Explanation of Michigan Supreme Court Decision
The recent Michigan Supreme Court (MSC) ruling clarifying and expanding what’s required for an appellant to establish standing is an enormous victory for public participation and good governance. It also sets a clear pathway for the Coastal Alliance to finally argue the merits of our appeal of the proposed yacht marina. The MSC has told Allegan County Circuit Court to rehear our appeal. The Michigan Supreme Court has remanded our appeal to Allegan County Circuit Court ‘for reconsideration of appellant’s arguments regarding standing.’ And ‘for consideration of appellant’s original causes of action.’
We believe we have met all three new criteria laid out in the MSC opinion:
- First, the appellant must have participated in the challenged proceedings by taking a position on the contested proposal or decision
- Second, the appellant must claim some protected interest or protected personal, pecuniary, or property right that will be or is likely to be affected by the challenged decision.
- Third, the appellant must provide some evidence of special damages arising from the challenged decision in the form of an actual or likely injury to or burden on their asserted interest or right that is different in kind or more significant in degree than the effects on others in the local community.
The Merits of the Coastal Alliance Appeal
Once the Coastal Alliance is granted standing, we will argue the merits of our appeal of Saugatuck Township’s approval of a Special Approval Use (SAU) for the marina. The merits clearly show the yacht marina, as proposed, violates the Township Code of Ordinances. Here are two ordinances which provide the basis for our arguments:
A. Section 40-910(h) ‘In no event shall a canal or channel be excavated for the purpose of increasing the Water Frontage required by this section. Canals or channels which interface with an Inland Waterway or Lake Michigan and were lawfully in existence as of the effective date of this section may be cleaned and maintained in accordance with applicable laws of the State of Michigan so long as they are not enlarged.’
NorthShore of Saugatuck wants to add 3,200’ to their already substantial 1,400’. This would more than triple their current water frontage
B. Section 40-337(c)3 ‘The only Uses that may be allowed in the critical sand dune area are the following: (3) Such noncommercial recreational uses as would not have a materially adverse effect upon the natural contours of the land and its vegetation;’
NorthShore of Saugatuck wants to alter 6.5 acres within Michigan’s Critical Sand Dune area by removing more than 250,000 tons of sand to create a canal or channel that is 1600’ long, 200’ wide, and 18’ deep. The Coastal Alliance views that as having a ‘materially adverse effect upon the natural contours of the land…’
Further, The Code of Ordinances also includes several criteria that must be met by every SAU, those include:
- The SAU shall be designed, constructed, operated, and maintained in a manner harmonious with the character of adjacent property and the surrounding area.
We all know that the proposed marina SAU is sandwiched between Publicly Funded Natural Areas – The Patty Birkholz Natural Area, Saugatuck Harbor Natural Area, and Tallmadge Woods. Protection of these Natural Areas, which drive our tourism economy, are clearly detailed throughout the Tri-Community Master Plan as being one of the highest priorities for our community. The proposed yacht marina is obviously not harmonious with the surrounding area.
- The SAU shall not change the essential character of the surrounding area.More than half the River Mouth Area is designated Park & Natural Area – that is the ‘essential character of the surrounding area.’ Allowing a marina in the Wild Heart of this area could set a precedent that would then allow marinas at Pine Trail Camp, along Dugout Road, at Ox-Bow School of Art, or on the Old Harbor.
- The SAU shall not be hazardous to adjacent property or involve Uses, activities, materials or equipment which will be detrimental to the health, safety, or welfare of the persons or property by traffic, parking requirements, noise, vibration, smoke, fumes or glare.Construction of the proposed yacht marina could take one and a half years – one and a half years of noise, vibration, and diesel fumes impacting the Patty Birkholz Natural Area. And then construction of 22 houses. And then the addition of nearly 50 yachts with their lights, diesel engines, and glare.
- The SAU shall not place demands on public services and facilities in excess of capacity.
The Tri-Community Master Plan clearly addresses the fact that the harbor and river mouth are at capacity for boats.
What happens next…
We are awaiting the scheduling of a mid-September status hearing where our lawyers will discuss the parameters of discovery, possible mediation, and timing for a trial for our lawsuit to stop the NorthShore of Saugatuck yacht marina.
NorthShore of Saugatuck State Permit to Expire; Stay Tuned for Public Hearing and Comment Period
As most of you know, to begin their proposed marina development NorthShore of Saugatuck needs a permit from Michigan’s Department of Environment, Great Lakes, Energy (EGLE).
We have learned that due to many revisions of their construction plans, the project has not proceeded under the original permit and that NorthShore is in the process of applying for a new permit. This is significant in that a Public Hearing, if requested, must be held by EGLE – and, yes, we have already requested that EGLE hold a Public Hearing!
The Public Comment Period and Hearing will likely occur this fall. We will alert everyone the moment we hear that NorthShore’s application is complete, and that scheduling will occur.
The Public Comment Period and Public Hearing is the opportunity for concerned citizens to voice their objections to the proposed project. It is very important for EGLE to hear articulate arguments based in science, economics, and law opposing the project. It is important for EGLE to hear from elected and appointed local officials that the proposed marina violates local zoning and contradicts the goals and policies of the Tri-Community Master Plan.
The Coastal Alliance will host a Townhall Meeting in early September to prepare for the Public Comment Period and Public Hearing. We will send an email to you when that date and location are scheduled.
Federal Permit Application Languishes
NorthShore of Saugatuck also needs a federal permit from the US Army Corps of Engineers (USACE). The USACE review is nearing the start of its sixth year! The average permit review usually takes three months. NorthShore’s nearly annual change to their construction plans likely has slowed, if not stalled, the USACE review process.
Second Lawsuit to Move Forward
The Coastal Alliance will now move forward with our Nuisance Per Se claim against Peg and Jeff Padnos, the owners of NorthShore of Saugatuck. A Nuisance Per Se can be filed in the courts when a property owner violates local zoning. Our lawsuit of challenging Saugatuck Township’s permit outlines how the owners violated zoning laws that prohibit the excavation of a canal or channel within the Critical Dune Boundary.
In summary: We Are Determined to Protect and Preserve the Wild Heart of Saugatuck
In the six years since the McClendon estate flipped the river mouth property to local developers the Coastal Alliance has remained vigilant, persistent, and focused. (NorthShore is owned by Peg & Jeff Padnos with Scott Bosgraaf coordinating the permitting and construction of houses.) We’ve changed how Michigan’s courts review citizen participation in zoning decisions. We’ve submitted thousands of pages of documents to EGLE and USACE to help them understand what is at risk with the excavation of the proposed yacht marina. Those challenges and documents have been prepared by lawyers, policy experts, biologists, citizen scientists, landscape architects, marina consultants, hydrogeologists, historians, business owners, and the citizenry.