Thomas Tp. v. John Sexton Corp. of Michigan, Docket No. 102191

• Decision Date: 31 January 1989
• Docket Number: Docket No. 102191
• Citation: 434 N.W.2d 644,173 Mich.App. 507
• Parties: THOMAS TOWNSHIP Petitioner-Appellee, v. JOHN SEXTON CORPORATION OF MICHIGAN, Respondent-Appellant, and Michigan United Conservation Clubs, Inc., Amicus Curiae. 173 Mich.App. 507, 434 N.W.2d 644
• Court: Court of Appeal of Michigan — District of US

Page 644

434 N.W.2d 644

THOMAS TOWNSHIP Petitioner-Appellee, v. JOHN SEXTON CORPORATION OF MICHIGAN, Respondent-Appellant and Michigan United Conservation Clubs, Inc., Amicus Curiae.

Docket No. 102191.

173 Mich.App. 507, 434 N.W.2d 644

Court of Appeals of Michigan.

Submitted June 9, 1988.

Decided Dec. 6, 1988.

Released for Publication Jan. 31, 1989.

[173 MICHAPP 509] Mark T. Mahlberg, and Braun, Kendrick, Finkbeiner, Schafer & Murphy by Edward J. McArdle, Saginaw, for petitioner-appellee.

Honigman, Miller, Schwartz & Cohn by Gary A. Trepod and Sandra L. Jasinski, Lansing, for respondent-appellant.

Michigan United Conservation Clubs, Inc. by M. Carol Bambery, Lansing, amicus curiae.

Before DANHOF, C.J., and SAWYER and FREEMAN, ^* JJ.

PER CURIAM.

Respondent appeals as of right from a Saginaw Circuit Court opinion and order which reversed a final decision and order of the Natural Resources Commission. The NRC granted respondent an Inland Lakes and Streams Act [173 MICHAPP 510] (ILSA) permit to drain a sixty-two-acre artificial lake in Thomas Township, Saginaw County, Michigan.

The above-mentioned lake is a clay pit which filled with surface water runoff and rain after a clay mining operation ceased in 1969. The parties' positions are illustrated by petitioner's calling the body of water a lake and respondent's calling it a clay pit. We will refer to it as a lake. The lake had an average depth of fifteen feet. It had no inlet nor outlet. Respondent owned the lake and the surrounding land.

Respondent applied for an ILSA permit to drain the lake so that it could use the excavation for a sanitary landfill. Petitioner intervened in the proceeding. After conducting a contested case hearing, a hearing officer issued a proposal for decision recommending that respondent be granted an ILSA permit to drain the lake subject to respondent's obtaining a permit to construct a sanitary landfill pursuant to the Solid Waste Management Act, M.C.L. Sec. 299.401 et seq.; M.S.A. Sec. 13.29(1) et seq. The NRC conditionally granted respondent the ILSA permit after adopting the hearing officer's findings of fact and conclusions of law.

Thomas Township petitioned for review of the NRC's final decision in the lower court under M.C.L. Sec. 24.304; M.S.A. Sec. 3.560(204) of the Administrative Procedures Act (APA), M.C.L. Sec. 24.201 et seq.; M.S.A. Sec. 3.560(101) et seq. Petitioner claimed that the decision was not supported by competent, material, and substantial evidence on the whole record. Petitioner also claimed that the decision was contrary to M.C.L. Sec. 281.957; M.S.A. Sec. 11.475(7) of the ILSA, M.C.L. Sec. 281.951 et seq.; M.S.A. Sec. 11.475(1) et seq., and M.C.L. Sec. 691.1205; M.S.A. Sec. 14.528(205) of the Michigan Environmental Protection Act (MEPA), M.C.L. Sec. 691.1201 et seq.; M.S.A. Sec. 14.528(201) et seq.

[173 MICHAPP 511] The lower court found that because petitioner was appealing the NRC's final decision under the APA, the appropriate standard of review was the "substantial evidence" standard of Const. 1963, art. 6, Sec. 28; M.C.L. Sec. 24.306(1)(d); M.S.A. Sec. 3.560(206)(1)(d); MERC v. Detroit Symphony Orchestra, Inc., 393 Mich. 116, 121-124, 223 N.W.2d 283 (1974). The court declined to engage in a de novo review of the NRC's decision under MEPA, reasoning that de novo review would only have been appropriate if petitioner had filed an original action in circuit court.

The substantial evidence standard is appropriate for this review of the NRC's final decision. "Substantial evidence" means evidence which a reasoning mind would accept as sufficient to support a conclusion. It consists of more than a scintilla, but may be less than a preponderance of the evidence. Michigan appellate courts give considerable deference to administrative agencies' fact-finding and weighing of evidence. Felton v. Dep't of Social Services, 161 Mich.App. 690, 695, 411 N.W.2d 829 (1987). However, this Court reviews de novo actions brought under the MEPA. City of Portage v. Kalamazoo County Road Comm., 136 Mich.App. 276, 279, 355 N.W.2d 913 (1984), lv. den., 422 Mich. 883 (1985). To the extent that this case involves MEPA issues, we will use a de novo standard of review. West Michigan Environmental Action Council v. Natural Resources Comm., 405 Mich. 741, 752-754, 275 N.W.2d 538 (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); Michigan Waste Systems v. Dep't of Natural Resources, 147 Mich.App. 729, 734-735, 383 N.W.2d 112 (1985), lv. den., 424 Mich. 900 (1986).

The ILSA provides that a person shall not "diminish an inland lake" without a permit from the Department of Natural Resources. M.C.L. Sec. 281.953(d); [173 MICHAPP 512] M.S.A. Sec. 11.475(3)(d). The criteria for issuing an ILSA permit are set forth in M.C.L. Sec. 281.957; M.S.A. Sec. 11.475(7):

"The department shall issue a permit if it finds that the structure or project will not adversely affect the public trust or riparian rights. In passing upon an application the department shall consider the possible effects of the proposed action upon the inland lake or stream and upon waters from which or into which its waters flow and the uses of all such waters, including uses for recreation, fish and wildlife, aesthetics, local government, agriculture, commerce and industry. The department shall not grant a permit if the proposed project or structure will unlawfully impair or destroy any of the waters or other natural resources of the state. This act shall not modify the rights and responsibilities of any riparian owner to the use of his riparian water.

"A permit shall specify that a project completed in accordance with this act shall not cause unlawful pollution as defined by Act No. 245 of the Public Acts of 1929, as amended."

The hearing officer found that the then-existing recreational uses of the lake were by trespassers. Those uses would be lost if the lake were drained or effectively fenced. Petitioner wanted to acquire the property and develop it as a park site. Respondent had no interest in selling the property or developing a recreational facility. The hearing officer found that the lake was hazardous and unsuitable for public recreational use because of its steep and eroding banks, deep turbid water, and slippery bottom. He noted that the parties' disagreement did not concern the lake's current condition, but its recreational potential. Petitioner claimed that a recreational facility could be created with modest expenditures of money while [173 MICHAPP 513] respondent claimed that large expenditures would be needed. The hearing officer described the improvements that were needed to make the lake safe for swimming, accessible for boats, and otherwise adequate as a recreational facility. The hearing officer concluded that the only loss which would result from granting the permit was of a potential recreational use.

The lower court did not dispute the hearing officer's findings of fact. However, the court found that the hearing officer downplayed the significance of the loss of the lake's potential recreational use, in violation of M.C.L. Sec. 281.957; M.S.A. Sec. 11.475(7) and contrary to his findings of fact. We disagree. The hearing officer's proposal for decision demonstrates that he met the M.C.L. Sec. 281.957; M.S.A. Sec. 11.475(7) requirement of considering recreational use. The lower court assigned undue significance to this consideration.

The lower court noted that the evidence supported the hearing officer's findings that the lake and surrounding land had no significant or unique value from a wildlife perspective, the lake's dominant fish was stunted carp, and that the lake would have to be modified in order to support a healthy fish population. However, the court disagreed with the hearing officer's conclusions that destruction of the lake would have no significant effect on fish and that a sport fishery on the site would require intensive management. Although conflicting testimony was presented on the fish consideration, the hearing officer's decision withstands the substantial evidence standard of review. The lower court erred by displacing the hearing officer's choice between two reasonably differing views. MERC, supra, 393 Mich. at p. 124, 223 N.W.2d 283.

The lower court did not disagree with the hearing officer's findings on aesthetics, local government,[173 MICHAPP 514] agriculture, commerce, and industry. We also find no error on these matters.

To determine whether the proposed project would violate the statutory prohibition against the unlawful destruction of this state's natural resources, the hearing officer considered the requirements of 1979 AC, R 281.814:

"Rule 4. In each application for a permit, all existing and potential adverse environmental effects shall be determined and a permit shall not be issued unless the department determines all of the following:

"(a) That the adverse effects to the environment and the public trust are minimal and will be mitigated to the extent possible.

"(b) That the resource affected is not a rare resource.

"(c) That the public interest in the proposed development is greater than the public interest in the unavoidable degradation of the resource.

"(d) That no feasible and prudent alternative location is available."

The lower court disagreed with all of the hearing officer's Rule 4 determinations. The court erred by failing to apply the substantial evidence standard of review. MERC, supra, at pp. 121-124, 223 N.W.2d 283. Although there was conflicting evidence on each factor, the hearing officer's determinations were supported by competent, material, and substantial evidence on the...