More than 100 people crowded into St. Joseph Catholic Church last night for a public hearing on “The 81 on East Bay” PUD, but the hearing ended up being postponed.
The controversial development of 81 acres on the old Boursaw Farm, which borders Boursaw Road and includes frontage on East Grand Traverse Bay, was postponed after the Peninsula Township Board learned that one of the development’s roads doesn’t meet the international fire code.
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After the Township Board approved the PUD in August 2015, legal action was brought by Jim Komendera and his group “Preserve Old Mission,” noting that the character, density and environmental impact of the project was inconsistent with the Old Mission Peninsula and the standards of the Zoning Ordinance. Judge Philip Rogers of the 13th Circuit Court remanded the project back to the Township to resolve issues involving fire access, soil erosion and engineering.
Attorney Philip Settles, representing “The 81” developers Kevin and Vicki O’Grady, described the situation with the road.
“Something came up a couple of hours ago that relates to the road East 81,” said Settles, adding that this is not the fire road, “which is fine,” but rather the road which goes to the beach. “Apparently, it just came up that the road East 81 is 20 feet wide, whereas D.107, I think is it, of the fire code – our expert Ron Taylor is here, as is [Fire] Chief Rittenhouse – and according to the code, that would be described as a dead end fire ramp or apparatus road.”
Settles went on to say that this road had been approved by the previous Peninsula Township Fire Chief, “however we don’t have that modification in writing, and we don’t have the reasons for the modification,” he said. “For the board to make any decisions … they can’t make decisions just based upon the fire chief’s recommendation, just a flat recommendation … he has to provide reasons for a variance from the 26 feet.”
Settles then requested that the Board adjourn the public hearing, so the developer can either “widen the road” or “provide the board with the exceptions to the code that would be appropriate for rural fire lanes like this.”
Peninsula Township attorney Jim Young concurred that the developer would need to cite the section that allows that variance and explain why a variance would be justified.
A motion was made and passed by the Board that the public hearing be adjourned until the applicant provides more information.
From the audience, Gordon Hayward, former Peninsula Township Planner, noted that as a point of order, a motion to adjourn stops all action. “My point is that people have come to provide information to the Board in addition to the road, and you should know that before you send it back to the planning commission, before you hold another public hearing, you should listen to what people have to say tonight.”
While the meeting was not an official public hearing, citizen comments were heard by the Board (see below for notes).
Also on the agenda, the Board voted unanimously to have Joanne Westphal begin her term as Township Clerk on Sept. 9, 2016, as current clerk Monica Hoffman will resign her post as of Sept. 8. Westphal was voted in by Township residents at the August 2 primary, but was not set to take office until November.
OTHER NOTES FROM THE MEETING:
After discussion with Peninsula Township attorney Jim Young, it was determined that Trustee Jill Byron should recuse herself from the discussion and voting on The 81. She previously was forced to recuse herself after a judge determined that her “liking” the Facebook page “Save the 81” was a conflict of interest. She can, however, speak as a citizen in the citizen comments portion of the meeting.
Discussion also took place regarding whether Penny Rosi should recuse herself from discussion and voting on The 81, as she had written a letter to the Traverse City Record-Eagle in support of the team of seven candidates running for Peninsula Township office. In the letter, Rosi mentioned that The 81 development special use permit (approved by the Township in August 2015) ignored the Township’s Master Plan “by allowing almost half the natural slopes to be reconfigured (bulldozed), with subsequent removal of nearly 40 percent of natural woodland.” The letter continued, “Years ago, developments such as Port of Old Mission, Eagle’s Landing, The Bluffs and The Woods at Willow Point were developed with respect for the land.”
Settles had questioned whether Rosi was able to separate herself from her negative vote that occurred a year ago when The 81 PUD was approved by the Township Board. “I think that we’re moving on,” said Rosi. “We’ve moved past the beginning of this whole project … I feel strongly that I can look at the issues in terms of the final resolution on how we’re going to make this project work, and so I would like to not recuse myself.”
After some discussion with the Township attorney, it was determined that Rosi would not recuse herself. The audience started to applaud her decision, but were cut short by meeting chair Monica Hoffman, trying to maintain order in the room.
Christopher Grobbel of Grobbel Environmental & Planning Associates in Leelanau County recommended that the Board tighten up the conflict of interest issues. “If you have a conflict, it needs to be very clearly stated,” he said, adding that “there are a whole host of issues that relate to soil erosion, storm water and grading that you’re going to essentially put off for another two or three months because you are not listening to the public tonight, and that’s not good community public process.” He encouraged the Board to continue the public hearing.
David Taft noted that “no one wants to live in a dense subdivision 10 or 15 miles from Traverse City.” He called on the Board to respect the Master Plan and present plans that “make the maximum effort to preserve the environmental quality of natural beauty of the area.” Taft also noted that if “The 81” development or septic fails, the Township will be forced to take over operations of this “community septic” to protect the health and safety to the residents. He also called on the developer to conduct an independent environmental analysis if they suspect the property is contaminated; otherwise they will be in legal trouble. He added that since “The 81” PUD was approved in August 2015, it’s been learned that the land was farmed, using lead, arsenic and other toxic pesticides.
Pat DeVol Trnka brought up other Peninsula Township parcels with known contaminants such as Pelizzari Park and the Bowers Harbor Park expansion. “We are willing to expose and encourage the public to use this property, but when a potential private development is found to have elevated levels of arming residue, some residents oppose the use of this land. Why the double standard?” She also thanked the Board members and Township staff for their service over the years. “They have been and are committed public servants, and even in the face of all the accusations published in pre-election flyers and incessant verbal attacks at board meetings, they’ve maintained their dignity and continue to perform with the integrity required of their positions. I hope the public appreciates the long hours and the devotion that they have given to this township.”
Nancy Davy discussed the fact that this is a farming community with high levels of contaminants used in the practice of farming, both in the past and present. She researched the cancer rates in Michigan and learned that for diagnosed cancers, of the 83 counties in the state of Michigan, Grand Traverse County ranks 16th – or in the top 5th. “When adjusted for age,” she said, “it is 4th in the state, ahead of Midland, Wayne, Genesee and Saginaw Counties.” She’s also been told that the contaminant dangers are less in an area such as a park than in the residential use of an abandoned cherry orchard, where residents would be exposed to chemicals on a daily basis.
Anne Griffiths encouraged the Board to include more details in the minutes, such as whether citizens spoke in favor of or against an issue. She also would like to see Monica Hoffman’s letter of resignation. “I think we need to have more information on the website concerning what’s going on,” said Griffiths, adding that she thanks the Board for all their hard work over the years.
Mark Nadolski, president of Protect the Peninsula, agreed with many of the comments already made, adding that the Master Plan and Zoning Ordinance need to be followed. He noted that other previously-farmed building sites on the Peninsula have required environmental assessments, soil erosion tests and chemical tests before people were allowed to build and live there.
Brit Eaton noted that in the Master Plan, “it says clearly that the vision of Peninsula Township to preserve and protect the unique and scenic nature of Old Mission is critical to the Master Plan.” He said that in a previous survey, 92.9 percent supported maintaining the scenic view of the bays, and 81 percent supported preservation of the natural shoreline. “There’s going to be a huge dock with many, many boat slips and many lights … that is not preserving the natural shoreline.” He added that 74.5 percent supported the preservation of views from the water surrounding the Peninsula. This project does not fulfill any one of those.”
Ann Rogers, representing the Northern Michigan Environmental Action Council (NMEAC), said they are opposed to the “ill-conceived” 81 development and “believe a complete environmental assessment and impact statement are needed before any approvals by Peninsula Township.” Rogers cited the uniqueness of the property; removal of steep, forested ridge lines; cutting of trees; potential runoff of large amounts of sediment into the bay; and contaminated soils from previous farming of the land. Rogers said that NMEAC recommends tabling the development until the new Township Board takes over in November.
Gordon Hayward questioned why the Condominium Subdivision section of the Zoning Ordinance (6.9) is being ignored by the Board with regard to this development. He has discussed this with Township staff at various times and has not heard back. “It seems that the Township attorney has advised the Township to ignore section 6.9,” said Hayward. “I don’t know the details of that, but all the issues being raised here about the environment would be addressed if they used the Condominium Subdivision section of the ordinance … If you’re sending it back to the Planning Commission – and I think that was your action tonight – that should be addressed. The Township attorneys should write an opinion as to why section 6.9 cannot be enforced or cannot be used. That’s a zoning ordinance, and you’re ignoring it.” Hayward said that if he doesn’t receive a response from the Township, he will request a FOIA to determine why Section 6.9 is not being used.
Jeffrey Goodman said his farm is on the corner of Smokey Hollow Road and Trevor Road. He expressed concern over Trevor Road being used as a fire service road, resulting in increased traffic and noise, as well as runoff and watershed issues if Trevor Road is paved, construction traffic if the road is used for construction vehicles, aesthetic changes, and the environmental repercussions to his own wells if large amounts of soil are moved in “The 81” development.
Jim Komendera, president of Preserve Old Mission, agreed with previous statements regarding soil contamination. He noted that regarding Pelizzari Park, “they did not dig into Pelizzari Park 20 feet, like they will with the slopes on The 81 development, and they didn’t take down 50 percent of the trees, like they will with this property … I think there’s a difference with the abrupt change with this soil and how that may affect those toxic chemicals,” as well as the bay, impact on the neighbors, and changing of the landscape.