Port Sheldon Beach Association v. Dept of Environmental Quality

STATE OF MICHIGAN

COURT OF APPEALS

PORT SHELDON BEACH ASSOCIATION, FOR PUBLICATION

December 13, 2016

Plaintiff-Appellant, 9:10 a.m.

v No. 328483

Court of Claims

DEPARTMENT OF ENVIRONMENTAL LC No. 14-000288-MZ

QUALITY,

Defendant-Appellee.

Before: M. J. KELLY, P.J., and O’CONNELL and BECKERING, JJ.

PER CURIAM.

In this case involving the boundary of a critical dune area, plaintiff Port Sheldon Beach

Association (the Association) appeals as of right from a Court of Claims order granting summary

disposition in favor of defendant Department of Environmental Quality under MCR 2.116

(C)(10) (no genuine issue of material fact) and (I)(2) (opposing party entitled to judgment). For

the reasons stated in this opinion, we affirm.

I. BASIC FACTS

The Association is a nonprofit corporation organized and operated as a summer resort

and park association pursuant to MCL 455.1, et seq. Located in Port Sheldon Township, the

Association owns three undeveloped beach parcels between the developed, residential portion of

its resort and the shore of Lake Michigan. The western border of the Association’s properties is

on Lake Michigan. All three of the Association’s parcels bordering Lake Michigan are

undisputedly subject to the Sand Dune Protection and Management Act (SDPMA), MCL

324.35301 et seq.

The SDPMA was enacted in 1976 in order to regulate sand dune mining in designated

sand dune areas near the Great Lakes shoreline. 1976 PA 222; MCL 281.651 to MCL 281.664,

recodified at MCL 324.63701 to MCL 324.63714.1 Relevant to this appeal, the SDPMA

1

The Legislature amended the original SDPMA in 1989 to regulate other activities within the

sand dune areas (in addition to mining). 1989 PA 146 and 147. Further amendments to the

SDPMA occurred in 1994. 1994 PA 135. That same year, all environmental protection acts,

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provides that certain areas of Michigan were critical dune areas (CDAs). The Act defines the

term CDA as “a geographic area designated in the ‘atlas of critical dune areas’ dated February

1989 . . . .” MCL 324.35301(c). The 1989 Atlas of Critical Dune Areas (the 1989 Atlas) is

essentially a collection of maps, organized by township, with each map showing the location of

the CDAs for that township. At issue in this case is the CDA located in Port Sheldon Township,

which is shown on the Port Sheldon Township map in the 1989 Atlas.2 According to the

Association, since 1989 the shoreline of Lake Michigan has moved considerably further out to

the west, by at least 150 feet, and the change in the shoreline is not from reliction (recession of

water) but from the beach growing by accretion.3 The Association wanted to remove dune grass

and groom a portion of its property, but was advised by the DEQ that it could not do so because

the area was within the CDA.

In December 2014, the Association filed the instant suit. The parties moved for summary

disposition. The Association argued that the western boundary, i.e., the lakeward boundary, of

the CDA was fixed, and thus the new sand that had accreted to the west of that fixed boundary

was not subject to the SDPMA because it was not part of the CDA. The DEQ argued that the

CDA boundary extends to the shore of Lake Michigan and, as a result, the “new” accreted land

in the gap between the “old” shoreline in the 1989 Atlas and the current shoreline of Lake

Michigan is subject to the SDPMA.

including the SDPMA, were recodified into the Natural Resources and Environmental Protection

Act (NREPA), MCL 324.101 et seq. 1994 PA 451, as amended. The recodification resulted in

the bifurcation of the SDPMA, with the provisions concerning the regulation of these new

activities becoming Part 353, Sand Dunes Protection and Management, MCL 324.35301 et seq.,

and the provisions concerning the regulation of mining becoming Part 637, the Sand Dune

Mining Act, MCL 324.63701 et seq.

2

An index of the maps contained in the 1989 Atlas is available online.

<https://www.michigan.gov/deq/0,4561,7-135-3311_4114_4236-70207--,00.html> (accessed

December 2, 2016). There is also a statewide map showing the distribution of all the CDAs.

<https://www.michigan.gov/documents/deq/lwm_sanddunes_statewide_CDA_262858_7.pdf>

(accessed December 2, 2016). The Port Sheldon Township map can be viewed online.

<https://www.michigan.gov/documents/deq/sanddunes_port_sheldon_twp_262823_7.pdf>

(accessed December 2, 2016). The lines encompassing the CDAs in the 1989 Atlas were hand

drawn on Michigan Resource Information System base maps.

<http://www.mcgi.state.mi.us/mgdl/Critical_Dunes/metadata/critical_dune.htm> (accessed

December 2, 2016).

3

The Association asserts that the accretion was caused by jetties that were built in the mid-1960s

that start at the mouth of the Pigeon Lake channel and extend out into Lake Michigan. As sand

drifts along the shoreline it becomes trapped by the jetties and accumulates. Regardless of

whether the accretion was caused by jetties or for some other reason, it is undisputed that the

shoreline has been extended since the 1989 Atlas was incorporated into the SDPMA.

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The Court of Claims granted summary disposition in the DEQ’s favor, reasoning as

follows:

This Court agrees with [the DEQ’s] interpretation of the atlas as

incorporated into MCL 324.3530l(c); the Court is not persuaded that the atlas

designated a CDA with a fixed western edge on the shoreline. The map is drawn

to show that the area designated by the atlas as CDA extends to the water’s edge.

The edge of the CDA as depicted appears like a meander line along the lake.

“When a plat shows a lot is bounded by the meander line of a lake, the grant of

land is to the water’s edge.” Mumaugh v McCarley, 219 Mich App 641, 649; 558

NW2d 433 (1996), citing Gregory v LaFaive, 172 Mich App 354, 361; 431

NW2d 511 (1988). In a similar way, where the atlas used a meander line with

respect to the CDA, the designated CDA extends to the water’s edge, even as the

waterline fluctuates.

The Association filed a motion for reconsideration, which was denied. This appeal follows.

II. BOUNDARY OF THE CRITICAL DUNE AREA

A. STANDARD OF REVIEW

The Association argues that the lower court erred in granting summary disposition in

favor of the DEQ. A trial court’s decision whether to grant a motion for summary disposition is

reviewed de novo, Brown v Brown, 478 Mich 545, 551; 739 NW2d 313 (2007), as is the proper

interpretation of a statute is a question of law that this Court reviews de novo, Burleson v Dep’t

of Environmental Quality, 292 Mich App 544, 548; 808 NW2d 792 (2011). Although an agency

interpretation of a statute is not binding on this Court, “the construction given to a statute by

those charged with the duty of executing it is always entitled to the most respectful consideration

and ought not to be overruled without cogent reasons.” Id. (citation omitted).

B. ANALYSIS

The issue is whether the western border of the CDA as depicted on the Port Sheldon

Township map is a fixed boundary line or a meander line.4 Resolution of the issue requires us to

interpret the SDPMA and more specifically, the Port Sheldon Township map that is incorporated

into the statute by virtue of its inclusion in the 1989 Atlas. A meander line does not constitute a

boundary line. It is an artificial line to describe the “meandering” course of a body of water

(typically a river or stream, but also a lake’s shoreline), and it indicates that the boundary is the

water’s edge. See Farabaugh v Rhode, 305 Mich 234, 242; 9 NW2d 562 (1943) (“[T]he

meander line of Lake Michigan is a line of description and not one of boundary . . . .”); See Hilt

4

Although cases discussing meander lines typically do so in relation to a property conveyance to

determine whether the property conveyed has riparian rights, it is equally applicable in this case

where a survey of the dunes was performed and the relevant map shows Lake Michigan to be

one of the boundaries.

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v Weber, 252 Mich 198, 208-209; 233 NW 159 (1930). If a surveyor does not use a meander

line, the boundary line is fixed and constant. See Black’s Law Dictionary (9th ed), p 1069

(defining “meander line”). Thus, if the western line of the CDA as depicted on the Port Sheldon

Township map is a meander line, then the water’s edge of Lake Michigan is the true western

boundary of the CDA. Porter v Selleck, 236 Mich 655, 661; 211 NW 261 (1926) (citation

omitted) (“It has been decided again and again that the meander line is not a boundary, but that

the body of water whose margin is meandered is the true boundary.”). Conversely, if the line is a

fixed boundary line, then the strip of land between the line depicted on the Port Sheldon

Township map and the water’s edge is not part of the CDA and is accordingly not subject to the

SDPMA.

The primary goal of statutory interpretation is to identify and give effect to the intent of

the Legislature. Booker v Shannon, 285 Mich App 573, 575; 776 NW2d 411 (2009) (citation

omitted). We first look to the specific language of the statute in determining the intent of the

Legislature. People v Droog, 282 Mich App 68, 70; 761 NW2d 822 (2009). In this case, the

statutory language is silent with regard to whether the western border on the Port Sheldon

Township map is meant to be a fixed boundary or whether it is meant to be treated as a meander

line. However, the Legislature incorporated the 1989 Atlas into the statute, and the statute

contains a map depicting the boundary lines for the CDA at issue in this case. “When

interpreting deeds and plats, Michigan courts seek to effectuate the intent of those who created

them.” Tomecek v Bavas, 482 Mich 484, 490-491; 759 NW2d 178 (2008) (opinion by KELLY, J).

“It is a well-established rule of statutory construction that provisions of a statute must be

construed in light of the other provisions of the statute to carry out the apparent purpose of the

Legislature.” Farrington v Total Petroleum, Inc, 442 Mich 201, 209; 501 NW2d 76 (1993).

Further, “[t]he changes in an act must be construed in light of the act’s predecessor statutes and

the law’s historical development.” Huron Behavioral Health v Dep’t of Community Health, 293

Mich App 491, 498; 813 NW2d 763 (2011).

Review of the maps contained in the 1989 Atlas shows three situations. First, like the

Port Sheldon Township map, the overwhelming majority of the township maps show that the

lakeward line is precisely the same as the shoreline of the bordering Great Lake. Second, for a

number of township maps, there is some land between the boundary line between the CDA and

the shoreline of the bordering Great Lake.5 Finally, in a few townships, the lakeward boundary

5

See the maps for Wawatam Township, Bay Mills Township, Bear Creek and Little Traverse

Townships, and Leelanau Township maps:

<https://www.michigan.gov/documents/deq/lwm_sanddunes_wawatam_twp_262871_7.pdf>

(accessed December 2, 2016); <

https://www.michigan.gov/documents/deq/sanddunes_bay_mills_twp_262180_7.pdf> (accessed

December 2, 2016);

<https://www.michigan.gov/documents/deq/lwm_sanddunes_bear_creek_little_traverse_twp_26

2188_7.pdf> (accessed December 2, 2016);

<https://www.michigan.gov/documents/deq/lwm_sanddunes_leelanau_twp_C_267489_7.pdf>

(accessed December 2, 2016).

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line extends beyond the shoreline and slightly into the water of the bordering Great Lake.6 From

this, it is plain that the Legislature expressly intended that in particular instances, the CDAs

would not extend to the water’s edge, whereas in other situations the CDA was intended to be on

the water’s edge or beyond the water’s edge. Given that the map in this case unambiguously

shows that the lakeward boundary extends to the water’s edge, it is plain that the Legislature did

not intend the lakeward boundary line to be fixed, but instead intended it to be at the water’s

edge as depicted. See St Clair Co v Lovingston, 90 US 46, 63; 23 L Ed 59 (1874) (“Where a

survey and patent show a river to be one of the boundaries of the tract, it is a legal deduction that

there is no vacant land left for appropriation between the river and the river boundary of such

tract.”).

The Association makes several arguments as to why, contrary to the map showing the

lakeward boundary at the water’s edge, the Legislature unambiguously intended that the

lakeward boundary line was fixed, so in light of the subsequent changes in the shoreline the

western boundary line no longer extends to the water’s edge. We address each in turn.

First, the Association argues that the Legislature’s use of the word “designated” when

defining a CDA shows that the action of designating an area as a CDA was finished when the

statute was enacted. See MCL 324.35301(c) (providing that a CDA is “a geographic area

designated in the ‘atlas of critical dune areas’ dated February 1989 . . . .”). Although the past

tense use of the word “designated” does imply an action that is complete, what was designated

was depicted in the 1989 Atlas, which, as we have already noted, unambiguously provides that

the lakeward boundary extends to the water’s edge. By contrast, as noted above, the areas

designated for some other townships did not extend to the water’s edge.

Second, the Association also argues that interpreting a line placed precisely on the margin

of Lake Michigan as a meander line is precluded because the SDPMA specifically provides

mechanisms for adjusting CDA boundaries. In support, the Association directs us to MCL

324.35311, which provides:

Beginning with the effective date of the 2012 act that amended this section

and once every 10 years thereafter, the department may appoint a team of

qualified ecologists, who may be employed by the department or may be persons

with whom the department enters into contracts, to review “the atlas of critical

dune areas” dated February 1989. The review team shall evaluate the accuracy of

the designations of critical dune areas within the atlas and shall recommend to the

legislature any changes to the atlas or underlying criteria revisions to the atlas that

would provide more precise protection to the targeted resource.

6

See Gilmore and Blaine Townships map.

<https://www.michigan.gov/documents/deq/lwm_sanddunes_gilmore_blaine_twp_262051_7.pdf

> (accessed December 2, 2016); and Crystal Lake Township map

<https://www.michigan.gov/documents/deq/lwm_sanddunes_crystal_lake_twp_262008_7.pdf>

(accessed December 2, 2016).

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The DEQ, however, has no authority under this provision to adjust a CDA’s boundaries. Instead,

this provision allows the DEQ to appoint qualified experts to evaluate the accuracy of the 1989

Atlas and then recommend changes that improve its accuracy to the Legislature. The

Legislature, however, is under no obligation to accept the changes. Moreover, given that this

section was enacted in 2012, we do not find it persuasive as to whether the Legislature originally

intended the lakeward boundary line to run along the water’s edge even if the exact boundary of

the water’s edge moved.

Next, the Association argues that MCL 324.35312(3) and (4) allow the DEQ to extend

the CDA, which shows that the Legislature contemplated a fixed boundary. MCL 324.35312(3)

and (4) provide:

(3) A local unit of government may by an affirmative vote of its governing

body following a public hearing regulate additional lands as critical dune areas

under this part as considered appropriate by the planning commission if the lands

are determined by the local unit of government to be essential to the hydrology,

ecology, topography, or integrity of a critical dune area. A local unit of

government shall provide within its zoning ordinance for the protection of lands

that are within 250 feet of a critical dune area, if those lands are determined by the

local unit of government to be essential to the hydrology, ecology, topography, or

integrity of a critical dune area.

(4) If a local unit of government does not have an approved zoning

ordinance, the department may regulate additional lands described in subsection

(3). However, the lands added by the department shall not extend more than 250

feet from the landward boundary of a critical dune area, unless, following a

public hearing, an affirmative vote of the governing body of the local unit of

government authorizes a further extension. If the director determines that the

mapping of a critical dune area designated in the “atlas of critical dune areas”

dated February 1989 was inaccurate, the department may regulate additional

lands. However, the lands added by the department shall not extend more than

250 feet from the landward boundary of a critical dune area. [Emphasis added.]

Pursuant to the first sentence of MCL 324.35312(3), based on a recommendation from the

planning commission, and provided the statutory procedural requirements are satisfied, the local

unit may regulate “additional lands as critical dune areas” so long as they are essential to the

hydrology, ecology, topography, or integrity of a CDA. The second sentence of MCL

324.35312(3) requires a local unit to establish a zoning ordinance to provide for the protection of

“lands that are within 250 feet” of a CDA if the local unit determines that “those lands” are

essential to the hydrology, ecology, topography, or integrity of a CDA. The “additional lands”

that can be regulated pursuant to the first sentence are limited only by the requirement that they

are essential to a CDA. Those lands do not have to be within 250 feet or within any range; their

protection is identical to the protection afforded to a CDA so long as they are essential to a CDA.

Under the second sentence, the local unit unilaterally determines if lands that are within 250 feet

of a CDA are essential to a CDA. If so, that will trigger “the protection” in the local zoning

ordinance. Only lands within 250 feet of a CDA can receive “the protection,” the extent of

which is established in the zoning ordinance and not by reference to CDA protections as in the

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first sentence. Finally, under the second sentence, the 250-foot limit extends around the entire

boundary of the CDA.

MCL 324.35312(4) authorizes the DEQ to regulate “additional lands” from subsection

(3) if a local unit lacks an approved zoning ordinance. “Additional lands” means the land

“described” in the first sentence of subsection (3). However, the subsection (4) “additional

lands” cannot extend more than 250 feet from the landward boundary (as opposed to the

lakeward boundary) of a CDA, unless the local unit authorizes further extension. The statute

also permits the DEQ to regulate “additional land” not extending more than 250 feet from the

landward boundary of a CDA, if it determines that the 1989 Atlas contains an inaccurately

mapped CDA. Thus, under these statutory provisions, the DEQ only has a limited ability to

extend the boundaries of a CDA. Because subsection (4) only allows an extension from the

landward boundary, it is plain that the DEQ cannot add land on the lakeward boundary under the

guise of “extending” the landward boundary towards the shore.

The Association next argues that the trial court allowed the DEQ to bring this property

under its CDA jurisdiction without any showing that it qualifies as the type of unique,

irreplaceable, fragile resource that the PDCMA was intended to protect.7 However, given that

the Legislature clearly intended the CDA to extend to the water’s edge, we see no reason for the

DEQ to establish that the areas so designated by the Legislature meet protective rationale set

forth in MCL 324.35302(a).

The Association also argues the situation in this case is similar to the pier-related beaches

in Holland and Grand Haven, both of which the Legislature expressly omitted from the 1989

Atlas. However, given that the Legislature expressly omitted those beaches, whereas for the

property in question in this case, the Legislature depicted the boundary extending to the water’s

edge. We do not find reference to the situation in Holland and Grand Haven applicable.

The Association also suggests that, because the DEQ’s website and other resources show

the property at issue with the lines from the 1989 Atlas, rather than the “real” lines that go to the

current water’s edge, the DEQ has attempted to perpetrate a fraud on the public, pretending the

CDA boundaries were in one location while secretly hiding a more expansive interpretation to be

used when convenient. However, all of these materials came with disclaimers and were not

presented as absolutely accurate and authoritative, so the Association did not reasonably rely on

these materials to its detriment. Moreover, these documents all show the 1989 Atlas boundaries,

which contain lines that were placed precisely on the margin of Lake Michigan.

7

MCL 324.35302 provides:

(a) The critical dune areas of this state are a unique, irreplaceable, and

fragile resource that provide significant recreational, economic, scientific,

geological, scenic, botanical, educational, agricultural, and ecological benefits to

the people of this state and to people from other states and countries who visit this

resource. [MCL 324.35302, as amended by 2012 PA 297.]

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Finally, in its reply brief the Association argues that “the Atlas depicts supposedly

flexible lakeshore CDA boundaries in the exact same way it depicts supposedly inflexible non-

lakeshore CDA boundaries.” It also asserts that this Court must treat the boundaries in the 1989

Atlas as fixed or it is an impermissible subsequent amendment to the 1989 Atlas. However, the

Association’s argument overlooks that if the Legislature intended the lines placed precisely on

the margin of Lake Michigan to set the boundary at Lake Michigan, then nothing has changed

with that document since 1989.

Affirmed.

/s/ Michael J. Kelly

/s/ Peter D. O'Connell

/s/ Jane M. Beckering

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