By Lonnie Huhman,
By a close vote on July 30, the Sylvan Township Board denied the rezoning request that was made in an effort to redevelop the Phinney farm.
The vote of the full board came down to 3-2 in favor of the recommendation from the township planning commission to deny the request to rezone the property, at 4351 Mushbach Road and 16450 Cavanaugh Lake Road, from agriculture to low density residential district.
Minimum residential lot sizes in agriculture, which is the current zoning for the property, is two acres while low density residential allows one acre as the minimum size.
This request to change brought out many landowners in the proposed area as opposition to it; who said the change would alter the look of the area for the worse, increase traffic and negatively impact the rural character and wildlife. These were just some of the complaints.
The board’s decision came after more public input was voiced during citizen comment at the July 30 board meeting.
Township resident and neighbor of the property Amanda Nimke-Ballard spoke for many when she said the proposal would conflict with the character of the surrounding area. In the end, she asked the board to, in part, make the right decision to protect the integrity of that area.
In introducing the rezoning request, township supervisor Tom McKernan called the whole matter a complicated situation. He said the township had a lot of good public participation in updating the master plan in the past two years, but now there may be a situation in which many others in the township who didn’t participate in the planning update are now upset at the rezoning request.
According to the 2017 Sylvan Township Master plan Future Land Use map, the in-question parcels were included in the low density residential categories.
Township board trustee Kurt Koseck said he’s been to many of the planning commission meetings about the Phinney matter and he felt clear in his head about making a motion for a vote on the request.
Township attorney Rob Thall was also on hand for the decision and offered the township board criteria to help it make a decision. The criteria played a part for McKernan in his no vote. Township treasurer Rod Branham also voted no.
In follow up to the meeting, McKernan told The Sun Times News that township legal counsel provided the board with a list of 12 factors that should be considered when making rezoning decisions. McKernan said “it was my opinion” that 10 of the 12 factors supported rezoning.
“Our legal counsel just provided the framework for making a decision and each board member had to consider those factors for themselves and vote,” McKernan said.
The criteria were to consider: all uses in proposed zoning district; compliance with Master Plan; consistency with zoning in general area; consistency and compatibility for general land use patterns in area; suitability of proposed uses in zoning district; adequacy of public services; traffic; consistency with Planning Commission recommendation; reasonable use under current zoning district; identifiable public need; diminution in value and citizen opposition.
In reading the legal advice during the meeting, McKernan said legal counsel said when considering a rezoning decision all of the criteria should be considered and applied. Counsel also said Michigan courts have stated these are all important criteria, but have also held that compliance with the master plan is critical to a zoning classification’s reasonableness.
Counsel’s advice said except in cases of a conditional zoning application, which this wasn’t, the merits of the rezoning request should be considered independent of any proposed use.
“In the absence of a conditional zoning application, the municipal legislative body should not attempt to require a particular land use; particular building type or design or other specific conditions in the context of a rezoning request. Such a requirement would be without authority and would likely be found arbitrary and pernicious,” McKernan read.
He ended by saying, “Last, it’s critical to remember that a zoning classification has the presumption of validity if properly adopted and if reasonably related to a legitimate government interest. Zoning must achieve a balance between a property owner’s right to the use this property and the right of the state through its municipalities to ensure that land use is also consistent with the public good. If a challenge is brought to a zoning classification, such a challenge is often based on a claim to due process violation.”
Thall said the question before the board on July 30 was purely about the zoning.
Koseck put forth a motion that echoed the planning commission’s recommendation to the board. He said it’s been a learning process and the planning commission did determine the request was consistent with the future land use map and master plan, but the rezoning change would have an unacceptable impact to surrounding properties with regard to traffic and the rural character of the area.
He said there was still the option to develop the land with two acre lots.
However, before a vote was made on Koseck’s motion, which clerk Kathy Kennedy supported, Kennedy also made the request to go into closed session so the township board could speak to its legal counsel. Koseck withdrew his motion and the board went into closed session no more than 30 minutes before returning to vote on the matter.
The denial vote was followed up by clapping from many in attendance, which was basically a full room.