition to the witnesses identified above, both sides called as part of their respective case Ms. Michelle Hohn, Field Representative, LWMD, and Mr. Thomas R. Bennett, a former LWMD employee who is now a consultant. During the hearing the Parties entered on the record thirty-one (31) joint exhibits, identified as "J". In addition, the Petitioners introduced eleven (11) exhibits, identified as "P", and the LWMD introduced two (2), identified as "R". A list and description of these exhibits is included at the end of this Proposal for Decision. STIPULATIONS ON THE RECORD During the pre-hearing conference on November 5, 1999, the Parties entered into the following stipulations: 1. Jay and Barbara Smit are the proper applicant for a permit. 2. The processing of the application was procedurally correct. 3. The activity proposed in the permit application is a regulated activity, a permit is necessary and the Department has jurisdiction. At the commencement of the hearing the Petitioners withdrew the third stipulation, asserting a legal argument that is discussed and decided later in this Proposal for Decision. Stipulations of law are not binding on a court, In re Finlay Estate, 430 Mich 590, 595; 424 NW2d 272 (1988), stipulations of fact are sacrosanct. Dana Corporation v 6

7 Employment Security Commission, 371 Mich 107, 110 (1963). Furthermore, stipulations entered into by the parties shall be used as evidence at the hearing and are binding. MCL The two remaining stipulations are factual, I find them to be legally correct, and I adopt them as findings. The Legal Arguments of the Parties. Any discussion on these arguments should be prefaced with the terminology utilized by the Parties to identify the facility proposed in the application. The Petitioners refer to the project as "toe protection", while LWMD uses the term "revetment". The inference from the Petitioners' nomenclature is that since the project at present would not interface with the water, it should not be considered a revetment. The word "revetment" is defined by the American Heritage College Dictionary (3rd Ed) as "a facing, as of masonry, used to support an embankment." The record clearly reveals the proposed activity would consist of armor stone placed over bedding stone, for the averred purpose of protecting the toe of the dune. Exhibit P-25. Given this, the feature constitutes a revetment, and the project will be referred to as such throughout this Proposal for Decision. I. Whether the Proposed Activity is Expressly Prohibited. LWMD takes the position the proposed activity is a "use that is a structure", and as such it is expressly prohibited under Part 353. Specifically, LWMD relies on 35316(2), which mandates that: A use that is a structure shall be constructed behind the crest of the first landward ridge of a critical dune area that is not a foredune.mcl (2). Implicit in this requirement is that any use that constitutes a structure cannot be constructed lakeward of the crest of a dune. LWMD contends the proposed activity is a structure and as such is, as a matter of law, prohibited. This contention requires a determination of the meaning of the term "structure" as the it is used in Part 353. Given that the statute does not define the term, LWMD contends the dictionary definition of the word "structure" controls: 7

8 1. something constructed; 2. something made up of interdependent parts in a definite pattern of organization; *** 4. the arrangement of particles or parts in a substance or body... 1 Under LWMD's broad interpretation of the term the proposed activity is something constructed in a definite pattern of organization. Thus, the activity meets the definition of a structure and it is prohibited lakeward of the crest of the dune. The Petitioners obviously do not agree with the position of LWMD for a number of reasons. First, they contend it is contrary to LWMD's practice of not requiring Part 353 permits for facilities of a nature similar to the proposed activity, e.g. stairs, gazebos and snow fences, installed in critical dune areas. Ms. Michelle Hohn, a LWMD staff person who administers the Part 353 program, confirmed this point, but stated she still considers the project as proposed a structure. The Petitioners' offered the testimony of State Senator Harry Gast, the sponsor of the 1999 amendment to Part 353 in 1999, and chair of the legislative hearings on both that amendment and the original Act. Senator Gast could not recall any discussion during the legislative hearings and debate as to any intent to prevent people from protecting their property, which is how he views this project. Thus, the Senator disagrees with LWMD's definition of rip-rap as a structure. In his opinion, a structure is something that either can be walked into, or house something. Given that the activity is proposed to occur landward of the ordinary high water mark of Lake Michigan, he would err on the right to protect property, the very resource he testified the statute is intended to protect. The Petitioners' purpose in offering Senator Gast's testimony in order to prove legislative intent is misguided. 2 The testimony of a legislator in this regard, irrespective of its specificity, is only representation of a personal view as opposed to the legislative intent of the body as a whole. Michigan United Conservation Clubs v. Lujan, 949 F2d 202 (1991); 1 Webster's Seventh New College Dictionary. Exhibit R In the same vein is the testimony of Mr. Bennett regarding an informal oral opinion of two assistant attorney generals supporting LWMD's position. While such opinions are undoubtedly learned, they are nothing more than the individual interpretations of any attorney, as opposed to a formal attorney general opinion that is binding on this Tribunal. 8

9 Lamoia v. Health Care & Retirement Corporation, 230 Mich App 801; 584 NW2d 589 (1998). The appropriate method for statutory construction is well settled by the Appellate Courts of our State. To determine legislative intent the statutory language is examined. Victorson v. Department of Treasury, 439 Mich 131; 482 NW2d 685 (1992). If that language is clear and unambiguous, then a court is forbidden from engaging in interpretation and must apply that language as written. Id. at 137. When an ambiguity exists, a statute is to be read in its entirety and, if possible, all sections of the statute are to be harmonized to create a consistent whole. Nelson v. Grays, 209 Mich App.661, 531 NW2d 826 (1995); Michigan Audubon Society v Dept of Natural Resources, 206 Mich App 1; 520 NW2d 353 (1994). When harmonizing ambiguities in a statute, all the words of the statute must be given meaning and none shall be rendered nugatory. Syntex Labs v Treasury Dept, 188 Mich App 383; 470 NW2d 665 (1991). The first step in deciding this issue, under the legal principles discussed above, is to determine if the term structure as used in is ambiguous. Neither Part 353 nor the administrative rules promulgated under its authority provides a definition of what constitutes a structure. The apparent ambiguity surrounding the meaning of this term is evidenced by the fact the dictionary definition, which essentially includes any man-made object, is beyond how LWMD administers this statute. For example, as noted above, Ms. Hohn testified permits are typically issued for activities that fall under the definition LWMD now advances. Ms. Hohn also testified that permits are issued when residences are imperiled based on protecting the public health and safety. 3 However, no authority in Part 353 is apparent, or offered, for such permits if the dictionary definition of the term is utilized. In other words, if LWMD s definition of the term structure is adopted no man-made feature lakeward of the crest of a critical dune can ever be permitted. Such a result is obviously inconsistent with the legislative finding that these features can be used for a number of purposes, including residential, so long as both the environment and ecology of the dune is protected. MCL (c). Based on the foregoing, I find, as a Matter of Fact, the term structure 3 See Exhibit P-26, Permit issued for a revetment on the Gancer parcel. 9

10 in Part 353 is utilized as a term of art, and as such is not subject to its plain and ordinary meaning. The question thus becomes what the meaning of structure is based on reading Part 353 in its entirety. This analysis begins with the premise that under Part 353 a structure falls within the broad classification of a developmental, silvicultural, or recreational activity that constitutes a use. MCL (j). Therefore, a structure is always a use, while the opposite is not true. When considering the various provisions of Part 353 that utilize the word structure, it is clear that certain uses are not structures even though a dictionary definition would include them as structures. Specifically, the statute identifies certain development activities separately from structures, such as the express distinction that streets or driveway are not structures. MCL (h). Section 35320(h) also identifies uses, such as sidewalks, pedestrian ways, trails, offstreet parking and loading areas, separate from the requirement to show [t]he general location and approximate dimensions of proposed structures. MCL (I). Given these statutory distinctions, LWMD s argument that the dictionary definition of structure should control becomes illogical. Considering the statute as a whole, I find, as a Matter of Fact, and conclude as a Matter of Law, the proposed activity, which in its essence is a pile of rocks, is clearly not a "structure" under Part 353. Therefore, I conclude as a Matter of Law, the proposed activity is not absolutely prohibited lakeward of the crest of the first landward ridge of a critical dune area. MCL (2). II. Whether the Proposed Activity is Exempt from Regulation. The Petitioners contend the proposed activity is not regulated under Part 353. The basis of this argument is that while the activity will be conducted on slopes steeper than a 1 foot vertical rise in a 3 foot horizontal plane, it does not constitute a significant alteration of the physical characteristic of or a contour change to the "critical dune area". This argument is premised on the contention that the alteration must be examined in relation the entire feature, and not the area where the activity is proposed. 4 4 In their written closing argument the Petitioners expressly adopt the argument on this issue set forth by counsel in the Petition of Eugene Jankowski, 10

11 The designated critical dune area that the Petitioners property is within is over 100 acres in size and encompasses some 8,000 feet of shoreline, while the proposal covers 232 lineal feet. The provisions of Part 353 support a contrary interpretation than that advanced by the Petitioners. For instance, any ordinance must provide for lot size, width, density and front and side setbacks as well as provision for storm water drainage, methods for controlling erosion and restabilization. MCL This provision is clearly site specific, as opposed to focusing on the entire critical dune area in which the activity happens to be proposed geographically. More to the point, 35316(1)(b) requires a zoning ordinance prohibit "[A] use on a slope within a critical dune area that has a slope steeper than a 1-foot vertical rise in a 3-foot horizontal plane" unless a variance is granted. Obviously, this use of the term "critical dune area" can only logically apply to that area immediately effected by the activity. To adopt the Petitioner's argument and require that an activity significantly impact the entire designated critical dune area of more than a thousand acres defies logic. To do so would create an absurd result which would totally emasculate Part 353. When interpreting a statute, the result shall not be absurd. Gardner v Van Buren Public Schools, 445 Mich 23; 517 NW2d 1 (1994). Therefore, I conclude, as a Matter of Law, Part 353 contemplates regulation of uses that effect any portion of the area, as opposed to the entire designated critical dune. Given the rejection of the respective arguments of the Parties, the issue becomes whether the activity will significantly alter the physical characteristics or constitute a contour change to the critical dune area and, secondly, if so, whether Petitioner is entitled to a special exception. FINDINGS OF FACT Location and Nature of the Subject Property The property is located in a designated critical dune area in White River Township, Muskegon County. See Exhibit J-7B, a photograph of the lakeward face of the dune. On the crest of the critical dune is a residence constructed under a Part 323 permit issued the File No. 98-OC-394-C. 11

12 Petitioners in Exhibit J-4. Mr. Jay Smit testified his home was placed on the north side of his property to avoid impacting a regulated critical dune area (a grade of greater than 1 foot vertical to 3 horizontal) even though it meant losing a better view of the Lake. The home was constructed as a readily moveable structure and built as far back as they thought appropriate in order not to compromise a number of mature trees and to accommodate installation of the septic system. See Exhibit P-4. The Proposed Activity Subsequent to the issuance of the permit for the homesite the Petitioners filed an application for shore protection on November 14, Exhibit J-2. After considerable review, modification and discussion between the Parties, another application was submitted on October 26, 1998, that proposed the following: Construct 232 ft. of toe protection with 883 cubic yards of rip-rap. Backfill with less than 300 cubic yards of clean fill from an upland source. All activities to occur above the ordinary high water mark. Exhibit J-21. The application was received and reviewed by LWMD, culminating in its denial by letter dated December 2, Exhibit J-6. As an alternative LWMD offered to consider the installation of a 150 lineal foot revetment to be placed no closer that 50 feet south of the north property line and no closer than 25 feet north of the south property line. Id. The proposed activity is in response to the perceived erosion on the dune. In this regard, Ms. Hohn noted the home was placed well beyond the required set back for 30 years of 80 feet to 145 feet which conforms to the 60 year set back, but close enough to the crest to afford a view. She described the lot as fairly flat and very deep. As stated, the home was originally constructed 145 feet back from the crest and is now 113 feet back by Ms. Hohn's measurements in October, According to a survey performed in November of 1997, the home was 114 feet back. Therefore, assuming the accuracy of these measurements there has been a loss of 32 feet in some 4 years. As to be expected during this period of low Lake levels, the erosion appears to have slowed in recent years. Ms. Hohn estimated Petitioners have another 350 to 400 feet to the rear property line where, if necessary, the home can be moved. In reviewing the application at issue in this case Ms. Hohn considered the site map, obtained input from fellow employees Mr. Thomas Bennett and Mr. Luis Saldivia and visited 12

13 the site numerous times. Ms. Hohn denied the application because, in her opinion, the project meets the definition of a use that constitutes a contour change likely to increase erosion, it is a significant alteration of the characteristics of the dune and it is more extensive than required. Mr. Thomas Bennett was, at the time of the application, employed by the LWMD as a land and water management specialist in the Great Lake Shorelands Section. Exhibit R- 40. In response to Ms. Hohn's request he evaluated the proposal. Exhibits J-3 and J-5. At that time it was his assessment a permit could be issued provided the revetment no closer than 50 feet to the north property line and 25 to the south. 5 Mr. Bennett explained the basis for his conclusion is that subject to variation the littoral drift is generally north to south in this area. Since most major storms come from the northwest, he believes a wider set back is required to the north. PART 353 ANALYSIS This statute contains a regulatory scheme for land features the Legislature has determined are of great importance. MCL While the statute contemplates certain uses on these resources, specific criteria must first be met. MCL through MCL As this statute is an exercise of the authority to regulate land use, a local unit of government has the discretion to assume the regulation of critical dunes within its jurisdiction. MCL However, if a local unit of government declines this legislative grant of authority, as is the situation in this case, the Department of Environmental Quality is charged with administering the statute. MCL (3). The Petitioner proposes "232 ft. of toe protection with 883 cubic yards of rip-rap. Backfill with less than 300 cubic yards of clean fill...." Exhibit J-21. The activity would occur within the confines of what Part 353 identifies as a critical dune area. MCL (c). This requires a determination of whether the proposal falls within the scope of following provision of Part 353: Unless a variance is granted pursuant to section 35317, a zoning ordinance shall not permit the following uses in a critical dune area: *** 5 The alternative offered by LWMD mirrors this position. 13

14 MCL (1). Under the foregoing the initial question is whether the proposed activity is a "use". The term "use" is defined as "...a developmental...activity done or caused to be done by a person that significantly alters the physical characteristic of a critical dune area or a contour change done or caused to be done by a person." MCL (j). Thus a "use" consists of a two-part disjunctive test. The first component of the test, significant alteration, is not defined in the statute. However, the second part, contour change, is defined as a specified activity that "significantly alters the physical characteristic of the critical dune area..." MCL (a). To determine if a "use" is at issue the proposed activity and its effects to the natural feature must be examined. As noted, this project entails placing a 232 foot revetment and associated backfill over loose sand, which will undoubtedly change the dune characteristic in that area. Further, the proposed activity, whatever the degree of slope or angle of the juxtaposition between the beach and the face of the dune, will replace the loose sand with a hard parabolic feature. Both of these factors render the result of the proposed activity a significant alteration of the dune's physical characteristic. The same consideration equally constitutes a contour change. Therefore, based on the record in this case I find, as a Matter of Fact: 1. The project applied for is a significant alteration of the physical characteristic of the dune. 2. The proposal would constitute a contour change of the dune. Given the findings that the proposed activity constitutes a use in a critical dune area, the inquiry turns to whether it falls under one of the seven categories in 35316(1) that can only be performed under the authority of a special exception. The most applicable category involves "[A] use involving a contour change that is likely to increase erosion, decrease stability, or is more extensive than necessary..." MCL (1)(d). 6 6 Another category, 35316(1)(f), covers "vegetation removal" and includes the same criteria. The analysis used for 35316(1)(d) applies equally to that provision. 14

15 Whether the Project Will Increase Erosion or De-stabilize the Dune. The Parties use the situation existing on the parcel to the south, the Gancer Property, as a basis for their respective positions on this issue. Prior to examining those positions it is helpful to discuss the Gancer Property. In 1998 a permit for a similar revetment was issued for that parcel. Exhibit P-26. Ms. Hohn testified that permit was issued at a time when the Lake level was higher and the home was literally in imminent danger of falling in the water. See Exhibit J-22, photographs of the Gancer home. Due to the lack of any feasible and prudent alternative, the project was approved based on health and safety considerations. Ms. Hohn does not believe the Petitioners home faces the same peril. Significantly, the revetment was never installed and the permit expired at the end of I. The Petitioner's Argument Mr. Smit testified the situation on the Gancer property is indicative of the fact that the project is the only way to save his property, whose worth he placed between $700,000 to $800,000. At present, as is the case with his neighbor Ms. Ording, the Petitioners are unable to use a stairway to the beach due to the instability of the dune. Mr. Michael Hayes, who assisted the Petitioners in formulating the second proposal, testified regarding the revetment's effect to the dune. Exhibit J-11. In analyzing the situation on the subject parcel he considered seeking a permit to install groins, but did not believe one could be obtained. One of the reasons he ultimately decided to apply for a revetment was the fact he had received two other permits for clients facing the same problem. See Exhibits J-30, 31 and 32. In addition, he testified his experience with hundreds of critical dune permits led him to believe this project complied with Part 353. The Petitioner also offered the testimony of Mr. Robert Gezon, a local builder, on this point. Mr. Gezon said he is quite familiar with coastal processes as a result of having built and installed "almost every type of shore structure." In fact, he claims to have done more of these facilities than anyone else has in the area, installing over 27,000 feet a year in the 1980's on Lake Michigan and its tributaries. He believes the present proposal, which he also termed substantially different than the original, will provide erosion control as well 15

16 as safe access to the beach and Lake. He pointed out that the project could be moved as much as 75 feet lakeward and still be above the ordinary high water mark. Mr. Gezon believes stabilizing the toe of this bluff is important, and equated the failure to do so with building a house without a foundation. He attributes exacerbation of the problem with erosion in the area to the White Lake channel and piers creating down drift sand starvation. Given this, private owners like these Petitioners should not be penalized. Thus, in his opinion, the denial of the application is in error, and the position of LWMD in this case is inconsistent with its past actions. Specifically, he testified to having obtained "hundreds of permits", even where there are unprotected adjacent properties and where the homes were not in immediate peril. He attributes this to the fact Part 353 contains no requirement that property be in peril. Mr. Gezon agrees with the testimony of Mr. Thomas Bennett, supra, regarding the predominant direction of both waves and the littoral drift, but does not believe they are factors in considering this project. This is based on his assessment that for static water to reach the revetment the level of Lake Michigan would have to reach some 1.5 to 2 feet above the highest recorded level. He also takes issue with Mr. Bennett's opinion of the project's effect to the neighboring Ording property. Rather than contributing to the erosion on that parcel, Mr. Gezon believes the project will slow any erosion because it will essentially act like a groin. Given the low Lake level, he thinks it is prudent to install the revetment at this time. To summarize Mr. Gezon's opinion, even though predicting future coastal processes is, in his words, only a guess, this project is far enough back from the ordinary high water mark to eliminate any effect on the littoral drift or current. It will also not present any detrimental effects on the neighboring properties and may, in fact, have a minimal beneficial effect on that to the immediate north. Mr. David Schultz, a civil engineer with experience in coastal projects, testified on behalf of the Petitioners. Exhibit J-10. He lives in the area and is familiar with the site and both Smit applications. In essence he agrees with Mr. Hayes' assessment of the benefits inherent in the project. He testified as to the difference in the two applications, stating they are significantly different in material and configuration. Further, he places great import on the modified proposal's placement of the revetment at an elevation of 584 feet International 16

17 Great Lakes Datum, while the first would have been at 573 feet. Therefore, the present proposal is 11 feet higher and farther landward, placing it higher than the record water level, and 2 to 3 feet above the ordinary high water mark. He believes this would add to the benefits that would result to dune stabilization as a result of the project. II. LWMD's Argument. A concern over erosion resulting from the proposed activity was the subject of the testimony of Ms. Leah Ording, the neighbor to the immediate north. Ms. Ording opposes the proposal because of her fear it would accelerate erosion on her property. She testified that in the last 35 years the parcel has lost 400 feet to erosion, although recently the problem has lessened due to the low lake level. In addition, she testified the revetment would make access to her beach difficult. Since her steps have been lost to erosion she can only reach her beach by way of a public access at the end of Ferry Street south of the Gancer property. LWMD offered the testimony of Guy A. Meadows, Ph.D., on the project's impact to this dune. Dr. Meadows is a Professor of Physical Oceanography at the University of Michigan, and has devoted a significant portion of his professional career to coastal engineering and hydrodynamics, 60% of which has involved the Great Lakes. Exhibit R-39. As to Lake Michigan in particular, he has performed a number of studies regarding the reaction of beaches to revetments and other beach structures, both residential and commercial. Dr. Meadows described the Great Lakes as relatively new, with both deep and steep features. They are still in the process of natural broadening and are becoming shallower at the center by 1 to 2 feet a year. Wave action strikes and redistributes or transports material in a Lake, with the process in Lake Michigan essentially occurring north to south. However, the effect in this area essentially mid-way between the north and south shores of Lake Michigan, varies in direction based on wave direction. Groins and other artificial installations act like dams and impede this natural process. Dr. Meadows also testified his studies reveal artificial surfaces, such as a revetment, tend to increase the reflection of wave energy which causes increased movement of sediment farther offshore, creating erosion in front of the structure. A phenomenon known 17

18 as refraction essentially bends the wave action around the ends of the revetment, thereby increasing wave impact on the property adjoining the ends of the structure. This process can result in the protected property becoming a peninsula, with the continuing erosion on both ends eventually eroding the structure and ultimately causing it to breach. Dr. Meadows disagreed with the Petitioners' contention that this project would actually protect adjacent shorelands. He noted that if there is build up on one end it will be at the expense of the other, so in the long term both ends would cause erosion. He testified that even if the revetment were shortened per LWMD's alternative, it would ultimately erode adjacent properties. The result of such activities, in his experience, is a chain reaction by which other property owners attempt to protect their own property. Dr. Meadows also discounted the fact that the proposal would have no effect because it is proposed for a point above the ordinary high water mark. He theorized that under the natural annual erosion rate of 1 to 2 feet, in the absence of human intervention water would ultimately reach the revetment and destroy it. Further, he testified the project would only prevent erosion in the area behind it for one or two storm events before becoming dysfunctional. In sum, he is of the opinion the proposal will provide little protection for the present, and it will ultimately fail to serve any long-term benefit. As set forth above, the Parties attribute different results if the proposed activity is permitted. In weighing this evidence, most notably the testimony of Dr. Meadows, I find as a Matter of Fact: 1. A revetment that stretches 232 lineal feet from the Petitioners north to south property line will provide minimal short-term stabilization of the dune on the Smit parcel. 2. A revetment that stretches 232 lineal feet from the Petitioners north to south property line would increase erosion on the dune, especially on the Gancer and Ording parcels. The extent of the project ties into another category that implicates the requirement of a special exception, 35316(1)(g), mandating the use be in the "public interest", a term utilized in the context of avoidance of an impact to the resource. MCL (1)(g)(i)- (ii). Specifically, the existence of either a feasible and prudent alternative location or 18

19 method that provides the benefit sought from the use, or a means to minimize the effect to the resource, renders a special exception necessary. This requirement is discussed below under the special exception requirement. Suffice to say for the purpose of this analysis, a feasible and prudent alternative exists, in the form of a revetment of reduced length. Based on the foregoing, I find as a Matter of Fact, the proposed activity equates to a contour change that is likely to increase erosion and is more extensive than necessary. Based on this finding, a special exception is required under 35316(1). Given this, the ultimate issue in this case is reached: whether the Petitioners are entitled to a special exception under 35317(1). Special Exception Analysis Section 35317(1) provides, as applicable: [T]he department may issue special exceptions under the model zoning plan if a local unit of government does not have an approved zoning ordinance, if a practical difficulty will occur to the owner of the property if the variance or special exception is not granted. In determining whether a practical difficulty will occur if a variance or special exception is not granted, primary consideration shall be given to assuring that human health and safety are protected by the determination and that the determination complies with applicable local zoning, other state laws, and federal law*** Part 353 utilizes both the terms "variance" and "special exception". However, it is clear from the language of and that the term "variance" is applicable to actions of local units of government under a zoning ordinance. Furthermore, the term "special exception" applies to an action of the Department in the absence of a local ordinance under the model zoning plan, which occurred here. 7 However, the terms are used synonymously in this statute. Other than mandating that primary consideration be given to human health and safety, and that the project comply with all other applicable laws, neither Part 353 nor any rule promulgated thereunder defines the term "practical difficulty". However, in zoning 7 It is evident from the record that White Water Township was notified of the application for permit (Exhibit J-2), but there is no evidence that it took a position thereon. 19

20 cases the Michigan Court of Appeals has held this legal term of art requires the consideration of three factors: I. Whether compliance with the strict letter of the restrictions governing area, set backs, frontage, height, bulk or density would unreasonably prevent the owner from using the property for a permitted purpose or would render conformity with such restrictions unnecessarily burdensome. II. III. Whether a grant of the variance applied for would do substantial justice to the applicant as well as to other property owners in the district, or whether a lesser relaxation than the applied for would give substantial relief to the owner of the property involved and be more consistent with justice to other property owners. Whether relief can be granted in such fashion that the spirit of the ordinance will be observed and public safety and welfare secured. 8 It is under these directions that the proposed activity is examined relative to the Petitioner's alleged practical difficulty if the special exception is denied. I. Reasonable Use of the Property This consideration requires a balancing of the proposed activity against the unique features of the property. It also entails a determination of the conditions of the property evident at the time of purchase. As to the latter, there is no dispute that the Petitioner and his wife purchased the property with actual knowledge of the inherent limitations, as is evidenced by the fact they had to obtain a Part 323 permit in 1995 for the homesite. The balancing test required under this consideration raises the viability of the alternative LWMD contends allows the Petitioner with a reasonable use of his property: the installation of a 150 lineal foot revetment to be placed no closer than 50 feet south of the north property line and no closer than 25 feet north of the south property line. Exhibit J-6. This consideration ties into the mandate of 35316(1)(d) that a use involving a contour 8 National Boatland, Inc. v Farmington Hills Zoning Board of Appeals, 146 Mich App 380, 388; 380 NW2d 472 (1985). 20

21 change not be more extensive than necessary. In other words, the issue is whether an alternative that poses less impact to the resource exists. Ms. Hohn testified a revetment of reduced length was one of three alternatives considered by LWMD. The other two were to do nothing or relocate the homesite further back on the parcel if it ultimately became imperiled. In the end LWMD determined a revetment 150 feet long would offer the Petitioner the erosion protection sought while at the same time reduce the risk of impacting the neighboring properties. This is based on the assessment of Mr. Bennett and the LWMD. Although Dr. Meadows expressed concern that the alternative may ultimately cause erosion of the adjacent properties, the admitted uncertainty as to the future levels of Lake Michigan make this consideration speculative. Mr. Ray Moleski, a self-employed architect, testified to available alternatives. Mr. Moleski's experience includes developing landscape stabilization, mostly in connection with residential projects in critical dune areas. He is familiar with both the subject parcel and the area in general, having last been on the site on December 11, He testified the slope of the face of the dune on the Smit property is 57 degrees, and its composition of dry sand is considered stable at 45 to 60 degrees. Thus he termed the face fairly stable, but he would still recommend vegetative plantings, at least as an initial step towards increasing stabilization. During his last visit he noted the beach was 115 feet wide from the toe of the dune to the water, and there were 3 to 4 foot waves that did not reach the toe. Therefore, he perceives no present threat to the bluff from wave action. He did, however, admit it is preferable to perform stabilization projects in times of low water as accessibility is easier. Ms. Tanya Cabala is the Michigan Director of the Lake Michigan Federation and testified on behalf of the LWMD. She attended the public meeting to express that her organization was not in support of the project. She, like Mr. Moleski, is of the opinion that vegetative stabilization is appropriate on this site. Mr. Smit does not believe LWMD's proposal is prudent because the failure to extend the revetment to the northern property line, the very area where he has observed the most erosion, leaves the homesite most vulnerable. Mr. Smit also dismisses vegetative stabilization as an inadequate measure, testifying that the face of the dune is slumping and that trees "go down like toothpicks." He also stated he has not had success with planting dune grasses in that area. He is of the opinion he is being unfairly treated and should have 21

22 the right to protect his property, and that the low lake levels present the optimum time to install the revetment. Mr. Schultz also commented on other options available to the Petitioners. He considers vertical walls a last resort, and while groins have promise, they are not permitted. This tracks the opinion of Mr. Bennett, who stated that during his tenure with LWMD he suggested rip-rap revetment as an alternative to a vertical wall in that rip-rap is not as susceptible to overtopping and maintains itself better. However, he is of the opinion that any form of revetment impounds sand on the landward side and prevents it from being imported into the littoral drift. Mr. Schultz testified that planting vegetation on the face of the dune would reduce the effects of wind and rain activity, but would not adequately protect the toe of the dune. He, like Mr. Hayes, is concerned with the 50 foot gap at the north in the LWMD's proposal, stating it fails to protect the area directly below the Petitioners' homesite. He sees the LWMD's major concern as providing material to feed the littoral drift which he feels is contrary to the purpose of Part 353 to protect critical dunes. In his ultimate opinion the current proposal is the only viable option available to the Petitioners. At present the Petitioners have, in the form of the homesite, full use of their property. The avowed purpose of the revetment is to prevent or slow erosion which, ultimately, will protect and maintain that use. However, the efficacy of the proposal is in question because erosion, at least from wave action, is not an immediate threat. The reason for this reduced threat is that Lake Michigan is near all time low water levels. According to the expert testimony any prediction of whether the Lake level will elevate to the point of creating that risk, and when that might occur, is speculative. Dr. Meadows is dubious that the revetment would have any long-term benefit even if the Lake level rises in the immediate future. His estimate is that it may survive one or two storm events and then be destroyed. Therefore, it is likely, certainly in the short-term, that the Petitioners' residential and recreational uses can and will continue without the revetment. The word "reasonable" is defined in Black's Law Dictionary (7th ed.) as: 1. fair, proper, or moderate under the circumstances; or 2. according to reason. 22

23 Utilizing this definition, the Petitioners currently have reasonable use of the property. If the homesite was in peril from erosion this use would certainly be lessened, but that is not the case. However, erosion is still occurring and alternative methods to control it, such as planting vegetation on the face of the dune, have not stopped that process. But the very factor that supports allowing the Petitioner's to institute some type of toe protection also requires a finding that a 232 lineal foot revetment is excessive. Namely, if the proposed activity is permitted, then according to all of the experts, save Mr. Gezon, erosion around the ends would effect the Ording and Gancer properties. This situation is avoided under the alternative first proposed by LWMD. 9 Therefore, I find, as a Matter of Fact, the installation of a 150 lineal foot revetment to be placed no closer that 50 feet south of the north property line and no closer than 25 feet north of the south property line will provide the Petitioners with a reasonable use of this property. II. Substantial Justice Served This standard requires a balancing of the Petitioner's desires against the interest of other property owners in the area. As discussed above, there is considerable evidence as to the adverse impact to the adjacent parcels if the proposed activity was permitted. The alternative of a 150 foot revetment no closer than 50 feet to the north property line and 25 feet to the south property line, would ensure that if the project did in fact result in erosion it would be limited to the Petitioners' property. By this alternative Petitioners would have some measure of the protection they seek and the neighbors would be spared any adverse impact. 10 Therefore, the alternative would serve substantial justice for all concerned. III. Relief Within the Spirit of the Ordinance 9 During the hearing LWMD rejected this alternative based on its argument that it would constitute a structure that is absolutely forbidden lakeward of the crest of the dune s first landward ridge. That assertion has been decided adversely to LWMD earlier in this Proposal for Decision. 10 The Petitioners always have the option to further pursue the alternative advanced by Mr. Moleski, planting vegetation, without having to obtain a Part 353 permit. 23