Last month, the Michigan Court of Appeals dismissed an appeal filed in 2012 by a group of Macatawa Park cottage owners regarding zoning requirements for Point West I, Nan Van Andel’s 40-unit residential development project located in Park Township.
Macatawa Area Residents for Fair Development are now considering filing their case with the Michigan Supreme Court.
According to Dan Mitchell, MARFD president, the rightful number of units allowed on the property is 10, not 40, based on Park Township zoning laws. He said erroneous density calculations have been allowed to go forward.
So far the township and the courts have disagreed, saying that 40 units are permitted by the zoning ordinance and township master plan.
When the case was in front of Ottawa County Judge Jon Van Allsburg, Mitchell said Van Allsburg did not review the calculations in making his decision, but instead only considered whether the township applied the proper due diligence in granting the project approval for 40 residential units.
The property being disputed spans approximately 8.9 acres, according to Mark Harmsen, a representative for Point West I.
At odds since the development was first proposed has been whether the property was actually originally zoned commercial or a split of commercial and residential zoning; if the planned unit development decision that allotted the development project 40 units needed to take into consideration the Park Township master plan and how that plan should have been interpreted; and whether the area Point West I plans to develop into a marina was incorrectly counted.
“The last official zoning map that was approved by the board of trustees occurred in 1974,” Mitchell said. “That map and subsequent maps up through 2007 showed the property to be a split between residential, R-4, and commercial zoning, C-2. The C-2 portion was along the Lake Macatawa shore.”
Mitchell said the official published zoning map was changed in 2011 to reflect the area as fully commercial, which he believes was without reason.
Ed de Vries, Park Township code compliance officer, said that he has been researching the history for the zoning of the property as well as the entire township due to discrepancies in the zoning maps.
“While my research project is not yet complete, it does appear that anywhere from approximately 1.25 to 1.5 acres of the 8.3-acre property should have reflected R4-medium-density, one- and two-family residence district,” he said.
“The township's 1974 zoning map, which was adopted when the township board approved the zoning ordinance in 1974, depicts a large portion of the property as being zoned C2, and a portion of the property as being zoned R4.
“Then, in November of 1976, the township board approved a request to rezone a portion of the property from R4 to C2 to allow the construction of the hillside unit; however, unfortunately, the three subsequent zoning maps produced by the township's planner in 1977, 1984 and 1994 did not depict the rezoning of that portion of the property to C2 as approved by the township board in 1976.
“To further complicate the matter, it appears that the zoning map produced by the township's planner in 2000, 2010 and 2011 then incorrectly depicted the width of the C2 zone, which is why the township believed, based on those maps, that the entire property, including all of the hillside area, was zoned C2 when the application was filed.”
He said that despite these discrepancies, he does not think the outcome would have been any different as to the number of units allowed.
“It is my opinion the possible decrease of seven units in the parallel plan would not have changed the final number of units permitted by the township, as an entirely different method was used to calculate the final number,” he said.
Mitchell also contends that in granting a planned unit development request to Point West I, the Park Township master plan should have been consulted in accordance with the Park Township zoning ordinance but was instead disregarded or misinterpreted.
“The Park Township PUD ordinance, in two places, says, ‘PUDs are not intended to permit densities greater than that allowed by the existing zoning or the master plan,’” Mitchell said.
Mitchell contends that approximately five acres should not have been included in the density calculations.
Again, de Vries disagrees, saying that line of thinking is incorrect.
“It is important to note that the zoning ordinance does not require the parallel plan to take out areas that might otherwise be considered unbuildable,” he explained. “Furthermore, it is just as important to note that much, if not all, of the area that Mr. Mitchell considered to be unbuildable involves the dune where a pre-existing concrete and steel foundation structure from the old Point West Motel had previously been built into the base of the dune, and which the Michigan DEQ has advised that they would allow that foundation to be used for the construction of the new condos.
“So the zoning ordinance didn't preclude the dune area from being included in the parallel plan, and given the historical non-conforming concrete and steel foundation, the dune area is, in fact, buildable.”
He said the planning staff and Planning Commission acted in accordance with the current zoning and the master plan in making its final calculation, which would have allowed for 43 units, and then negotiated with the developer for 40.
It is unlikely the Michigan Supreme Court will hear the case if MARFD does decide to move forward against the development project, according to Point West I, which is confident its legal battle is over.
“We feel extremely vindicated that the Court of Appeals rejected this appeal, which we feel was entirely without merit,” Harmsen said. “Our project easily fits within the parameters of Park Township’s zoning ordinance — and every public body that has looked at this matter has agreed.”
Harmsen said the project would include 22 to 24 single-family homes and a four-story condo building that will be located on a dune and could have up to 18 condos. An 80-slip marina also is in the plans, and is awaiting approval from the DEQ and the U.S. Army Corps of Engineers.
The project is already underway, with an investment of $1 million on infrastructure completed and another $500,000 spent on landscaping and hardscaping. Additionally, the first cottage has been constructed and is serving as a model.
“Now we can move forward with our sales and building more homes,” Harmsen said.