NORTHLAND PROPERTIES INC V DEPT OF ENVIRONMENTAL QUALITY
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STATE OF MICHIGAN
COURT OF APPEALS
NORTHLAND PROPERTIES, INC.,
UNPUBLISHED
November 16, 2010
Plaintiff-Appellee,
v
No. 291276
Cheboygan Circuit Court
LC No. 07-007790-AA
DEPARTMENT OF ENVIRONMENTAL
QUALITY,
Defendant-Appellant.
Before: WHITBECK, P.J., and SAWYER and BORRELLO, JJ.
SAWYER, J. (dissenting).
I respectfully dissent.
The circuit court did not err when it reversed the final determination and order in favor of
plaintiff. The circuit court properly found that defendant did not prove that important wetlands
would be lost. And, the circuit court properly found that there were no feasible and prudent
alternatives to the proposed project in the record.
In reviewing a lower court’s review of an agency decision, we need to determine whether
the circuit court “applied the correct legal principles and whether it misapprehended or grossly
misapplied the substantial evidence test” in reviewing the agency’s factual findings. Boyd v Civil
Serv Comm, 220 Mich App 226, 234; 559 NW2d 342 (1996); Dignan v Mich Pub Sch Employees
Retirement Bd, 253 Mich App 571, 575; 659 NW2d 629 (1996). This standard is the same as the
clearly erroneous standard, where a finding is clearly erroneous if the reviewing court is left with
a definite and firm conviction that a mistake has been made. Dignan, 253 Mich App at 575-576.
A review of the circuit court’s opinion reveals that, contrary to defendant’s argument, the
circuit court did not ignore the statutory criteria nor did it indicate that the only relevant factor is
the rarity of hardwood conifer swamps in Michigan. Rather, the circuit court’s opinion reflects
that it was aware of the statutory factors to be considered. The circuit court reached the
conclusion that defendant’s “primary objection to this proposed project appears to be the
resulting loss of 16 acres of forested wetland swamp.” After an extensive analysis of this issue,
the circuit court’s opinion then states that the “central issue to be decided in this appeal is
whether the finding that a conifer swamp is a resource providing unique values not found in the
majority of wetlands in the area and its destruction would eliminate important wetland diversity
is a finding that is arbitrary and capricious or in the alternative not supported by substantial
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evidence on the whole record.” The circuit court then reaches its ultimate conclusion that the
evidence did not support the final determination and order’s finding that “the destruction of the
16 acre conifer swamp would eliminate important wetland diversity . . . if the record established
that such wetlands were rare.”
The circuit court analyzed the same question that the final determination and order
analyzed: would the project eliminate important wetland diversity? The circuit court concluded
that in this particular case the final determination and order’s denial of the permit was premised
on a conclusion that the destruction of 16 acres of hardwood conifer swampland would eliminate
wetland diversity, and for that conclusion to be correct it would be necessary to conclude that
hardwood conifer swamps are rare in Michigan. And if that conclusion was erroneous, then so
was the denial of the permit. The circuit court essentially concluded that transforming 16 acres of
the conifer swamp into open wetlands when the evidence below established that there are
approximately 1.9 million acres of conifer swamp in Michigan (and over 50,000 acres in the
local area) could not support the conclusion that important wetland diversity would be
eliminated. I am not persuaded that the circuit court grossly misapplied the substantial evidence
test. Boyd, 220 Mich App at 234.
While it is unclear whether the circuit court actually reversed the final determination and
order on the issue of alternatives, it is clear that the circuit court was critical of the final
determination where it found that there were feasible and prudent alternatives to the proposed
project that were supported by competent, material and substantial evidence on the whole record.
The circuit court opined as follows:
One aspect of the statutory analysis that must be engaged in order to
determine whether or not to allow or deny a permit such as the one now at issue is
whether there are reasonable and prudent alternatives to the proposed project.
The Petitioner contends that the [final determination and order’s] conclusion that
all six proposed alternatives were feasible and prudent without any discussion was
arbitrary and capricious and as a conclusion not supported by substantial evidence
on the whole record.
The circuit court’s opinion then reviews the final determination and order’s conclusory
statements that the alternatives are feasible and prudent and it reviews the hearing officer’s
determination in the proposal for decision that none of the six alternatives are feasible and
prudent. The circuit court’s opinion then states:
The [final determination and order] simply rejects the four paged detailed
analysis of the six alternatives contained in the [proposal for decision] with the
statement “in light of this project purpose, I find that all six alternatives offered by
the LWMD [Land and Water Management Division] and discussed in the
[proposal for decision] are feasible and prudent.” While the experts had
disagreements over the feasibility and prudence of the various alternatives, it is
impossible to discern from the [final determination and order] what facts and
circumstances were relied upon to conclude that all six alternatives offered by the
LWMD were feasible and prudent.
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It is unclear whether the circuit court concluded (1) that, in light of its conclusion that the
final determination and order’s determination that important wetland diversity would be lost was
not supported by substantial evidence on the whole record, it was unnecessary to resolve the
issue of the final determination and order’s conclusions regarding the alternatives being prudent
and feasible or (2) that it was agreeing with plaintiff that the lack of any meaningful analysis by
the final determination and order established that its conclusion was arbitrary and capricious and
not supported by substantial evidence on the whole record. In either case, I am not persuaded
that the circuit court would have erred in such a conclusion.
I would affirm.
/s/ David H. Sawyer
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