Done in by DNR and a dune

Published February 1, 2000

Since 1989, Jim Wickstra has been fighting the Michigan Department of Natural Resources to get compensation for their refusal to allow him to build a house on property he owns in Michigan’s Muskegon County.

Through his development company, Oceco Land Company, Wickstra purchased a three-acre parcel along the Lake Michigan shorefront with the intention of building a quality beach home he expected to sell for as much as $500,000. A few months after Wickstra bought the land, the state approved the Michigan Sand Dune Protection Act, aimed at preventing development from unduly harming the majestic sand dunes that lie along the Lake Michigan shore.

Because Wickstra’s proposed house would be located on of those protected dunes, he needed the approval of the Michigan Department of Natural Resources (DNR) to start construction. The DNR denied his permit because Wickstra would have had to remove the top 30 feet of the dune to create a level building area on the crest of the dune.

To try to accommodate the state’s concerns, Wickstra offered to build the house on stilts, which would help mitigate its impact on the dune. The DNR rejected that plan as well.

Wickstra then filed suit against the DNR, alleging that the agency’s denial of a building permit robbed most of the property of its value. A Michigan Tax Tribunal ruled that the lot was worth $200,000 with a building permit–and just $500 without.

Prior to a 1992 trial in the Michigan Court of Claims, Wickstra met with DNR officials in an attempt to arrive at a mutually acceptable compromise, rather than go through lengthy litigation. Wickstra offered to put up $300,000 so DNR officials could design a home on the dune that would be an “environmental showplace.” The DNR bureaucrats showed no interest in the proposal, more intent on making an example out of Wickstra than trying to resolve the dispute.

In rejecting Wickstra’s compromise solution, one DNR official told Wickstra, “I will bleed you white.” Says Wickstra, “He has done just that.”

The Michigan Court of Claims Judge, Carolyn Stell, rejected Wickstra’s property rights lawsuit, arguing that his property value didn’t decline sufficiently in value to justify compensation for a regulatory taking. Although he was unsuccessful in appealing the case in 1996, Wickstra is vowing to fight on. He is particularly angered by the fact that DNR officials have lied about key aspects of the case. Wickstra says there is nowhere else on the property to build a house; DNR officials claim he can build a house of lesser value in a wetland adjacent to the sand dune. The courts have accepted the DNR’s position and ruled against Wickstra on this aspect of the controversy, because he didn’t go through the process of applying for a permit to build in the wetlands.

Wickstra says that argument is ridiculous. Muskegon County officials have repeatedly ruled that county land-use laws prohibit any kind of sewage system in a wetland. Muskegon County’s Chief Sanitarian, Michael VandenHeuval, submitted letters to the courts testifying to the county’s policy of not allowing construction in a wetland.

Wickstra said one DNR official, David Moss, gave false and misleading statements in court, claiming that local officials told him Wickstra could build his house if he filled in the wetland. Local officials strongly denied they gave any such permission. Michael Cockerill, supervisor of the White Ship Township, submitted a letter to the Michigan Court of Claims saying: “At no time did I tell David Moss or anyone else that fill would be permitted on the wetland area.”

Nevertheless, the courts have accepted the DNR’s claim that Wickstra should have to go through the formal process of seeking a permit he knows he can’t get before his case can proceed.

The bottom-line is that there is simply no other place to build a house on the property. Chief Sanitarian VandenHeuval says: “To build a home (where the DNR proposes) is inconceivable. To stick the house on stilts, in the wetland, on the landward side of the dune will never be done because a normal person wouldn’t waste his money doing such a thing.”

Says Wickstra about the ordeal that has cost him $170,000 in legal fees, “The DNR has no interest in resolving my case even if it means the preservation of the dune. The DNR told Judge Stell that they needed to win my case to protect 77,000 acres of critical dunes. There was a higher good than just the loss of my land.”