Harkins v. Department of Natural Resources, Docket No. 145757

• Decision Date: 25 July 1994
• Docket Number: Docket No. 145757
• Citation: 206 Mich.App. 317,520 N.W.2d 653
• Parties: Donald L. HARKINS, Petitioner-Appellant, v. DEPARTMENT OF NATURAL RESOURCES, Respondent-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 653

520 N.W.2d 653

206 Mich.App. 317

Donald L. HARKINS, Petitioner-Appellant, v. DEPARTMENT OF NATURAL RESOURCES, Respondent-Appellee.

Docket No. 145757 Court of Appeals of Michigan.

Submitted March 8, 1994, at Lansing.

Decided May 24, 1994.

Approved for Publication

July 25, 1994, at 9:25 a.m.

William J. Reisdorf, Troy, for Donald L. Harkins.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., and James E. Riley, Asst. Atty. Gen., for the Dept. of Natural Resources.

Before HOOD, P.J., and NEFF and JACKSON, ^* JJ.

PER CURIAM.

This is an appeal from a decision of the Oakland Circuit Court affirming the Natural Resources Commission's decision to deny petitioner a permit to fill the wetland portion of his property pursuant to the Wetland Protection Act (WPA), M.C.L. § 281.701 et seq.; M.S.A. § 18.595(51) et seq.

The relevant facts are as follows. Petitioner's residence is situated on a lakefront parcel of land on Woodhull Lake. On March 17, 1987, petitioner sought a permit from the Department of Natural Resources to fill the wetland portion of his property. Following a site evaluation, the DNR denied the application. Petitioner then filed a petition for a contested case hearing before the Natural Resources Commission (NRC). Petitioner then moved for summary disposition pursuant to MCR 2.116(C)(10), claiming that he was entitled to the permit as a matter of law. The motion was denied.

During the pendency of petitioner's hearing before the NRC, a modified permit was issued to him by the DNR. The modified permit enabled him to create a ten-foot-wide access path through the wetland for access to the lake and a small sanded beach at the shoreline. Despite having been issued the modified permit, he continued to pursue his appeal before the NRC.

During the course of the administrative proceeding, DNR personnel testified that the complete filling of the wetland along the shore of Woodhull Lake was not required for appellant to accomplish his proposed activity (lake access). Instead, it was stated that the ten-foot-wide path called for in the modified permit would be sufficient for this purpose. Moreover, the testimony revealed that although the environmental impact of petitioner's contemplated wetland filling would be minimal, the cumulative environmental impact resulting from the issuance of similar pending permits to other landowners along Woodhull Lake would be so great that the resultant effect to the public trust outweighed the private interest in filling and developing the area. A hearing referee supported the DNR's original decision to deny petitioner a permit. The referee's "Proposal for Decision" was adopted by the NRC as its own. This decision was subsequently affirmed by the Oakland Circuit Court.

First, petitioner argues that the requirement under the WPA that an applicant show either that the proposed activity is dependent upon being located in a wetland or that no reasonable and prudent alternative exists is unconstitutional and, thus, the hearing referee's decision must be overturned. Petitioner failed to raise this constitutional argument before the lower court. Accordingly, we will not review this portion of his argument because the trial court must be given an opportunity to pass upon the constitutionality of the rule involved. Hernandez v. Consumers Power Co., 51 Mich.App. 288, 291, 214 N.W.2d 846 (1974). Additionally, petitioner claims that as either a nuisance statute or a zoning regulation, the WPA is unconstitutional. Again, because this argument was not addressed below, we will not review it. Id.

Moreover, we decline petitioner's invitation to overturn the DNR's decision to deny his permit, because the agency's decision was not arbitrary or capricious. M.C.L. § 24.306(1)(e); M.S.A. § 3.560(206)(1)(e). The primary purpose of the WPA is to ensure that wetland habitats are preserved and protected. Citizens Disposal, Inc. v. Dep't of Natural Resources, 172 Mich.App. 541, 551, 432 N.W.2d 315 (1988). Section 5 of the WPA provides that in order to fill certain wetlands a property owner must receive a permit from the DNR. M.C.L. § 281.705(a); M.S.A. § 18.595(55)(a). The DNR may not issue a permit to fill wetlands unless certain criteria are satisfied. A permit will not be issued unless (1) the proposed activity will not unacceptably disrupt the aquatic resources, and (2) either (a) the proposed activity is primarily dependent upon being located in the wetland, or (b) a feasible and prudent alternative does not exist. M.C.L. § 281.709(4); M.S.A. § 18.595(59)(4).

Petitioner's initial permit application listed lake access as the project's purpose. Below, the DNR stated that petitioner could have access to the water by alternative means--namely, a public-access route. Additionally, a modified permit was issued whereby petitioner was allowed to construct a ten-foot-wide path through the wetland in order to gain access to the lake from his property. Because a feasible and prudent alternative existed to accomplish petitioner's purpose of gaining access to the lake, it is clear that the hearing referee's decision was not arbitrary or capricious. Id.

Additionally, petitioner argues that he is entitled to the original permit as a matter of law because the DNR failed to act on his application within the statutorily designated ninety-day period. M.C.L. § 281.708(2); M.S.A. § 18.595(58)(2) provides that where the DNR does not hold a hearing on a wetland fill permit application, "the [DNR] shall approve or disapprove the permit application within 90 days after the completed permit application is filed.... If the [DNR] does not approve or disapprove the permit application within the time provided ... [it] shall be considered approved, and the [DNR] shall be considered to have made the determinations required by section 9." Petitioner's argument here is unavailing.

Petitioner's initial permit application was filed on March 19, 1987. On March 30, 1987, the DNR requested additional information from him, and received the information on April 7, 1987. The DNR denied the permit application through a letter dated June 16, 1987. However, the envelope was postmarked on June 22, 1987. Petitioner argues that the ninety-day period commenced when the DNR received his initial permit application on March 19, 1987. Hence, according to petitioner, the DNR failed to respond to the permit...