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, 2001. 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 1995-18. 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 That offer was subsequently withdrawn.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

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LWMD dated May 27, 1997. 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 324.63713.

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.

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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-6. 4. The Department of Environmental Quality does not retain jurisdiction in this matter. Dated: ________________ ______________________________ Russell J. Harding, Director Department of Environmental Quality

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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

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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 324.35301 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, 2000. 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, 2000.

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

324.35305(1). A timely request for a contested case hearing was filed by Mr. and Mrs.

Smit (Petitioners) on January 26, 1999. 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 24.201 et seq.

PROPERTY RIGHTS PRESERVATION ACT CONSIDERATION

Pursuant to the Property Rights Preservation Act, 1996 PA 101, MCL 24.421, 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

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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

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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

24.278. 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 324.32516(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:

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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-41.

2 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.

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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 § 35316 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 324.35302(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.

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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 324.35301(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 324.35319(h).

Section 35320(h) also identifies “uses”, such as sidewalks, pedestrian ways, trails, off-

street parking and loading areas, separate from the requirement to show “[t]he general

location and approximate dimensions of proposed structures.” MCL 324.35320(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 324.35316(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,

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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 324.35314. 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.

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Petitioners in 1995. 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, 1996. 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, 1998. 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, 1998. 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

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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 324.35302. While the statute contemplates

certain uses on these resources, specific criteria must first be met. MCL 324.35312 through

MCL 324.35317. 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 324.35304. 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 324.35304(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

324.35301(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.

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MCL 324.35316(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 324.35301(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

324.35301(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 324.35316(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.

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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

1999.

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

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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

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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

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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 324.35316(1)(g)(i)-

(ii). Specifically, the existence of either a feasible and prudent alternative location or

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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 §§ 35316 and 35317 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.

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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. 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.

III. 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).

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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, 1999. 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

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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.

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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.

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The "spirit" of Part 353 is articulated in the legislative findings, which state in

pertinent part:

The legislature finds that:

(a) The critical dune areas of this state are a unique, irreplaceable, and fragile resource that provide significant recreational, economic, scientific, geological, scenic, botanical, educational, agricultural, and ecological benefits to the people of this state and to people from other state and countries who visit this resource. *** (c) The benefits derived from alteration, industrial, residential, commercial, agricultural, silvacultural, and the recreational use of critical dune areas shall occur only when the protection of the environment and the ecology of the critical dune areas for the benefit of the present and future generations is assured. MCL 324.35302.

In the final analysis, the alternative discussed above will serve to protect the critical

dune area on Petitioner's property and, as a consequence will assure protection within the

spirit of subsection (c). This in turn will also ensure the Petitioners are not burdened with a

practical difficulty in complying with the dictates of Part 353.

CONCLUSIONS OF LAW

Based on the findings of fact set forth above, I conclude, as a Matter of Law:

1. Jay and Barbara Smit are the proper applicants for a permit, the processing of the application for a permit was procedurally correct, the activity proposed in the permit application is a regulated activity and a special exception is necessary.

2. The proposed activity does not constitute a structure. Therefore, it is not

expressly prohibited because it is proposed to be constructed lakeward of the crest of the first landward ridge of a critical dune area. MCL 324.35316(2)

3. An alternative to the proposed activity, in the form of a revetment that ends

50 feet from the Petitioners north property line and 25 feet from the south property line, is a feasible and prudent alternative to the activity proposed in the application. MCL 324.35316(1)(i).

4. The activity proposed is more extensive than required to implement a use for

which the permit is required. MCL 324.35316(1)(d).

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5. Jay and Barbara Smit have failed to demonstrate a practical difficulty sufficient to merit a special exception for the activity proposed in the application for a permit. MCL 324.35317(1). National Boatland, Inc. v Farmington Hills Zoning Board of Appeals, 146 Mich App 380; 380 NW2d 472 (1985).

PROPOSAL FOR DECISION

Based upon the above Findings of Fact and Conclusions of Law, it is proposed that

a Final Order be entered adopting the above feasible and prudent alternative of permitting a

150 lineal foot revetment no closer than 50 feet from the north property line and 25 feet

from the south property line.

Dated: March 8, 2001

Richard A. Patterson Administrative Law Judge