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Building on Michigan Sand Dunes Following 2012 PA 297

Since 1989 when Michigan's Sand Dune Protection and Management Act was amended to regulate development on critical sand dunes, constructing a cottage in a critical dune area or additions to an existing cottage has required landowners to obtain a permit from the Michigan Department of Environmental Quality (MDEQ).  Such permits are often difficult, time consuming and expensive to obtain, with many property owners having to appeal permit denials through administrative contested case proceedings.  Public Act 297 of 2012, which Governor Snyder signed on August 7, 2012, amended the critical dune statute (which is referred to as Part 353 of the Natural Resources and Environmental Protection Act or NREPA).  The intent of these amendments was to make it easier for property owners to build homes, garages and driveways on their property within critical dune areas.  While this should be good news for property owners in critical dune areas, building structures on Great Lake sand dunes can still be a heavily regulated activity.

Constructing a cottage in a critical dune area or additions to an existing cottage has required landowners to obtain a permit from the MDEQ.

Even after PA 297, Part 353 still requires property owners to obtain a permit for building new structures or additions to existing structures, driveways, garages and the like in critical dune areas.  Moreover, building on a steep slope (a slope within a critical dune area that is steeper than a one-foot vertical rise in a three-foot horizontal plane) requires the MDEQ to issue a special exception.  To obtain a special exception, the property owner must show a practical difficulty will occur if the special exception is not granted, and the MDEQ must determine that significant damage to the public interest on the land will not occur.  In addition, the construction on the first lakeward facing slope of a critical dune area or foredune will not be allowed unless the property was a lot of record recorded prior to July 5, 1989, and the property does not have sufficient buildable area landward of the crest to construct the dwelling or other permanent building proposed.  PA 297 made these standards much less stringent than before, but they can still create problems for a property owner. 

An owner must also determine whether his or her property is located in a high-risk erosion area.  If so, then additional regulation under Part 323 of the NREPA (shorelands protection and management) will apply.  Part 323 imposes a required setback distance on the property.  Permanent structures must be constructed landward of that setback.  The setback distance varies depending on the height of the bluff, the projected recession rate of the dune and the steepness of the slope of the bluff.  Construction specifications can also be regulated depending on the proposed location of the structure.  Part 323 can also apply to additions or remodeling of permitted or grandfathered structures even within the existing footprint.  The MDEQ has maps of high-risk erosion areas.  Owners should check such maps if they do not know whether their property is covered by Part 323.

Part 353 requires property owners to obtain a permit for building new structures or additions to existing structures in critical dune areas.

Owners must beware that many sand dune properties contain wetlands in the swales that are landward of the sand dunes.  If these wetlands are five acres or more, or are located within 500' of a lake, pond, river or stream, then they are regulated under Part 303 of the NREPA.  In such case, the owner must obtain a permit to dredge or fill the wetland as might be needed for driveway crossings and the construction of structures. 

Finally, many lakefront communities contain special zoning restrictions that apply to lakefront property.  Several contain setbacks from the ordinary high water line regardless of whether the property is in a critical dune area or a high-risk erosion area.  Others contain setbacks that are based upon the location of structures on either side of the property in question. 

In short, while PA 297 should greatly facilitate construction within critical dune areas, this does not mean that lakefront property owners are necessarily out of the woods.  They need to check other state statutes and local ordinances that may regulate construction on such property.

© 2019 Varnum LLP

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About this Author

Matthew D. Zimmerman, environmental and energy attorney, Varnum
Partner

Matt is a member of the Environmental and Energy Practice Groups. A significant portion of Matt’s practice involves representation of municipalities and private developers in regard to water law matters, including: the permitting, operation and expansion of water supply/treatment/distribution systems and wastewater collection and treatment systems; sewer use ordinance drafting and enforcement including industrial pretreatment programs; stormwater management including ordinance drafting, permitting and enforcement and property owner representation in Drain Code projects;...

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