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McKown's legal brief details Cottage Home issues
Posted: Apr 21, 2017

Long-time Saugatuck Township resident Steve McKown submitted a legal brief to Saugatuck Township yesterday detailing several reasons why the Township must deny the Cottage Home permit as it currently stands. McKown recently retired following a 35-year career practicing Township law.

McKown's letter, combined with recent requests by several planners for additional counsel in making a decision on the Cottage Home proposal for a marina development, is making it less likely the Planning Commission will be able to approve preliminary plans at their Wednesday April 26th meeting.

Below is the full brief submitted by McKown:
To: Saugatuck Township Planning Commission

RE: North Shores of Saugatuck PUD/SUP Site Condominium/Marina Applications Dear Planning Commission Members,
As you may recall, I spoke briefly at the March 28, 2017 public hearing about my concerns regarding the requested special use permit for a marina, as well as the related Site Plan/PUD Application for the proposed site condominium on property owned by North Shores of Saugatuck, LLC. Since that time, i1ve had the opportunity to review the legal memorandum prepared by the Township 1 s Attorney, Mr. Smith, dated March 28, 2017, as well as the site plan for the proposed site condominium.

Since there may be little or no opportunity for public input at the next hearing on these proposals, 11m submitting this letter in the hope the Planning Commission will take the opportunity to read it and consider my concerns and objections.

I. THE PLANNING COMMISSION MUST MAKE FACTUAL FINDINGS AND EXPLAIN THE BASIS FOR ITS DESCISION ON THE SUP/PUD PROPOSALS.
The Township Attorney, on page 6 of his March 28th Memorandum, stated that "If you wish to deny one or more of the requests, it will be important to state the reasons for your denial. 11 Under applicable law, the Planning Commission must make factual findings and explain the basis of its decision to approve or deny these SUP/PUD Site Plan Applications.

Section 502(4) of the Michigan Zoning Enabling Act (MCL 125.3502(4)), which governs special land use approvals, provides, in part:

"The decision on a special land use shall be incorporated in a statement of findings and conclusions relative to the special land use which specifies the basis for the decision and any conditions impose d.11

Section 503(6) of the Act (MCL 125.3503(6)), which governs the approval of planned unit developments, provides in part:


"The body or official shall prepare a report stating its conclusions, its decisions, the basis for its decision, and any conditions imposed on an affirmative decision."
II. THE PROPOSED SITE CONDOMINIUM PLANS PRESENTED AT THE MARCH 28TH HEARING WOULD, IF APPROVED, VIOLATE PROVISIONS OF THE MICHIGAN CONDOMINIUM ACT AND THE TOWNSHIP ZONING ORDINANCE.

BACKGROUND INFORMATION

The Michigan Condominium Act (the Act, MCL 559.101 et. seq.), governs both conventional and site condominiums in Michigan. The Act contains a series of Definitions that have very specific legal meanings and are used throughout the Act (see MCL 559.103-110). Among the most important definitions are "Condominium project", "Condominium unit", "Common elements", "General common elements'1, "Limited common elements", and "Co-owner".
Property located within a condominium project is either a unit or a common element under the statutory scheme. Common elements are either general common elements, in which all unit owners ("Co-owners") have a common ownership interest and a shared duty to maintain and repair, or limited common elements. Limited common elements may only be occupied/used by one or more, but not all, of the unit owners in the condominium. Limited common elements are appurtenant (attached) to a particular unit or units, and are maintained and repaired by the unit owner(s) who has the right to possess and use them.
This structure of units, unit owners, general common elements and limited common elements is the legal foundation of all condominiums in Michigan. 100% of the "value" of a condominium project must be assigned in the master deed to each condominium unit included in the condominium project. MCL 559.109(1). Real property taxes on land located in a condominium project (except for the first year of the project) must be assessed against the individual condominium units identified in the condominium plan, rather than on the total property included in the condominium. MCL 559.231.
Each condominium unit "together with and inseparable from its appurtenant share of the common elements" is considered a "sole property" independent of the other condominium units. MCL 559.161 (emphasis added). As a general principle, common elements, including limited common elements, cannot be transferred, mortgaged or otherwise disposed of separately from the condominium unit to which they are attached. MCL 559.137(5).


While a limited common element may be re-assigned by one unit owner to another unit owner or owners, unless prohibited the condominium documents (see MCL 559.139), there is no provision in the Act that allows the transfer of a limited common element to a property owner who is not a unit owner in the same condominium project.

The Saugatuck township zoning ordinance incorporates the definitions found in the Act (see Section 40-937(b)}, although it seems to be more restrictive than the Act regarding limited common elements, which are defined as "an area which is appurtenant to a Site Condominium Unit and which is reserved in the Master Deed for the Site Condominium Project for the exclusive use of the owner of the Site Condominium Unit" (emphasis added). Section 40.937(c).

See also Section 40-936(a), which provides: "Each Site Condominium Unit may also have an appurtenant Limited Common Element reserved for the exclusive use of the owner of the Condominium Unit."

THIS PROPOSAL

The Preliminary site condominium proposal submitted by the owner dated March 20, 2017, designates docks/slip spaces as limited common elements for 17 condominium units that would be adjacent to the proposed basin/lagoon. Units 22 through 27 do not have contiguous boat slips, and presumably would have docks/slips designated as limited common elements, such as proposed B-27 through B-33 (page 3 of map).

Page 1 of the site plan map for the condominium shows several docks/boat slips as limited common elements that are not appurtenant to any unit in this proposed condominium. The SAU application refers to "dock condos" and "boat slip units", but no such condominium units were included in the site plan maps, or in the proposed condominium documents attached to the application. The preliminary condominium site plan cannot be approved as submitted because:

(1). It unlawfully attempts to designate boat slips/docks as" limited common elements" which would be owned by property owners who do not own a condominium unit in this condominium project;

(2). It does not show the proposed "dockominium units" on the maps submitted to the Planning Commission as required by Section 40-938(b) and Section 20-126(6);

(3). It was not accompanied by a summary of the relevant covenants that would be included in the Master Deed and would apply to the dockominium units. Section 8.1 of the preliminary use and occupancy restrictions, for example, state that "Condominium Units shall be used exclusively for residential occupancy..." (emphasis added);

(4). It was not accompanied by a summary of the proposed variances that would apply to the dockominium units.

Ill. THE PROPOSED SITE CONDOMINIUM AND MARINA VIOLATE THE PROVISIONS OF ARTICLE XII OF THE TOWNSHIP ZONING ORDINANCE REGARDING WATER ACCESS.

The proposed marina is part of the proposed site condominium. The artificial basin/lagoon is designated in the preliminary condominium site plan as a general common element, as to which each unit owner will have an ownership interest and rights and responsibilities designated in the condominium documents and in the Act. The Master Deed for the condominium, once recorded, will create common and multiple ownership interests in the basin/lagoon for the benefit of each unit owner in the condominium.

Under the definitions contained in Section 40-907 of the Zoning Ordinance, the proposed site condominium will create a "Shared Waterfront Property Ownership" in the proposed artificial basin/lagoon, since the basin will have common, multiple ownership interests, and will have frontage on an "Inland Waterway", the Kalamazoo River.

"Water frontage", as defined in the Zoning Ordinance, will consist of that portion of the proposed artificial basin/lagoon which intersects the edge of the Kalamazoo River. Significantly, the units that are contiguous with the artificial basin/lagoon will not have "Water frontage", because those units will not abut or intersect with an" Inland Waterway". The owners of these units will not be considered riparian owners under Michigan law, since the units will border an artificial body of water, rather than a natural body of water. {See Thompson v Enz 379 Mich 667,677-679 {1967); Persell v Wertz 287 Mich App 576(2010); and Holton v Ward 303 Mich App
718 {2014)).

The bed of the artificial basin/lagoon will be a "Waterfront Access Property" since it will be a parcel of land which abuts an "Inland Waterway", and will be used by persons who have a "Shared Waterfront Property Ownership" to gain access to the "Water frontage" of an "Inland Waterway" from land without "Water frontage". The legal point of access to the Kalamazoo River, which is an "Inland Waterway", would be the line where in Kalamazoo River intersects with the outer boundary of the proposed condominium.
For purposes of analyzing how Chapter XII of the Zoning Ordinance applies to this proposed project, the fact that the artificial basin/lagoon will be filled with water is irrelevant. The basin/lagoon would be an artificial body of water, not part of the Kalamazoo River. Since units bordering the basin/lagoon will not have "Water frontage", the owners of these units as well as other unit owners in the condominium, will have the same legal access rights to the Kalamazoo River that they would have if the basin/lagoon was established and maintained as a common, dry land greenbelt or park that borders the Kalamazoo River.
Under the provisions of Table 40-910-1 of the Zoning Ordinance four condominium units ("accesses", Section 40-910(c)) would be allowed to have access to the Kalamazoo River for each 100 feet of frontage on the river, with an additional access for each additional 25 feet, up to a total of 8 accesses for 200 feet of water frontage on the Kalamazoo River. The Planning Commission is not authorized to issue a variance from the provision of Article XII, as they apply to this condominium project. The provisions of Article XII of the Zoning Ordinance apply to all zoning districts, and are not uses which may be varied pursuant to PUD proposal.

IV. CRITICAL DUNES HAVE A UNIQUE AND PROTECTED STATUS UNDER MICHIGAN LAW WHICH MUST RECOGNIZED BY THE PLANNING COMMISSION.

Although Section 40-337 of the Zoning Ordinance applies to the R-3B Zoning District, rather than the R-2 Zoning District, there is no real world distinction between critical dunes located in the R- 3B and R-2 Zoning Districts. The Michigan Zoning Enabling Act requires that the standards for approving any special land use shall insure that the use is compatible with, among other things, "the natural environment", MCL 125.3504(2). Part 353 of the Michigan Natural Resources and Environmental Protection Act contains the following special legislative finding regarding critical dunes, like the ones located on this property:

"(a). The critical dune areas of this state are a unique, irreplaceable and fragile resource that provide significant recreational, economic, scientific, geological, scenic, botanical, educational, agricultural, and ecological benefits to the people of this state and to the people from other states and countries who visit this resource." MCL 324.35302.

The removal of approximately 160,000 tons of sand from a critical dune area in order to establish a private marina will necessarily and irreparably damage this unique and fragile resource. I believe under any credible interpretation of the applicable statute and zoning ordinance this project would not be compatible with the natural environment.

Respectfully submitted,

Stephen B. McKown, JD

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P.O. Box 1013 • Saugatuck, MI 49453 • (269) 857-1842 • coastalalliance@me.com