Environmental groups file
A number of environmental groups files an amicus brief in
support of the plaintiffs in the suit seeking to halt the conversion
of Jean Klock Park into private land for a golf course at the
new Harbor Shores development. For more coverage see the November 2010 email newsletter.
PTD v. DEQ - Supreme Court
Election May Effect Decision
The November election may have changed the outcome of a reconsideration
of our case against the DEQ by the Supreme Court. This has been
reported and discussed in the October 2010 email newsletter
PTD v. DEQ
- Supreme Court Signals Reconsideration
In granting leave to appeal in the case of auSable Anglers
et al v. MDEQ the Michigan Supreme Court asked for briefing on
the opinion filed in our case in 2004. For more info see the
April 1010 email newsletter.
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SOS Dunes News
The newsletter is being distributed monthly via email. Publication
of the paper version will be reduced to two or three times a
year. So to keep up with what is happening along the lakefront
dunes sign-up at the "Guestbook."
You can now make a donation to Preserve the Dunes online.
Just select the "Fund
Raising" button to make a donation on-line using your
credit card or your Pay-Pal account. Preserve the Dunes is an
IRS 501(c)3 organization. All gifts are tax deductible.
Steps taken to protect this beautiful lakefront area
Previously, we notified you that the Van Buren County Board
of Commissioners was considering selling North Point Park. Many
of you responded with calls and emails to the commissioners.
The board tabled the issue of selling the land.
Three scenarios for use of the land were created by Friends
of North Point and presented for public comment. They ranged
from minimal change to significant expansion of facilities. Comments
were received and presented to the commission. The majority of
respondents preferred minimal change. The "Friends"
proposed that the land be protected through a conservation easement
and be open to the public in perpetuity. The commissioners have
responded positively to the proposals.
presentation is available on line. The details of conservation
easements will be discussed when the board meets as a committee
of the whole on March 25 at 4:30 PM on the second floor of the
Administration building in Paw Paw. The commissioners may consider
the plans for North Point at the regular meeting of the board
immediately following at 5:30 PM.
PTD Design Awards Featured
Shore Magazine Article "What's good for the
The winning projects of the PTD Critical Dunes Residential
Design Awards were pictured in the April issue of Shore Magazine.
The article describes the pressure to develop versus that to
protect the dunes. As the price of land increases, the pressure
to increase development density and size of homes mounts.
Realtors and home builders emphasize property rights. Environmentalist
emphasize preservation of an irreplaceable natural resource.
The text of the article is available on-line;
and descriptions of the winning projects are available at
the PTD website.
DEQ Reviews Critical Dune
Goal: Transparent Process, Measurable, Rational, Clear,
Last fall, the DEQ assembled a group of over 30 "stakeholders"
of the Sand Dune Protection and Management Act to take a fresh
look at the law and how it has been enforced.
When the law was first enacted in 1979, the legislature intended
local units of government to adopt zoning regulations for dune
development that implemented the provisions of the law.
For townships, towns and cities that did not adopt such regulations,
the DEQ would enforce the law. Only two towns amended their zoning
ordinances to include approved provisions. The remainder were
worried about being sued for "takings" of private property.
There are five clear requirements of the law that apply to
all development within the designated Critical Dune Areas (CDA).
- Construction on, or disturbance of, a slope steeper than
1 foot vertical in 3 feet horizontal (33% slope) is not allowed.
- An architect or engineer must prepare contract documents
for projects that disturb or build on a slope steeper than 25%.
- Construction of a use is not allowed lakeward of the first
- Alteration of topography or vegetation is not allowed when
the alteration is more extensive than necessary for the intended
use or if it threatens stability of the dune.
- A DEQ permit is required for construction, tree removal,
or grading within the CDA except where local government has been
authorized to issue such permits.
Builders, realtors, property owners and architects have expressed
a great deal of dissatisfaction with the law and the DEQ's enforcement,
as described in the Shore Magazine article. Complaints include:
It takes too long to get a permit. The requirements are not clear.
The process is opaque and burdensome. The emphasis on slopes
does not actually protect the dunes and limits site and building
In a series of 5 or 6 plenary sessions and 5 or 6 meetings
of a subgroup, a strategy for regulation emerged. It is a two
step process. In the first step, the site is evaluated for its
significance and level of necessary protection. Lots located
in subdivision-like settings would have a lower score than those
in exemplary dunes. Critically imperiled, imperiled and vulnerable
settings would have higher scores.
Once the lot is evaluated, the proposed development is scored.
Actions that damage the dunes are given points and those that
protect or mitigate damage are to be given negative points. The
object is to get a low score, as in golf.
This approach allows an owner to make tradeoffs. For example,
one might want to clear a larger area in tradeoff for removing
Over the next six months the standards are to be calibrated
through testing with data from a large number of completed projects,
refined, and reviewed with legislators.
Warren Dunes State Park Threatened
Warren Heirs Seek Control
A legal battle could determine whether Michigan will retain
control of Warren Woods State Park and part of Warren Dunes State
Three Oaks industrialist Edward Warren and his wife set aside
the land for preservation and public use and placed ownership
in a charitable trust.
The land was in two parcels, which were leased to the state for
99 years in 1938. One is 250 acres and includes more than a mile
of Lake Michigan frontage. It is the core of Warren Dunes State
Park, which has been expanded to 1,952 acres. The second lease
is for 310 acres and today is Warren Woods, which is the last
remaining example of a beech-maple climax forest in southern
The trust was dissolved in 1964. On March 12, the Herald-Palladium
of St. Joseph reported that five people who represent the Warrens'
heirs have filed a complaint in Berrien County Trial Court seeking
to renew the foundation's charter.
The heirs say that without the charter, the foundation set up
as a charitable trust by the Warrens in 1917 would have failed
in its purposes. That would result in the land reverting to the
heirs, a "substantial loss" to the public, the complaint
The Michigan attorney general's office has filed a motion to
end the case in the state's favor, claiming the heirs have another
motive. The state argues that once the trust was dissolved, the
land was vested with the court. Under a separate action the state
is asking that the DNR be appointed by the court as trustees
of the land.
Alternatives to Sand Dune
A recently completed study has taken a fresh look at alternatives
to sand dune mining. It evaluates alternatives that will meet
the specifications for automotive castings in a feasible and
cost effective way.
Some of the factors considered were:
- Availability of sufficient volumes of sand with consistent
- Proximity to reliable, economical transportation.
- Total cost of delivered sand.
The study was undertaken by Alliance for the Great Lakes,
Ford Motor Company and Michigan State University through a grant
funded by NOAA through the MDEQ, Coastal .
more information on this issue or to download a copy of the report.
Development in the Dunes Gets
Michigan has laws to regulate development and activity in
our geologically unique shoreline dunes. The question for today
is: are those laws working?
WMMT Kalamzoo has an interesting article/video on the dangers
that development is posing for West Michigan's Lake Michigan
shoreline dunes. It was aired in two parts on November
13 and November
- In 1989, then-state representative Lynn Jondahl sponsored
and passed Michigan's Sand Dune Protection Act. Some 17 years
later, he's still surprised what's being built. "I'm seeing
stuff and I'm thinking boy, I don't know how that can happen.
That looks new to me and doesn't look right," Jondahl told
- As Charles Davis, President of Preserve the Dunes pointed
out, "There's not a true strong voice for protecting the
dunes," said Davis. "The dunes don't speak. The people
who can't build a huge house on a small lot are the ones who
- The Michigan Department of Environmental Quality is charged
with overseeing permitting (200 applications each year) and also
keeping an eye on the 70,000 acres of critical dunes in Michigan.
MDEQ Director Steven Chester says "We have limited staff
and that means limited ability to really get people out in the
field to inspect these areas." He adds "I think there
is some reason to be concerned about the aggregate impacts of
development on the dunes."
Your support of Preserve the Dunes can help create a strong
voice for protecting the dunes.
Judge's Ruling is Appealed
PTD's appeal to the Circuit Court of the DEQ's renewal of
the Nadeau Site sand dune mining permit was denied by Berrien
County Judge Paul Maloney. We have now made application for leave to appeal to the Michigan
Court of Appeals.
PTD is maintaining that TechniSand's permit should not have
been renewed because the sand dune mining law requires that in
responding to an application for a permit to renew or amend a
permit, the DEQ first determine if the operator qualifies for
a permit. TechniSand does not.
The critical dune area was not included in the mine when TechniSand
bought the mine in 1991. In order to qualify for the permit,
the company would have had to have owned the adjacent critical
dune area prior to 1989. But the company did not even exist until
Judge Maloney failed to address this issue in his decision.
Our brief to him had been filed
Covert Township Adopts New
The Covert Township Board at its October meeting adopted the
new zoning ordinance as submitted except for adding the Nadeau
Pit sand dune mining site back into the Environmentally Sensitive
While many of our concerns had been addressed in earlier versions,
most of the regulations that weakened the protections of the
environmentally sensitive areas were not revised. These are documented
in our comments
presented to the township board. In addition, there are some
conflicting regulations and obtuse regulations still remaining.
The simple story is that the Planning Commission and the Township
Board purposefully reduced protections and allowed denser development
along the lake front. The puzzle is why? There is no constituency
among township citizens and property owners that requested or
will benefit from the watering down of requirements that have
been on the books since 1989.
The beneficiaries of the changes are future developers and
the land owners whose property was made more developable with
greater densities when it was removed from the environmentally
sensitive areas -- the largest landowner being TechniSand, the
mining company that has removed tens of millions of dollars of
sand from the township and paid property taxes as if the land
were vacant farmland.
Covert Township Board to Meet
The Covert Township Board will meet on Tuesday, October 10,
2006 at 7:00 PM in the township hall to consider adoption of
the new proposed zoning ordinance and map. The current version
is much improved from earlier drafts but still provides weakened
protection for the dunes, wetlands and other fragile environments
in the township.
PTD has provided comments for consideration of the board at
its meeting. Our attorney, Catherine Kaufman, who has assisted
in the review of the multiple versions will attend and speak
for PTD. Others are encouraged to attend and speak if you desire.
This is probably our last chance to comment.
PTD provides comments to Van
Buren Planning Comm.
PTD presented its concerns at the meeting of the Van Buren
County Planning Commission on Wednesday, September 27 in a letter and verbally.
The comments were well received and are likely to be incorporated
into the planning commissions comments and suggestions that will
be sent to the township board for its consideration.
PTD provides new comments
on Zoning Changes
The Covert Planning Commission will review the new zoning
ordinance at its next meeting at 6:00 PM on Wednesday, July 19
at the Covert Township Hall. After the hearing on May 24 the
Planning Commission directed its consultant, Chuck Eckenstahler,
to make a number of revisions that reduced many of the threats
to the dunes and to the character of the lake front.
PTD was furnished with a copy of the new revision. Our attorney
and we have reviewed it. Comments are been prepared and a draft copy
has been sent to planning commission representatives (a final version will be printed and delivered
early next week).
If you wish to comment, fax your letter to the Planning Commission
at 269( 764-1771) or mail them to Covert Township Planning Commission,
P.O. Box 35, Cover, MI 49043.
PTD Appeal To Be Heard in
Berrien County Court RESCHEDULED
The hearing of the appeal of the DEQ's issuance of a renewal
to TechniSand for its sand dune mine at the Nadeau Pit in Hagar
Township has been scheduled for 1:30 PM August 16, 2006, in the
court of Judge Paul Maloney in the Berrien County Courthouse.
The DEQ issued a renewal for the sand mining permit at Nadeau
Site on January 19, 2006. The decision was rendered by Harold
Fitch, Office of Geological Survey. The appeal is based on the
fact that the permit which TechniSand sought to renew was unlawfully
issued. The permit allowed mining of a Critical Dune Area (CDA)
despite the fact that TechniSand did not qualify for either of
two exceptions to the ban on mining in CDAs that was added to
the Sand Dune Mining Act (SDMA) in
1989. PTD's brief
on appeal was submitted on March 27.
Critical Dunes Residential
Design Awards Announced
Preserve the Dunes (PTD) has announced four winning projects
in its 2006 Critical Dunes Residential Design Awards Program.
Projects were selected based on excellence in design, and the
degree to which they take advantage of the dune setting while
minimizing impairment of the dunes.
Any residential project located in a Critical Dune Area of
Michigan, built after 1989 when the Sand Dune Protection and
Management Act was passed, and designed by a registered architect
was eligible. Entries were received for projects located from
as far south as Michiana to as far north as Frankfort. Architects
from Michigan, Indiana, Illinois, and North Carolina submitted
"The quality of the projects submitted was excellent.
The jury had a difficult time choosing those to receive the awards."
Charles Davis, President of Preserve the Dunes, said.
Preserve the Dunes is preparing to publish a guide to building
in the sand dune areas of Michigan. Many of the entries will
be used in illustrating principles and strategies for construction
in the dunes.
Awards were made to the following projects and architects:·
- The Holabird House, Harbert, MI; Kuklinski + Rappe Architects,
Chicago, IL. ·
- Kohn House, Wilderness Dunes, Covert, MI; Gelick Associates,
Inc., Chicago, IL.·
- Guest House, Thunder Mountain, Covert Michigan; Mikkel Hansen,
Black Mountain, NC.·
- Studio Pavilion, Wilderness Dunes, Covert, MI; Kathryn Quinn
Architects, Ltd., Chicago, IL.
Additional information, jury comments, photographs of these
projects and contact information are available at http://sosdunes.daac.com/PTDdesignawards.pdf.
The next critical dunes residential design awards program
is planned for 2008.
Planning Commission Holds
Hearing; Postpones Action
The Covert Planning Commission held the public hearing as
scheduled on May 24. Approximately, 20 citizens attended and
about half of those present spoke in opposition to a number of
provisions. The commission recognized that there was strong opposition
even before the meeting began and announced that no action would
be taken at that time, but that comments would be received, necessary
revisions would be made and the revised code would be reviewed
at the July 19 meeting of the Planning Commission.
PTD conveys concerns to Covert
Covert Township Planning Commission has been working for months
on revisions to the zoning ordinance. The draft was completed
and distributed at the end of April. The revisions are extensive.
One of the purposes has been to coordinate the ordinance with
state law. The Planning Commission member have stated that they
wish to keep the coastal area as low density housing similar
to its current use. However, PTD is concerned that the intent
of the revisions and the actual provisions are different; and
has filed its concerns with the Planning Commission. Read the
Comments, and Appendix . The hearing
is scheduled for 7:00 PM, May 24 at the Covert Township Hall.
If you wish to comment, fax your letter to the Planning Commission
at 269( 764-1771) or mail them to Covert Township Planning Commission,
P.O. Box 35, Cover, MI 49043.
PTD opposes renewal of mining
permit at Nadeau Site
Honigman, Miller Schwartz and Cohn LLP, attorneys based in
Detroit representing PTD wrote to the DEQ opposing the renewal
of the permit. In that letter,
they presented a legal argument against renewal. TechniSand was
given an opportunity to comment on the letter and their attorney
submitted a letter
in response that mischaracterized the Michigan supreme court's
ruling in the MEPA case and made a faulty res judicata
argument. Honigman's response
pointed out those errors.
Despite the cogent arguments put forth, the DEQ issued the
permit on January 18, 2006. A complaint contesting issuance of
the permit is being prepared by PTD's attorneys. It must be filed
with the court within 21 days of the permit being issued.
PTD Completes Rogers Creek
PTD has completed its analysis of the flow in Rogers Creek.
For years we have been stating that the base flow in the creek
has been reduced. The base flow is the flow which is dependent
on groundwater discharge into a stream, i.e. excluding run-off
from rain and snow melt.
Measurements indicated that the flow in the creek at the Blue
Star Highway is 0.28 cubic feet per second. This is about one-half
of the DEQ's estimates made in 1998. About 75% of the base flow
is from groundwater discharge along the edge of the Nadeau Pit
sand dune mine operated by TechniSand under permit from the DEQ.
The study concludes that the primary cause of the reduced flow
is the removal of the dunes in the adjacent strip mine. The drop
in the water table reduced the groundwater storage significantly.
The water that is no longer available could have maintained the
base flow for up to three years.
(7.5Mb) in Adobe Acrobat format is available for download.
Critical Dune Residential
PTD has announced an awards program for residential projects
set in the critical dune areas of Michigan. The awards will recognize
architectural design excellence in residential projects in the
dunes of western Michigan that is responsive to the project's
setting and that protects the dunes. It will also identify design
strategies and construction techniques that protect the dunes
and dune ecology. The awards will be publicized in regional and
local media, as well as the architectural press.
Registration has closed. Submissions must be mailed by April
14. The awards will be announced no later than June 15. The original announcement
(7.1Mb) is available on-line.
Michigan Supreme Court issues
ruling on beach walking
At the end of its session the Supreme Court ruled that the
public had the right to walk on the beaches of the Great Lakes
even though the land was privately owned. The ruling and its
effects are discussed in the current newsletter.
Or check out the actual
DEQ to Raise Permit Application
The DEQ has announced plans to raise fees for permit applications
in critical dune areas. This has become necessary due to the
shortfall in tax revenues in Michigan. For complete coverage
and a list of the proposed new rates see the newsletter from last Spring.
Dredging at Nadeau Pit
As reported in detail in the last SOS Dunes News, the DEQ
issued a permit to dredge the lake at Nadeau Pit.
Subsequently, PTD and the Thunder Mountain Heights Association
(TMHA) appealed the ruling under the Administrative Procedures
Act. They maintained that Rogers Creek had been impaired by prior
operations at the pit.
In the appeal, PTD and TMHA requested that TechniSand be required
to accurately monitor flow, temperature and oxygen content in
the creek during the permit period - and that they be required
to stop dredging if the creek was significantly affected.
At the suggestion of the DEQ, we entered into negotiations
with TechniSand. We made a verbal proposal to TechniSand to which
they agreed in principle.
The proposed agreement was put into writing and sent to them
on November 13. About a month later, on December 10, they rejected
the proposed agreement and without explanation declined to participate
in further negotiations.
This is yet another example of TechniSand's unwillingness
to voluntarily take any measures that can protect the environment
and to be a good corporate citizen.
PTD then began conversations with the DEQ. As a result, the
Department has agreed to measure the water flow several times
this summer to determine the "base flow" (or minimum
flow rate) in the creek. Once this is known, there will be a
base line against which it can be determined if the creek is
being further impaired.
In subsequent years, PTD and TMHA will make measurements in
the creek to identify any impairment of the creek.
Court of Appeals Rules on
As reported in the last newsletter, the Michigan Supreme Court
overruled the Michigan Court of Appeals and then remanded our
suit back to that court. In that 4 to 3 contentious ruling, the
Supreme Court maintained that the Michigan Environmental Protection
Act (MEPA) could not be the basis for rescinding a permit, even
if it had been unlawfully issued.
With the heart of its argument cut out, PTD had little hope
that the court of appeals would do other than allow the trial
court's ruling to stand. TechniSand is now removing the critical
dunes at the Nadeau Site in Hagar Shore - and all because the
DEQ unlawfully issued a permit in 1996, and four of seven elected
Supreme Court judges were more concerned with business interests
than environmental ones.
We will continue our efforts to stop destruction of the dunes
by sand mining; to ensure that any mining that is permitted complies
with the law and the permit; and to make sure that mine sites
are adequately reclaimed.
photograph above shows the Nadeau Site expansion in the foreground,
the Nadeau Pit in the center of the photo (across I-196) and
Lake Michigan at the top left. The bare sand beyond the Nadeau
Pit is the south face of Thunder Mountain, the highest point
in southwest Michigan. It was mined in the 1930's and 1940's
and left unreclaimed. The court's ruling stopped mining of the
critical dune area in the Nadeau Site expansion. Mining continues
at the Nadeau Pit and in the non-critical dune area at the Nadeau
Site (see below).
Nadeau Site, Covert, August 29,
2004. The area below the orange snow fence is outside the critical
dune area (CDA). It has been mined since the injunction was issued
last September that stopped mining of the CDA. TechniSand has
constantly argued that they were running out of sand. Since the
trial in May 2002, they have predicted that they only had one
year of sand remaining. Two years later they say they have a
year of sand remaining. In trial they argued that the sand at
the Nadeau Site that lies outside the CDA is worthless unless
they can mine the CDA. Yet they are mining it.
Preserve the Dunes is a grass roots not-for-profit organization
whose members have an interest in preserving the sand dunes of
Southwest Michigan that are being destroyed by sand mining and
are threatened by over development and incompatible use. Register
your support at the guest book
At this web site we have posted:
- Upcoming meetings and events
- An electronic version of past newsletters
- Current actions and documents
are available here and a history of our actions. It is organized
from most recent to earliest. You can access key documents from
our suit against the DEQ and TechniSand that was filed in 1998
to stop mining of a critical dune area in Hagar Township. They
include the appeal brief.
- Photographs of some sand dune mines
in Southwest Michigan (all of which are located in a Critical
Dune Area designated by the State of Michigan, Dept. of Environmental
Quality a.k.a M/DEQ)
- A guest book where you can register
your support of our goals. Only your name and address are necessary.
We need to be able to tell elected officials and government employees
how many persons are on record supporting these efforts. This
measure of support is critical to successfully protecting the
dunes and restricting sand dune mining.
- Links to other sites
- Status of fund raising