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Judge will hear some dunes appeals, not all

Judge will hear some dunes appeals, not all

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By Scott Sullivan

Editor

A state administrative law judge will hear some portions of three groups’ appeal of a Michigan Department of Environmental Quality permit granted NorthShore of Saugatuck LLC to build a boat basin north of the Kalamazoo River channel to Lake Michigan.

Judge Daniel Pulter July 27 granted NorthShore’s request to dismiss most claims filed by members of the Saugatuck Dunes Coastal Alliance, joined by Gun Lake Tribe and Huron bands of Pottawatomi, ruling members lacked legal standing to have them reconsidered in court.

But he will hear others starting with a pre-hearing conference by phone Oct. 5 at 10 a.m. Pulter gave the Alliance and tribes an Aug. 24 deadline to file and serve a pre-hearing statement. NorthShore and the DEQ Water Resources Division are to file by Sept. 21.

NorthShore, whose principals Jeff and Peg Padnos bought 308 acres north of the channel in March 2017, has proposed building 40 homes on it, largely clustered so as to place 208.3 acres in a conservation easement.

About 17 of those lots exist by right or were pre-approved as result of a 2012 federal court settlement between Saugatuck Township and former landowner Aubrey McClendon.

NorthShore has proposed in addition building 23 homes around a 6.54-acre boat basin on 95.67 total acres, part of which were occupied by the lost 1800s lumber town of Singapore.

The township late last year and DEQ Jan. 26 this year gave green lights to the basin effort. The U.S. Army Corps of Engineers, which has purview over waterways hydrology, is considering what may be the last permit needed to start the project.

The Alliance, a nonprofit land preservation group which has contested development north of the channel since 2007, has routinely appealed state and township approvals granted private landowners to do work there.

Its members have been denied legal standing — i.e. judged they will aggrieved, or suffer special injury, different from the citizenry at large as result of the actions they are appealing — in most, but not all, cases heretofore by the Allegan County Circuit Court, township zoning board of appeals and other entities.

The Alliance and tribes April 16 appealed the DEQ permit to the state Administrative Hearing System based on state law, its president David Swan said, that says “sand dune mining, or the removal of sand from sand dune areas for commercial purposes within Michigan’s Critical Dune boundary was prohibited in 1998.”

NorthShore filed for dismissal claiming the Alliance lacked standing April 27.

Pulter ruled July 27 that SDCA members could not demonstrate specific damages in claims of:

  • Diminished property value,
  • Increase in light pollution,
  • Loss of aesthetic values, recreation enjoyment, economic opportunities, value from past charitable contributions and opportunities for scientific study; and
  • That the action is likely to have the effect of polluting, impairing or destroying the air, water or other natural resources of the public trust in these resources.

The judge did say appellants had standing sufficient for him to weigh concerns about:

  • Safety based on increased boat traffic, and
  • Possible damage caused by blowing sand.

“It is significant,” Swan said, “that the judge recognizes the proposed Padnos marina could negatively impact Saugatuck’s historic river mouth neighborhood and the established public interest.”

“This ruling,” said NorthShore attorney Carl Gabrielse, “is surprising given that this same administrative law judge made the same ruling back in 2014” — in this case involving McClendon’s DEQ access road approval — “and he was reversed by the Allegan County Circuit Court.

“We have not had the opportunity to fully review this decision,” the lawyer continued, “but will certainly take the appropriate steps to protect the private property of NorthShore and the numerous state and local permits already received.

“It is important to note,” Gabrielse said, “that the administrative law judge did not determine that the arguments of the Coastal Alliance had any merit, only that they will be heard. NorthShore is confident that once all the facts are in, the administrative law judge will reach the same conclusion as the MDEQ that the conservation-based approach of NorthShore fully complies with all environmental laws.

“The Coastal Alliance continues to stay true to its self-described strategy of ‘death by a thousand paper cuts,’” the NorthShore attorney went on, “but it’s unfortunate that they are costing both local and statewide taxpayers money to further the agenda of a few individuals.

“Remember that all of the legal challenges brought by the Coastal Alliance have been against a public entity, such as the MDEQ or Saugatuck Township.

“NorthShore is certainly involved as the property owner, but the Coastal Alliance is challenging public agency approvals. These actions ultimately cost taxpayers money,” the lawyer said.

“This is an important victory for the Alliance,” countered Scott Howard, its attorney. “The developer has repeatedly attempted to block challenges to the project on procedural grounds in order to consistently avoid talking about the dramatic impacts the large scale-dredging plan will have on the Kalamazoo River watershed.

“The judge rejected the developer’s tactics and the Alliance will now have its day in court. This is a win for the community and its natural resources,” Howard said.