Court Upholds Protection of Critical Dune Area on Lake Michigan

Dune Harbor Estates, LLC v. Michigan Department of Environmental Quality, No. 06-81-AA-C30 (Mich. Cir. Ct. Aug. 9, 2006)

Rick Silver, 3L, University of Mississippi School of Law

The Circuit Court for the County of Ingham upheld the decision of the Michigan Department of Environmental Quality (DEQ) preventing a pipe and rock outflow from being built within a critical dune area along Lake Michigan. The construction would have helped control the water level of a man-made lake.

Background
Dune Harbor Estates (DHE) owns property within a “critical dune area” along Lake Michigan. Both DHE and Nugent Sand Company (NSC) are owned by Robert Chandonett. As part of a mining operation by NSC, the company dug a hole that filled with groundwater, creating a lake. At the conclusion of the project, Chandonett hoped to create a housing development around the man-made lake. However, the lake settled at 592 feet instead of its expected 584 feet.

To correct the problem, DHE planned to divert water from the man-made lake to Lake Michigan in order to maintain a constant water level of 586 feet. The proposed pipe would have been disguised by a “rock outfall” on the lakeward side of the dune. DHE claimed that if unable to divert the water, it would be forced to spend substantial sums of money in order to redesign the development, which would include losing a substantial amount of land.

Neither side disputes the fact that this proposed activity takes place within a “critical dune area” as defined under the Sand Dune Act. DHE sought a special exception permit, which the director of the DEQ did not grant. DHE appealed the director’s decision.

Sand Dune Act
Section 35302(c) of the Sand Dune Act requires that environmental protection of “critical dune areas” be assured before the DEQ can authorize a petitioner’s desired land use.1 Under Michigan law, the decisions of the DEQ will not be set aside unless the petitioner can show that the agency’s decision was not supported by competent, material, and substantial evidence, or there was a material error of law.2

DHE argued for a reversal on several grounds. First, while DHE conceded that the Sand Dune Act permits the DEQ to regulate uses which significantly alter the characteristics of a critical dune area, DHE argued that their proposed activity did not “significantly” alter a critical dune area. The company claimed that its proposed rock outfall was only “a 400 square foot pile of rocks” and would not significantly affect the entire critical dune area, which constitutes miles of shoreline.3 However, the court rejected this argument stating that requiring an activity to affect the entire critical dune area would completely frustrate the purpose of the Sand Dune Act. The court noted that environmental problems often are the result of aggregated activities that, taken individually, do not harm the overall environment enough to make a noticeable difference.4

Next, DHE contended that the provision of the Sand Dune Act providing that any “structure” placed lakeward of a dune is prohibited without a variance did not apply, since the proposed rock outfall is not a structure. The court disagreed and found that DHE’s proposed use would have “considerable size and imposing appearance” and, therefore, constitutes a structure.

The Sand Dune Act also provides a provision which allows the DEQ to grant a “special exception” variance if a practical difficulty will occur to the owner of the property if the special exception is not granted.5 DHE argued that any other alternative to its proposed pipe and rock outfall would be impractical and expensive, and, therefore, the DEQ should grant them a variance. However, the court again sided with the DEQ in denying a variance to DHE based on the practical difficulty standard. In denying the variance, the court relied on Michigan case law which states that self-created problems “are not a proper basis for granting a variance.”6 The court agreed with the DEQ assessment which stated that DHE’s decision “to proceed with a site development plan before the water level had stabilized and without adequate advice from hydrological experts made it a self-created problem.”

Conclusion
The court found that the director of the DEQ did not abuse his discretion and acted well within his authority in denying DHE’s proposed project that would have affected a critical dune area along Lake Michigan's shoreline.

Endnotes
1. Mich. Comp. Laws § 324.35302(c).
2. Mich. Comp. Laws § 24.306.
3. Dune Harbor Estates, LLC v. Michigan Dep’t of Envtl. Quality, No. 06-81-AA-C30 at *4 (Mich. Cir. Ct. Aug. 9, 2006).
4. Id. at *5.
5. Mich. Comp. Laws § 324.35317.
6. National Boatland, Inc. v. Farmington Hills Zoning Board of Appeals, 380 N.W. 2d. 472 (Mich. Ct. App. 1985).