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                                 MARION TOWNSHIP

                      Zoning Board of Appeals

                            June 7, 2004  

 

MEMBERS PRESENT:     John Lowe, Larry Fillinger, Linda Manson-Dempsey, Dan Lowe, and Dan Rossbach

MEMBERS ABSENT:                 None

OTHERS PRESENT:                  Mike Kehoe , Township Attorney

Annette McNamara, Zoning Administrator                                                                                

*************************************************************************************************************

CALL TO ORDER

John Lowe called the meeting to order at 7:30 p.m.  

APPROVAL OF AGENDA

John Lowe asked to have the Call to Public moved to the beginning of the meeting.  Linda Manson-Dempsey motioned to 

approve the agenda as amended.   Dan Rossbach seconded.  Motion carried 5-0.

The members of the Zoning Board of Appeals introduced themselves.  Chairman Lowe reminded members of the 

audience about the sign-in sheet.  

CALL TO PUBLIC

Mary Ann Bahr, 3201 Grass Lake Court :  Ms. Bahr asked what type of variance the petitioners are asking for?  

Chairman Lowe said that would be part of the applicantís presentation.  Ms. Bahr wanted to make sure the public would 

have an opportunity to comment after the presentation.  Chairman Lowe said yes.

(Close Call to Public)

APPROVAL OF MINUTES

Zoning Board of Appeals, April 5, 2004

Larry Fillinger motioned to approve the minutes from April 5, 2004 as presented.  Dan Rossbach seconded. 

Motion carried 4-0 (Linda Manson-Dempsey abstained.) 

OLD BUSINESS

None.

NEW BUSINESS

ZBA Case #3-04ó Marion Oaks Golf Course

Tom Kalas, representing the petitioner, made a presentation to the ZBA requesting a rezoning of Marion Oaks Golf 

Course from Suburban Residential (SR) to Urban Residential (UR).  The petitioner has also submitted an application 

for a PUD overlay, which has not been processed by the township due to the initial rezoning request.  Mr. Kalas

 said the conceptual plan has been presented to the Planning Commission.  It includes a commercial center on the 

corner of Wright Road and D-19.  They are also proposing single-family lots of different sizes, and condominium 

sites.  The proposal calls for 272 single-family attached units (four-plexes), the clubhouse would be left in place.  

The plan also calls for a swimming pool, softball and soccer fields, and 358 single-family detached units.  The lot 

sizes ranges from 55 feet to 70-80 feet. There are a total of 630 units.  The corner of Wright Road and D-19 would

be the location for the proposed commercial center, approximately 10 acres with a 50,000 square foot center.

Mr. Kalas is asking for a variance on certain zoning criteria.  He made a presentation to the township

Planning Commission, a public hearing was held, and the PC recommended denial.  The request then 

went to the Livingston County Planning Commission, who recommended denial.  Finally, the request 

went to the township Board of Trustees, who denied the request.  Under a Michigan Supreme Court 

case (Paragon Properties vs. City of Novi ), the applicant is required to request a variance from the 

ZBA in order to exhaust all administrative remedies.  This is a step this is necessary before a suit can 

be filed with the Livingston County Circuit Court. Mr. Kalas believes the township has established a 

precedent for rezoning for The Meadows, Woodberry Park , and Hometown Village of Marion.  

Mr. Kalasí concept plan calls for 2.88 units per acre.  Hometown Village has 3.34 units per acre, 

The Meadows has 3.51 units per acre, and Woodberry has 3.99 units per acre.

He is seeking a request for variance from certain provisions in the zoning ordinance, which if granted, 

would allow the property to be developed under the criteria in the UR zoning.  Specifically, the first 

variance the applicant is seeking is Section 8.02 F 1 bó(minimum net lot area not less than 20,000 

square feet with public sewer in the SR district).  He is requesting the variance to allow minimum lot 

size of 15,000 square feet as provided in Section 8.03 E 1 of the UR zoning district. He is also 

requesting a variance for the frontage/width of the lots that are required under SR versus UR, from the 

minimum frontage of 85 feet contained in the SR zoning, Section 8.02 F 2 b, to minimum frontage of 

75 feet contained in the UR zoning, Section 8.03 E 2.  He is also seeking a variance to the front yard 

setback from 35 feet in the SR zoning district, Section 8.02 F 3 b 1, to 30 foot front yard setback in the 

UR zoning district, Section 8.03 E 3 a.

Linda Manson-Dempsey wanted to confirm that the request includes a 50,000 square foot retail center at the corner
 of Wright Road and D-19.  Mr. Kalas said it is proposed.  Ms. Manson-Dempsey said if this request was granted, 
that plan would proceed.  Mr. Kalas said yes, but the PUD application would have to be approved.  Ms. 
Manson-Dempsey has concerns with traffic generated by a commercial center and the new high school.  Chairman 
Lowe wanted to clarify that Mr. Kalas is requesting a variance to allow lot frontages as low as 55 feet.  Mr. Kalas 
said yes, the PUD would allow it.  Dan Lowe asked Mr. Kalas if he could provide any information showing numbers
or percentages to support the claim that the property canít be developed under the current SR zoning.  Mr. Kalas 
said no, the current financials of the company and discussions held with those who operate the golf course indicate 
that itís not economically feasible.  Dan Lowe said his question was about developing under the current zoning, not 
operating it as a golf course.  Mr. Kalas said the SR zoning would not give them the flexibility and smaller lot sizes
they desire.  Ms. Manson-Dempsey asked Mr. Kalas how many lots they could have with the current zoning.  
Mr. Kalas said he didnít know.  Ms. Manson-Dempsey asked if the Planning Commission was given that information.
Chairman Lowe said part of the requirement is to demonstrate that itís not feasible to develop under the current
zoning, which was not presented.  A PUD with SR zoning is an option, and there are many examples within the 
township.  You can get a mix of density in the SR zoning using the PUD option.  Dan Lowe asked Mr. Kalas if the 
applicant was aware of what the property was zoned with it was purchased.  Mr. Kalas said yes; however, knowing 
what the property is zoned is not relevant if the zoning is unconstitutional. 

Call to Public

Peggy Neeley, 3220 Osprey:  Ms. Neeley asked Mr. Kalas if he lived in Livingston County ?  Mr. Kalas said no.
Ms. Neeley said her problem is the developer buys property, strips it, develop it, and then leave the area, and 
leave it up to the residents to build roads, more schools and try to find jobs for more people.  Marion Township  
and all the residents have said they donít want this development.  Is this just about money?  The property was
 zoned SR and now you want to change it to build three times as many homes.  Itís not right and I say we donít 
allow it.

Pat Macaluso, 4875 Pinckney Road :  Mr. Macaluso questioned the overlay compared to the original presentation. 

Is it the same as presented to the Planning Commission?  Chairman Lowe said yes.  Mr. Kalas said itís just a concept

plan. Mr. Macaluso said he opposes this.Chairman Lowe emphasized that the plan isnít really whatís being looked ató

itís just conceptual. 

Betty Sorg, 2005 Pinckney Road :  Mrs. Sorg owns 40 acres north of the subject property.  Mrs. Sorg has had to 

fight with Hometown Village for three years regarding drainage.  Why doesnít the township do something?  Chairman

Lowe said there was a problem with obtaining right of ways, etc.  Chairman Lowe said is was a very complicated issue 

and it wasnít a good situation. Mrs. Sorg asked where the run-off would be from this new development, and she doesnít

want it coming north to her property.

Rodney Beckwith, 1980 Pinckney Road :  Mr. Beckwith said Hometown Village is on his northern lot line and heís 

put up with dirt ever since the project started.  Mr. Beckwithís biggest concern is the infrastructure. We need protection

from these builders.

Bob Sorg, 2005 Pinckney Road :  Mr. Sorg owns 40 acres between Woodberry and the golf course.  Mr. Sorg said 

the proposed development doesnít fit in, and is concerned he will be zoned right out of his property.  Mr. Sorg thereís 

plenty of room to develop the property if they donít have to make the big bucks. If this property is rezoned, they could 

potentially have 1740 units.  He is definitely opposed to the project.  The infrastructure canít handle this development.

Ms. Manson-Dempsey wanted to confirm the number Mr. Sorg stated as 1740 potential units.  Mr. Sorg said he 

believes that is correct.

Mary Ann Bahr, 3201 Grass Lake Court :  Ms. Bahr asked the Zoning Board of Appeals to deny the Marion Oaks 

Golf Course rezoning request for the following reasons:  I question the petitionerís request for the variance in that I donít 

think that Marion Oaks is not a viable golf course.  If better marketing and more competitive pricing of golf rates and 

banquet facilities were implemented, they would have more business than they could handle.  If they wait just a few 

more months, there will be enough development going on around Livingston County and weíll have more golfers than 

they know what to do with.  The parcel lends itself much better to Rural Residential or low density housing thatís fitting 

with the surrounding area.  The new zoning is excessive in its density and it does not follow the townshipís Master Plan.

The parcel can easily and economically be developed as rural or suburban low density residential.  For the health, 

safety and welfare issues that would drastically increase traffic that would be caused on D-19 and to the surrounding 

area.  The site lies just outside of the sewer and water district, and while that is unfortunate for the petitioner, those 

taps have been allocated to other areas that fit the Master Plan already.  I am a little concerned with developers 

purchasing land that they know full well does not fit into their intended use, and then turn around and threaten to file suit,

not only against our township, because when they threaten the township, they are threatening me, a tax-paying citizen.

 We are but a small community in a vast nation.  We need to look for ways to truly preserve rural America for posterity 

in a different manner than many public-interest groups and policy makers are recommending.  There must be someplace

 where you can still say ďletís go take a ride in the country.Ē  Thank you for your time and consideration, and I request

that you deny this petition.

Lisa Barber, 848 Wright Road :  Ms. Barber feels the developer should be glad the property is zoned SR. If the

township had known about the new high school, this property would have been left Rural Residential.  Suburban 

Residential is even overwhelming.  The proposal is too clustered and too congested. 

Louise Dodd, 1722 Fox Ridge:  Mrs. Dodd commended the Board for listening to the residents and responding to the

residents by saying enough is enough.  We donít want this higher density, urban development. 

(Close Call to Public)

Larry Fillinger asked what impact the ZBA has if it did change the zoning.  Does the ZBA have the ability to do that? 

Mr. Kehoe said technically, that is correct.  However, the applicant is asking for variances from the setbacks and so 

forth, so the requests are dimensional variances.  Itís also correct that while they are requesting dimensional variances, 

if the ZBA were to grant everything asked for, in his opinion, it would be a rezoning of the property.  Mr. Kehoe clarified 

the situation by saying there is case law that requires the applicant to be here.  As a property owner, they are entitled to

 request a variance.  A property owner also has the right to challenge whether the zoning the township has established 

for this property is legal and constitutional.  The ZBA still has to follow the procedures in place for considering a variance.

Ms. Manson-Dempsey asked where this goes from here.  If the ZBA says yes, it goes as planned.  If the ZBA says no,

 what happens?  Mr. Kehoe said the applicant will then file suit against the township to contest the validity of the 

townshipís action.  Ms. Manson-Dempsey asked who will take over the road issue?  Wright Road and Pinckney Road  

cannot support this development.  Mr. Kehoe said that would probably be something thrown into the mix of the litigation. 

Traffic concerns are something you can legitimately think about in this regard.  On the other hand, those are more 

planning issues as opposed to ZBA issues.  Chairman Lowe pointed out that all of those issues were discussed during 

the Planning Commission meetings. 

The ZBA considered each of the following issues:

  1. How the strict enforcement of the provisions of the Township Zoning Ordinance would cause an unnecessary 

hardship and deprive the owner of rights enjoyed by all other property owners owning property within the same zoning

district.

Ms. Manson-Dempsey said under SR they have the right to develop, they have the right to apply for a PUD.  

They arenít being told they canít develop it.  Chairman Lowe said they would be allowed to do what all other property 

owners within the same zoning district can do.

 

  1. The conditions and circumstances unique to the property, which are not similarly applicable to other properties in 

the same zoning district.

There is nothing unique to the property.  The only difference is the density. 

  1. The conditions and circumstances unique to the property were not self created.

  The issue is being self created based on the density requested.  Mr. Kehoe also clarified that the property was zoned 

SR at the time of purchase, although the owner has the right to challenge the ordinance.

  1. Why the requested variance will not confer special privileges that are denied other properties similarly situated

and in the same zoning district.

The rezoning would confer special privileges.  It could make the township responsible to carry forward that zoning on

other parcels.

  1. Why the requested variance will not be contrary to the spirit and intent of this zoning ordinance.

It is contrary.  If this was intended, it would have been planned in the ordinance.  Chairman Lowe said it is explicitly 

contrary.  Ms. Manson-Dempsey read Section 8.02 A, which states ďIt is the intent of the Suburban Residential District

 (SR) to provide opportunities for higher density residential development typically associated with a suburban land use

 pattern.  This district includes areas of the Township, which are currently served by a higher level of public services as 

compared to most of the balance of the Township, and these additional services permit a higher intensity of residential 

development while protecting the public health, safety, and welfare.  This district is intended to implement the planned 

future land use pattern of the Marion Township Comprehensive Plan in the northern portion of the Township where a 

Suburban Residential Area is proposed and intended to accommodate residential developments of a density of one 

(1) dwelling unit per acre or greater.  The Suburban Residential District is intended to both permit the development of 

suitable vacant land for residential purposes while also preserving the residential character of existing area 

neighborhoods.Ē  Dan Rossbach asked if Woodberry Park was part of the Master Plan.  Chairman Lowe said it was 

rezoned to UR because it was within the sewer and water district, and in the northern section. 

  1. The difficulty shall not be deemed solely economic.

Economics appear to be a major part of the request.  The applicant didnít look at developing under SR as an option.

They havenít presented any numbers showing that itís not economically feasible. Mr. Kehoe said the area of 

unnecessary hardship needs to be elaborated on.  Thereís a reference in the zoning ordinance to whether or not this 

would create an unnecessary hardship.  Also, part of the variance being requested could also be considered a use 

variance, and the while the township zoning ordinance says the ZBA canít grant use variances, there have been recent 

court decisions that talk about taking a look at unnecessary hardships and what they are.  There are four factors that 

should be discussed: 

  1. Whether or not the property can be reasonably used in a manner consistent with existing zoning. 

Chairman Lowe said this has been discussed, but would it be considered an unnecessary hardship for the developer to 

develop this under an SR/PUD, which has been suggested by the township?  Ms. Manson-Dempsey said if the developer

 applied for an SR/PUD, it would go to the Planning Commission, they would provide drawings, etc.  They have the right

 to do that.  The property could also be split and sold as ĺ acre lots with a private road.  The township isnít depriving the

 owner of the right to split the property and start selling home sites. 

  1. Is the situation due to unique circumstances that is not a result of general conditions in the neighborhood.

Ms. Manson-Dempsey said the proposal would create a very unique circumstance for the neighborhood. Chairman Lowe 

said it is isolated and would create a spot zoning situation.  The general conditions of the neighborhood are more rural

and less dense than what is even allowed under SR zoning. 

  1. Whether the use authorized by the variance would alter the essential character of the locality.

The site itself would change drastically with greater density, retail, etc.  Currently, the property is a wide-open golf 

course in an SR area, surrounded by farmland on the north and south, and large lot parcels to the east and west. 

  1. Whether the hardship is a result of the applicantís own actions.

Ms. Manson-Dempsey said there is no hardship.  Chairman Lowe said this parcel is not unique in any way from any 

other parcel in the SR district. The township also offers the Open Space option for development which would allow 

flexibility. Chairman Lowe said this has been suggested to the applicant as a viable option.  Finally, if the variance 

request were granted, the applicant would gain special privileges in density, minimum lot sizes, setbacks and uses

prohibited within the zoning districtóit would totally negate the townshipís zoning ordinance.

Motion

Larry Fillinger motioned to deny the variances for Marion Oaks Development LLC for the following reasons:

1.       The applicant has not adequately shown it meets the requirements of Section 5.05 C 1 because the 

application of the current ordinance to the property in question does not deprive the applicant of rights

that are commonly enjoyed by other property owners in this district.  The fact is that the Township has 

told the applicant that it can develop the property under SR zoning with a PUD option and this has not 

been acceptable to the applicant.  There are numerous other properties not only in the area, but in the 

Township, that are zoned SR and the applicant is not being treated differently from those property

owners.

2.In regard to paragraph 5.05 C 2, there are no circumstances or conditions that are unique to this particular 

parcel in regard to its application.  The parcel is capable of being developed for single-family residential 

homes, it can be used for a PUD, it simply canít be developed at the density that the applicant wants.  These 

same problems could be faced by other adjacent parcels in this zoning district under the same request that is 

being presented by this applicant.  Furthermore, not only is there a common nature of this problem in the

immediate area, but that problem exists in many other areas of the Township where there is SR zoning.

3.In regard to paragraph number 3 of Section 5.05 C, the conditions and circumstances that the applicant is 

complaining of were self-created because the applicant purchased this property knowing full well what the

zoning was at the time it purchased the property.  The applicant must be considered to have known what the 

zoning was and what type of development the existing zoning would allow.

4.In regard to paragraph 4, the granting of the requested variance would confer special privileges on this 

property that are denied to other properties in the district because it would allow t his applicant to have 

significantly greater density that is permitted by the zoning district.  If this variance were to be granted, then 

the applicant would definitely obtain significant special privileges in the form of density, minimum lot sizes, 

set backs, and other special privileges.  Furthermore, it could open the door to allowing uses within the district

 that are prohibited in this district by the zoning ordinance.  The applicant is seeking to have attached housing, 

commercial development, and other special privileges that are not generally available in the SR district.

5.As to paragraph 5.05 C 5, the granting of this variance would be contrary to the spirit and intent of the zoning

ordinance. Part of the intent of the suburban residential zoning district is to permit both the development of 

suitable vacant land for residential purposes, while also preserving the residential character of existing

neighborhoods.  In this particular area, the residential housing is characterized by larger lots existing in 

certain small tracts of land and there are a significant number of 10 and 15-acre parcels for which this type of 

density would be inconsistent and incompatible.  The applicant makes reference to nearby developments such

as the Hometown Village of Marion, Woodbury Park, and The Meadows, but the fact of the matter is that The

Meadows and Woodbury Park are located within the UR zoning district and were rezoned because it was 

consistent with the Townshipís Master Plan.  The Hometown Village of Marion was developed as an SR 

development; therefore, it is not truly appropriate or accurate for the applicant to claim that those 

developments are comparable to the applicantís property.

6. The last factor, 5.05 C 6, that needs to be examined is where or not the difficulty is deemed solely economic. 

In this particular case, the applicant has the opportunity to develop the property with a PUD under the existing

zoning. The applicant also has the opportunity to take advantage of the Township Open Space Cluster Housing

Project, which would allow it to develop a significant number of single-family residential houses on the 

property while maintaining open space and achieving many of the goals that the applicant claims it wants to 

accomplish in its request for a variance.  The applicant has not provided any documentation to indicate that it 

canít develop the property reasonable with a reasonable financial return under the existing zoning.

7. Lastly, the applicantís request essentially seeks to accomplish what could be considered a rezoning of the 

property.  While the application may be termed as a ďrequest for a variance,Ē if the Zoning Board of Appeals

were to grant this relief, it would in effect rezone the property and the Zoning Board of Appeals is not 

authorized to rezone property.

8. Additionally, the request by the applicant could result in the granting of a use variance for this property. 

In reviewing the four factors that should be considered in order to grant a use variance, (1) the applicant has

not shown the property canít be used consistent with existing zoning.  Current zoning will allow for a PUD 

development; (2) the applicantís situation is not unique because it shares a very similar, if not identical, 

situation with other property owners in the area, as well as other properties in the Township that are zoned SR;

 (3) the character of the area would be seriously changed by the increased density, multiple-family dwellings 

and other development the applicant seeks; and (4) the hardship is the result of the applicantís own actions 

because the property was zoned as SR when the applicant purchased the property and the applicant h as not 

shown the property canít be used as zoned.  Therefore, the applicant has not established that it is entitled to a 

use variance.  Additionally, under the Township zoning ordinance, the Zoning Board of Appeals is not 

authorized to grant a use variance.

Dan Lowe seconded.  Roll call vote:  Larry Fillinger, Dan Rossbach, Linda Manson-Dempsey,

John Lowe, Dan Loweóall yes.  Motion carried 5-0.

Adjournment

Larry Fillinger motioned to adjourn the meeting at 8:50 p.m.   Linda Manson-Dempsey seconded.  Motion carried 5-0.