Last Thursday, October 11, the Saugatuck Township Zoning Board of Appeals held a public hearing to discuss Aubrey McClendon’s (Singapore Dunes LLC) application for variances that would allow a 90-foot high-rise hotel with restaurant, bar, and retail shops at the mouth of the Kalamazoo River (that area is now zoned as a residential neighborhood, as is all the surrounding land which is made up of cottages, parks, and educational camps).
Tonight, McClendon’s team will be presenting a different plan to the Saugatuck Township Planning Commission. More on that below.
The ZBA meeting was attended by about 120 people, many of whom submitted well-reasoned, articulate, knowledgeable and informed arguments against the variances. Only one individual, Tower Marina owner RJ Peterson, offered support for McClendon’s variances, reasoning that ‘it is the only way we’ll get the harbor dredged.’
Links to the presentations and information on tonight’s meeting can after the jump.
A general outline of legal arguments presented to Zoning Board of Appeals can be found here.
Steve McKown, a Saugatuck Township resident and municipal lawyer, made the following presentation found here (PDF).
Here is the review by LSL Planning Consultants, a Grand Rapids based planning firm who was hired by the Coastal Alliance to do an unbiased third-party review of McClendon’s variance requests, found here (PDF).
Scott Howard, a Coastal Alliance lawyer who has been following the McClendon issues for six years, presented this legal analysis here.
Neighbors’ letters: These letters are important reminders of how the river mouth and dunes area are zoned as a quiet residential neighbor interwoven with parks and educational camps – a commercial center would be very out of character for the area and disturbing to those who own private property in the area.
Outline of Legal Arguments Presented to the Zoning Board of Appeals
There are at least three reasons why the Application must be denied:
- A variance is a “safety valve” with a narrow purpose that should be “sparingly granted.” A variance is a narrow exception to the zoning ordinance whose purpose is to ensure zoning regulations do not prevent landowners from reasonable use of their land as it zoned.
- The ZBA cannot grant a rezoning through the guise of a variance. A variance is not proper when the property can reasonably be used as zoned, and the landowner’s complaint is with the type of uses permitted in the zoning district. Complaints arising out of the underlying reasonableness of the zoning ordinance must be addressed through the legislative process of amending the zoning ordinance, not by granting a variance.
- This Applicant’s proposed use of the property amounts to a rezoning that can only be granted, if at all, by the Township Board. The Applicant is not claiming it cannot use the property as zoned. Instead, it is asking the ZBA to authorize a large-scale development that is dramatically inconsistent with the surrounding uses and the Zoning Ordinance and the Master Plan because it thinks this use is better for the community (and its checkbook) than the current approved uses. But this type of public policy question is to be determined by the Township Board through the legislative zoning process, not by the ZBA through the administrative variance process.
2. The Application does not meet the standards in the zoning ordinance for granting a variance.
- A variance can be granted only if the Applicant shows that all the standards in the zoning ordinance are met. The Applicant does not meet any of the standards.
- As the Applicant has conceded, the property can reasonably be used as zoned. The Applicant just prefers a different use. A use variance cannot be granted if this standard is not met.
- The Applicant also does not meet the other standards, which apply to both use and dimensional variances. The property does not suffer from a unique hardship different from every other property subject to the same zoning, and the Applicant has the same property rights to use its property as properties subject to the same residential zoning. To the extent the Applicant has a “hardship”, it is self-created. Approving the proposed large-scale, intensive commercial use would be a substantial detriment to the adjacent low-intensity park, recreational, and residential uses. The proposed use is severely inconsistent with the public policies identified in the zoning ordinance and the Master Plan.
- The ZBA cannot approve the application by determining that the proposed use better serves the public health, safety, and welfare than the uses permitted under the Zoning Ordinance. In other words, whether the ZBA believes the proposed development would be better for the Township than the Planning Commission plan is not relevant to reviewing the requested variances. That determination can only be made by the Township Board as part of the legislative zoning process. The ZBA only has authority to evaluate the variance based on the standards in the zoning ordinance.
3. The Application presents a massive request for use and dimensional variances that cannot be granted as a single variance request. The proposed application cannot be broken up into individual variances because the Applicant only provides information for the project as a whole. Yet the scope is way too broad and non-specific to be granted as is. The Applicant has not even specified all of the use variances it would need for this project and it is likely that it would need additional variances from those that it has requested.
Singapore Dunes Submits Incomplete Application to Planning Commission
Tomorrow, Wednesday, October 17, at 7 PM at St. Peter’s Church off the Blue Star Highway in Douglas, the Saugatuck Township Planning Commission will review a different plan for the Singapore Dunes site, one that McClendon lawyers claim will not require any zoning variances. However, rather than pursue this dual course, Singapore Dunes should decide which plan it intends to move forward. It is inappropriate to waste the planning commission’s time considering a plan that will not be developed. The application is also incomplete and not yet ready for review by the commission. There are a number of basic items missing from the site plan.
Below are a few basic points regarding the McClendon application before the Planning Commission:
POINT 1: The Township should not review the Planning Commission application while the Zoning Board of Appeals application is pending.
It is no secret that this plan was submitted in an attempt to win support for the requested ZBA variances. It is a waste of Township resources to review both plans at the same time, especially when Singapore Dunes seems to have little interest in actually developing the property under this proposed plan. And if the variance application is granted, it will have been a waste for the Planning Commission to have reviewed the current application at all, given that the developer will likely submit a significantly different plan for review. Courts have upheld local governments who have required a developer to choose between a site plan before the Planning Commission and a variance request before the ZBA. The Planning Commission should do just that and require the applicant to pursue one plan or the other, but not both at the same time.
POINT 2: Singapore Dunes has an obligation to design a project that minimizes environmental impact.
The developer has the right to residential use of the property under the zoning ordinance. However, Singapore Dunes also has an obligation to provide an environmentally sensitive development under the ordinance. The zoning ordinance requires in the R-3b district that the “buildings, structures, roads and driveways shall be placed so as to minimize the disturbance of natural vegetation and the risk of erosion.” Further, the approval of a site plan requires consideration of factors such as:
- “The landscape shall be preserved in its natural state and contour, insofar as practicable, by absolutely minimizing cutting, filling, grading, and tree and soil removal. Any topographic modifications shall result in maximum harmony with adjacent areas,” and,
- “Natural resource features, including without limitation lakes, ponds, streams, wetlands, steep slopes, groundwater and woodlands, shall be preserved to the maximum practicable extent by development in a manner which will not unnecessarily or unreasonably detrimentally affect or destroy such features,” and
- “Special attention shall be given to provide proper site drainage so that removal of stormwaters will not adversely affect neighboring properties or cause soil erosion or sedimentation,” and
- “Stormwater management systems and facilities shall preserve the natural drainage characteristics and will not substantially reduce or increase the natural retention or storage capacity of any wetland, water body or watercourse or cause alterations which could increase flooding or water pollution on or off site.”
The proposed plan seems to try and create a “worst case scenario” residential development without regard to the sensitive natural features on the property. The Planning Commission should require the developer to redesign the proposal in a way that protects rather than destroys what makes this property so unique.