Case Summary: M-DNR Project Subject to Zoning

“Guests, like fish, begin to smell after three days.” - Benjamin Franklin

With 3,288 miles of shoreline in the State of Michigan (second only to Alaska) and 11,000 inland lakes, Michigan planners working for local government regularly come into contact with two state agencies with jurisdiction over our water, the Department of Natural Resources (MDNR) and the Department of Environmental Quality (MDEQ).

It is the MDNR side that is the focus of our next Building Place Notebook case summary, posted below courtesy of Kurt Schindler at MSU-Extension.

This is a cautionary tale about why it is better for state agencies and other entities considering projects over which local authority is in question (such as new public school construction) to take the extra time to work collaboratively with local governments on projects in their jurisdiction.

What attracted The Zoning Guru’s attention to this case was the fishy smell wafting off of a state agency’s attempt to preempt local regulations…

From Kurt Schindler at MSU-Extension:

Court: Michigan Court of Appeals (Published No. 272587, September 11, 2008)
Case Name: Crystal Lake Property Rights Association v. Benzie County

Background:

“A settlement was reached in a class action suit brought by certain property owners against the Michigan Department of Transportation (MDOT) as to their claim of title to a railroad right-of-way running along the south shore of Crystal Lake (now the Betsie Valley Trail). Under the settlement, the Michigan Department of Natural Resources (DNR) was entitled to a permanent easement for a 10-foot wide public trail subject to limitations and restrictions in the agreement and the DOT’s superior right to resume rail use within the easement. A judgment was entered based on the settlement.

Later, the DNR took steps to acquire property fronting Crystal Lake for a public-access boat launch on land abutting the trail. The state acquired 20 acres of property to be used as a boat launch. Earlier the Benzie County Board of Commissioners and the Benzonia Township Board expressed approval of the development but had no interest in buying the land. The Michigan Department of Environmental Quality (DEQ) issued the DNR a permit to allow construction of a ‘public boat launch.’ The permit stated in part, it did not waive the necessity of seeking ‘federal assent [and] all local permits or complying with other state statutes.’”

Court decisions:

“The trial court granted the DNR’s motions for summary disposition. Crystal Lake Property Rights Association-plaintiff argued on appeal the DNR’s project was subject to local zoning. The trial court had held as long as the DNR complied with [state law], it could build the public boat launch without being subject to the local zoning ordinance. The Appeals Court disagreed and held there was no language … indicating the DNR has exclusive jurisdiction in the placement of public-access boat launches. Significantly, [the state law] does not purport to exempt the DNR from local zoning requirements, but only requires the site be operated in a manner agreed to by the parties. The statute can be reasonably construed as merely requiring the DNR, in creating a public-access boat launch, to follow specific procedures to involve local government.”

“Concluding the defendant-DNR’s project was subject to the county zoning ordinance despite the DNR’s compliance with [state laws] and an earlier settlement involving a trail running adjacent to Crystal Lake [which] did not prohibit the proposed boat launch, the Appeals Court reversed in part, and remanded for further proceedings in accord with its opinion.” [emphasis added]

Source: State Bar of Michigan e-Journal Number: 40448, September 15, 2008. The full text opinion can be found here.

After reading Mr. Schindler’s summary and the the MDNR’s position (which can be read here), The Zoning Guru’s first thought was, “I wonder how much less public money would’ve gone to attorneys’ fees if the MDNR had spend more time collaborating with the community (beyond the required public hearings) to answer questions and resolve concerns at the beginning of the project?”

This case offers another example of why it’s important for planners at all levels of public service to include robust and varied public participation opportunities as early as possible in the planning process.

Where such projects receive minimal outside scrutiny, the result is more likely to be unfortunate for the community.

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