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Legal Sandstorm

Sand Dune Protection Act at stake

August 1, 2000 | By Keith Schneider
and Anne Stanton
Great Lakes Bulletin News Service

A proposal by a Grand Rapids couple to build a winding driveway up a steep coastal dune in Oceana County has stirred a legal sandstorm that could decide Michigan’s authority to protect one of the most magnificent landscapes on earth.

What makes the case so crucial in this era of environmental non-enforcement is that a courageous group of Department of Environmental Quality employees is defending the 1976 Sand Dune Protection and Management Act by refusing to allow the couple to build on an unstable dune. They are doing this even though their superiors may overrule the decision for political reasons, a harmful precedent that could seriously weaken the law.

The turmoil in the DEQ puts more pressure than ever on local governments to protect coastal ecosystems by using their zoning authority, which the 1976 Act encourages.

"The state is unable or unwilling in many respects to enforce the law,” said Chris Shafer, who resigned as chief of the DEQ’s Great Lakes Shorelands Section in 1996. “It’s going to have to come down to local people protecting their resource.”

The Oceana County case began in 1995, when Eugene Jankowski, a high school science teacher, and his wife Judy, a government employee, bought 20 acres along the Lake Michigan coast near Pentwater that included a towering dune. Three years later they applied for a permit to build a home and a 400-foot, $50,000 driveway up the dune’s steep slope. The couple said the dune top was their only option because it is the flattest area, provides the best view of Lake Michigan, and would accommodate up to three other homes for their children.

DEQ staff members did not raise significant concerns over building on the dune top, but refused to permit the driveway because the potential for severe ecological damage would clearly violate the law.

They suggested as alternatives: Build a stairway and tram to the site, or construct a multi-level home farther down the dune, which would provide a view of the lake.

The couple, who acknowledge they were aware of the lawful restrictions for building in critical dunes when they purchased their property, appealed the permit denial to a DEQ administrative law judge. A decision on the case is expected this fall.

The DEQ staff said allowing construction on the steep slopes would set a legal precedent effectively ending the state’s ability to enforce the law. If a driveway built on a 60% slope is not considered a “significant contour change,” then what is?

“This case is a linchpin,” said Martin Jannereth, chief of the Great Lakes Shorelands Section. “If [the Jankowskis] are allowed to do this, I don’t see a lot of opportunity of saying ‘no’ to anyone else.”

Mr. Jankowski, meanwhile, asserted that the DEQ was denying him and his wife the fair use of their property. “If I can’t build on top of the dune, I won’t build at all,” he said.

Political Pressure
If the decision is based on the letter of the law, the Jankowskis would seem certain to lose because there are reasonable alternatives.

But this couple has persisted. They are represented by Bill Fulkerson, a former chief DEQ administrative law judge who once worked with the presiding judge, Richard Patterson, and who is one of Michigan’s most ardent critics of environmental regulation.

In addition, the final decision will be made by DEQ Director Russell Harding, a self-described free market ideologue whose five-year record consistently favors development over environmental protection.

The state and conservation groups have made a concerted effort to protect the irreplaceable landscape created by Ice Age glaciers since the 1970s, when they foresaw that mining and development, if unchecked, would nibble the dunes to extinction.

DEQ field staff energetically enforced the 1976 sand dune law until 1994, when the Engler Administration’s political climate chilled their efforts. That year the Legislature weakened the law. A year later Gov. Engler took enforcement authority away from the DNR and handed it to the newly formed DEQ, where enforcement was discouraged. Then the Legislature, heavily influenced by industry, pressured DEQ staff to ease up on environmental regulations, leaving them in a demoralized heap.

Field staff said they began compromising more rather than risk a case going before a DEQ judge. An unfavorable ruling sets a precedent for all subsequent cases and weakens the overall law.

“The message was made clear by our superiors,” said Steve DeBrabander, a former DEQ staff member who regulated dune development in northern Michigan. “The administrative law judges are property owner friendly and we’ll end up saving more dune land if we compromise a little more in the field.”

CONTACTS: Steve DeBrabander, 517-241-3687; Bill Fulkerson, 616-752-2438; Martin Jannereth, 517-335-3458; Chris Shafer, 517-371-5140.

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