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E-M:/ sand dune permits get political

Enviro-Mich message from Dave Dempsey <davemec@voyager.net>

	The front office of the Department of Environmental Quality has interfered
with the process for sand dune protection, resulting in the issuance of
precedent-setting permits over the objections of staff, according to files
unearthed by MEC under the Freedom of Information Act.

	The two projects, one in Lincoln Township of Berrien County and one near
Grand Haven in Ottawa County were regulated under 1989 amendments to
Michigan's Sand Dune Protection and Management Act that were crafted to
protect the state's globally unique freshwater dunes from residential and
commercial development.   Both involved pleas from the applicant to waive
provisions of the act in order to accommodate what they claimed were
special needs.

	In one case, involving the Lincoln Township site, the applicant was
granted a special exception to build an access drive to a residence over
the objections of staff and despite feasible and prudent alternatives.  The
special exception was granted after a site visit by DEQ Director Russell

	File documents show the landowner purchased the property knowing that
building would be discouraged in the critical dune area.  A 1993
preliminary plat of the land in question was granted by DEQ on the
condition that the deed for the property provided notice to prospective
purchasers that the lots were partially located in a sand dune area
regulated by state law and that the designated building envelope for the
lot, approved by DEQ, was outside the critical dune area.

	Correspondence in the DEQ files shows that the applicant's driveway was
built on a slope of 52%, although the sand dune law prohibits building on a
slope greater than 33% in most cases.  (From 1989 to 1995, the limit was
25%.)  In its 1996 letter to the applicant denying the special exception,
DEQ staff pointed out that the house could be relocated to the back side of
a dune, or a permanent easement across association-owned property could be
obtained, either option permitting access on a slope less than 33%.  The
applicant rejected the first option because of a desire to maintain a view
facing Lake Michigan.

	"...[G]ranting a special exception to construct a driveway on a steep dune
slope when an alternative site is available on the property without the
need for a special exception would be inconsistent with permitting
decisions made under similar circumstances on many other sites," former
Land and Water Management Division Chief Larry Witte wrote in a briefing
memo to Harding on October 1, 1996. 

	A local legislator requested intervention by the DEQ Director.  After the
site visit by Harding, the special exception was granted and the permit
issued on May 8, 1997. 

	In the second case, DEQ denied in November of 1995 a sand dune permit for
a home in Grand Haven Township on a "complex site characterized by a high
bluff along the Lake Michigan shoreline and tall, steep dunes rising inland
from the bluff," according to DEQ records.  After negotiation, the
applicant requested three special exceptions, one to allow masonry/stone
construction of the home, one to fill a large bowl within the critical
dunes with slopes steeper than 33%, and one to permit the construction of
retaining walls against the steep slope of a critical dune.

	DEQ staff ultimately agreed to grant all three special exceptions, but on
the condition that the applicant grant the state a conservation easement on
the rest of the platted lots in a high risk erosion area and sand dune
area.  The applicant objected to the easement and DEQ proposed a
restrictive covenant instead.  This, too, was spurned by the applicant.  As
subsequent plans for the project were submitted, DEQ staff noted a new
access road to the east of the home "which apparently leads nowhere," and
surmised that the road would only be required if additional homes were
constructed on the property.

	"We have devoted significant effort to accommodating [the applicant's]
desire to build on this very difficult site and have acted in good faith
throughout the negotiations," DEQ staff wrote in a file memo.  "The
apparent desire to accommodate additional development significantly
complicates our ability to finalize an acceptable permit for [the
applicant's] home.  It is difficult to justify granting a permit for the
proposed project in an effort to avoid a contested case hearing unless an
acceptable deed restriction is recorded to protect the remaining critical
dune resources."

	File records show the DEQ front office intervened heavily in the permit
process.  At the request of Governor Engler's office, DEQ Deputy Chad
McIntosh directed staff to issue the permit despite the objections.   On
October 16, 1996, the permit was issued, granting the applicant the ability
to build a home with a foundation up to 3,500 feet, with the access road,
and without the deed restriction.  

	A former DEQ staffer called the case a "blatant political effort to
influence a permit decision, which resulted in the DEQ caving completely
and not getting anything in return for the resource." 

	These two cases illustrate a problem plaguing all of DEQ's permit
programs:  standards are waived and laws overlooked when developers and
applicants go to DEQ management and legislators to have their way.  The
result are permits which do not meet standards of the law and fail to
protect critical sand dunes.

Dave Dempsey
Policy Director
Michigan Environmental Council
119 Pere Marquette, Suite 2A
Lansing, MI 48912

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