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MINUTES: 2nd Regular Town Board Meeting, April 25, 2016 – Bowers Harbor Vineyards, Peninsula Dr. Discussed

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PENINSULA TOWNSHIP
2nd Regular Township Board Meeting
April 25, 2016
Meeting called to order at 9:00 a.m.

Roll Call
Present: Rosi (present until approximately 9:20am), Weatherholt, Hoffman, Witkop, and Byron
Absent: Avery & Correia (excused)
Also Present: Peter Wendling, Township Attorney; Michelle Reardon, Director of Planning and Zoning, and Deb Hamilton, Recording Secretary

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MOTION: Byron/Weatherholt to appoint Hoffman as Chair. MOTION PASSED
Approve Agenda

Hoffman asked to move Business Item #3 to #1.
MOTION: Byron/Weatherholt to approve the agenda as amended. MOTION PASSED

Brief Citizen Comments – for items not on the Agenda
None

Conflict of Interest
Weatherholt said he has a conflict on Business Item #2. His farm is next in line for PDR. Hoffman said she may have conflict because her farm is further down the list.

Business
Request for Kahn Second Opinion – Verbal
Hoffman asked how the Board wants to proceed. Byron said she would like to get a second opinion. It will be prudent for the Township to resolve the concern. Witkop asked if the second opinion is something that was not handled properly what are the options at that point. Wendling said it could be done through a stipulated order with the prosecutor’s office. The prosecutor attorney has an obligation under the Land Division Act to do enforcement through some kind of consent order. The Township has no recourse under the current ordinance. The time periods for appeals have passed. The prosecuting attorney has the ultimate authority to enforce the Land Division Act. Hoffman asked how the Board will pick the attorney for the second opinion. There was Board consensus to have Hoffman and Byron find attorneys that have high recommendation in Land Division, ask the Board if they have a conflict with attorneys on list and ask Mrs. Kahn if she knows any of the attorneys on the list and draw a name from the hat.

MOTION: Hoffman/Rosi to go out for 2nd opinion on the Kahn request.
Roll Call Vote: Rosi-yes, Witkop-yes, Weatherholt-yes, Hoffman-yes and Byron-yes. PASSED UNAN

Witkop said reach out to other Townships for information on land division attorneys. Rosi said reach out to attorneys with experience with land division on the Great Lakes.
Rosi left the Board approximately 9:20am (excused).

Bowers Harbor Vineyards Enforcement Discussion
Reardon reviewed her memo. Wendling said this has been an ongoing violation for years that has not been brought to the Township’s attention until approximately a year ago.

Bowers Harbor Vineyards (BHV) received a benefit by not having enforcement occur. If the violation is ignored the Township could lose that portion of the ordinance. Bryon said she does not see why there cannot an adjustment within the winery ordinance structure that says grow x number of grapes on Old Mission Peninsula and have one of the other wineries on Old Mission Peninsula process the fruit. Reardon said Staff asked the Township Board if they want to craft a new ordinance for an existing winery and no action was taken by the Township Board. Planning and Zoning has to enforce the ordinance and this is where we have come after exploring opportunities. If the pleasure of the Board is now to enter into a discussion about drafting an ordinance for this specific use then Staff is open to that. Wendling said the Board still has the option to accommodate this use. The Board can make a motion to request the Planning Commission and Planning staff look at the ordinance to accommodate this type of use rather than take enforcement action. Weatherholt said the simplest way is to take the seasonal portion of it. Witkop asked how a roadside stand became a SUP for BHV. Reardon explained the history. Witkop said it seems to Witkop that BHV has the benefit of selling retail but do not meet any of the other criteria the Township puts on any of the other farm processing facilities. Reardon said at the time BHV received approvals, the Township’s wine ordinances were in draft process or non-existent. Byron asked if BHV is processing on the Peninsula with one of the other wineries. Reardon said that would be a question for the owner. Witkop asked why BHV cannot be a farm processing facility. Reardon said that is a question of the owner. Reardon reviewed the requirements for a farm processing facility. Byron asked why every winery has to process their own. Why not have a category that needs to be grown and processed on the Peninsula. Witkop said she does not want the Township writing ordinances to meet an applicant’s criteria. It does not work that way. Witkop could support a minor adjustment. Hoffman said she is concerned opening up roadside stands ordinance. The SUP was signed by the owner’s husband, who has since passed away, knowing what they could and could not do. They had a SUP but have worked into something different and are now not in compliance. Hoffman also disagrees on having an ordinance for one person. If this goes back to the Board, need to know where the juice processed. Reardon said need to explore a possible new category of winery. There may be unintended consequences. Wendling said the enforcement window is narrowing. This has to be done by the next time BHV is out of compliance. Byron said makes more sense to bring BHV into the winery ordinance than it does to leave a winery in a seasonal use. Reardon said Staff will do the research. Witkop said a minor tweak as long as it is keeping agricultural use and benefit stays on the Peninsula. Having a reactionary ordinance because one person wants to do something they are not allowed to do is just wrong in principle. Byron asked Linda Stegenga, Bowers Harbor Vineyards, if processing locally. Stegenga said no. Byron asked could BHV make that kind of a change. Stegenga said probably not. Chateau Grand Traverse, Peninsula Cellars and Brys have grown their own businesses and now do not have room for BHV. BHV currently uses Left Foot Charley and French Road Cellars. Byron said there are two new wineries that do processing, Mari Vineyards and Bonobo. Have you talked to them? Stegenga said they would not be a good fit for BHV. Byron said there is no reason to go through everything if the applicant is not going to look into processing here. Hoffman asked about processing at BHV. Stegenga said they would prefer not to and not sure where they would put it. Witkop asked why BHV does not want to process. Stegenga said it has been a good model using another processing plant for BHV production. Yes, could figure out to do a processing plant someplace on the property. She is in the dark as to the best solution other than removing “seasonal” from their roadside stand. Witkop said cannot remove seasonal from BHV roadside stand without removing seasonal from all roadside stands. Hoffman asked if BHV were to comply with seasonal, could BHV process outside of the Peninsula. Reardon said yes. There are minor changes to the SUP that need to be taken care of but cannot amend an SUP that is out of compliance. Byron said there are options available for the applicant and the applicant needs to do some serious thinking about complying with seasonal or change processing to fit into another category. The Board has a responsibility to look at the winery ordinance while the consultant is here to see if there is something within the winery ordinance to create a different operating model with not changing the intent of the amendment. Stegenga said she understands but the problem is finding someone who has room to process. She said she has the full support of all the wineries on the Peninsula. Witkop said the bigger picture is if the Township amends the ordinance it affects everybody.

PDR Selection Committee Discussion
Hoffman said if Weatherholt recuses himself there will not be a quorum of the Board.
MOTION: Byron/Witkop to table to the May10, 2016 meeting. MOTION PASSED

Brining Contract
Hoffman said has received calls from residents on Ridgewood and Brinkman asking for better brine. Weatherholt will find out options for brining.
MOTION: Byron/Witkop to table until the May 10, 2016 meeting. MOTION PASSED

Create Fund 510 – Friends of the Lighthouse – Verbal
Hoffman said need motion to create a new fund. Ellen Kerr, 14548 Bluff Rd., President of Mission Point Lighthouse Friends, said in 2013-14 Friends of the Lighthouse held a pancake breakfast with the idea that the money would go toward renovation and restoration of the lighthouse. The funds are being held by the Township. The Mission Point Lighthouse Friends is now a 501C3. Kerr requested that the funds be turned over to the Mission Point Lighthouse Friends group. Hoffman asked if funds were generated on Township property. Kerr said no.
MOTION: Byron/Witkop to transfer the funds to Mission Point Lighthouse Friends. MOTION PASSED

Peninsula Drive Special Assessment District
Hoffman said the Assessor and the Supervisor will work with the Road Commission to make recommendations back to the Township Board. Byron asked about the third WHERE AS “once the District is established, the Township will be responsible for the construction, improvements and maintenance of the improvement.” That seems like Township will be taking on a large financial burden. Weatherholt said the Township would contract with the County to do the maintenance. Byron said already give the County hundreds of thousands of dollars for road maintenance. At lot of this has to do with maintaining the culverts. Witkop said the Road Commission came to the Township before when the Drain Commissioner was starting these districts they told the Township the reason they could not solve the drainage problems was they needed to work outside of the road right-of-way. This looks like they are trying to put a special assessment in place that the Township will pay for within the road right-of-way. How does this solve that problem? Wendling said the property owners are voluntarily, through a petition, paying extra dollars for this project. Afterward hopefully the Road Commission would continue maintain the objects that are in the road right-of-way. Hoffman said that the Board has questions for Mr. Cook at the Road Commission before any recommendations can be made.

Citizen Comments

Anne Griffths, 14548 Bluff Rd., concerned about the cost per house on Ridgewood and Brinkman for brining.

Nancy Kahn, 14890 Shipman Rd., said she handed out a survey of Correia’s parent parcel done since last meeting. Someone would have to verify what the surveyor’s conclusions are. If another attorney takes a look at this issue the Township may want to consult with that attorney about what to do with the Township Ordinances. The Township has already put in the PUD ordinance that land below the Ordinary High Water Mark cannot be considered when determining the amount of land they have to divide into parcels. The Township may want to put that in Land Division Act to make it clearer at this point. From a legal perspective she thinks it is already there because the Land division Act says have to have a survey under Act 132. Act 132 states when next to the Great Lakes go by the survey line. Wendling said agrees the survey statue says that but case law came out since that time which may cause a takings problem. Kahn said there are statues of limitations. It may be that a suit will be filed and often people will react adversarial after that point. It is helpful to continue to see if some common ground can be reached. Witkop asked Kahn if the survey she handed out came from Mr. Correia. Kahn said securestly, yes. Witkop asked who paid to have this survey done. Hoffman asked if both sheets came from Correia. Kahn said the survey on the back says Jesse Mitchell and surveyors’ who did this was from Inland Seas. Kahn got the information from the prosecutor.

Joanne Westphal, 12414 Center Rd., asked if Ordinance 139 is the farm or food processing facility. Reardon said it is Ordinance Amendment 139 Farm Processing Facility. It is still part of Ordinance #2 which is the Zoning Ordinance. Westphal said that was the ordinance that was written by a committee of Peninsula Township residents shortly after the Ordinance 128 controversy in 2000 involving right to farm. Reardon said this is called the use by right winery in common terms but not tied to right to farm. Westphal said when that ordinance was written as an amendment she believes that it was a right to farm for all types of farm products. It was not exclusively tied to wineries. She is hearing in meetings that this is becoming a winery ordinance. It was a farm processing facility ordinance that allows farmers to process products on their own. She is having difficulty seeing why this is called a winery type facility. If other crops are excluded then they are being discriminated against. She is concerned that she may be discriminated against taking her farm products to finish product just like the winery people are doing on their farms. Also the PDR ordinance says on page 3 definitions – permitted use means any use contained within the development rights easement essential to the farming operation or which does not alter the open space character of the land. There seems to be a conflict with one of the wineries that is definitely on PDR land. There have been major elevation changes out here on the peninsula. One of the easiest ways to block that is to change the ordinance to say the 35 foot height restriction is at the natural topography elevation where that front door is placed.

Board Comments
Weatherholt said he contacted Kelly Clark about the donation to the Old Mission School. Clark had no more information.

Hoffman said Ordinance 139 includes all farm processing. Also there is a big difference between road side stands and special use permits. Hoffman updated the Board on the tree in Bohemian Cemetery.

Witkop said she is not aware that the Township has ever not applied Farm Processing Facility to someone processing outside of wine. Commonly use the term winery because almost all of the time it is wineries. It does apply to all farm processing. She is not aware that anyone has been precluded from falling under that category in the ordinance.

Adjournment
MOTION: Byron/Witkop to adjourn at 10:40 a.m. MOTION PASSED

Respectfully submitted by Deb Hamilton, Recording Secretary
These minutes stand to be approved at the next meeting scheduled for May 10, 2016

A NOTE FROM JANE: I started Old Mission Gazette in 2015 because I felt a calling to provide the Old Mission Peninsula community with local news. After decades of writing for newspapers and magazines like the New York Times, Los Angeles Times, Family Circle and Ladies' Home Journal, I really just wanted to write about my own community where I grew up on a cherry farm and raised my own family. So I started my own newspaper. Because the Gazette is mainly reader-supported, I hope you'll consider tossing a few bucks my way if I mention your event, your business, your organization or your news item, or if you simply love reading about what's happening on the OMP. Check out the donation page here. Thank you so much for your support. -jb

Bay View Insurance of Traverse City Michigan

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