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E-M:/ Michigan Supreme Court decides Burt Twp v DNR - public boating facilities are subject to local zoning


Contacts: Frank Kestler, Burt Township Association (517) 731-3810

James Olson or Chris Bzdok, Attorneys for Burt Twp Assoc (616) 946-0044

Supreme Court Upholds Local Regulation of State Boating Facilities

The Michigan Supreme Court ruled today that the Department of Natural Resources must comply with local zoning ordinances when it develops public boating facilities on lakes and streams within a township's borders. The ruling, in a case called Burt Township v Department of Natural Resources, is expected to have a profound effect on small communities' ability to plan for the orderly development of their shorelines and the protection of their water resources. As Township attorney Jeff Lyon put it, "It means that local government still exists."

The dispute which led to the high court's decision began in 1989. The DNR, looking to increase access for large, deep-draft boats on Burt Lake, purchased a lakefront parcel in a residential area of Burt Township. The DNR proposed building a parking lot, restroom facilities and a boat ramp, which would require yearly dredging of a channel 76 feet wide and over 330 feet long into the lake's bottom. Hearing of the plan, the Township wrote to the DNR requesting that the agency apply for a zoning permit. The DNR responded that it was not subject to local zoning ordinances, and began construction.

The Township obtained a restraining order from Cheboygan County Circuit Judge Robert Livo to halt construction until the court could fully review the matter. Then, based on arguments presented by the Township and the Burt Township Association, a local group dedicated to protecting the lake, Judge Livo ruled that the DNR had to receive approval from the Township Board to build the boat ramp.

The DNR appealed, and the Michigan Court of Appeals affirmed Judge Livo's decision. Then the Supreme Court agreed to take the case, and heard arguments this past winter. Today, it ruled in favor of the Township again.

The Court ruled that the Township Zoning Act gives townships broad powers to regulate the use of lands within their borders, including the use of waterfront property. Therefore, a state agency could only be exempted from township zoning authority if another statute stated clearly that the agency was exempt. The Court held in this case that none of the statutes cited by the DNR contained a clear statement that the Legislature intended to exempt DNR boat launches from local zoning. According to the Court, the fact that the Legislature gave the DNR power to create recreational facilities does not mean that the DNR can ignore local zoning in doing so.

The decision is seen as a victory for local participation in the management of lakes and streams. According to Frank Kestler of the Burt Township Association, "The Supreme Court's ruling maintains a voice for local residents in what happens to the rivers and lakes in their communities. It balances the State's need to build recreational facilities with the community's need to protect the integrity of our lakefront neighborhoods."

Including local government in the process should help preserve the environment, too, noted James Olson, a Traverse City attorney who argued on behalf of the Burt Township Association in the Supreme Court. "Local zoning is often the most important line of defense against overdevelopment or misuse of our precious water resources. By rejecting the DNR's demand for unbridled authority, the Court gives local citizens a chance to protect rivers and lakes at the local level, where their participation counts the most."

Copies of the Supreme Court's syllabus opinion are available from the sender of this press release, and the full opinion should be available by Thursday or Friday on the Institute for Continuing Legal Education's Website,   http://www.icle.org/misupct/index.htm

Chris Bzdok
Olson & Noonan, P.C.
P.O. Box 2358
Traverse City, MI  49685
(616) 946-0044