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Port Sheldon Beach Association v. Department of Environmental Quality

Court of Appeals of Michigan

December 13, 2016

PORT SHELDON BEACH ASSOCIATION, Plaintiff-Appellant,
v.
DEPARTMENT OF ENVIRONMENTAL QUALITY, Defendant-Appellee.

         Court of Claims LC No. 14-000288-MZ

          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 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.

         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 N.W.2d 433 (1996), citing Gregory v LaFaive, 172 Mich.App. 354, 361; 431 N.W.2d 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 N.W.2d 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 N.W.2d 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 ...


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