(Editor’s Note: There’s a public hearing coming up on the Peninsula Shores amendment, and Craig Haddox says that the Township should make public the legal analysis on which they are basing their decisions. Read on… -jb)
Peninsula Shores development has requested an amendment to its special use permit to allow it to place a house on property that was designated as open space in the original Special Use Permit approval. The neighboring property owners have objected to this amendment because, among other reasons, this change would disturb the existing and future uses of their properties and would be a detriment rather than an improvement to their properties. The zoning ordinance requires that a change to an approved special use be subject to the same requirements as the original proposed use, including that it “not be hazardous or disturbing to existing or future uses in the same general vicinity and will be a substantial improvement to property in the immediate vicinity and to the community as a whole.” Building a house on land that the developer represented would be open space when it obtained the original approval would be disturbing to neighboring property owners and would not be a substantial improvement to property in the immediate vicinity or to the community as a whole.
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The Township attorney has apparently advised the Township Planner and Planning Commission members that words like “disturbing,” “substantial improvement” and “community as a whole” don’t mean what they clearly say. Two members of the Planning Commission (including one who is an attorney with extensive planning commission experience) agreed with us that the plain language of the zoning ordinance means that this proposed change must not disturb the use of neighboring properties and must be a substantial improvement to property in the immediate vicinity and to the community as a whole. Four other members of the Planning Commission decided to defer to the Township Attorney’s opinion.
To date, the Township has refused to provide the legal analysis that the Planner and Planning Commission members chose to rely on in supporting approval of this amendment. We asked the Planner and the Planning Commission to provide this legal analysis on March 7. We asked the Planner for this information again on March 23 and March 24, and were told that she was awaiting direction from the Township Attorney and would follow up as soon as possible. We became concerned that the Township was just trying to run out the clock on us and avoid releasing this information, so we filed a Freedom of Information request on March 24. The Township immediately requested an extension of time to process this request. On April 12 the Township replied that it would not release this information as it is subject to attorney-client privilege. This legal opinion was openly discussed and quoted in part at a public meeting, so I understand that it is no longer subject to attorney-client privilege. We hope the Township is not saying to us that the only way for us to obtain this information is to go to court – the only ones who win in that situation are the attorneys.
More importantly, if the Township is going to rely on its attorney’s legal advice to disregard the plain English requirements of the zoning ordinance, we and the community should be made aware of what that legal analysis is and have an opportunity to provide written comments on it to the Township prior to the Township holding a public hearing on the proposed Peninsula Shores amendment. The Township just posted that the public hearing for this amendment is scheduled for May 10, and I assume written comments from the public will be due several business days before then.
We urge the Township to make public this legal analysis as soon as possible so that the public has a meaningful opportunity to review it and provide written comments and input prior to the May 10 public hearing.