Peninsula Township Board Approves Boursaw Farm Condo Development

Peninsula Township residents crowded into the Town Hall tonight for the Township Board meeting. On the agenda was an item to approve or deny a condo development on the old Boursaw farm, which borders Boursaw Road and Smokey Hollow Road.

The board debated the project, known as “The 81 on East Bay,” for a couple of hours and voted to approve it with several conditions, including an emergency access road approved by the fire chief.

The project includes 41 single-family lots, new paved roads, and up to 40 boat docking spaces. Township resident James Komendera’s property borders on the development, and he has joined with other adjacent property owners to oppose the project. They’ve created a group called “Save the Outstanding Peninsula” (stoptc.org), and also hired an attorney, Scott Howard, who specializes in the protection of natural resources.

Click through to their website for access to an environmental impact report, as well as a letter to the board from Scott Howard dated July 27, 2015 which reads:

July 27, 2015

Peninsula Township
Supervisor and Trustees
13235 Center Road
Traverse City, MI 49685

Via Email to: [email protected]

Re: Proposed Condominium Subdivision for The 81 on East Bay; Our File N 6079.00

Dear Supervisor Correia and Township Trustees:

This letter is to follow up on my July 14, 2015 correspondence. There were several items discussed at the Township Board meeting that further solidified the reasons why the proposed 81 on East Bay PUD should be denied.

The Township has the Ability to Deny a PUD Request

As a reminder, the Township has the right to turn down a Planned Unit Development request that does not fit within the communities goals and values. The Michigan’s Zoning Enabling Act explains that PUDs are to “encourage innovation in land use and variety in design, layout, and type of structures constructed, achieve economy and efficiency in the use of land, natural resources, energy, and the provision of public services and utilities, encourage useful open space.” A plan that is not consistent with the communities goals and values, as outlined in the PUD standards, can and should be rejected.

It is important to distinguish between a PUD, which allows the Township the discretion to deny a project, and a “use by right.” As the name implies, a use by right does not involve a discretionary decision by the Board. A PUD, on the other hand, is asking for permission to not strictly comply with the standards in the zoning ordinance for things like lot size or density. In this instance, the developer is asking for permission to build on lots that are smaller and more dense than would be allowed as a use by right. The request is seeking to put over double the number of lots on top of the waterfront bluff than would be allowed as a use by right with normal lot sizes.

The character, density and environmental impact of the proposed project is inconsistent with the standards of the Zoning Ordinance. As your Township Attorney explained at the last meeting, the Township has the discretion to deny the requested PUD for failing to meet the Ordinance. The important thing is that the Township relate its denial to the evidence in the record and the standards in the Ordinance.

Removal of Trees

One half of the existing trees on the property will be removed for the development. As Dr. Grobbel’s report indicates, this has important negative impacts for soil stability, erosion and wildlife habitat. To better understand this loss of vegetation, LLIA prepared the following before and after digitally altered aerial photos.

The large scale removal of trees called for by the project is inconsistent with Section 8.3.2, to preserve “the natural character of open fields, stand of trees, steep slopes, brooks, ponds, lake shore, hills, and similar natural assets” and Section 8.3.1(3), to preserve natural resources “to a maximum feasible extent.”

Grading and Alteration of Topography

As discussed at the public hearing, the project focuses development on the unique topographical features on the property rather than the “ by-passing of natural obstacles” as required by Section 8.3.2 (4). Some important points that came out through the public hearing process are as follows:

• The Developer has not provided any grading volumes but has asserted that it is roughly half of what Dr. Grobbel estimated. It is unclear where these calculations are coming from and the Developer has not provided any data to support this assertion. Even so, however, half of the estimated grading and filling would be roughly 600,000 square feet or 6 million cubic feet, which would be 67 Olympic swimming pools or 500 residential pools worth of dirt.
• In any event, the Developer’s consultant acknowledges that “there is a fair amount of earthwork proposed for the site development” (see Mansfield July 14, 2015 Letter). Both in the public hearing and the letter, it was made clear that the plan is to “cut back” the top of the ridge lines in order to create flat sites for development rather than work with the existing bluff and develop around it.
• The plans call for a cut in the bluffs on the property of 10 to 20 feet. The July 14 Mansfield letter suggests that 17% of the lake front bluff will be graded, which is consistent with 17 feet off the top of a 100 foot bluff. As a reminder, the Zoning Standards require that “grading or filling will not destroy the character of the property or the surrounding area” and “will not cause soil erosion or sedimentation problems.”
• The Developer’s grading plan shows the contours of the property related to the home sites, and solidifies that the proposed development is on the topographical features of the property rather than the relatively flat and easy to develop areas.
• It was suggested that even the preserved open space areas would be “land balanced” and graded for construction staging. In other words, even a substantial portion of the “preserved open space” will be disturbed and graded through the construction project.
• The Developer is proposing a “site” condominium, which means that the Developer will not necessarily be building any homes on the condominium units. It also means that there is no time requirement for build-out of the proposed homes. However, the extensive tree removal and grading of the project will happen right away, further leaving the land open for possible erosion.
• If the development does not succeed, the Township, the community and the neighbors will be left with a substantially altered landscape. Half the trees will be removed, and 10 to 20 feet of ridge top will be re-graded. As a comparison, the neighboring Cove development has been under construction for several years and is still not fully built out.

The Township has the Right to Consider Dockage for the Project

The public and members of the Board raised concerns about the shared dockage plan. The site plan depicts a dock with 30 slips that, according to the scale of the drawings, extends over 300 feet (more than the length of a football field) out in to the bay. This is in addition to the potential for ten individual docks for the first ten lots of the project. The public rightfully raised concerns about aesthetics, navigational and safety as a result of the proposed dockage.

In response, the Developer’s representatives suggested that the Township does not have the right to regulate docks. However, the Michigan Supreme Court has expressly ruled that Townships have do the authority over docks. In a case called Square Lake Hills Condo Association v Bloomfield Township, the Court held that the Township to regulate boat docking and launching in order “to protect the public health, safety, and welfare of persons and property within a township.” While 2 there is no question that the US Army Corps of Engineers also has authority over docks within the Great Lakes, there is also no question that the Township has the ability to consider dockage as part of its evaluation of a PUD proposal.

The Township Should Consider the Contents of the Master Plan

The Master Plan was discussed at the public hearing and there seemed to be some confusion about whether it applied in the review of this project. The short answer is that it does. Section 8.3.1(3 (s)specifically requires that “the proposed site is in accord with the spirit and purpose of this Ordinance and not inconsistent with, or contrary to, the objectives sought to be accomplished by this Ordinance and the principles of sound planning.” The “objectives sought to be accomplished by this Ordinance” are expressed by your Master Plan and expressly incorporated within this standard. As mentioned at the outset, a PUD request requires the Township to exercise its discretion and determine whether the proposal is consistent with the community’s wishes as expressed in the Master Plan. And the density of the proposed development, along with its impact to sensitive natural features, is directly contrary to what is called for in the Master Plan.

Conclusion

The 81 on East Bay is simply not the right project for Peninsula Township. It contains density of homes that one would normally find in Traverse City, not 15 miles away on rural roads. It calls for the removal of an extraordinary amount of the existing trees and vegetation. It focuses development on unique ridgelines and requires a massive amount of grading. It substantially increases the risk for erosion and sedimentation. It contains a 30 slip dock that extends a football field out in to the bay. It is not consistent with the community’s vision for the area. For all these reasons it is respectfully suggested that the Township should deny the PUD application.

If you have any follow up questions, please do not hesitate to contact me.

Sincerely,
Scott W. Howard

Thoughts on “The 81 on East Bay” development? Sound off in the comments below.