Citizens Disposal, Inc. v. Department of Natural Resources

• Decision Date: 16 December 1988
• Docket Number: Docket No. 98631
• Citation: 432 N.W.2d 315,172 Mich.App. 541
• Parties: CITIZENS DISPOSAL, INC., Plaintiff-Appellant, v. DEPARTMENT OF NATURAL RESOURCES; and Director, Department of Natural Resources, Defendants-Appellees, and The Township of Mundy, Intervenor-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 315

432 N.W.2d 315

172 Mich.App. 541

CITIZENS DISPOSAL, INC., Plaintiff-Appellant, v. DEPARTMENT OF NATURAL RESOURCES; and Director, Department of Natural Resources, Defendants-Appellees and The Township of Mundy, Intervenor-Appellee.

Docket No. 98631.

Court of Appeals of Michigan.

Submitted May 11, 1988.

Decided Aug. 19, 1988.

Released for Publication Dec. 16, 1988.

Richard J. Quist, Grand Rapids, for plaintiff-appellant.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Thomas J. Emery and Gary L. Hicks, Asst. Attys. Gen., for defendants-appellees.

Williams, Schaefer, Ruby & Williams, P.C. by Thomas G. Plunkett, Bloomfield Hills, for Township of Mundy.

Before SULLIVAN, P.J., and WAHLS and JACKSON, ^* JJ.

PER CURIAM.

Plaintiff, Citizens Disposal, Inc., has been thwarted in every administrative and judicial forum in which it has appeared while attempting to obtain a construction permit allowing it, in essence, to enlarge a sanitary landfill in Genesee County. Most recently, the Ingham Circuit Court rejected plaintiff's request for relief. Essentially, plaintiff has consistently been denied permission to use a particular parcel of land as a landfill because it has not met the requirements of the Wetland Protection Act (wetlands act), M.C.L. Sec. 281.701 et seq.; M.S.A. Sec. 18.595(51) et seq. Except as provided under the wetlands act or by permit issued by defendant Department of Natural Resources, a person is prohibited from placing fill material in a wetland. M.C.L. Sec. 281.705(a); M.S.A. Sec. 18.595(55)(a). Plaintiff now appeals as of right, and we affirm.

The record reveals that, in 1982, Grand Blanc Landfill, Inc., applied for a permit under the wetlands act to fill a fifty-acre parcel of land adjacent to its existing landfill in Genesee County. This parcel, which included an area of wetland approximately thirty-four acres in size, is located in intervenor-appellee Mundy Township, about four miles south of Flint in Genesee County. The permit application was denied by the Department of Natural Resources in May, 1983. That permit denial is not contested in this action. In 1984, plaintiff filed an application with the DNR seeking a permit to place 10,500 cubic yards of solid waste in a 24.3-acre parcel of land located within the original fifty-acre parcel and adjacent to that owned by Grand Blanc Landfill, Inc., but which did not include the acres of wetland which had caused the DNR to deny the permit request of Grand Blanc Landfill, Inc. the year before. It should be noted that the manager of plaintiff, Citizens Disposal, Inc., is the president of Grand Blanc Landfill, Inc., and that the directors and officers of plaintiff are family members of the owner of the latter company. Plaintiff's request for a permit was denied by the DNR on the basis of having failed to meet the requirements of the wetlands act and the Michigan Environmental Protection Act (MEPA), M.C.L. Sec. 691.1201 et seq.; M.S.A. Sec. 14.528(201) et seq. ¹ The application was denied due to the detrimental effect the landfill would create on an area of wetland approximately two acres in size contained within the 24.3-acre proposed fill area and contiguous to a larger wetland complex in excess of five acres.

Plaintiff requested a contested case hearing on the permit denial. A four-day hearing was conducted in October and November, 1985. The hearing officer, on April 1, 1986, issued a twenty-two page proposal for decision in which he recommended that the denial of plaintiff's permit request be sustained because plaintiff's proposed use would violate both the wetlands act and the MEPA. On May 16, 1986, the DNR Natural Resources Commission (NRC) adopted the findings of fact and conclusions of law of the hearing officer by a four to two vote and, accordingly, denied plaintiff's request for a permit to place 10,500 cubic yards of solid waste in the proposed landfill area. Plaintiff's motion for peremptory reversal was denied by the Ingham Circuit Court on September 4, 1986, and, following oral argument by the parties, the circuit court issued an opinion and order on February 11, 1987, affirming the decision of defendant DNR. On appeal to this Court, plaintiff raises three issues. ²

First, plaintiff argues that the circuit court erred by not reviewing de novo the decision of the NRC that filling the land in question with solid waste would violate the MEPA. We agree with plaintiff that the circuit court erred in failing to conduct a de novo review of this issue, but find that--because the permit denial was properly reviewed and affirmed under the wetlands act--that error does not require a reversal of the circuit court's holding.

It is true that the statute in the Revised Judicature Act which authorizes appeals to circuit court from any order, decision, or opinion of any state board, commission, or agency from which an appeal or other judicial review has not otherwise been provided by law has not been construed as requiring a de novo standard of review, but rather a standard limited in scope to whether a final decision, finding, ruling, or order is authorized by law and, in cases in which a hearing is required, whether the same is supported by competent, material, and substantial evidence on the whole record. M.C.L. Sec. 600.631; M.S.A. Sec. 27A.631. See also Const.1963, art. 6, Sec. 28; Michigan Waste Systems v. Dep't of Natural Resources, 147 Mich.App. 729, 734-736, 383 N.W.2d 112 (1985), lv. den. 424 Mich. 900 (1986). However, the Supreme Court has clarified that "the Michigan environmental protection act requires independent, de novo determinations by the courts." West Michigan Environmental Action Council v. Natural Resources Comm., 405 Mich. 741, 752, 275 N.W.2d 538 (1979), reh. den. 406 Mich. 1121 (1979), cert. den. sub. nom. Shell Oil Co. v. West Michigan Environmental Action Council, Inc., 444 U.S. 941, 100 S.Ct. 295, 62 L.Ed.2d 307 (1979).

In his conclusions of law, the hearing officer in this case stated:

"I conclude that the proposed activity would cause pollution impairment or destruction of a natural resource which is prohibited by the Michigan Environmental Protection Act (1970 PA 127). When two statutes regulate the same subject matter, they must be read together. In this instance, the primary statute is the Wetlands Act[,] which sets forth the standards for activity within regulated lands. A statute that deals specifically with the subject is to be given precedence over one of general applicability. Recognizing those principles, this Opinion has given the primary weight to the Wetlands Act[,] which deals specifically with the subject matter. The legislative determination that the proposed conduct under the standards of the Wetlands Act is unacceptable can only lead to the conclusion that the conduct is also unacceptable under the standards of the Michigan Environmental Protection Act."

In its February 11, 1987, opinion and order, however, the circuit court did not specifically mention the MEPA, focusing instead on the denial of plaintiff's permit request under the wetlands act. Regarding the applicable standard of review, the court stated:

"Generally, judicial review of an administrative decision is limited to whether the decision is authorized by law and supported by competent, material and substantial evidence on the record. Const. 1963, art. 6, sec. 28; MCL 24.306(1)(d); MSA 3.560(206)(1)(d); Iams v Civil Service Comm, 142 Mich App 682, 692-693; 369 NW2d 883 (1985)."

Although it is clear that the trial court erred by applying an improper standard of review to the denial of plaintiff's permit request under the MEPA, we perceive no need to remand the case because we conclude below that a judgment affirming the NRC's adoption of the hearing officer's findings regarding the wetlands act is required on the record presented. See West Michigan Environmental Action Council, supra, 405 Mich. at p. 754, 275 N.W.2d 538.

Second, plaintiff argues on appeal that the area proposed for landfill use is not a "wetland" within the definition of that term as contained in the wetlands act. In the act, wetland is defined as follows:

"(g) 'Wetland' means land characterized by the presence of water at a frequency and duration sufficient to support and that under normal circumstances does support wetland vegetation or aquatic life and is commonly referred to as a bog, swamp, or marsh and which is any of the following:

(i) Contiguous to the Great Lakes or Lake St. Clair, an inland lake or pond, or a river or stream.

(ii) Not contiguous to the Great Lakes, an inland lake or pond, or a river or stream; and more than 5 acres in size; except this subdivision shall not be of effect, except for the purpose of inventorying, in counties of less than 100,000 population until the department certifies to the commission of natural resources it has substantially completed its inventory of wetlands in that county.

(iii) Not contiguous to the Great Lakes, an inland lake or pond, or a river or stream; and 5 acres or less in size if the department determines that protection of the area is essential to the preservation of the natural resources of the state from pollution, impairment, or destruction and the department has so notified the owner; except this subdivision may be utilized regardless of wetland size in a county in which subdivision (ii) is of no effect; except for the purpose of inventorying, at the time." M.C.L. Sec. 281.702; M.S.A. Sec. 18.595(52).

In his proposal for decision in this case, the hearing officer stated:

"The first issue presented at the hearing is whether or not there are wetlands within the proposed landfill site that come within the jurisdiction of the Wetlands Act. At the time of filing the application, it was clearly the belief of Citizens Disposal that potential wetland areas had been excluded in their plans. However, at the hearing, the Petitioner's expert on wetlands testified that there...