SUZANNE HALL V CHARTER TWP OF WEST BLOOMFIELD
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STATE OF MICHIGAN
COURT OF APPEALS
SUZANNE HALL, BERT HALL, FRANK
MAFRICE, JANICE MAFRICE, MICHAEL
SEIDMAN, M.D., and LYNN SEIDMAN,
UNPUBLISHED
December 23, 2008
Plaintiffs-Appellees,
v
No. 279793
Oakland Circuit Court
LC No. 2006-079606-AS
CHARTER TOWNSHIP OF WEST
BLOOMFIELD,
Defendant-Appellant.
Before: Servitto, P.J., Owens and Kelly, JJ.
PER CURIAM.
Defendant appeals by leave granted the trial court’s order reversing defendant’s
administrative decision to deny plaintiffs’ permit application. We reverse.
I. Basic Facts and Procedural Background
Plaintiffs own adjacent lakefront property on Walnut Lake. According to the Michigan
Department of Environmental Quality (MDEQ):
Walnut Lake contains native lake whitefish. The presence of this species
is fairly rare and it is not known to be present in any other southern Michigan
inland lake. A major concern with respect to the dredging project is the need by
lake whitefish not only for large, shallow areas to spawn in, but the fact that their
main food source is chronomid larvae [known as midges] that are produced
primarily in the shallow areas of the lake. Walnut Lake is rather unusual in that
there are limited amounts of large shallow areas present in the lake. While most
lakes have from 40-75% of their area comprised of shallow areas less than 5 feet
deep, there is only about 20% of Walnut Lake in this depth range.
Shallow water habitat is also the primary area for production of aquatic insects and is utilized by
a number of different wildlife species for feeding and nesting. Northern pike and yellow perch
that inhabit the lake also require vegetated shallow areas for spawning and feeding. The section
of Walnut Lake in front of plaintiffs’ properties is shallow, approximately two feet deep, and
plaintiffs allegedly have difficulty maneuvering and docking their boats.
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In 2001 plaintiffs initiated plans to dredge the area in front of their properties. In order to
create a deeper channel, plaintiffs applied for dredging permits from both the MDEQ and
defendant in August of 2003. Plaintiffs’ application before defendant was denied without
prejudice after plaintiffs requested their application to be tabled several times. Plaintiffs
appealed this decision in July 2004, but withdrew their application pending the outcome of the
MDEQ’s decision regarding plaintiffs’ application for a state permit.
The MDEQ initially denied plaintiffs’ application in November 2004 concluding
dredging would have significant adverse impact on the wildlife habitat of Walnut Lake and
would set a harmful precedent that would allow subsequent dredging in other shallow areas. The
MDEQ also noted that their inspection revealed that plaintiffs could successfully dock and moor
their boats, as well as reach deep water, under the present conditions, and that other feasible
alternatives were available. Plaintiffs then revised their dredging plans, such that the area of
impact was smaller. Under the revised plan, plaintiffs would dredge 383 cubic yards of sediment
within a .16-acre area. The MDEQ approved the revised plan in February 2006. After obtaining
this permit, plaintiffs reinstituted their request for a permit from defendant.
On September 13, 2006, the defendant’s Wetland Review Board (WRB) considered
plaintiffs’ renewed request for a dredging permit. At the meeting, defendant’s environmental
consultant, Dr. Steven Niswander, who had previously provided the WRB with a letter
summarizing his findings and conclusions, commented that the dredging could result in
increased predation of whitefish and could adversely impact the whitefish’s food source. Dr.
Niswander indicated that the area is critical to the lake because it is one of only two areas
suitable for whitefish to spawn in, as well as perch and northern pike, and is also critical to all
these fishes’ food sources. Viewing the lake as a whole, the proposed dredging to this area could
have, in Dr. Niswander’s view, a significant impact on the lake’s overall aquatic habitat and
would not improve the lake in any manner whatsoever. Dr. Niswander also noted that plaintiffs
can get in and out of the docking area under current conditions and that the community dock near
plaintiffs’ properties serves as an alternative for temporary use.
Counsel for plaintiffs countered Dr. Niswander’s comments, stating that there had been
no evidence of whitefish in Walnut Lake in a very long time and that the population, if any,
would not be adversely impacted. Plaintiffs’ counsel also indicated that extending the plaintiffs’
docks was not a feasible alternative and that the nearby marina is private and not for public use.
These assertions were not supported by any evidence. While plaintiffs did present to the WRB a
report from their own environmental consultant, plaintiffs did not present this report until the
meeting with the WRB was well underway. Thus, the WRB did not have a chance to review it
before making their decision at the meeting. Plaintiffs’ consultant did not appear before the
WRB. Various residents also commented at the meeting and expressed that plaintiffs’ permit
application should be denied in order to protect the lake and prevent improper precedent.
Several residents also indicated that they had seen whitefish in the lake.
At the close of the meeting, the WRB denied plaintiffs’ permit request based on the
following:
1) Dr. Niswander has stated the reasons regarding the negative impact of the
fisheries and vegetation [sic] have been insufficiently rebutted by the Petitioner;
2) Dr. Niswander has indicated the proposed project will have a significant
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adverse impact to the aquatic environment of the lake; and 3) there are feasible
and prudent alternatives; 4) the West Bloomfield Wetland Review Board can be
more protective that the MDEQ and the efforts made by the MDEQ is not known
to this Board; 5) the feasible alternatives available to the Petitioner include
utilizing an existing marine facilities [sic] on the lake such as one facility located
adjacent to the west of the subject property; continued ingress/egress through the
area as presently exists, and extending the existing seasonal docks to deeper
water; 6) this denial will not deny the Petition user of the lake; and 7) as indicated
by Dr. Niswander, if the Petitioner proceeds with this proposal to dredge the lake,
there would be a high probability of detriment to the lake in terms of species
quality and quantity. [Emphasis in original.]
Plaintiffs appealed this decision to the West Bloomfield Township Board, which affirmed
the WRB’s decision finding that the WRB did not abuse its discretion and reasonable alternatives
are available to plaintiffs. Plaintiffs appealed this decision to the trial court arguing that
defendant’s decision was contrary to the laws and Constitution of this state, arbitrary and
capricious, and not supported by substantial evidence. The trial court reversed defendant’s
decision. This appeal followed.
II. Standard of Review
“On direct review of an administrative decision, a trial court must determine whether the
[decision] was authorized by law and whether [it] was supported by competent, material and
substantial evidence on the whole record.” Mantei v Michigan Pub School Employees
Retirement Sys, 256 Mich App 64, 71; 663 NW2d 486 (2003); Const 1963, art 6, § 28
“Substantial evidence is any evidence that reasonable minds would accept as adequate to support
the decision; it is more than a mere scintilla of evidence but may be less than a preponderance of
the evidence.” Mantei, supra at 71. The trial court “may not substitute its judgment for that of
an administrative agency if substantial evidence supports the agency’s decision.” Glennon v
State Employees’ Retirement Bd, 259 Mich App 476, 478-479; 674 NW2d 728 (2003). Further,
“[the trial court] should accord due deference to administrative expertise and not invade
administrative fact finding by displacing an agency’s choice between two reasonably differing
views.” Dignan v Michigan Pub School Employees Retirement Bd, 253 Mich App 571, 576; 659
NW2d 629 (2002). Our review of the trial court’s decision is “limited to a determination
whether the lower court applied correct legal principles and whether it misapprehended or
grossly misapplied the substantial evidence test to the agency’s factual findings.” Mantei, supra
at 71 (internal quotations and citation omitted). This review is synonymous with the clear error
standard of review. Id. at 71-72. “We will overturn the [trial] court’s decision only if we are left
with the definite and firm conviction that a mistake has been committed.” Glennon, supra at
478; Mantei, supra at 72.
III. Analysis
Defendant argues that the trial court erred in reversing defendant’s denial of plaintiffs’
dredging permit because the court failed to properly apply the substantial evidence standard,
substituted its judgment for the Township’s, and failed to give due deference to the Township’s
discretionary decisions. We agree.
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West Bloomfield Township Code of Ordinances, art V, § 12-91(b)(3) and (4) authorizes
defendant to require plaintiffs to obtain a dredging permit. Subsection (c) provides criteria for
determining whether a permit should be granted:
(c) Criteria for use permit. In reviewing any application for a use permit
under subsection (b) above, criteria such as the following shall be
considered.
(1) The water quality, including filtering action;
(2) The fish and other wildlife, including their habitats;
(3) The probable impact if the use is permitted upon adjoining wetland or
drainage areas and the cumulative effect of similar proposals on the
watershed and water table;
(4) The economic value, both public and private, of the proposed change
to the general area;
(5) The land use for which the property is zoned or planned;
(6) The recreational impact;
(7) The feasibility of alternatives;
(8) The size of the wetland where the use is proposed; and
(9) The remaining storage capacity is adequate to control a 100-year
flood.
In reversing the denial of plaintiffs’ request for the dredging permit, the trial court
implicitly acknowledged that defendant’s decision was authorized under this ordinance.
However, it ignored the findings announced at the September 13th meeting that formed the basis
of defendant’s decision and instead relied upon the MDEQ permit as evidence that dredging
pursuant to the permit’s specifications would sufficiently maintain the lake’s habitat. The trial
court stated:
Nowhere in this record is there evidence that the remaining forty-two acres [of the
lake not including the subject three acres] or seven-acres [of the lake containing
vegetation not including the three subject acres] will not suffice, though there is
evidence via the MDEQ permit that the forty-two acres or seven acres will
suffice. Dr. Niswander’s letter provides conclusions that it will not suffice,
however, it is [absent] of premises supporting the conclusions.
The trial court then concluded that defendant’s decision, although supported by competent and
material evidence, was not supported by substantial evidence.
We find that this reasoning contains several instances of clear error. First, under the
substantial evidence standard, the trial court is to review the entire record upon which the
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decision was made, Mantei, supra at 71, and the court failed to do so. Had the court applied the
proper scope of review, it would have been clear that there was evidence adequate to support the
decision to deny the permit. Id. At the September 13th meeting, Dr. Niswander indicated that
any disruption to the subject area could have a significant adverse impact on the lake’s overall
aquatic habitat, including decreasing the fish population, and that it would not improve the lake
in any manner whatsoever. In denying the request, the WRB also considered the existence of
reasonable alternatives for plaintiffs, including extension of plaintiffs’ docks, use of an adjacent
marina, and continued ingress and egress under the status quo. Substantial evidence must be
more than a scintilla but need not be more than a preponderance of evidence. Id. Thus, contrary
to the trial court’s ultimate conclusion and plaintiffs’ argument on appeal, our review of the
record shows that substantial evidence supported defendant’s decision to deny the permit.
Second, the trial court’s apparently exclusive reliance on the permit issued by the MDEQ
as evidence that the dredging under the permit would sufficiently maintain Walnut Lake’s
aquatic habitat is misplaced. If substantial evidence supports defendant’s decision, a trial court
may not substitute its judgment for defendant’s judgment. Glennon, supra at 478-479. Further,
the trial court’s role in reviewing an administrative decision is limited to ensuring that the
decision is supported by record evidence. Mantei, supra at 71. The court is not to reach its own
factual conclusions or subject the record evidence to de novo consideration. In re Complaint of
Rovas, 482 Mich 90, 101; 754 NW2d 259 (2008). Here, defendant did not rely upon the
MDEQ’s permit in making its decision under the ordinance, but the trial court did. By
improperly reaching its own factual conclusions based on the permit, the trial court, in essence,
conducted a de novo review. Id.
Plaintiffs, however, argue that the evidence upon which defendant relied was “factually
and scientifically unsound.” We cannot agree. Plaintiffs contend that defendant relied on
unsound findings because Dr. Niswander never confirmed that whitefish existed in the lake.
Plaintiffs, however, ignore other record evidence indicating the contrary: several Walnut Lake
residents indicated that they had seen evidence of whitefish in the lake. Dr. Niswander also
indicated that he relied on a state study completed around 1900, including follow-up studies
conducted by the Department of Natural Resources documenting the existence of whitefish in the
lake, as well as the MDEQ’s initial permit denial letter, which also indicated the fish’s existence
in the lake. Thus, it was not improper for defendant to rely upon this evidence. In addition,
plaintiffs point to a report from defendant’s previous environmental consultant that indicated that
limited dredging was reasonable, but not necessary. Although this evidence tends to support
plaintiffs’ position, even assuming that this report reasonably supports granting the permit,
“[g]reat deference should be given to an agency’s choice between . . . reasonabl[ly] differing
views . . . .” In re Kurzyniec Estate, 207 Mich App 531, 537; 526 NW2d 191 (1994). For these
reasons, plaintiffs’ arguments fail.
Our review of the record shows that the trial court misapplied the substantial evidence
test to defendant’s factual findings, that the defendant’s decision to deny plaintiffs’ application
under the ordinance was supported by competent, material and substantial evidence, and, further
that the trial court improperly substituted its own judgment for that of the defendant.
Accordingly, we reverse the trial court’s decision and reinstate defendant’s decision denying
plaintiffs’ application for a dredging permit.
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Reversed.
/s/ Deborah A. Servitto
/s/ Donald S. Owens
/s/ Kirsten Frank Kelly
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