Nemeth Abonmarche Development, Inc., Docket No. 106747

CourtSupreme Court of Michigan
Citation576 N.W.2d 641,457 Mich. 16
Docket NumberNo. 12,Docket No. 106747,12
Parties, 46 ERC 1539 Theodore W. NEMETH and Winifred A. Nemeth; Jon C. Falk and Peggy Falk; Art Anderson and Wilma Anderson; and Wayne Hansen, Plaintiffs-Appellants, v. ABONMARCHE DEVELOPMENT, INC., also known as Abonmarche, Inc., also known as Manistee Village Partners; Abonmarche Consultants, Inc.; Morren Construction & Engineering, Inc., also known as Morren Construction, Inc.; MacLean Construction,Inc.; and City Of Manistee, Defendants-Appellees. Calendar
Decision Date21 April 1998

Page 641

576 N.W.2d 641
457 Mich. 16, 46 ERC 1539
Theodore W. NEMETH and Winifred A. Nemeth; Jon C. Falk and
Peggy Falk; Art Anderson and Wilma Anderson; and
Wayne Hansen, Plaintiffs-Appellants,
v.
ABONMARCHE DEVELOPMENT, INC., also known as Abonmarche,
Inc., also known as Manistee Village Partners; Abonmarche
Consultants, Inc.; Morren Construction & Engineering, Inc.,
also known as Morren Construction, Inc.; MacLean
Construction,Inc.; and City Of Manistee, Defendants-Appellees.
Docket No. 106747.
Calendar No. 12.
Supreme Court of Michigan.
Argued Dec. 10, 1997.
Decided April 21, 1998.

Page 643

Rosi Law Offices, P.C. by Philip R. Rosi, Traverse City, and Olson, Noonan, Ursu & Ringsmuth, P.C. by James M. Olson, Traverse City, for plaintiffs-appellants.

Sullivan, Crowley & Beeby, P.C. by George W. Beeby, Traverse City, for defendants-appellees Abonmarche Development, Inc.

Kohl, Secrest, Wardle, Lynch, Clark & Hampton by Thomas G. Herman, Grand Rapids, for defendant-appellee City of Manistee.

Cross, Wrock, P.C. by Jack O. Kalmink, Detroit, for defendant-appellee Moren Construction & Engineering, Inc.

Smith, Haughey, Rice & Roegge by Jon D. Vander Ploeg, Grand Rapids, for defendant-appellee MacLean Construction Company.

Rentrop, Vanderkloot, Haynes & Morrison, P.C. by Jeffrey K. Haynes and C. Thomas Ludden, Bloomfield Hills, amicus curiae, for Michigan Environmental Council.

Opinion

BRICKLEY, Justice.

I

We are called upon to decide two issues in this case. First, we must determine whether violations of the soil erosion and sedimentation control act, M.C.L. § 324.9101 et seq.; M.S.A. § 13A.9101 et seq. (SESCA), can form the basis of a prima facie case under the Michigan environmental protection act, M.C.L. § 324.1701 et seq.; M.S.A. § 13A.1701 et seq. (MEPA). We conclude that it can and, therefore, reverse in part the decision of the Court of Appeals and reinstate in part the judgment of the trial court. Secondly, we must determine whether the MEPA permits a trial judge to apportion attorney fees in the "interests of justice." We conclude that it does not and, therefore, affirm in part the decision of the Court of Appeals.

II

In the fall of 1990, defendant developers 1 began construction of a multimillion-dollar marina, condominium, and hotel project at the mouth of the Manistee River, on the shore of Lake Michigan, on property owned by defendant city of Manistee. Construction involved stripping the vegetation and topsoil from thirty acres of barrier dunes, digging a marina basin, and moving thousands of cubic

Page 644

yards of earth into piles on the edges of the construction site. In December of 1990, after this phase of the construction took place, a storm struck Manistee, and wind and water on the exposed dunes carried sand, snow, fly ash, and other sediments from the construction site to the surrounding area. The sediments buried nearby parcels in drifts several feet deep, destroyed window casings, damaged siding, and were blown into the interiors of homes in the area.

Nine months later, a group of residents sued the developers and the city of Manistee. Plaintiffs 2 had several theories of recovery; however, only the allegation of a violation of the MEPA is before this Court. Plaintiffs' argued that the developers' violations of the SESCA provided sufficient evidence that the developers' activities violated the MEPA by either polluting, impairing, destroying air, water, or other natural resources, or were likely to do so. See subsection 1703(1).

The trial court issued a preliminary injunction against defendants on February 28, 1992, nunc pro tunc from December 7, 1991, enjoining excavation of soil and movement of soil in the project area. Neither the construction on the building sites nor the earthmoving activities where the defendants were trying to establish joinder of the Manistee River with the marina basin were enjoined. The trial judge made findings of fact on which he based his grant of the preliminary injunction. First, the court found that the severity of the storm that occurred in 1990 was due to the stripping of the vegetative cover of the project area. The trial court also found that there was "demonstrated indifference" in the past to proper soil erosion control measures by defendants, on the basis of the failure to implement soil erosion control recommendations resulting from the consultations between the city soil erosion officer and the county soil erosion control officer.

However, this demonstrated indifference underwent significant change through the course of the litigation. In December of 1991, at the behest of the trial court, the city took steps to put in place a soil erosion control officer--independent of the city's operational control. Before the independent officer's insistence, no soil erosion control plan had been submitted by defendants that met the SESCA's requirements.

That officer also issued a cease and desist order, insisting that certain measures be taken before any work could continue on the site. Upon issuance of that order, the developers took immediate steps to conform to the requirements and "lay down this material to hopefully hold the soil in place until a proper mulch cover ... and grass cover [could] be put in place." The trial court specifically noted that there was no cover before this because the developers' efforts in 1991 were not done in a timely fashion; therefore, the mulch and grass cover they attempted to put in was not able to take hold in a manner sufficient to meet the requirements of the SESCA.

The trial court was satisfied that plaintiffs had established a likelihood of prevailing on the merits; that is, they were harmed by the alleged violations of the environmental statutes. The trial court, in weighing the harm to plaintiffs and the cost to defendant developers, 3 held that the cost of compliance with

Page 645

the injunction was minimal because the project was not "shut down."

The trial court ruled that the preliminary injunction would last until the proper permits by the independent soil erosion control officer were issued because the prior permits were not valid since the permits were not supported by an adequate soil erosion control plan. All that really remained to be done, according to the trial court, was for the developers to apply for the permits and the soil erosion control officer to make his independent evaluation regarding whether the permits should be issued. The injunction did not affect the city of Manistee.

The trial court granted plaintiffs' motion for a permanent injunction on October 27, 1992, and issued its final judgment and order on November 24, 1992. The final judgment and order provided that defendants were permanently enjoined as follows:

(1) Enjoined nunc pro tunc, from December 7, 1991, until the issuance of proper soil erosion control permits, from performing any construction activities which include and involve movement of soil. This injunction to exclude solely (a) minor movements of soil for the continuing construction of building sites and (b) earth moving in the area where Defendants are attempting to establish a joinder of the marina basin with the Manistee River, i.e., at the "River site."

(2) Mandatorily enjoined and directed to the same extent and scope of any cease and desist order and/or directive from the Independent Soil Erosion Control Officer, subject to Defendants' right to an administrative appeal from such order or directive and limited by any reversal or modification or other change thereof on such an appeal, and subject to Defendants' concurrent right to challenge in this Court the propriety and scope of such Officer's order or directive.

Finally, the trial court awarded attorney fees and costs to plaintiffs, pursuant to the MEPA, in the amount of $89,377 against defendants, Abonmarche, Morren, and MacLean, but not against the city of Manistee.

The Court of Appeals, in an unpublished per curiam opinion, held that an injunction based on a violation of the MEPA was not warranted because the activity of defendants did not "rise to such a level of impairment or destruction of a natural resource so as to constitute an environmental risk," relying on Dafter Sanitary Landfill v. Superior Sanitation Service, 198 Mich.App. 499, 499 N.W.2d 383 (1993). Slip op., p. 654. Moreover, held the Court of Appeals, the natural resource in question--sand--and its location, was not rare, unique, endangered, or of historical significance. Id. Finally, the Court of Appeals held that sand is easily replaceable and that the movement of sand in that area would not have any significant consequential effect on other natural resources.

III

The first issue we are called on to decide in this case is whether the trial court properly held that plaintiffs established that defendants violated the MEPA by showing that defendants violated the SESCA. Subsection 1703(1) of the MEPA provides:

When the plaintiff in the action has made a prima facie showing that the conduct of the defendant has polluted, impaired, or destroyed or is likely to pollute, impair, or destroy the air, water, or other natural resources or the public trust in these resources, 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 his or her 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 apply to actions brought under this part.

At the center of this controversy is the proper application of our decision interpreting the MEPA in...

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