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STATE OF MICHIGAN
COURT OF APPEALS


SUZANNE HALL, BERT HALL, FRANK MAFRICE, JANICE MAFRICE, MICHAEL SEIDMAN, M.D., and LYNN SEIDMAN, Plaintiffs-Appellees, v CHARTER TOWNSHIP OF WEST BLOOMFIELD, Defendant-Appellant.

UNPUBLISHED December 23, 2008

No. 279793 Oakland Circuit Court LC No. 2006-079606-AS

Before: Servitto, P.J., Owens and Kelly, JJ. PER CURIAM. Defendant appeals by leave granted the trial court's order reversing defendant's administrative decision to deny plaintiffs' permit application. We reverse. I. Basic Facts and Procedural Background Plaintiffs own adjacent lakefront property on Walnut Lake. According to the Michigan Department of Environmental Quality (MDEQ): Walnut Lake contains native lake whitefish. The presence of this species is fairly rare and it is not known to be present in any other southern Michigan inland lake. A major concern with respect to the dredging project is the need by lake whitefish not only for large, shallow areas to spawn in, but the fact that their main food source is chronomid larvae [known as midges] that are produced primarily in the shallow areas of the lake. Walnut Lake is rather unusual in that there are limited amounts of large shallow areas present in the lake. While most lakes have from 40-75% of their area comprised of shallow areas less than 5 feet deep, there is only about 20% of Walnut Lake in this depth range. Shallow water habitat is also the primary area for production of aquatic insects and is utilized by a number of different wildlife species for feeding and nesting. Northern pike and yellow perch that inhabit the lake also require vegetated shallow areas for spawning and feeding. The section of Walnut Lake in front of plaintiffs' properties is shallow, approximately two feet deep, and plaintiffs allegedly have difficulty maneuvering and docking their boats. -1-


In 2001 plaintiffs initiated plans to dredge the area in front of their properties. In order to create a deeper channel, plaintiffs applied for dredging permits from both the MDEQ and defendant in August of 2003. Plaintiffs' application before defendant was denied without prejudice after plaintiffs requested their application to be tabled several times. Plaintiffs appealed this decision in July 2004, but withdrew their application pending the outcome of the MDEQ's decision regarding plaintiffs' application for a state permit. The MDEQ initially denied plaintiffs' application in November 2004 concluding dredging would have significant adverse impact on the wildlife habitat of Walnut Lake and would set a harmful precedent that would allow subsequent dredging in other shallow areas. The MDEQ also noted that their inspection revealed that plaintiffs could successfully dock and moor their boats, as well as reach deep water, under the present conditions, and that other feasible alternatives were available. Plaintiffs then revised their dredging plans, such that the area of impact was smaller. Under the revised plan, plaintiffs would dredge 383 cubic yards of sediment within a .16-acre area. The MDEQ approved the revised plan in February 2006. After obtaining this permit, plaintiffs reinstituted their request for a permit from defendant. On September 13, 2006, the defendant's Wetland Review Board (WRB) considered plaintiffs' renewed request for a dredging permit. At the meeting, defendant's environmental consultant, Dr. Steven Niswander, who had previously provided the WRB with a letter summarizing his findings and conclusions, commented that the dredging could result in increased predation of whitefish and could adversely impact the whitefish's food source. Dr. Niswander indicated that the area is critical to the lake because it is one of only two areas suitable for whitefish to spawn in, as well as perch and northern pike, and is also critical to all these fishes' food sources. Viewing the lake as a whole, the proposed dredging to this area could have, in Dr. Niswander's view, a significant impact on the lake's overall aquatic habitat and would not improve the lake in any manner whatsoever. Dr. Niswander also noted that plaintiffs can get in and out of the docking area under current conditions and that the community dock near plaintiffs' properties serves as an alternative for temporary use. Counsel for plaintiffs countered Dr. Niswander's comments, stating that there had been no evidence of whitefish in Walnut Lake in a very long time and that the population, if any, would not be adversely impacted. Plaintiffs' counsel also indicated that extending the plaintiffs' docks was not a feasible alternative and that the nearby marina is private and not for public use. These assertions were not supported by any evidence. While plaintiffs did present to the WRB a report from their own environmental consultant, plaintiffs did not present this report until the meeting with the WRB was well underway. Thus, the WRB did not have a chance to review it before making their decision at the meeting. Plaintiffs' consultant did not appear before the WRB. Various residents also commented at the meeting and expressed that plaintiffs' permit application should be denied in order to protect the lake and prevent improper precedent. Several residents also indicated that they had seen whitefish in the lake. At the close of the meeting, the WRB denied plaintiffs' permit request based on the following: 1) Dr. Niswander has stated the reasons regarding the negative impact of the fisheries and vegetation [sic] have been insufficiently rebutted by the Petitioner; 2) Dr. Niswander has indicated the proposed project will have a significant -2-


adverse impact to the aquatic environment of the lake; and 3) there are feasible and prudent alternatives; 4) the West Bloomfield Wetland Review Board can be more protective that the MDEQ and the efforts made by the MDEQ is not known to this Board; 5) the feasible alternatives available to the Petitioner include utilizing an existing marine facilities [sic] on the lake such as one facility located adjacent to the west of the subject property; continued ingress/egress through the area as presently exists, and extending the existing seasonal docks to deeper water; 6) this denial will not deny the Petition user of the lake; and 7) as indicated by Dr. Niswander, if the Petitioner proceeds with this proposal to dredge the lake, there would be a high probability of detriment to the lake in terms of species quality and quantity. [Emphasis in original.] Plaintiffs appealed this decision to the West Bloomfield Township Board, which affirmed the WRB's decision finding that the WRB did not abuse its discretion and reasonable alternatives are available to plaintiffs. Plaintiffs appealed this decision to the trial court arguing that defendant's decision was contrary to the laws and Constitution of this state, arbitrary and capricious, and not supported by substantial evidence. The trial court reversed defendant's decision. This appeal followed. II. Standard of Review "On direct review of an administrative decision, a trial court must determine whether the [decision] was authorized by law and whether [it] was supported by competent, material and substantial evidence on the whole record." Mantei v Michigan Pub School Employees Retirement Sys, 256 Mich App 64, 71; 663 NW2d 486 (2003); Const 1963, art 6,

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