MARION TOWNSHIP

                      ZONING BOARD OF APPEALS

                            August 16, 2004 @ 7:30 p.m.

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

                                      John Lowe (arrived at 8:00 pm )

MEMBERS ABSENT:                 None

OTHERS PRESENT:                  Mike Kehoe , Township Attorney

Annette McNamara, Zoning Administrator                                                                                

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CALL TO ORDER

Linda Manson-Dempsey called the meeting to order at 7:41 p.m.   Ms. Manson-Dempsey explained that the first

Call to the Public on the agenda is for agenda items only, with a 3-minute.  There will be the opportunity after the

presentation under New Business to speak to the public.  The members of the Zoning Board of Appeals (ZBA)

 introduced themselves.  

APPROVAL OF AGENDA

Annette McNamara said there was a mistake on the agenda—it should read ZBA Case #8-04.  Larry Fillinger motioned

to change the agenda from ZBA Case #5-04 to ZBA Case #8-04.  Dan Rossbach seconded.  Motion carried 4-0.

Larry Fillinger motioned to approve the agenda as amended.  Dan Rossbach seconded.  Motion carried 4-0.

APPROVAL OF MINUTES

Zoning Board of Appeals, July 19, 2004

Larry Fillinger motioned to approve the minutes from July 19, 2004 as presented.  Dan Rossbach seconded.

Motion carried 4-0.

CALL TO THE PUBLIC

Roger Myers, Howard & Howard, 101 North Main Street, Suite 430 , Ann Arbor , MI :  Mr. Myers is the attorney

representing Chestnut Development.  Mr. Myers questioned the number of the ZBA case.  His paperwork indicates it

should be ZBA Case #5-04.  Ms. McNamara confirmed that it should be ZBA Case #5-04 as originally stated on the

agenda.  Larry Fillinger motioned to correct the agenda back to ZBA Case #5-04.  Dan Rossbach seconded. 

Motion carried 4-0.

OLD BUSINESS

None.

NEW BUSINESS

ZBA Case #5-04—Chestnut Development

Roger Myers introduced himself as the attorney for Chestnut Development, along with James Eppink, planning consultant

who has also has been engaged by Chestnut for the purpose of designing and planning the proposed development.

Mr. Myers provided the ZBA with background on this case. Chestnut Development originally submitted an application to

rezone the property from the current Suburban Residential (SR) classification to Urban Residential (UR).  In conjunction

with the rezoning request, Chestnut Development also submitted an application for a Planned Unit Development (PUD)

under the township zoning ordinance, which proposed the development known as Red Hawk Landing.  At the time of the

application, the township made the decision that it would only consider the underlying rezoning request first, and not to

consider the PUD application, and that the PUD application would only be considered if and when the underlying zoning

of the property as changed from SR to UR .  There was a presentation and public hearing held by the Planning

Commission (PC).  As a result of that, the PC recommended that the proposed rezoning from SR to UR be denied.

The rezoning application then when to the Livingston County Planning Department (LCPD), which similarly recommended

 that the underlying rezoning request be denied.  The application then came back to the township board, and then

considering only the proposed rezoning from SR to UR , voted to deny the rezoning application. As a result of the denial

of the rezoning application, Chestnut Development has now submitted an application for variances from the ZBA.

Specifically, Chestnut is seeking all necessary variances to permit the proposed development, Red Hawk Landing, under

 the township zoning ordinance.  The specifics of the proposal—number of lots, layout, and a significant amount of

information on which Chestnut Development bases its proposal, is included in a package of information that was

originally part of the PUD conceptual submittal package.  The scope of the variances being sought by Chestnut

Development are basically two-fold:  first, they are seeking a use variance to permit the development of Red Hawk Landing

and secondly, they are seeking dimensional variances from all aspects of the Schedule of Regulations, Section 7 of the

 township zoning ordinance, that are inconsistent with or do not permit, by right, the individual units that are proposed as

part of the Red Hawk Landing.  Mr. Myers said he recognizes that the township zoning ordinance currently provides that

the ZBA does not have the authority to grant a use variance.  Mr. Myers doesn’t dispute that.  He’s merely proposing any

and all potential relief that could be secured from the ZBA, and he understands that a use variance is likely not

permissible, but it was requested nonetheless. The aspect of the application seeking the dimensional variance seeks

variances from all of the aspects of the Schedule of Regulations in Section 7, specifically all setbacks related to

developments in the SR district.  He is requesting variances from the minimum net lot area that is set forth in the

Schedule of Regulations application to the SR district.  He is asking for variances relating to maximum lot coverage

for the individual lots that are permitted in the Schedule of Regulations that applicable to the SR zoning district. 

He is asking for a variance from the regulations for frontage/width of lots in the Schedule of Regulations that are

applicable to the SR zoning district.  Mr. Myers restated that the request is for variances from all of the regulations in the

Schedule of Regulations that are inconsistent with the proposal that is set forth in the information that was submitted

 with the application itself.  The basis of the request for the variances is essentially two-fold:  first, the principle reason

is that the property is not economically feasible to be developed under the existing zoning restrictions, i.e., the density

that is allowed under the existing zoning restrictions.  Secondly, and in an attempt to make economically feasible use

of the property, Chestnut Development also desires to accomplish two things.  One is to preserve as much open space

 as possible and to provide public area that can serve as an amenity to the residents within the proposed development,

hence the layout in the conceptual plan.  The second is a desire by Chestnut Development to further protect the area

 within the Wellhead Protection Area, which encompasses approximately 70-75% of this site.  If this property were

developed under the existing zoning classification, assuming it was economically feasible, development of the property

 as zoned, absent an onsite wastewater treatment plant or an extension of the township’s public sanitary sewer system,

would require individual septic fields.  Individual septic fields have a much greater adverse impact on the groundwater

aquifer and the Wellhead Protection Area, and as a consequence, Chestnut Development would like to do one of two

 things:  either to extend the township’s sanitary sewer system to provide public sanitary sewer to the proposed units

in this project; or alternatively, to provide and build on onsite wastewater treatment plant, which would provide a level of

treatment to the wastewater that would be generated from the development to a degree much greater that what would be

created if this property were developed with individual lots served by private septic fields.  Based on that information,

 he is asking for all necessary dimensional variances that are required under the Schedule of Regulations in order to

allow the development as proposed. Linda Manson-Dempsey asked if Mr. Myers had the number of homes being

proposed on the 50 acres.  Mr. Myers said the total number of units is 305 dwelling units.  Jim Eppink said the

breakdown of that is 267 single-family detached homes, 14 live/work town homes, and 24 town homes (all residential).

 Linda Manson-Dempsey asked what live/work town homes are.  Mr. Eppink said they are brownstone buildings with a

residential unit up and an office/storefront below.  As an example, Mr. Myers said the units immediately adjacent to

Main Street in Brighton (the old Erb Lumber site) are live/work units.  Ms. Manson-Dempsey said under the current SR

zoning, what would be allowed?  Mr. Myers said if there’s no water and sewer, and the property is developed with

individual well and septic fields, the site would accommodate approximately 80 lots.  That would require a mass grading

of the entire site.  Ms. Manson-Dempsey asked the total number of acres.  Mr. Eppink said there’s a total of 135.9 total

acres, with 40.6 acres of wetlands, for a total of approximately 95 acres that are non-wetland.  Mr. Myers said by the

time you take out roads and infrastructure, that leaves about 80 lots.  If the property were developed with an extension

of the township sanitary sewer line or an onsite system, with public water it would allow approximately 150 lots. That

assumes that there would be an amendment to the sewer district, which the township has previously indicated would

not be permitted, or alternatively, the developer building a private wastewater treatment system onsite. Larry Fillinger

asked if the purchaser was aware of the current zoning when the property was purchased.  Mr. Myers said yes; however,

that’s irrelevant for purposes of determining whether it should be allowed to have an economically feasible use. 

Dan Lowe asked Mr. Myers if he has numbers to substantiate the claim that it’s not economically feasible. 

Mr. Myers said regardless of whether it was developed for public sanitary sewer/water or larger lots utilizing private wells

and individual septic fields, the market value is approximately $40-45,000 per developed lot.  The cost to develop the

property with 80 lots and private wells and individual septic fields, including all of the infrastructure—roads, grading,

engineering, storm water detention, would be approximately $5 million, which equates to approximately $63,000 per lot.

If the property is developed with water and sewer, and that includes either an extension of the township’s existing sanitary

 sewer system or the construction of an onsite wastewater treatment facility, the cost is approximately $11 million.

 If you amortize that amount over 150 lots, that’s approximately $72,000 per lot.  Either way, there is a substantially

greater site development cost than what the market value of the property would be.  That’s even assuming that the minute

the property was developed, every lot was sold, which of course doesn’t happen. Dan Rossbach asked if a PUD was

discussed.  Mr. Myers said they wanted to, and it was Chestnut’s suggestion that the PUD be considered as part of the

rezoning process, because it would allow the township board to consider specifically what was being proposed. The

township decided, at the recommendation of John Ambrose , the former township planner, that would not be a good idea

and only the underlying rezoning should be considered.  What the board looked at was the maximum density that could

theoretically be developed under the UR zoning district, which is something like 1600 units if it went multiple-family

across the entire site, which was not reality.  Jim Eppink added that the conceptual plan, as developed, meets or

exceeds all of the requirements in the township’s PUD ordinance.  The intention was to have the requests processed

concurrently.  Ms. Manson-Dempsey asked for the numbers for a PUD under SR zoning.  Mr. Myers there was no

analysis done on that because there’s no guarantee a PUD would be approved. 

Call to the Public

Scott Bullis, 147 S. Truhn:  Mr. Bullis said a representative from Chestnut Development came to his neighborhood and

said they were going to develop 135 acres adjacent to Mr. Bullis’ property.  He proposed 200 affordable houses, a

ballpark, and a clubhouse.  Upon further investigation, the developer requested rezoning from SR to UR for 305 homes,

but with a Special Use Permit, they could put 1000 units on this property.  This request was denied.  Does a

development of this size fit the Master Plan?  No, it’s been denied.  Sue Lingle, the township treasurer, has said that

this is not in keeping with the Master Plan.  Rezoning to UR is for municipal water service.  This is not compatible in the

neighborhood.  This would be a high-density area.  We have Cascade Development at Norton Road and Cedar Lake Road,

which has been approved for 2,000 affordable homes; Fox Meadows at Burkhart and Mason Road with 16 homes;

Burkhart Ridge, which is in Howell Township, but adjacent to this development, with 730 homes.  The strain on the

school system, the road system with an average of 3.5 people per household with two cars…Cascade is going to

increase this by 7,000 people or 4,000 cars; Burkhart Ridge with 2,500 people and 1,460 cars; Fox Meadows with 56

people with 32 cars.  Now Chestnut Development is proposing to put another 1,000 people in the loop, with 610 cars. 

Mason Road has a Class C level of service.  It cannot handle the traffic that Chestnut proposes.  Not to mention the

power demand—the average household uses 5,500-9,500 kw per year.  Our area suffers from brown- and blackouts

continuously.  The biggest effect on the environment with water and sewer in the Wellhead Protection Area which is

outside of the sewer district.  The average household uses 350 gallons of water—that is 127,000 gallons per year.

 With 305 homes, that’s 39 million gallons of water.  They want to put in a treatment facility—there are no streams, there

 are no rivers on this property, only wetlands.  What does the DEQ say this is going to do to the wetlands?  Mr. Bullis

would also like to know where does the National Pollutant Discharge Permit allow this treatment facility to release 39

million gallons of water into the environment.  Mr. Gronow says he is interested in doing something that is socially

responsible.  Where is his environmental responsibility?  The size of the development does not fit the Master Plan,

the roads are not rated for the traffic, and the surrounding area cannot support this development.

Bob Shaw, 5729 Mason Road : Mr. Shaw asked who foots the brunt of the bill when a developer wants utilities extended

 to a development?  Mr. Myers said the developer does—that’s why it costs so much.  Mr. Shaw asked what SR is.

John Lowe said Suburban Residential, which is what the area is currently zoned. 

John Wathan, 475 S. Truhn:  Mr. Wathan asked if the 305 units would be living units?  Mr. Myers said yes. How many

 other types of units would there be?  Mr. Wathan asked what the applicant wants the road frontage, lot size, etc.

changed to.  Jim Eppink said in addition to the 305 dwelling units, they are proposing a small village market of about

6,000 square feet, which would be similar to Taorello’s.  In addition, they are proposing a small neighborhood daycare—

this would be available to everyone, not just residents of the development.  They are also suggesting perhaps a 30-40 bed

senior housing unit.  The concept is to create a neighborhood that people can live in and move within as they grow.

In terms of variances, the UR zoning allows 85’ frontage.  They are requesting multiple size lots, which would allow

multiple size homes with different price points, trying to maintain the affordable aspect.  The lots could be anywhere from

50’ to 70’.  The entire concept was based on a concurrent rezoning from SR to UR , with a PUD overlay.  Mr. Myers said

they are not asking for rezoning because the ZBA doesn’t have that authority.  The only thing they are asking for is

variances that would allow the development.  John Lowe reminded everyone not to be site specific with Chestnut’s plan.

 That’s not what the ZBA is looking at.  Once a variance is granted, the variance goes with the property, no matter how

 the project ends up.  Mr. Wathan asked if the variances are granted, what is the next step?  Who has the final say? 

Mr. Myers said the plan is if the variances were granted, an application for PUD would have to be submitted. This board

can’t change the zoning.  If they are granted the variances, a PUD application can be submitted to the township board. 

Mr. Wathan asked if the development would be site condos.  Mr. Myers said the individual homes would be sold, they

are not rental units.  The roads and general common elements would have to be maintained by an association. 

Maureen Cross, 5568 Mason Road :  Ms. Cross said she lives in Howell Township across the street from the proposed

development.  The Master Plan for this area is SR, is that correct?  John Lowe said yes.  What is the useable acreage

being designated for open space?  Mr. Eppink said there is 135.9 acres.  The PUD requires 30% open space.

To answer the question, upland useable space is 30.75 acres.  In addition, there is 40.61 acres of wetlands.

 A total of 70.75 acres of the 135 acres is proposed to be either wetlands or useable park space.  Ms. Cross asked if

that is developed open space or natural?  Mr. Eppink said they have added several amenities—a fishing hole, a pond.

The land is tremendously wooded.  A typical developer would come in and immediately carve out the woods as premium

lots.  Chestnut’s plan creates walking trails, an amphitheater, a fishing hole, over five miles of sidewalks.  Mr. Myers

referenced the map for details on wetlands, etc.  Mr. Eppink said they’ve taken the best parts of the land and kept them

 as useable open space.

Dub Toddy, 367 S. Truhn:  Mr. Toddy asked if the pond referred to is the one that was dug out this winter where the

original swamp used to be?  Are those the wetlands you’re not disturbing?  Mr. Eppink said they are not wetlands. 

Mr. Toddy asked where the sewer plant would go?  Mr. Myers said they would have to have either a surface water

discharge permit, which would then discharge into the wetlands, or a groundwater discharge permit, which would be

discharged into perhaps sand filtration beds.  Any developer that wanted to develop this property under the current zoning,

and assuming that it is economically feasible, would come in and level this site.  There wouldn’t be any water there. 

Scott Bullis, 147 S. Truhn:  Mr. Bullis asked what the MPD and DEQ says.  Where are these reports?  Mr. Myers said

you couldn’t even submit those reports until the basic land use permits are in place.  If the variances were granted, then

an application for either a groundwater discharge permit or a surface water discharge permit would be submitted.  That’s a

 very costly process, there are obviously a lot of engineering costs involved, and it’s premature to even contemplate that

until you get the land use approval.  If you don’t have land use approval, there’s nothing for you to submit to the DEQ. 

Mr. Eppink said the land use approval would be granted contingent on the DEQ approval. 

Chairman Lowe again reminded the audience not to be too site specific. 

Mr. Myers said any variance or approval is always conditional on whatever other approvals are required, i.e., the DEQ,

the Drain Commission, the Road Commission,

Mary Bartkowiak-Singer, former resident:  Ms. Bartkowiak-Singer said the idea of low-income housing is great,

but this is an idealistic vision that won’t work in that area. She lives in an area next to a 700-acre development and next

to a PUD.  Kids in an area like this get into everything, and creating parkland doesn’t accommodate adolescents.  Her

experience in her own neighborhood is problems with flooding, problems with electricity, etc.  Ms. Bartkowiak-Singer

asked why is it that when someone needs to put in something to solve a social problem, the people who live in the area

who are often middle-class people, get dumped on and are expected to accommodate these situations.  If you lowered

the density, and made it a multi-income development, you might then be able to eliminate a lot of the problems and come

 up with a more ideal social situation. 

Jean Bartkowiak, 5067 Mason Road :  Mrs. Bartkowiak has lived in Howell for over 30 years, 26 years in the northern

 part of Marion Township .  For the past ten years, she has lived at the present location.  She likes the outside at night so

 she can see the stars, and she doesn’t want to see a bunch of streetlights or shop lights.  She doesn’t want this

development at all.  According to the road commission, approximately 7,977 go past her house each day.  The traffic on

Mason Road continues to get worse.  If another 800 cars are added to the mix, she will never be able to get in and out of

her driveway safely.  The road needs to be improved all the way from the development to Burkhart Road .  Also, improve

the interchange.  The City of Howell and the railroad lowered the train tracks on Michigan Ave.   Maybe some of the hill on

Mason Road can be lowered for better sight visibility.  Developers can make these changes, because she heard a

developer in Green Oak Township is putting more than $1 million into the roads around a new development. 

Chairman Lowe asked if she knew the name of the development in Green Oak Township ?  Mr. Myers said it’s on Marshall

 Road , and it belongs to one of his clients.  Mr. Myers said that Mrs. Bartkowiak is absolutely right, the developer agreed

 to pay for a $1 million for road improvements to pave Marshall Road , which is currently dirt.  To do that, it was considered

 as a PUD, the township simultaneously granted rezoning, granted a PUD, and not only gave the developer the density

that was requested in the PUD application, they said if the developer would agree to pay to improve the road and agree to

 cap the square footage of a certain percentage of the homes at 1,100 or 1,200 square feet to provide some affordable

housing, the township will actually give 10 more units of density than what was requested.  Unfortunately, it costs a lot

of money to do road improvements or provide water and sewer.  The only way that those costs can be economically

amortized is if you have enough units to pay for them.  Mr. Myers said traffic is a legitimate concern.  Referencing the

map, Mr. Myers said that the Handy Township Planning Commission just recommended rezoning 750 acres for the

Toyota facility.  That is going to create a tremendous amount of traffic.  Traffic from the subject property will be dwarfed

by whatever traffic will be generated from the 750 acres used by Toyota .  If the road commission deems it appropriate,

they will make the necessary improvements.  Mr. Myers said the proposal provides diversity, with a variety of housing

sizes, costs, etc.  

Mary Bartkowiak-Singer:  Ms. Bartkowiak-Singer said there is some diversity, but they are really very tiny lots. 

The density is the primary concern.  By the time you put in all of these improvements, wouldn’t it be easier to develop

something that compromises.  This is a very sensitive area as far as water tables are concerned, and she is worried

that this development will create a problem that the people here now can’t afford to fix.  Mr. Myers said in an effort to be

sensitive to the environment, rather than putting septic fields throughout a development, they are proposing an onsite

wastewater treatment plant or an extension of the sanitary sewer.  Ms. Bartkowiak-Singer still feels the density won’t work.

Joan Bartkowiak, 5067 Mason Road :  Ms. Bartkowiak went to the GIS department at the county and purchased an

aerial photograph of the area.  It shows the water runoff from the subject property on to her property.  The contour lines

are so close you can’t even count the number of lines.  She doesn’t want runoff on her property.  She has a pond in her

backyard that she’s put a lot of money into.  The runoff is going to come in and destroy what’s been done.  The pond on

the subject property is also known as an “attractive nuisance.”  In other words, it’s a liability to the surrounding property

owners.  What kind of fencing, or what will be put up, to keep kids off of the surrounding property?  If a fence were put up,

who would maintain it?  There are a lot of small homes in the area.  What will this development do to existing wells?

 The developer needs to work with the community, the people who live there and the township, to make everyone happy.

Mr. Myers said that storm water drainage is regulated by the Drain Commission.  Before anything is approved, the Drain

Commission will dictate where storm water detention or retention ponds will be. There may actually be less runoff than

what is occurring naturally.  In terms of the potential impact on existing wells, that’s why this project is being proposed. 

Providing wastewater treatment options is much more protective of the groundwater aquifer and the individual wells then

putting in 80-100 individual septic fields. 

John Wathan, 475 S. Truhn:  Mr. Wathan asked what type of square footage, what type of dollars?  Mr. Myers said the

market value, if developed under the SR zoning, is $40,000-45,000, with either public water and sewer, or individual well

and septic.  Chairman Lowe said there is a 1,000 square foot limit in the zoning ordinance.  Mr. Eppink said everything

proposed is stick-built.  They are not proposing government-assisted, low-income housing.  They have done an extensive

real estate analysis, and feel there is a 12-year glut of lots available.  The homes would be anywhere between 2,500-3,000

 square feet and would sell from $280,000 to $500,000.  There’s a 12-year supply of those lots now.  Lots sizes on this

site would provide house sizes anywhere from 1,100 square feet to 1,900 square feet.  The home size would be within that

 range.  The price range is dependent on square footage cost. Chestnut is a developer, not a homebuilder. Ultimately,

the homebuilders would set that. Generally in this area, homes are selling for $100-120 per square foot.  Mr. Myers said

 in the Green Oak Township scenario, the approval was tied to square footage, not the price.  Construction costs can vary

considerably.  The only thing you can control is the square footage, which will dictate the price. 

Paul Bushong, 555 S. Truhn:  Mr. Bushon said the township’s Master Plan says SR, it’s zoned SR.  Trying to change

the zoning against the Master Plan didn’t go through. We’re now trying to come back and make it acceptable through

 variances. Mr. Bushon agrees with the township’s decision to only consider the rezoning because if Chestnut doesn’t

build and it’s changed to UR zoning, whatever is acceptable in UR is possible. Mr. Myers said if the township had con-

sidered the PUD application simultaneously, the property could only have been built as the PUD that had been approved.  

Mike _________, 5127 Mason Road :  Referencing the map, this gentleman said there would be four or five lots in his

backyard that he could throw a football into.

Kim Wathan, 475 S. Truhn:  Mrs. Wathan said the developer presents the plans as if they really care about the people

and the property, and she doesn’t believe they do.  She feels they need to listen to the people.  Mr. Gronow needs to

listen to the people around him.  If he feels this is the kind of development that people want, he should put it next to his

property, where instead of developing something like this, he’s putting in a gated community where the homes start at

$500,000. If this isn’t economically feasible as its zoned, maybe he should put his own money toward it. The people who

live in the area don’t want it. 

Brian Anderson, 5620 Mason Road :  It was mentioned that some of the lots would be 55’ wide.  What size house can

you build on that?  Mr. Eppink said it’s a conceptual plan and they don’t have a ratio of how many are 55’ lots.  They are

trying to provide a housing and lifestyle alternative.  It’s more than obvious that no one in this room will want to live there.

There’s an enormous demand for people who don’t want to or can’t take care of large lots, that don’t want large homes,

but still want the ability to invest and build equity in a home.  On a 55’ lot, you can build a 1,100 square foot home, and

they can be incredibly attractive.  Mr. Anderson asked what the setback would be on a 55’ lot?  Mr. Eppink said they are

asking for variances from the Schedule of Regulations, which dictates setbacks.  They are proposing homes that would

typically have 20’ between homes, 10’ on each side, or some other combination.  The trade off is the 70 acres of open

space.  Approximately 35% of the population desires this type of home; currently, only 5% being built are this type. 

Shannon Kegebein, 5049 Mason Road :  She’s next to the property on the hill.  They have a problem with kids up and

down the hill, glass in the street.  There are always accidents on that road.  Even those little things make a big difference.

Bob McQueen, 610 Dieterle, Howell Township :  These people live in Marion Township for a reason and they are

protected by being zoned SR.  Basically, the developer wants to lower the standards and put in smaller lots. 

Lisa McQueen, 610 Dieterle, Howell Township :  Although this development is in Marion Township , it will be in Howell

Schools.  The developers come in and fatten up their checkbooks and take off, and then the public has to ask for bonds

 to take care of the overflow of children that come from these little communities.  We are now on our second high school.

 We have seven elementary schools that are 600+ students.  Where is the developer to help with that?  All of the roads

 will be overcrowded, all of the busses we’ll need to have.  We’re the ones who will pay the extra taxes to have schools

built.  We don’t want this community here.

Scott Bullis, 301 S. Truhn:  Mr. Bullis said there are three huge evergreen lots, and he doesn’t see them on the map.

They aren’t being preserved at all.  Mr. Eppink said they’ve actually gone to great lengths to preserve the trees. 

Preserving the trees is one of the developer’s priorities.  Mr. Myers pointed out the boulevard that’s being suggested

which preserves the trees instead of clearing them out.  That’s one of the benefits of an open space plan. 

Joan Bartkowiak said when you put roads in, you change the root structure of the trees and they die off. 

Pam Frech, 3727 Brent Drive :  These developments are going up between her property and the expressways, town,

schools, etc.  Ms. Frech asked the status of the 2,000 home development at Norton and Cedar Lake .  How will we ever

get to the expressway?  That can’t be supported out here.  Chairman Lowe said that project is based on 1,200 acres. 

Mary Bartkowiak-Singer:  Ms. Bartkowiak-Singer asked if changing this property would set a precedent for other

developers?  Chairman Lowe said that will be part of the discussion after the Call to the Public. 

Elaine French, 4255 Mason Road :  Ms. French said Mr. Gronow contacted her over a year ago and wanted to know if

she would help finance the sewer.  She feels he wants the residents to pay for the sewers.

Kim Wathan, 475 S. Truhn:  Mrs. Wathan asked for the definition of economically feasible.  Chairman Lowe said it

means there are viable alternatives to the increased density and is able to be developed as is currently zoned; that’s what

the ZBA is going to determine. Dan Lowe said the township still doesn’t have any documentation showing that it’s not

economically feasible. Mr. Myers said the approximate cost of developing the site could be estimated. 

Chairman Lowe read/summarized letters received to be entered into the record (copies attached).

Dub Toddy, 367 S. Truhn:  Mr. Toddy asked if the property perks?  Mr. Eppink said he doesn’t know. 

Kim Wathan, 475 S. Truhn:  Mrs. Wathan said that the developer wants to put this where people don’t want it, he

doesn’t put it next to him.  She also respectfully disagrees with the statement that there’s a 12-year backlog of property

for sale. Homes for sale in this area aren’t taking 12 years to sell.

(close Call to the Public at 9:15 p.m. )

Discussion

Linda Manson-Dempsey asked if they could make application for the PUD under the current SR zoning?  Chairman Lowe

said yes.  Dan Rossbach asked if there are other developments in the area that have PUDs?  Chairman Lowe said that

Cascade has applied under the SR zoning for a PUD.  There aren’t any that have already been developed in the area. 

Ms. Manson-Dempsey said there’s nothing preventing them from applying for the PUD under the SR zoning.  There’s

nothing preventing them from splitting the property and putting in site condos.  Chairman Lowe said no. 

Linda Manson-Dempsey went through each item in Section 5.05 C:

1. How the strict enforcement of the provisions of the township’s 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:  They can apply for PUD under the current zoning.  They can develop and split the parcels and go with

site condos.  Nothing prevents any of that from happening.  Chairman Lowe said Cascade has submitted a preliminary

plan under this ordinance to develop the 1,200 acres under the SR zoning with a PUD.  Ms. Manson-Dempsey asked if

  Hometown Village is a PUD?  Chairman Lowe said yes, it’s in the UR zoning district.  He also added that this property

is similar to all surrounding property in that area and there’s nothing unique about it.  Granting this variance would change

the affect of the Master Plan.  Dan Rossbach said it would be considered spot zoning.  Ms. Manson-Dempsey asked if

 the Planning Commission makes the recommendation on a PUD?  Chairman Lowe said yes.

same zoning district:  Basically, the property in that area is all similar.  There’s nothing that distinguishes it from other

property.

more than what is allowed under the current SR zoning.  Chairman Lowe said the applicant was well aware of the zoning

in that area when the property was purchased.  Ms. Manson-Dempsey asked when the property was purchased.  No

changes have been made to that aspect of the zoning ordinance in the past five years.  Dan Rossbach said it’s evident

that it is self created as it’s zoned SR and there’s no reason the property can’t be developed with SR zoning.

same zoning district:  Larry Fillinger said it would confer special privileges if approved.  Chairman Lowe said they would

be granted a special privilege to increase the density, and it would allow uses in the district that are prohibited by the

zoning ordinance.

 Master Plan in place, it would be contrary.  Chairman Lowe concurred.  The existing area is noted by large parcels that

are substantially larger than what the applicant is proposing.  Existing properties within the area are substantially larger

overall and this would actually be inserting smaller, non-conforming lot sizes within that district.

economics are a big part of it.  Chairman Lowe said one of the main reasons they are requesting the variance is that they

claim it’s not economically feasible under the current zoning. 

Dan Lowe said basically what they’re asking for is a rezoning of the property, and the ZBA can’t rezone property.

Chairman Lowe said they’re asking for a variance that would essentially create a rezoning.  Linda Manson-Dempsey said

all of the options under the existing zoning haven’t been explored.  Chairman Lowe said this property is far from unique,

it’s typical and consistent with that corner of the township.  Dan Lowe said the Cascade development is the same

situation and they’re doing a PUD under the SR zoning.  Chairman Lowe also said the ZBA needs to consider if this

 variance is granted, what affect would that have on the character of the surrounding area—the parcels, property and

homeowners in the area.  The residents have demonstrated how they feel.  Ms. Manson-Dempsey wanted to clarify

whether the applicant asked for rezoning?  Mike Kehoe said yes.

Mr. Kehoe suggested the ZBA should discuss whether, in terms of the use variance, the hardship is the result of the

applicant’s own actions.  One of the factors is whether they were aware of the zoning at the time it was purchased. 

Mr. Kehoe said in order to be entitled to a use variance, one of the factors the ZBA should look at is whether or not the

hardship the applicant is referring to is related to its own actions.  If they purchased the property aware of the zoning,

there is a question as to whether or not there’s an unnecessary hardship.  Dan Lowe said they knew the property was

zoned SR, and if they paid too much money for it to be economically feasible in SR, and now they want to change the

zoning because they paid too money. 

Motion

Dan Rossbach motioned to deny the use and dimensional variances requested by Chestnut Development for the following

reasons:

• 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 applicants 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.  Furthermore, there are parcels in the township that have been developed under the SR zoning with a

PUD option, and that are seeking to develop a PUD with SR zoning.

• In regard to Section 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.  The parcel can’t 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 in there a common nature of this problem in the general area, but that problem exists in many

other areas of the township where there is SR zoning.

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

objecting to 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.

• 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 this applicant to have significantly greater density than

 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, and other special privileges that accompany such density.

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.

• As to Section 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 larger acreage parcels for which this type of density would be inconsistent and incompatible.

• The last factor, 5.05 C 6, that needs to be examined is whether 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 can’t develop the property reasonable with a reasonable

financial return under the existing zoning.

• Lastly, the applicant’s request essentially seeks to accomplish what could be considered a rezoning of the property.

While the application may be termed as a “Request for a Variance,” 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.

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

has not shown the property can’t be used consistent with existing zoning.  Current zoning will allow for a PUD development;

(2) the applicant’s 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 that could result from the

granting of the variance the applicant seeks; (4) the hardship is the result of the applicant’s own actions because the

property was zoned as SR when the applicant purchased the property and the applicant has not shown the property can’t 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, Dan Lowe,

John Lowe—all yes.  Motion carried 5-0.

ZBA Rules and Procedures

Annette McNamara provided the ZBA members with a copy of the ZBA Rules and Procedures, as well as a copy of the

booklet entitled, “Authorities & Responsibilities of Michigan Township Officials, Boards, and Commissions.”  Ms. McNamara

will make appropriate changes/updates to the document, and send to the township attorney for review. She will provide the

updated version at the next meeting. 

Call to the Public

None.

Adjournment

Larry Fillinger motioned to adjourn the meeting at 9:59 p.m.   Dan Rossbach seconded.  Motion carried 5-0.