Irish v. Green

No. 162-3 (Mich. Cir. Ct. July 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

[2 ELR 20506]

Miller, J.

This of course is a proceeding in the nature of a bill in equity filed under Act 127 of the Public Acts of 1970, commonly known as the Environmental Protection Act, M.C.L.A. 691.1201 etseq., M.S.A. 14.528 (201 et seq.), for declaratory and equitable relief for protection of the air, water and other natural resources and the public trust therein, pertaining here to a large residential housing project proposed for West Traverse Township, Emmet County, Michigan.

The project has been described by the president of the corporate developer defendant as including 745 residential units on twelve hundred acres, more or less, approximately three miles north of Harbor Springs and near the mouth of Little Traverse Bay as it opens into Lake Michigan.

The area is probably the choice vacation land in a state comprising many fine vacation areas.

The developer secured approval of the local and state authorities for its Plat No. 1 containing a hundred and some lots. These authorities generally have been made defendants in the proceeding but, except for the various departments of the state, have not participated in the trial. The Attorney General of Michigan has defended the proceedings in behalf of the departments.

At the time of filing this proceeding the developer defendant had procured all but the final approval of Plat No. 1, and the Court on the temporary hearing held May 1st and 2nd, 1972, permitted the defendant Department of Treasury to grant such approval. The court conditioned the easing of the restraining order upon the deposit by the defendant developer of fifteen percent of sales proceeds for use as an escrow for utilities if finally ordered.

The final approval of Plat No. 1 was granted May 22, 1972, and is Exhibit F in these proceedings. The entire project is shown by a topographical map marked in evidence several times, with different notations thereon, as Exhibits 2, 12, J and N.

The local and state authorities reviewed Plat No. 1 and approved it, considering at the same time the over-all project, but without final approval of the subsequent filings.

The project was challenged initially on four grounds, two of which were dismissed at earlier stages.

One ground was that an Environmental Impact Statement was required prior to plat approval, and request was made for remand to the appropriate administrative agencies for hearing. This Court ruled that a remand was without merit as the Court would ultimately be required to make the decision in any event. Furthermore, the Court ruled as a matter of law that the Executive Orders apply only to state actions per se and not to state agency approval of private action. Thus Count III of the complaint was dismissed.

Another count of the complaint dealt with the assertion that defendant developer should proceed with a "cluster" types development. The Court sustained objections to this evidence and it was taken only on a separate record. At the close of the plaintiffs' proofs the motion to dismiss this Count II was granted for failure to state a cause of action. The defendant developer's project either violates the act or does not. Plaintiffs have no right to invade property rights to the extent of dictating alternative developments which may or may not have market appeal.

This leaves two counts and three complex legal and factual issues to be resolved.

As noted above, in addition to two full days of testimony at the time of the temporary hearing, which testimony was by stipulation incorporated as part of the trial, and in addition to five depositions which were received in evidence and read by the Court, five full (9:00 a.m. to 6:00 p.m. more or less) days of testimony were taken from outstanding authorities in the fields of civil engineering, epidemiology, traffic, geology, hydro-geology, microbiology, hydraulics and architecture. The collection of Ph.D.'s and full professors befit the novelty of the issues and the importance of the litigation to all parties in interest. Furthermore, the Court in the company of the deputy attorney general, the attorneys for the plaintiffs and intervening plaintiffs and the defendants, and two engineers, spent two hours viewing the area, the access road, the roads, seeps, springs, and the subdivision itself.

Plaintiffs believe they are fighting for preservation of a way of life and for an ecology milestone. Defendant developers have committed one million dollars in land costs and expended $216,000 in addition, at least that at the time of the temporary hearing, for development. Payments on the land contracts are in the amount of $75,000 per annum.

The remaining challenges of the plaintiffs, as mentioned above, to the project might be summarized as follows:

First, Water Pollution: The size of the project and its proximity (eight hundred feet to a bluff and one-quarter mile from Lake Michigan) threaten to pollute springs and seeps along said bluff and Lake Michigan itself by the projected use of individual or onsite septic tank systems on such a large scale. Further, that projected individual wells unless installed at great depth will also be threatened by said density of on-site sewage disposal.

Secondly, Scenic Road: The size of the project with only one outlet, that on M-131, threatens the destruction of a section of scenic roadway running from Harbor Springs to Cross Village. The increased usage will require improvement which generally includes widening with removal of many unique trees presently along or on the right of way. Whether removed or not, the increased exhaust fumes would be detrimental to said trees.

Thirdly, Soil Erosion: That the grades in the project, and particularly in Plat No. 1, are so steep as to cause extensive bulldozing for site preparation with resultant increase in amount and rate of movement of surface water and soil erosion within the subdivision.

The statute provides that when the plaintiffs has made a prima facie case the defendants may rebut the same. The statute goes on to state: "The defendant may also show by way of an affirmative defense that there is no feasible and prudent alternative to defendant's conduct." Section 3(1).

The defendant did not choose to plead or proffer evidence on the alternative. The issue then as interpreted by the Court is whether plaintiffs have established by a preponderance of the evidence that, reading from the statute: "the conduct of the defendant has or is likely to pollute, impair or destroy the air, water or other natural resources or the public trust therein." Section 3(1).

If so, the statute gives the Court certain alternatives. Reading from the statute: "The Court may grant temporary and permanent equitable relief, or may impose conditions on the defendant that are required to protect the air, water and other natural resources or the public trust therein from pollution, impairment or destruction." Section 4(1).

The Court makes the following findings of fact:

(1) That certain seeps and springs emerge at the foot of the [2 ELR 20507] bluff along Lower Shore Drive which come from surface and perched ground water from the lands of defendant developer, it being established that the flow of surface and perched water runs from the northeast to the southwest in the area of Plat No. 1.

(2) That these seeps and springs already contain pollutants in the nature of bacteria, phosphates and nitrates, and which are in increasing amount as one proceeds southeasterly along the bluff and closer to the present Birchwood Lodge and horse barns.

(3) That the water seepage is unusually fast in this area, probably upwards of three feet per day. The figures of the geologist worked up to seven, but he reduced it because he could scarcely believe the speed. So that for some defect this seepage seems to be beyond that which normally exists.

(4) That normally fifty feet horizontal separation and six feet vertical separation is sufficient between septic systems and well-water lines.

(5) That all authorities agreed that it would be unsafe to permit use of the perched water, less than 100-feet wells, if septic tanks were to be used on the scale here anticipated, and the high porosity of the upper soils. There is some question as to whether that was fully understood at the time of the filing of the Department of Health, since the exhibit which is attached to the Baar deposition indicates that the wells might be as low as 100 feet, whereas now it would appear that the wells would have to be 125 to 300 feet.

The soil strata generally existing below the project consists first of a thick layer of sandy soil that is excellent for septic tank and tile field operation; below that a thick layer or lens of clay that is impervious to water and suspends or perches water on its surface; that below this lies a thick layer of sand, gravel, and discontinuous clay, which are referred to as the regional aquifer and bear the regional water table, reaching to bedrock. The latter is at about 650 feet mean sea level or approximately 300 feet below the average surface of the project, and compares with the 570 to 580 mean sea level for Lake Michigan itself. This regional water table merges with Lake Michigan eventually.

(6) That wells of 125 to 300 feet would be necessary to reach the regional water table and that no other individual well depths could be safe in the light of the density of the septic tanks contemplated, the porosity of the upper soils, the thickness of the clay lens running under the project.

(7) That the cost per site of a septic system would be from $800 to $1,600, depending upon the degree of the slope and the arrangement of the field tile in the particular lot and the necessity for staging.

(8) That the cost per site of a central system would be approximately $2,400 including the construction of the treatment facility, but not including the immediate cost of maintenance of the treatment facility.

(9) That the cost of on-site wells of the depth required to reach the regional water table would be $3,000 on the average, or in excess of the cost of a central water system per lot.

(10) That the market for these lots — that is, the golfing, riding, hiking, recreation, retirement market — is such that while sales will be substantially completed in five years, actually building on the lots will generally be upwards of ten years hence when the purchaser retires.

(11) That immediate installation of central facilities would not be economically feasible when "build-out" is ten to thirty years in the future.

Defendant developer's engineer, Mr. Williams of Williams and Works, testified that he would not recommend central sewage at this time, but that his opinion would change if it were forty percent or more built up.

Witness Baar of the Michigan Department of Public Health testified that it had been warranted to him that future projects would be required to have a central water supply.

(12) That the present M-131 is deficient from the viewpoint of "safety", "base" and "surface", which are tests of the Michigan Department of Public Highways, and is acceptable only because of the low usage or capacity, which gives it a passing grade therein.

(13) That any substantial increase of volume would change this capacity rating and cause the road to be deficient in all areas of rating. That it has been established that the trips per day from the increased usage would be at least five and that the burden would at least be doubled by the project of developer on "build-out".

(14) That said roadway is a scenic roadway with unique trees, curves and views so as to constitute and cause it to have esthetic values.

(15) That trees per se are natural resources.

(16) That the volume of traffic generated by defendant developer if all channeled over M-131 will destroy the scenic quality directly and indirectly; directly by noise and exhaust fumes which injure trees; indirectly if and when widening occurs to correct the capacity deficiency. This is true whether or not the trees are within the roadway or outside of the roadway, since there is a public trust in each.

(17) That the bulldozing of the prevailing steep slopes in the project is likely to cause erosion and enhancement of the quantity and speed rate of surface water flow once vegetation cover has been removed.

The Court makes the following conclusions of law:

(1) That the Court finds the statute is constitutional when interpreted as it has been here by the Court as follows:

(a) That "likely" means a reasonably proximate cause or result bearing a reasonable relationship to the public health, safety and welfare. This is consistent with the interpretation found at 25 Words and Phrases, page 470. The word "likely" means probably or reasonably to be expected. And in Verhelle vs. State Banking Commission, 347 Michigan 612, the term "likelihood of success" means a probability of success. That is on page 619. I don't know about success or failure, but we have the likely or probable phase thereof.

(b) That the conditions that the Court may impose must likewise bear the relationships mentioned above.

(2) That the plaintiffs have established by a preponderance of the evidence that pollution of the water is likely to occur and will have an adverse impact within the meaning of the statute as a result of the defendant developer's project, and

(3) That plaintiffs have likewise established the impairment or destruction of a scenic roadway and the trees thereon on M-131 between Harbor Springs and the project.

(4) That plaintiffs have likewise established that erosion within the project is likely to be caused by the defendant developer's project with additional surface water consequences to the public health and safety and welfare.

The Court therefore under the statutory authority imposes the following conditions upon the project:

(1) That no more than forty percent of the lots in Plat No. 1 and no lots in as yet unplatted areas of the project should be built upon unless and until central water and sewer are provided, and that appropriate escrow deposits be established to ensure that funds will be available to begin these projects in accordance with the rate and the amount and on the procedures established by the temporary order of this Court.

(2) That an improved access road from Plat No. 1 be opened upon Middle Road as well as upon M-131 to divide the traffic burden.

(3) That appropriate sodding and other surface water dams, reservoirs and other devices be provided to restrain the flow of surface water within the subdivision.

These conditions are meant to be general in nature and may be implemented or altered by more specific proposals which may be substituted by the parties upon appropriate notice. In the absence thereof a judgment may be presented in accordance with the above.

Since both parties have prevailed in part no costs will be taxed, and it being a substantial public question.

The exhibits will be retained by the Court pending the appeal time, and then may be recovered by the parties upon the making of an appropriate receipt therefor.