08-07-2005, 11:35 PM
DEQ won't have to compensate developer
[url "http://spinalcolumnonline.com/1editorialtablebody.lasso?-token.searchtype=authorroutine&-token.lpsearchstring=Kevin%20Elliott&-nothing"]Kevin Elliott[/url]![[Image: z.gif]](http://spinalcolumnonline.com/images/z.gif)
August 03, 2005 - The developer of a proposed C.J. Barrymore's Restaurant and sports complex in Waterford Township is not owed millions of dollars in damages by the Michigan Department of Environmental Quality (DEQ), according to a Tuesday, July 26 Michigan Court of Appeals ruling.
The case supports state regulations to protect wetlands during development and reverses an Oakland County Circuit Court's ruling that had awarded over $16 million to K&K Construction, Inc. and JFK Investment Company, LLC.
"I think it affirms the importance that is placed on wetlands and why wetland regulations exist," said DEQ spokesman Robert McCann.
In 1988, the plaintiffs began work on a C.J. Barrymore's restaurant and sports complex at a 42-acre site located on the south side of M-59 between North Oakland Boulevard and Hospital Road. The parcel is one of four in the area owned by the plaintiffs.
Because much of the parcel is designated as wetlands by the DEQ, the plaintiffs could not build on the land without approval from the department.
While development on the wetland portion of the parcel was denied, part of the upland portions were developed with a Ram's Horn and an office building.
The plaintiff's filed suit against the DEQ after the department denied them permission to fill in a portion of the wetlands, claiming the denial constituted a taking of the property.
Although the lower court found in favor of the plaintiffs, a three-judge Court of Appeals panel reversed the decision last week.
The judges, Henry William Saad, Brian K. Zahra and Bill Schuette, found the plaintiffs failed to establish that the DEQ's regulatory action constituted a regulatory taking.
As found by the panel, wetland regulations place a burden on some property owners, but ultimately benefit all property owners. Further, the panel the plaintiffs were able to make valuable use of their land despite the regulations.
While the decision helps to harden the swampy grounds surrounding wetland regulations, McCann indicated that it won't put an end to the often litigious process.
"Wetland permitting is a very active permitting program that we get a lot of applications in every year," he said. "There are a lot of times when decisions are made and property owners don't necessarily agree, and those are going to end up going through the appeals and whatnot, and that is certainly part of the process. I'm sure that will continue.
"We are not out to say 'no' all the time, we are really just looking to find plans that allow a certain amount of development to be done, but to be done in the best way possible to make sure the wetlands are protected."
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[url "http://spinalcolumnonline.com/1editorialtablebody.lasso?-token.searchtype=authorroutine&-token.lpsearchstring=Kevin%20Elliott&-nothing"]Kevin Elliott[/url]
August 03, 2005 - The developer of a proposed C.J. Barrymore's Restaurant and sports complex in Waterford Township is not owed millions of dollars in damages by the Michigan Department of Environmental Quality (DEQ), according to a Tuesday, July 26 Michigan Court of Appeals ruling.The case supports state regulations to protect wetlands during development and reverses an Oakland County Circuit Court's ruling that had awarded over $16 million to K&K Construction, Inc. and JFK Investment Company, LLC.
"I think it affirms the importance that is placed on wetlands and why wetland regulations exist," said DEQ spokesman Robert McCann.
In 1988, the plaintiffs began work on a C.J. Barrymore's restaurant and sports complex at a 42-acre site located on the south side of M-59 between North Oakland Boulevard and Hospital Road. The parcel is one of four in the area owned by the plaintiffs.
Because much of the parcel is designated as wetlands by the DEQ, the plaintiffs could not build on the land without approval from the department.
While development on the wetland portion of the parcel was denied, part of the upland portions were developed with a Ram's Horn and an office building.
The plaintiff's filed suit against the DEQ after the department denied them permission to fill in a portion of the wetlands, claiming the denial constituted a taking of the property.
Although the lower court found in favor of the plaintiffs, a three-judge Court of Appeals panel reversed the decision last week.
The judges, Henry William Saad, Brian K. Zahra and Bill Schuette, found the plaintiffs failed to establish that the DEQ's regulatory action constituted a regulatory taking.
As found by the panel, wetland regulations place a burden on some property owners, but ultimately benefit all property owners. Further, the panel the plaintiffs were able to make valuable use of their land despite the regulations.
While the decision helps to harden the swampy grounds surrounding wetland regulations, McCann indicated that it won't put an end to the often litigious process.
"Wetland permitting is a very active permitting program that we get a lot of applications in every year," he said. "There are a lot of times when decisions are made and property owners don't necessarily agree, and those are going to end up going through the appeals and whatnot, and that is certainly part of the process. I'm sure that will continue.
"We are not out to say 'no' all the time, we are really just looking to find plans that allow a certain amount of development to be done, but to be done in the best way possible to make sure the wetlands are protected."
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