Opinion: Approving Peninsula Shores SUP Request Sets Bad Precedent for Peninsula Township

(Update, 5/12/22: The Peninsula Township Board approved the SUP request by Peninsula Shores at their May 10 meeting … jb)

Smokey Hollow Estates is a rural neighborhood containing four single family parcels of about two acres each. It is immediately north of where the Peninsula Shores developer wants to change the open space it originally designated in its original special use permit (SUP) approval to a house parcel. We believe this requested change is in violation of the Township Zoning Ordinance and should not be approved.

SUPs are to be a win-win-win for the developer, the neighboring property owners, and the community as a whole. The Ordinance makes it clear that SUPs require special consideration in relation to the welfare of adjacent properties and to the community as a whole. Further, the SUP sections of the Ordinance state that the effect on neighboring properties is a key criteria for SUPs. The SUP sections of the Ordinance are to protect the health, safety, convenience, and general welfare of Township inhabitants.

The proposed lot relocation does not meet several requirements of the SUP sections of the Ordinance. The use of the proposed location needs to be a substantial improvement to property in the immediate vicinity. The developer has not presented any evidence as to how putting a house by Smokey Hollow Estates would be a substantial improvement to the Smokey Hollow Estates properties.

Instead, the proposed lot relocation would be a substantial detriment to the Smokey Hollow Estates properties. The use of the proposed location cannot not change the essential character of the area in which it is proposed. The area where the developer now wants to build a house is now zoned as open space. Obviously changing that area to permit a house in the middle of an area that is currently zoned only for use as open space would change the essential character of that area.

Approving the lot relocation would be contrary to the goals and vision of the current and draft Township Master Plans. The Peninsula Township community has long recognized and valued the quiet, rural, and scenic character of the Old Mission Peninsula and the critical need to protect these defining values. Residents clearly want to preserve and maintain a rural atmosphere. Smokey Hollow Estates is a rural development with extensive open space, fields, and wooded areas. Allowing a house next to the Smokey Hollow Estates open space would greatly diminish the rural character of that area and would adversely affect its current open viewshed into Peninsula Shores.

If developers are allowed to move houses on SUP properties in this manner, the rural character of Smokey Hollow Estates and of other properties on the Peninsula will be diminished and degraded, and thus the rural character of the entire Peninsula will be diminished and degraded one property at a time (or, in the case of Smokey Hollow Estates, four properties at once).

Approving the lot relocation would set a bad precedent. If this amendment is approved, that would mean that developers with an SUP can later come back and get approval to build houses elsewhere even if it adversely affects neighboring properties. They will be able to do a bait and switch – they can say in their initial application how they are preserving the views and character of neighboring properties and how their proposed development is better for the neighbors than what they could do under the current zoning, but then later come back and amend their SUP to put houses wherever they want, so long as they meet the open space percentage requirement elsewhere in the development.

This approach will gut the protections for neighboring properties that are contained in the SUP sections of the Ordinance and which have been applied in the past. To allow the Peninsula Shores developer to now take back some of the benefits promised to the neighbors is bad precedent. If the Township approves this lot relocation, then Township residents need to be aware when considering their stance on any future SUPs that there is no commitment by the developer or the Township to keep any benefits or improvements for the community or neighboring properties the developer states it will make, that the Township feels it is not obligated to protect such benefits, and that those benefits can be given back to the developer at a later date even if that adversely affects neighboring properties.

Developers should be held to the commitments they make to the community and the neighboring property owners in order to obtain an SUP approval. Developments under an SUP have a much higher standard and much greater protections for neighboring properties than do developments under the other zoning ordinances or developments by right.

When the Peninsula Shores developer requested the SUP approval, it submitted a site plan which showed how it would develop the property. The developer’s application stated that the proposal was for clustered lots, and that the open space areas were identified on the site plan. The SUP proposal allowed the developer to put many more lots along the prime ridges than it could under existing zoning in return for, among other things, having more open space buffers with neighboring properties than would have been required under existing zoning that then applied to this property.

During the original 2015 approval process, the developer told the Trustees that the proposed plan was a nice plan that had less impact on the neighbors than the zoning by right. Thus, the impact on neighboring properties was part of the pitch the developer made to get the SUP approved. The developer told the Township and the community that if you grant the SUP, this is how we will develop this property, including setting aside certain portions of the property as open space, as designated on the site plans in the developer’s original SUP application. A developer should be held to the commitments it makes in order to obtain a SUP approval.

The developer could have developed Peninsula Shores by right or under the underlying residential zoning classifications, but instead he voluntarily chose to apply for an SUP and to subject his property to the SUP sections of the Ordinance. As such, he gained certain rights and benefits he would not otherwise have, but he also agreed to give up certain other rights he had under residential zoning classifications and zoning by right. If the Township goes along with the proposed lot relocation, it will be significantly weakening the protections and benefits for neighboring property owners that are part of the SUP sections of the Ordinance. It will be setting a precedent that the SUP sections of the Ordinance should be interpreted so that (a) there is no need for or value in buffer spaces with neighboring properties, and (b) developers can say in the initial SUP application that they are going to develop the property one way with certain benefits to and protection for neighboring properties, but they can come back later and eliminate those benefits.

The rule of law (including applying the Ordinance as written) is the most essential element of property rights; without it, all of our property rights are subject to the whims and opinions of whoever rules at any given time. The Township needs to stand up for the property rights of these neighbors (and the rights of neighbors of other current and future SUP developments) which are set forth in the Ordinance and deny this lot relocation.

In conclusion, the proposed lot location should be denied for the reasons set forth above. If you want to see the Ordinance enforced as written, if you want to see the rights of properties neighboring large scale developments protected, if you want to preserve and protect the rural character of the Peninsula, please show up and speak at the May 10 public hearing, or submit your written comments to the Trustees.

– Craig Haddox

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