City of Portage v. Kalamazoo County Road Com'n, Docket No. 68936

• Court: Court of Appeal of Michigan (US)
• Writing for the Court: REILLY
• Citation: 355 N.W.2d 913,136 Mich.App. 276
• Parties: CITY OF PORTAGE, a Michigan municipal corporation, Plaintiff-Appellee, v. KALAMAZOO COUNTY ROAD COMMISSION, Defendant-Appellant. 136 Mich.App. 276, 355 N.W.2d 913
• Docket Number: Docket No. 68936
• Decision Date: 19 October 1984

Page 913

355 N.W.2d 913 CITY OF PORTAGE, a Michigan municipal corporation,
Plaintiff-Appellee,
v.
KALAMAZOO COUNTY ROAD COMMISSION, Defendant-Appellant. Docket No. 68936.
136 Mich.App. 276, 355 N.W.2d 913 Court of Appeals of Michigan. Submitted Feb. 9, 1984.
Decided July 16, 1984.
Released for Publication Oct. 19, 1984.

Page 914

[136 MICHAPP 278] John J. Peters, City Atty. by Michael S. Straubel, Kalamazoo, for plaintiff-appellee.

[136 MICHAPP 279] Bennett, Lewis, LaParl, Hollander, Stephens & Milligan, P.C. by Dean S. Lewis and Robert C. Burkholz, Kalamazoo, for defendant-appellant.

Before KELLY, P.J., and MAHER and REILLY ^*, JJ.

REILLY, Judge.

Defendant appeals as of right from the trial court's December 21, 1982, order which permanently enjoined defendant from cutting certain trees along Portage Road in the City of Portage, Kalamazoo County.

Plaintiff filed this action in Kalamazoo County Circuit Court pursuant to the Michigan Environmental Protection Act (MEPA), M.C.L. Sec. 691.1202; M.S.A. Sec. 14.528(202), seeking to enjoin defendant from implementing its plan to remove approximately 74 trees located within eight feet of both sides of the paved portion of Portage Road. ¹ Following trial, the court issued an opinion and order permanently enjoining defendant from cutting the trees. Defendant appeals.

While this Court review de novo actions brought under the MEPA, review is governed by GCR 1963, 517.1, and the trial court's findings of fact will not be overturned or modified unless they are clearly erroneous or unless the reviewing court is convinced it would have reached a different result had it occupied the bench at trial. Wayne County Dep't of Health v. Olsonite Corp., 79 Mich.App. 668, 694, 263 N.W.2d 778 (1977). See also Dunlop v. Twin Beach Park Ass'n, Inc., 111 Mich.App. 261, 266, 314 N.W.2d 573 (1981). A finding is clearly erroneous when, although there is evidence [136 MICHAPP 280] to support it, the reviewing court on the entire evidence is left with

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a definite and firm conviction that a mistake has been made. Tuttle v. Dep't of State Highways, 397 Mich. 44, 243 N.W.2d 244 (1976).

Under Sec. 2 of the act, a party may bring an action for declaratory and equitable relief against any other party "for the protection of the air, water and other natural resources and the public trust therein from pollution, impairment or destruction". Section 3(1), M.C.L. Sec. 691.1203(1); M.S.A. Sec. 14.528(203)(1), provides:

"When the plaintiff in the action has made a prima facie showing that the conduct of the defendant has, or is likely to pollute, impair or destroy the air, water of other natural resources or the public trust therein, the defendant may rebut the prima facie showing by the submission of evidence to the contrary. The defendant may also show, by way of an affirmative defense, that there is no feasible and prudent alternative to defendant's conduct and that such conduct is consistent with the promotion of the public health, safety and welfare in light of the state's paramount concern for the protection of its natural resources from pollution, impairment or destruction. Except as to the affirmative defense, the principles of burden of proof and weight of the evidence generally applicable in civil actions in the circuit courts shall apply to actions brought under this act."

The court must conduct a dual inquiry to determine if a prima facie case is established under Sec. 3: (A) whether a natural resource is...