On June 21, 2017, Judge Thomas Power of Grand Traverse County’s 13th Circuit Court denied a motion filed by “The 81 Development Co. LLC” (Case #17-32081) against Peninsula Township regarding “The 81 on East Bay” development, which borders Boursaw Road on the Old Mission Peninsula.
The motion asserted that Peninsula Township failed to comply with the court’s decision of Jan. 15, 2016 by Judge Philip Rodgers; specifically, seek public input and make decisions regarding an emergency fire road and soil erosion studies on the parcel.
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“The 81 on East Bay” development has been in the news since it was first announced in 2015. As a brief recap, the development, which would include 41 single-family lots, new paved roads, and up to 40 boat docking spaces under a Special Use Permit, was approved by the Peninsula Township Board in August 2015.
That decision was challenged by the non-profit group Preserve Old Mission, which filed an administrative appeal in October 2015. In January 2016, Judge Philip Rodgers ruled against the developer on proper soil erosion studies and emergency fire road issues.
A series of public hearings were scheduled by Peninsula Township to consider the issues noted by Judge Rodgers and gain input from Old Mission Peninsula residents. Those hearings were scheduled for:
- March 15, 2016 (adjourned at developer’s request)
- May 10, 2016 (adjourned at developer’s request)
- Aug. 23, 2016 (adjourned at developer’s request)
- Nov. 17, 2016 (adjourned at township’s request)
- April 6, 2017 (adjourned at developer’s request)
“There appears to be several opportunities to get a decision,” said Judge Power to ’81’ attorney Brian Etzel at the June 21, 2017 hearing. “I gather you fear they’re going to turn your proposal down based on one of these two remands [by Judge Rodgers].”
“The 81 on East Bay” developers also hoped to throw out the need for soil testing on the parcel. When Power asked whether the Township has required environmental assessments for housing developments in the past, Timothy Wilhelm, attorney for Peninsula Township, said, “It’s my understanding that it’s unclear whether they required those assessments that have been provided, but it’s clear that in the past, they have received and been made aware of and been provided copies of environmental assessments and soil testing information for their consideration of land use approvals for housing developments on the Peninsula.”
Etzel argued that there’s no precedent for soil testing requirements in Peninsula Township and that it wasn’t required for the recently-approved Vineyard Ridge development on Center Road, which he described as “more intense” than ‘The 81′ project.
But Power noted that “Peninsula Township was basically all farms, and most of that farmland was all fruit trees. Where the congregational church is was fruit trees, the little housing north of that was fruit trees,” he said. “Underwood Farms, that subdivision, you want to know why they call it Underwood Farms? Because it was Bob Underwood’s farm, that’s why. And the Underwoods had fruit trees there. They all sprayed their trees, and if you were a fruit grower and you didn’t spray your trees, the authorities would get after you because you’re a source of pests for everyone else.”
Wilhelm noted that the Township Board couldn’t make a decision regarding the ’81’ property without the soil tests.
“The Township Board members in November of 2016 very reasonably and using common sense said, ‘Hey, we usually have environmental information regarding our develoment applications. Why don’t we have anything here? We’re required to make a finding, and this was specifically remanded by Judge Rodgers. We’re tasked with making a determination whether that standard has been met, whether adjacent or neighboring properties will be adversely affected by the grading of this proposed development.’ They reasonably concluded, ‘We can’t answer that question if we don’t have any environmental or soil testing.’ There’s nothing in the ordinance that prohibits that question. In fact, Judge Rodgers, in his decision, explains that role that the Township Board members have.”
He added, “There’s clearly evidence and a basis on which to inquire into that. There’s been no dispute that the property was orchard, that it was farmed, and that properties of that nature regularly used agricultural chemicals, pesticides, herbicides and fertilizers. There’s a reason to ask these questions, and there’s no limit in Judge Rodgers’ decision that would prohibit the Township from inquiring into that. In fact, he encourages and sanctions the board to do that work. That’s what their role is – to make an independent determination of whether those standards have been met.”
Also at the hearing, it was revealed that the developer’s attorney had issued subpoenas to third parties for Peninsula Township emails. The township asserts that this violates attorney-client privilege, and will be filing a motion for protective order.