Site preparation on The 81 on East Bay development is moving forward, with heavy equipment clearing the land on the 81-acre parcel on the corner of Bluff Road and Boursaw Road on the Old Mission Peninsula. But the project is still mired in legal issues, as it has been for much of its duration since 2015.
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A lawsuit filed by The 81 Development Company, the company headed by Kevin O’Grady that is developing the parcel, accuses Peninsula Township, the township’s former attorney Jim Young, and the Grand Traverse Regional Land Conservancy of conspiring to kill the project and force O’Grady to sell the land to the Conservancy.
Kyle O’Grady, Kevin’s son who is handling real estate sales for The 81, said they discovered through FOIA requests that Young was working with the Conservancy to draft a letter to the O’Grady’s, saying if they didn’t touch the land, they could “walk away clean” and it would be donated.
“We’re suing Jim Young, the former Township attorney, personally, for civil extortion and gross negligence, working and conspiring with individuals to extort our property and unwillingly purchase the property from us,” said Kyle during our interview with him in June. Young resigned as Peninsula Township’s counsel in August 2017.
In a separate appeal, the O’Grady’s claim that conditions imposed on their special use permit (SUP) by Peninsula Township trustees are unprecedented, costly and even illegal, as noted in court filings and also by Kyle O’Grady.
Because of concerns over soil contaminants used widely by Old Mission Peninsula farmers prior to the 1950s, Peninsula Township trustees placed several conditions on the 41-home development’s special use permit when they approved the project in December 2017.
From the 1930s to the 1970s, about 80 percent of The 81 property was cherry orchards. Like all cherry farms on the Old Mission Peninsula from the 1930s to the 1950s, the land was exposed to pesticide and fertilizer practices of the time, including copper, lead, nicotine, arsenic and other toxic pesticide and fertilizer substances which were legal at the time, but phased out through the late 1950s and early 1960s.
SUP conditions imposed by Peninsula Township included illustration of the watershed on the plans, storm piping for a 25-year period instead of a 10-year period, ditching of the cul-de-sac area to prevent overflow, and ditch flow capacity calculations.
The 81’s approval was also contingent on the establishment of a grading and stabilization plan, an arborist to oversee the possibility of oak wilt, and a third party consultant on site to ensure compliance and report back to the Township.
During a July 23, 2018 hearing, however, 13th Circuit Court Judge Thomas Power rejected most of the O’Grady’s appeal, ruling that Peninsula Township’s zoning ordinance gives township trustees the right to impose soil and excavation-related conditions on the SUP. Power noted that the SUP conditions are valid as long as Peninsula Township trustees have evidence and expert reports to back them up. He did, however, reject the requirement of hiring an arborist.
The 81 Development Company now wants the state Court of Appeals to review Judge Power’s decision to uphold most of those soil- and excavation-related conditions in the SUP.
Additionally, the developer’s attorney, Jonathan Moothart, requested that Power recuse himself from the O’Grady’s lawsuit against Peninsula Township, Jim Young, and the G.T. Regional Land Conservancy, accusing Power of showing bias while considering the O’Grady’s appeal during the July 23 hearing.
On August 20, however, Power declined to recuse himself from the suit brought by the O’Grady’s.
Meanwhile, the nonprofit group Preserve Old Mission, headed by James Komendera, has discontinued their legal fight against the development, which included an injunction to keep the developer from grading the land. Power subsequently denied this injunction.
In a July 2018 letter to Preserve Old Mission members, Komendera wrote, “Despite our best efforts in court and at Town Hall, site preparation, including massive movement of soil and destruction of the trees, is now underway. This is the moment we dreaded, particularly since much of our fight has centered on the environmental and health risks of disturbing ground impregnated for decades with toxic pesticides. The damage has been done, and can’t be undone.”
He added that the group’s legal representatives have informed them that further court challenges have little likelihood of prevailing. “Therefore I, along with our board, have decided to discontinue our legal fight, at least for the time being,” wrote Komendera.