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Irish v. Green

Citation: 2 ELR 20505
No. No. 162-3, 4 ERC 1402/(Mich. Cir. Ct., 07/15/1972)

A developer of a proposed housing project must undertake certain actions ordered by the court under the Michigan Environmental Protection Act in order to preserve the environmental amenities of the area. The Act is constitutional when the phrase "likely to pollute, impair or destroy . . ." is interpreted to mean a reasonably proximate cause or result bearing a reasonable relationship to public health, safety and welfare. Under the Act, absent any affirmative defense as to alternatives, the plaintiff prevails on a preponderance of the evidence that the defendant's conduct is likely to damage the environment or the public trust therein. The court finds that (1) trees are natural resources per se in which there is a public trust; (2) the defendant must prevent water pollution into wells from septic tanks by building no more than 40% of the projected homes and then constructing a central water system (to insure that this will happen, funds must be deposited in escrow; (3) a scenic roadway must be protected from noise damage and exhaust fume damage by building improved access roads; and (4) precautions must be taken to prevent surface erosion. As a matter of law, no Environmental Impact Statement is required when the state's only action is to approve a private action.

Counsel for Plaintiffs
George E. Snyder
Buesser Buesser, Snyder & Blank
4155 Penobscot Building
Detroit, Michigan 48226

Peter W. Steketee
Vander Veen, Feihofer & Cook
950 Union Bank Building
Grand Rapids, Michigan 49502

Seberon Litzenburger
Washburne & Litizenburger
200 Park Avenue
Petoskey, Michigan 49770

Counsel for Defendant
Paul W. Brown
Barbara B. MacKenzie
Nathaniel W. Stroup
Clark, Stroup, Brown & MacKenzie
First National Bank Building
Petoskey, Michigan 49770

Counsel for State
Milton I. Firestone Assistant Attorney General
Lansing, Michigan 48933