’81’ Developer Introduces New Plat Subdivision, PUD Still in Play

At the Peninsula Township Planning Commission meeting Monday, June 20, 2016, a new site plan was introduced for “The 81,” a block of land bordering Boursaw Road, with frontage on East Grand Traverse Bay. The developer is Kevin O’Grady, owner of “The 81 Development Company, LLC.”

The new “plat subdivision plan” would replace the Planned Unit Development (PUD) which was approved by the Township Board on August 11, 2015. However, the approved PUD is still in play.

“The PUD is still out there pending a review,” said Michelle Reardon, Peninsula Township Director of Planning and Zoning. She noted that although the PUD was approved, issues involving fire access, soil erosion and engineering were remanded back to the Township Board. “The Township Board will be holding a public hearing on those items once they’re complete and have been reviewed by the experts.”

The approved PUD includes 41 single-family lots, new paved roads, and up to 40 boat docking spaces. The new plat subdivision plan includes 53 units/lots. Thirteen of those would be located along the eastern boundary of the property and have private water access on East Grand Traverse Bay. The remaining 40 lots would not have water access.

Following the August 2015 approval of the PUD, adjacent property owner James Komendera founded the group “Preserve Old Mission” and brought legal action, noting that the character, density and environmental impact of the proposed project was inconsistent with the Old Mission Peninsula and the standards of the Zoning Ordinance.

In January, 13th Circuit Court Judge Philip Rogers ruled against the developer, citing proper soil erosion studies and emergency fire road issues. A public hearing for “The 81” was scheduled for May 10, 2016; however, at that time, the developer’s attorney, Phillip Settles (replacing attorney Joseph Quandt, who withdrew because of issues surrounding his business relationship with Township Supervisor Pete Correia), requested that the public hearing take place at a later date.

“The developer withdrew it because we realized there was more information that was necessary,” said Reardon. “It just simply wasn’t ready to be reviewed.”

Reardon said no permit has been issued on either of the proposals. “The developer is simply bringing in an option B,” she said of the new plat subdivision plan. When asked whether this happens often – a developer bringing in a parallel plan for the same property – Reardon noted, “I’ve seen it twice in my career, and both from the same developer.”

Regarding the new plat subdivision plan (which is a “use by right,” meaning it’s a use permitted in a zoning district and is therefore not subject to special review and approval by a local government), Reardon said it’s still in the preliminary stage. “It remains if they’ll get all the necessary permits from all the review agencies, but as they’re presenting it, they are likely to achieve 52 to 53 lots, according to zoning.”

Additional Notes on “The 81” from the June 20, 2016 Planning Commission Meeting: 

Planning Commissioner Isaiah Wunsch suggested that the developer choose one plan or the other, rather than pursuing both at the same time. In the “citizen comment” portion of the meeting, Scott Howard, attorney for James Komendera, noted that under the law, the Planning Commission has the right to tell the developer that he can’t “throw multiple plans at the township at once.”

Planning Commissioner Penny Rosi wondered whether Township Trustee Jill Byron, who was forced to recuse herself from “The 81” PUD discussion and decisions because she “liked” a Facebook page, would be able to participate in the new plat subdivision plan. Township attorney Peter Wendling noted that because this is a different site plan, he’s “leaning towards yes,” that Byron would be able to participate.

Planning Commission chairperson Keith Leak asked the developer’s spokesperson, Doug Mansfield, of Mansfield Land Use Consultants, why the developer is pursuing the new plat subdivision plan. Mansfield noted that while a plat takes longer, “it has an outcome. It’s a use by right, so if it meets the zoning criteria, the township must approve it … it should be very objective.”

Planning Commissioner Monnie Peters wondered if a “use by right” project requires a bond. Attorney Wendling noted that it could still require a bond.

Because the new plat subdivision plan was received at the Township on May 9, 2016, a public hearing would need to be held within 90 days from that date. Reardon noted that the 90 days expires on August 6, 2016. A motion to hold the public hearing on July 18, 2016 was approved; however, later in the meeting, Doug Mansfield, who is working on another Peninsula Township development for Ken Schmidt (Mathison Road and Center Road), noted that he would rather push “The 81” public hearing into August, and hold a public hearing on the Schmidt development on July 18, 2016.

Planning Commissioner Penny Rosi questioned the wisdom of holding a public hearing within 90 days, when the Planning Commission hasn’t had time to review it.

During the “citizen comment” portion of the meeting, Mark Nadolski, president of Protect the Peninsula, noted that a July 2015 report from Grobbel Environmental & Planning Associates recommended denying the project.

Another citizen comment was made by Margaret Achorn, who brought up issues surrounding the escrow accounts for “The 81.” The Planning Commission approved an escrow amendment in June, but because the amendment is not in effect yet, Peninsula Township taxpayers have subsidized developers upwards of $14,500 since March 10, 2016. Penny Rosi noted that during “The Orchards” development some years ago, there was an escrow system in place, so it’s not unique to current developments such as “The 81.”

Ann Rogers, representing the Northern Michigan Environmental Action Council (NMEAC), noted many concerns about the project, including tree cutting, erosion, pesticides, herbicides, and impact on the shoreline and water. She asked that an independent environmental assessment be done, “one that’s not beholden to anyone.”

James Komendera, president of Preserve Old Mission, presented soil testing done on nearby land which was farmed similarly to “The 81” property (at one time, cherry orchards covered 80 percent of “The 81” land). The test revealed a level of arsenic five times the permitted state level; a level of lead 10 times the state level; and a level of mercury three times the state level.

David Taft noted that during the time between when the PUD was approved in August 2015 to the current date, it’s been revealed that “The 81” was farmed for decades. He noted that the Michigan Department of Environmental Quality makes it clear that the owner must take due care to prevent exposure of chemicals used in farming to residents, neighbors and visitors, and that a baseline environmental assessment must be done. “He owes the community this responsibility,” said Taft.