Hughes v. Almena Twp.

• Decision Date: 26 May 2009
• Docket Number: Docket No. 279085.
• Citation: 284 Mich. App. 50,771 N.W.2d 453
• Court: Court of Appeal of Michigan — District of US
• Parties: HUGHES v. ALMENA TOWNSHIP.

771 N.W.2d 453

[ci] 284 Mich. App. 50

HUGHES v. ALMENA TOWNSHIP.

Docket No. 279085.

Court of Appeals of Michigan.

Submitted February 3, 2009, at Grand Rapids.

Decided May 26, 2009, at 9:00 a.m.

Schuitmaker, Cooper, Schuitmaker & Cypher, P.C. (by M. Brian Knotek), for Allan and Sally Hughes.

Kelly L. Page, Paw Paw, for Almena Township.

Before: MARKEY, P.J., and MURPHY and BORRELLO, JJ.

PER CURIAM.

Respondent Almena Township appeals by leave granted the circuit court's June 14, 2007, order that (1) reversed the decision of the Almena Township Zoning Board of Appeals (ZBA) to uphold the denial by the Almena Township Board of Trustees (township board) of petitioners Allan and Sally Hugheses' preliminary site plan for a planned unit development (PUD), (2) reversed the township board's decision to deny petitioners' preliminary site plan, and (3) approved petitioners' preliminary site plan. We vacate the circuit court's order and remand to the circuit court for the entry of an order affirming the ZBA's decision.

I. SUMMARY OF FACTS AND PROCEEDINGS

On December 23, 2005, the Hugheses submitted a preliminary site plan for a proposed PUD (Charlen Acres) to the Almena Township zoning administrator. Charlen Acres was a 24-unit, single-family residential community on 27.62 acres and included 2.9 acres of permanent open space.

On November 14, 2005, the Almena Township Planning Commission held a pre-application conference pursuant to § 14.04 of the Almena Township Zoning Ordinance, revised May 3, 2004, edition (ordinance). The planning commission determined that the proposed PUD was located in the agricultural-suburban residential (ASR) district.

On December 23, 2005, the Hugheses submitted their formal preliminary site plan application to the zoning administrator as the ordinance required. The zoning administrator, Bruce Dean, reviewed the site plan and determined that the proposed PUD was permitted in the ASR district pursuant to § 14.02(A)(1),¹ but that several items needed to be addressed by the Hugheses before approval. Dean then concluded by noting:

Based on the preliminary nature of the submission and review process, the information related [to] the issues identified above should be provided prior to or at the [planning commission] meeting on 01/09/2006. Though incomplete, the review of the application in its present form, with any additional information provided by the applicant, will allow the applicant to prepare for a submission of a plan for final review pursuant to Section 14.06(C).

Upon a finding that the criteria for site plan and development standards have been satisfied, the planning commission shall set a public hearing for consideration of the final PUD plan.

On January 9, 2006, the planning commission reviewed the Charlen Acres preliminary site plan and concluded that many of the issues Dean raised were addressed in a new site plan drawing the Hugheses distributed at the meeting. Dean noted that the Hugheses still needed to address some issues before the February 13, 2006, public hearing for the site plan. Those issues were also noted in the planning commission's meeting minutes.

On February 2, 2006, the Hugheses submitted a revised drawing, which Dean reviewed. The Hugheses still needed to complete a survey and submit soil profiles supported by soil borings, among other things, for final submission. Dean noted that the "applicant has committed to provide information required to complete the site plan, ... to obtain final approval."

Almena Township gave notice that the planning commission's scheduled February 13, 2006, meeting would include a public hearing regarding the Hugheses' preliminary site plan. The notice was sent to the owners of 10 parcels situated within 300 feet of the proposed PUD.

On February 13, 2006, the planning commission held a public hearing regarding the Hugheses' preliminary site plan and found that the PUD map was "in compliance with [the] statute for PUD Standards." During the public hearing, eight individuals raised concerns over potential urban sprawl, the need for larger parcels increased traffic and noise, lack of a buffer zone for neighboring residents, adverse effects on hunting and farming, increased light pollution, possible health and safety issues, destruction of a pond and wetlands, and effects on the existing environment. Township trustee Marv Flick was one of the individuals who spoke during the public comment portion of the public hearing. Flick questioned why the Hugheses had not planned more buffer zones for existing residents. After the public comment period, the planning commission made findings of fact and concluded that certain conditions have to be imposed on the PUD. The planning commission unanimously recommended approving the preliminary site plan with conditions to the township board.

Almena Township published notice that the township board's scheduled March 14, 2006, meeting would include a public hearing regarding the Hugheses' preliminary site plan. This notice was sent to the owners of 14 parcels within 300 feet of the proposed PUD.

At the March 14, 2006, township board meeting, 16 individuals spoke against the proposed PUD, citing inconsistency with the master plan, the failure to meet the ordinance's definition of a PUD, premature development, increase in density, noise, and traffic, safety concerns, high water tables, and environmental concerns. Trustee Flick then moved to deny the application primarily because (1) the soils in the area were not conducive to drainage and the water tables were high, and (2) there were safety concerns regarding ingress and egress based on the traffic analysis and the road commission's recommendation to deny the site plan. Flick believed that the proposed PUD would constitute "premature development" of the area. The minutes reflected Trustee Flick's reasons:

1. The public input for the most part, if not unanimously, showed enough negative response to section 14.08 (standards of review) to paragraphs F [traffic and safety], G [project's compatibility and interrelationships between mix of unit types, densities, and uses], H [no adverse noise, odor, light or other external effects on surrounding area], and I [minimum disturbance to the environment]. ...

2. Also paragraph B of Section 14.08 states in part that the proposed PUD shall conform to the intent and purpose of the township zoning ordinance and its regulations and standards of the PUD.

3. This combined with all the good reasoning expressed her [sic, here] this evening should be a substantial reason for denial.

4. The original intent of a PUD was to be able to have two different land uses, which is not the case, not to put as many houses as possible in a small area.

Trustee Wayne Nelson moved to amend Flick's motion, but after much discussion, both motions were withdrawn, and Trustee Nelson moved to adopt the following language:

The Almena Township Board hereby determines that the proposed development of Charlen Acres is inconsistent with the [PUD] section of the township's zoning ordinance, is clearly inconsistent with the township's Master Land Use Plan, and would be a seriously incompatible use of the proposed site due to environmental sensitivities. Therefore, the preliminary site plan for Charlen Acres is denied as a PUD, to be accompanied as supporting information, both the language prepared by Marv Flick and the reasons, along with the standards for review of the zoning ordinance itself, under Section 14.08 and in particular the definition, of a [PUD], accompanying along with the standards for review in Section 14.08 (B [conformity of a PUD to intent and purpose of ordinance and to other law], F, G, H, and I) and Section 14.10 [authority of township board to deny, table, or approve a PUD] in the Zoning Ordinance pertaining to PUD's, which is what this motion is based upon.

The above language was adopted and the township board unanimously denied the Hugheses' request for preliminary site plan approval.

The Hugheses appealed the township board's decision to the circuit court. The circuit court ruled that the Hugheses had not exhausted their administrative remedies and remanded the case to the ZBA, but retained jurisdiction.

On January 22, 2007, the ZBA held a public hearing to address the Hugheses' appeal. During the main public comment period, two individuals argued that the Hugheses' proposed development did not satisfy the ordinance's requirement that a PUD be comprised of two or more uses: Charlen Acres contained only one. One ZBA member, Ron Marvin, who also was a planning commissioner, mentioned that the conditions the planning commission imposed for approval of the site plan were never satisfied. During its discussion, the ZBA referred to multiple sections of the ordinance and looked at the township's master plan, soil maps, and soil descriptions. The ZBA concluded that: (1) the interrelationships of the PUD were not acceptable; (2) the PUD would adversely affect adjacent and surrounding land; (3) it would adversely disturb the environment; (4) the area was environmentally sensitive and should be protected according to the law; and (5) the soil was poorly suited to septic tank absorption fields and sewage lagoons. Thereafter, the ZBA received further public comment. Three people, including Flick, argued that the PUD should not be approved because the sump pumps on surrounding properties run constantly. ZBA member Marvin then moved to uphold the township board's decision to deny the Hugheses' preliminary site plan PUD request. The motion was based on "the findings of this meeting today, and the extensive discussion" of several sections of the ordinance, including §§ 14-17, the ordinance's definitions of a PUD and environmentally sensitive area, more specifically on §§ 14.07(B)(1); 16.03(AA)(1); 14.08(A), (B), (G), and (I); 17.04(A) and (B); 17.07(A)(2) and (3), and (B). The motion was also based on the master plan and the...