INTRODUCTION

The following information is submitted on behalf of the Michigan Land Use Institute and other concerned citizens. It is intended for the Weldon Township Zoning Board’s use in considering the Application of Cheval-Knudsen for approval of a PUD to build a 610-unit community village center development in the township’s low density Forest Recreation District.

Independent of our recommendation to deny the application as it is presently proposed for the reasons stated in our Legal Framework and Limitations on the Stone Ridge Farm Planned Unit Development, several of the standards for approval set forth in Sec. 9.05D and 9.05F-1 and F-2, cannot be met. One of the central standards for your consideration of the Stone Ridge Farm PUD is whether the proposed use will change the "essential character of the existing District and surrounding uses. Standard 9.05D-1.b states:

Will be designed, constructed, operated and maintained so as to be harmonious and appropriate in appearance with the existing or intended character of the general vicinity and that such a use will not change the essential character of the same area.

The obvious findings on this standard follow:

The overall density of 600 units is unprecedented in Weldon Township. The only other development in the area, Crystal Mountain, is about one-half the density, with far greater open space, most of which is active and commercial use (i.e. golf course). The mix of commercial, resort-type, group homes and community center in Stone Ridge Farm is more intense than any use in any district in the Township. As the developer states on the proposed PUD concept, "We envision a "community village center."

A hotel is proposed with 70 rooms. A 180-unit, 300 person adult nursing and care facility would be allowed. There will be a population influx of approximately 1,200. Over 10 commercial retail shops and restaurant are proposed. The generated traffic in the immediate area will be doubled.

The project is so large it will need its own sewer and waste treatment system, which will discharge large volumes of treated effluent to ground water. If this system becomes inoperable, under the applicable law the Township is responsible to fix and operate it. As a result, the PUD as proposed will not be harmonious with the "existing or intended character of the general vicinity." It will profoundly change the "essential character" of the uses in the area.

Mr. Neiger is a land use planner. He states that the proposed "more intense use" should be nearer existing or planned growth areas or mixed and assisted living districts per the County Plan. The surrounding uses are farm, rural residential, recreation, and forest. These are exactly the uses allowed as of right in the FR District, 7.02. Moreover, under Sec. 7.02B, a PUD, particularly one so high dense or intense, in terms of commercial and service-type uses, is not expressly authorized by special approval. Rather, the Zoning Board has complete discretion to determine whether the Stone Ridge Farm PUD, as presently conceived, meets the standards of 9.05D-1.

On this basis alone, the Zoning Board should deny the proposed PUD as presently proposed. The applicant has produced no substantial evidence that the use "will not change the essential character." The Record you have been provided by the applicant is mostly one or two pages of self-serving statements, and notes generated between the applicant and its own consultant. Based on the Record and these findings, it would be an abuse of discretion for the Township to approve the PUD as presently conceived.

But rather than provide just our own opinion, and in the interest of providing you with actual documentation, we have investigated court cases and planning reports in Michigan and across the country on the issue of essential character. These cases and reports consistently show that large residential developments corrupt the character of rural or agricultural zoning districts and should be denied for that reason.

NATIONAL CASES

Henry v Jefferson County Planning Commission, 2000 US App LEXIS 1284 (4th Cir June 9, 2000):

In a case just decided, the Federal Fourth Circuit Court of Appeals (one step below the U.S. Supreme Court) upheld the character of an agricultural zoning district against a challenge by a developer who wanted to build a 76-unit residential development. The developer argued that his project would be in character with the rural district because he would take steps to mitigate any visual impacts, including the use of fences, berms, and screened lighting. The court said this was not what preserving the character of an agricultural district was about. It also said that any reasonable developer should not have expected to be allowed to build a subdivision in an agricultural zone, whose essential character is based on farm uses and low-density, dispersed residential development. Therefore, the planning commission properly denied the developer a conditional use permit:

We emphasize that this last specified criteria provides a clear benchmark for determining whether Henry’s proposed development is compatible with the purpose and function of the Rural-Agricultural District. The Zoning Ordinance states that the purpose of the Rural-Agricultural District is to provide a location for low-density single-family residential development in conjunction with providing continued farming activities. Accordingly, a primary function of the low density residential development permitted within a Rural-Agricultural District is to preserve the rural character of the County and the agricultural community. These statements give a reasonable person notice and warning that a proposed development such as Henry’s, which he does not dispute is a high-density residential development, would not be in harmony with, and thus not compatible with, the nature of the Rural-Agricultural District.

Howard v Canyon County Board of Commissioners, 128 Idaho 479; 915 P 2d 709 (1996):
The Idaho Supreme Court held that a residential subdivision, while it may be compatible with the essential character of an agricultural district if located in some parts of the district, was not compatible where the developer planned it. Therefore, the board properly denied the developer a conditional use permit:

Howard does not dispute that the area surrounding his land has a pervasively agricultural character. Rather, he argues that his use is compatible with this agricultural character. Indeed, a residential area may be compatible with an existing agricultural use and the ordinance recognizes this fact. However, the recognition of this fact does not lead to the conclusion that every proposal to build a residential development in an agricultural area must be granted.

McCord v Pineway Farms, 569 SW 2d 690 (Ct Appls Ky 1978):

The Kentucky Court of Appeals sided with a group of concerned citizens, holding that there was a substantial question about whether a proposed 18-home subdivision "changes the entire character of the agriculturally zoned area."

Collins v Butler County Zoning Board of Appeals, 1986 Ohio App LEXIS 9227 (1986):

In another case brought and won by local citizens, the Ohio Court of Appeals approved a definition of agricultural character based on farm use and "very low density residential development":

The intent of the A-1 Agricultural District is to reserve land exclusively for agricultural cultivation, very low density residential development and other activities that are basically rural in character so that agricultural activities may be preserved and maintained and can be protected from haphazard encroachment by urban development.

MICHIGAN CASES

Bell River Associates v China Township, 223 Mich App 124; 565 NW2d 695 (1997):

A developer was denied permission to build a mobile home park in an area zoned agricultural. The Court of Appeals upheld the character of a rural agricultural district, again based on farm use and very low densities.

See also, Gordon v City of Bloomfield Hills, 207 Mich App 232; 523 NW2d 806 (1994) and Davenport v GP Farms Zoning Board, 210 Mich App 400; 534 NW2d 143 (1995):

In both of these cases, the Court of Appeals ruled that just because a development meets the strict size or lot number requirements of the ordinance does not mean the development is also harmonious with the character of the surrounding area. Davenport said that

"harmony" means more than mere technical compliance with zoning requirements.

Gordon was even stronger, adopting the city’s argument completely:

The [planning] commission acknowledged that the resulting lots would meet the relevant zoning ordinance’s minimum requirements in terms of size and frontage. However_"harmony" must necessarily mean more than technical compliance, otherwise the ordinance would be meaningless.

PLANNING REPORTS

We also gathered many reports by planning organizations, which are submitted in one bound copy for the record if you would like to review them. These reports generated four main conclusions, which we offer as evidence on essential character.

Conclusion 1 - One of the biggest threats to the character of rural zoning districts is a large increase in residential densities.

The Michigan Planning & Zoning Center conducted surveys of Michigan residents to determine what the key elements of rural character are. These elements included the presence of farmsteads, farms and orchards, the presence of non-farm residences on large lots, and the absence of commercial and high-density development. As Mark Wyckoff of the Center wrote, "the more residences established in rural areas, the greater the loss of rural character." Studies in Illinois and Colorado reached similar conclusions.

Sources: Planning & Zoning Center, Zoning Options to Protect Rural Character)
Surface Transportation Policy Project, Natural Resources Defense Council, Once There Were Greenfields, chapter 2

Conclusion 2 - The most important way to preserve rural character is to locate the higher-density developments close to the border between rural and more densely developed zoning districts.

In order for cluster development to be consistent with an agricultural, open space or Forest Recreation zoning district, it needs to be located in the appropriate part of that district. The national studies call this infill development. As the American Planning Association puts it, "Rural cluster zoning is most suitable in rural-to-suburban transition areas where it can preserve small-scale farming and open space while providing needed housing." As the Southeast Michigan Council of Governments puts it,

Compact, or a more managed, type of development attempts to direct growth to already existing locations of development while preserving yet-to-be-developed areas. Nationally, the land-use literature portrays compact development as more efficient in its land-use patterns and thus less-land consumptive. Accordingly, it usually requires less somewhat less development infrastructure.

The point of allowing a development by planned unit development is that it might be appropriate in some parts of the district, and inappropriate in others. Given the information in these studies, the only place a 600-unit development would not impact the character of the Forest Recreation district and would not be a fiscal burden might be in the transition area near existing residential and commercial districts.

Sources: American Planning Association, Rural Cluster Zoning: Survey and Guidelines (excerpts reprinted in Planning & Zoning Center, Open Space Zoning: Technical Considerations)
Southeast Michigan Council of Governments, Fiscal Impacts of Alternative Land Development Patterns in Michigan)

Conclusion 3 - Cluster development is only in character with Agricultural-Open Space Zoning if the amount and layout of open space in the development accomplishes the goals of the master plan.

The most important consideration in determining whether a proposed "cluster development" actually preserves the character of a rural zoning district is the amount of open space preserved by the development. The Planning & Zoning Center says: "The maximum provision of open space consistent with the rural character of an area is the priority consideration in open space zoning provisions." Determining an appropriate percentage of open space can be done in two steps: start with any percentage specified in the ordinance, then apply discretionary PUD standards about character and impacts. We submit that the best way to determine what kinds of open space projects do preserve enough area is to look at other cluster developments. To assist you, we have provided a set of examples collected by Randall Arendt.

Sources: Arendt, Rural by Design: Maintaining Small Town Character)
Planning & Zoning Center, Zoning Options to Protect Rural Character
American Planning Association, Rural Cluster Zoning: Survey and Guidelines (excerpts reprinted in Planning & Zoning Center, Open Space Zoning: Technical Considerations)

Conclusion 4 - Protecting rural character actually increases property values.

People who have studied real estate valuation have concluded that the greatest asset communities like Weldon Township have is their open, rural character. Therefore, preventing high-density subdivisions that compromise this character actually keeps property values higher for those who do wish one day to sell. As one real estate industry research group said about real estate values in growing communities, "Suburbs struggle because they have let developers run amok, oblivious to traffic growth, sewer system capacity, or even recreational needs."

Sources: Planning & Zoning Center, Economic Benefits of Land Conservation
Pelley, et al, Sprawl Costs Us All
Lend Lease Real Estate Investments, Emerging Trends in Real Estate 1999, New York, quoted in Surface Transportation Policy Project, Natural Resources Defense Council, Once There Were Greenfields, chapter 1

RECOMMENDATION

The courts in Michigan and elsewhere recognize that townships, like Weldon, with lower density, rural residential, agricultural, and forest use districts, have the discretion to deny a use because it is not harmonious with, or changes the essential character of, the land use district and area of the proposed development. As noted by the Michigan court in the Gordon decision, mentioned above, the mere fact that technical requirements have been met does not address whether the proposed PUD or use is "harmonious" or will not change essential character." This is exactly what this Zoning Board and Township Board are faced with in this matter, and there is little real evidence to support a finding that the 600 unit village or community center PUD is harmonious or "will not change the essential character of the same area." Too, proving that it "will not change the essential character" must be established "beyond doubt." Sec. 9.05D, Ordinance, p 19. The applicant has not carried this burden.

We submit that the applicant has not shown that the PUD, in its present density, intensity, and scale, "will not change the essential character" of the area. Indeed, a finding that it is not "harmonious" or will change the "essential character" is well within the ordinance, facts, and your discretion. Based on these considerations, the application should be denied.