Consequences of assault on Michigan dune laws come clear

Developer plans to ram road through township dunes sanctuary

Since the late 1980s, Michigan’s Department of Environment, Great Lakes & Energy has been charged with running a permitting program for development and construction occurring within a narrow band of majestic sand dunes along lakes Michigan and Superior.

The goal was protection of the state’s most unique and fragile coastal sand dunes – rare and globally significant landscapes that are among Michigan’s most recognizable and defining natural features.

Legal safeguards for those dunes were gouged last year by ill-advised legislation that undermined chunks of the state’s Critical Dunes Act. The legislature and Gov. Snyder severed protections that allow millions of Michiganders and visitors to enjoy these marvels at the behest of a handful of builders and property owners who found the land’s unusual and historic contours, well troublesome.

When the pro-development lobby, led by the Michigan Association of Homebuilders and Michigan Association of Realtors, launched their fast-moving assault on Michigan’s landmark dune protection law, one of their stated goals was to eliminate the EGLE’s legal oversight of driveway construction in Michigan’s protected Critical Dunes. In the Realtors’ terms, “Efforts as simple as permitting driveway access to an owner’s property have been stifled due to a lack of clarity on how the law should be applied.”

Gov. Snyder signed the legislation back in early 2012.

Unfortunately, they won that fight and passed their law. However, those driveways are quickly proving to be anything but the “simple” issue the lobbyists wanted everyone to believe.

First test

The new provisions are being put to the test with an application to the EGLE for a proposed residential development in the coastal dune area in White River Township, outside Montague. It will be one of the first high-profile tests of the state’s revised law.

And the prospects are scary.

That key provision of the 2012 dune law change – the one most strongly supported by the pro-development lobby-essentially eliminated consideration of the potential negative environmental impacts of driveways in the dunes. It is at the heart of this controversial proposal.

The Bro G Land Company proposal includes an extensive access road-nearly a quarter of a mile long-through a township-owned dunes preserve along a supposed “easement.” A critical consideration of this permit and potentially other permits under consideration is the definition of “driveway” versus an easement. A review of the Bro G permit application and the revised law raises serious questions regarding the aEGLEuacy of the application and scope of the new law.

The application improperly treats a driveway and an easement access road as the same thing. This is not the case. The statute clearly states that a driveway runs only “from a road or easement” to the principal building. It also states that the driveway must be “privately owned.” MCLA 324.35311a(3) states:

As used in this section, “driveway” means a privately owned, constructed, and maintained vehicular access from a road or easement serving the property to the principal building or accessory buildings, that is paved, graveled, or otherwise improved for vehicular access, 16 feet wide or narrower in the sole discretion of the applicant or owner, and may include, in the sole discretion of the applicant or owner, a shared driveway.

This reading of the statute is further reinforced by section (1)(a) which states the applicant should review other alternatives for a driveway which minimize impacts within “the lot of record.”

Why does it matter? Because the builders’ lobby made driveways essentially immune from EGLE oversight under the new law, permitting them “by right” if an engineer signs off on the proposal.

But an easement access road is not a driveway, and therefore all building activities other than a true driveway are subject to dune-friendly restrictions such as limitations on construction that would occur on steep slopes of ever-shifting sand. The access road as set forth in the application crosses slopes that would exceed the limits set forth in the statute without a variance or special exception (MCLA 324.35316).

The permit application also  fails to establish a legal basis for the easement on which the access road is proposed. The applicant states they are the sole owner of “all property on which the project is to be constructed.” This is clearly not true.

The map attached to the permit shows the access road slices through the entire township preserve. If the applicant had properly disclosed the township as the owner of the property over which the easement in question crossed, they would need authorization for the road from the township.

Finally, the application fails to request any special exception pursuant to MCLA 324.35317, and thus is incomplete. Such as provision would be required due to the steep slopes and 83 trees that could be bulldozed under this application.

This permit is an important test of the new law Michigan will have to use going forward. By our read, this application asks the state to step into the dangerous position of being the arbiter of disputes between different landowners regarding the nature of easements.

Easements are governed by property law and tend to be case-by-case situations controlled by the language of the easement and the circumstances under which it was granted. In many cases courts are called on to decide the nature of easements and the activities that are allowed to take place within them. Just because a party holds an easement does not give them an automatic right to pave the easement or make other alteration to the property owned by others.

In this case, the threat is to the integrity of a beautiful township dune sanctuary that has been carefully preserved and stewarded by thoughtful leaders, and which has been supported by public money from the Michigan Natural Resources Trust Fund.

Big Picture

The bigger picture question is whether we – as stewards of rare and globally significant freshwater dunes systems – are willing to allow the erosion of key laws that protect this unique Pure Michigan resource.

Of course a driveway on very steep slope will destabilize the already very active dunes! The permit assumes that no destabilization will occur despite plowing a road across very steep and shifting sand slopes and removing grass, shrubs and up to 83 trees. It’s ludicrous.

As one local realtor put it in an article in New Buffalo’s Harbor Country News, under the new law, “you do not have to concern yourself with all the ways a permit can be denied. A driveway can be constructed on any slopes using pretty much whatever the engineer decides to use” to minimize damage. Got that? The builders’ own engineer decides how to build a road through a public sanctuary. Not dune experts. Not state regulators. Not local governments. Not the public.

This permit application asks the EGLE staff to step into the role of elected judges make determinations regarding property rights between different owners. This is not the role of agency staff; they should instruct the applicant to resolve their difference (through negotiations or in the courts first) and then proceed with their permit application.