GETS HEATED AND PERSONAL
Some residents and environmental activists are in an uproar over plans to fill swamp to build a road into the pristine Little Betsie River wetlands complex northwest of the Interlochen Center for the Arts.
The amount of wetlands is small, as little as a fraction of an acre, but to opponents of the project there is nothing small about what’s at stake for the environment.
Opponents say this wetlands complex is exactly what is supposed to be protected under the Wetland Protection Act, and the developer and state shouldn’t be allowed to get away with flouting the law. They say the project could ruin habitat for several protected species and threaten a wetland complex that is crucial to the health of Green Lake.
The developer says he is just trying to develop some property willed to him from his mother years ago and the project’s impacts are minimal. So far, state officials have sided with the developer, St. Louis architect Laurent Torno Jr.
The fight over the proposal has been going on since 2009, when Torno filed an application with the Michigan Department of Environmental Quality to build a road to access four lots he says are on uplands on the 20-acre property.
That application was eventually approved
and later was upheld by an administrative law judge in Lansing. Along the way it’s been opposed by the Northern Michigan Environmental Action Council and Interlochen Center for the Arts.
On Feb. 2, an appeal called “a petition for review” was filed with the 13th Circuit Court in TC. The fate of the project rests with Judge Thomas Power.
‘RARE, INTACT WETLANDS’
The legal fight against the project is led by TC-based environmental attorney James Olson, who says the importance of this case goes beyond neighbors fighting over the location of a road.
The Little Betsie wetlands complex is an extraordinary environmental resource, he said.
“It’s one of those rare, intact wetlands.
It’s like a natural library,” Olson said. “This kind of diverse, intact, riverine wooded wetland is exactly the kind of thing that was not supposed to be fragmented or nibbled away at under the statute.”
The wetlands are home to three threatened bird species – the red shouldered hawk, the least bittern, and the loon. Other threatened species that call the area home are the wood turtle and the mud turtle.
Olson says Torno was able to get approval because in the final permit application he limited the project to the road – leaving out four residential lots he wants to develop on the property – so the DEQ failed to consider the environmental consequences of the additional development.
“They have just absolutely flaunted the Wetlands Protection Act,” Olson said. “They must personally not like it, and they’re ignoring the law.”
Oslon said the DEQ also failed to consider if there is an alternative that exists that would enable Torno to develop his property without wetland destruction. Under the WPA, regulators are required to determine whether there is an alternative to wetland destruction.
He said Torno could build a much smaller road along the path of an overgrown unused two-track, and then develop one or two lots on the upland property. Olson said he believes only one or two of the lots on Torno’s property are developable, anyway.
‘AN EXERCISE IN INTIMIDATION’
Torno said he believes he has followed the legal process and he should be allowed to proceed with his project.
“It is my opinion that the process so far has been nothing more than an exercise in intimidation,” Torno said. “The opinion from the State of Michigan was terse and concise and utterly rejected our opponent’s position ... we have jumped through every regulatory hoop.”
For Torno, the frustration began in September of 2009, when a public hearing was held in Interlochen over the pending permit.
Torno did not attend that public hearing, but his lawyer, Gary Ford, obtained a transcript, Torno said. He said opposition to his plans, as voiced at the hearing, was “sheer nonsense” and amounted to ad hominem attacks against him.
Ford said Olson’s arguments against the project have already been heard by the DEQ and they’ve been rejected by the administrative law judge.
“Jim Olson went to the public hearing along with a school bus full of students from Interlochen,” Ford said. “Those issues were raised and considered by the DEQ.”
Ford said the DEQ looked at the wetlands that are affected by the project and they didn’t need to consider the 2.8 acres Torno plans to develop because those are uplands. Despite that, Ford said, Torno was required to provide documentation that a septic system could be approved for each lot.
“There is clearly buildable upland on Mr. Torno’s property and he has the right to use that property,” Ford said.
TORNO SAYS NO ALTERNATIVE
Ford said developing a smaller road to reach one or two lots is not a feasible alternative because the land is special to Torno and his two brothers, who all want to develop homes there.
“They’re trying to do something with it so that each of the brothers have a chance to use this property if they want,” Ford said.
Opponents say that doesn’t make sense.
Apparently it’s been decades since Torno or his brothers have spent time in Interlochen. Although the family has ties to the area (Torno’s father was a teacher at the National Music Camp, before ICA was called Interlochen), the family doesn’t have those ties today.
Ford said that doesn’t matter. “His family spent a considerable amount of time during their summers at Interlochen,” Ford said. “If they tell me that that’s what their desire is, I’m not in a position to disagree with it, and I’m not sure that Jim Olson is either.”
Ford said neighbors simply want the land near their houses to remain undeveloped.
“They like the idea that the property across the river from them remains undeveloped,” Ford said. “I don’t think they recognize Mr. Torno’s right to make use of his property in a similar fashion to the way they’ve made use of their property.”
Project opponent Greg Reisig, chairman of the Northern Michigan Environmental Action Council, said he believes the environmental stakes in this case are huge and it’s the first time NMEAC is financing legal action through a special environmental defense fund set up a few years ago.
“It’s for small citizen groups that form around an environmental issue like protecting wetlands,” Reisig said.
This was a perfect first case because it involved a group that formed around one issue and there were significant environmental implications, Reisig said.
The case has attracted the interest of hundreds of neighbors who use the Betsie River, Reisig said, and the Interlochen Center for the Arts, which, along with NMEAC, contested the permit during the application process.
Reisig, along with others who have watched the case, questions Torno’s motives. They say at this point Torno has spent more to fight for the project than the project could ever be worth.
“I think this is a vanity case, I don’t think he’s ever going to build,” Reisig said.
Torno says of that criticism: “Anybody that makes that argument doesn’t understand the concept of principle ... It tells you something about the mindset of our opponents.”
‘DOESN’T MAKE MUCH SENSE’
Randy Emeott, environmental health coordinator for the Grand Traverse County Health Department, said Torno’s development proposal is unusual.
Construction on those four lots would require septage holding tanks, a measure not typically considered for non-waterfront, non-seasonal property, Emeott said.
“This whole proposal doesn’t make much sense, in my opinion,” Emeott said.
Holding tanks require waste to be regularly hauled away to be treated. They are expensive, which is why they are a measure typically only used for expensive waterfront lots.
In fact, Emeott said, it’s possible if Torno applied today, he would not even get permission to use holding tanks.
This proposal was made before a county policy was changed. Now holding tanks are no longer automatically approved and are reviewed on a case-by-case basis, Emeott said.
Emeott said it was this case, at least in part, that was the impetus that caused the county to change its policy on holding tanks.
SUE FOR TRESPASSING
Each spring, someone puts up stakes to mark the proposed road on Torno’s property, said Peter Hunt, a neighbor and another project opponent.
When those stakes go up, Hunt posts no trespassing signs on his property. In the past, he’s called police on surveyors working for Torno.
Hunt has never met or seen or spoken to Torno; they’ve communicated through letters or lawyers. Should Torno prevail with his permit and get to build the road, the developer might face one more hurdle – Hunt said he plans to sue for trespassing.
Hunt said he believes Torno’s road would cross a corner of his property at Diamond Park Road.
Hunt said despite a history of animosity between him and Torno, he opposes the project on environmental grounds.
“I’m concerned with maintaining the environmental health of this area,” Hunt said. “I’m for protecting that lake.”
Hunt said he believes his lawsuit could prevail because due to private road width requirements, he doesn’t believe Torno has anywhere to go but onto his property.
“Where the road is going, I’ve been paying taxes on since I bought the place,” Hunt said.
Torno said he is not worried. He said he owns deeded access from his property to the road and the road commission has confirmed that.
Christopher Grobbel, an environmental consultant who worked for the opponents, said the land in question is extremely important ecologically.
“It has been forested wetland since time immemorial, since the glaciers left,” Grobbel said. “It’s a really beautiful, unbroken forested wetland that students at Interlochen and residents of the area use. They use it for wildlife observation.”
Grobbel said in his experience, administrative law judges rarely overturn a DEQ permit. That phase of the process is used by the sides to get everything on the record for the circuit court review.
Grobbel said he hopes the project is rejected.
“The system is supposed to be there to protect those resources,” he said. “You don’t go filling wetlands for someone’s speculative real estate gain.”
The opinions of Grobbel and another expert witness for opponents, Michael Chamberlin, a now-retired ecology teacher at Interlochen who once took students into the wetland for study, did not carry much weight for Richard Patterson, the administrative law judge who upheld the permit last year, however.
Patterson dismissed Chamberlin’s concerns about the project’s impact on the wetlands.
Since the project involves a fraction of an acre on Torno’s 20 acres, and Interlochen owns hundreds of acres of natural area in the area, Patterson concluded the project would not likely harm wildlife.