Zoning: The Laws of the Land

By F. Josephine Arrowood

Op-ed contributor

Twenty-five years ago, I rented a house in Empire Township. Then, as now, the housing market was extremely tight in Leelanau County, and I thought myself lucky to have a rent-to-own agreement with my landlord. My neighbor owned 72 acres: an L-shaped parcel that wrapped around the side and rose steeply uphill behind my would-be two acres. 

The drawback to my plan for home ownership? My neighbor’s extensive collection of old school buses, junked cars, backhoes, dump trucks, and random parts of shacks and trailers—first buried in snow when I moved in—slowly emerged to dominate the landscape as winter finally receded. I read in the paper that he was embroiled in an extended dispute with the township. He’d been fined thousands of dollars. But I desperately wanted a home for my family. I told myself I could plant trees, put up a fence, that he might clean up his act someday.

Later that spring, the piglets appeared. There may have been a dozen of them dashing pell-mell under the single electrified wire the neighbor had strung. They splashed and wallowed in Hatlem Creek and rooted up my newly planted garden. The swine grew, the summer was hot, the flies were bad. The air reeked of pig shit and motor oil; squeals and large machinery my daily soundtrack.

It turned out that the neighbor had raised pigs there since the early 1970s. We were out in the country and he had a right to farm. He had been hoarding junk for as long as anyone could remember. He would be at odds with the township for a very long time before they could bring him into compliance with their junk ordinance. 

In the end, I decided not to buy that house and said a wistful goodbye to pretty Hatlem Creek and my $1,200 earnest money. That was my introduction to the issue of zoning.

Contrary to popular opinion and social media posts (and the occasional rogue neighbor), property owners do not enjoy unlimited freedoms to do whatever they want with their land. From ancient China to the Roman Empire to colonial America, zoning has been used to separate activities that are incompatible with each other in a neighborhood (use-based)—such as smelters and family homes—and to regulate the size, shape, and materials of structures in a locale (form-based). It seeks to preserve property values, and to remedy the disputes of neighbor versus neighbor. It addresses the health, safety, character of a place, and even the morals of its people.

Codified into laws and upheld by the courts, modern zoning ordinances have evolved to become the “laws of the land.” In Leelanau County, townships possess police power to enact and enforce zoning ordinances, while the county takes an advisory role through its planning commission. 

Currently, zoning issues are in contention in several Leelanau County townships. Two common factors stand out in these cases: spot zoning, and inconsistencies by township officials to follow standards and procedures as defined in their master plans and zoning ordinances.

In Elmwood, some residents complain that township trustees have disregarded their master plan and ignored two years of planning commissioners’ work on zoning amendment proposals for short-term rentals (STRs) in residential areas. In Suttons Bay Township, neighbors allege that a watersport rental, storage, and repair business has operated for two years without a site plan or “change of use” approval at a residence within a commercial zone that adjoins a residential zone.

In Solon, two separate property owners on M-72 requested rezoning of agricultural parcels to business use. The township board overruled its master plan, planning commission (PC), zoning administrator (ZA), and public hearings not in support, to grant their requests. In response, citizen activists organized a referendum vote that successfully rescinded the rezoning on one of the properties, a 20-acre site owned by Bob and Judy Robinson. The other parcel, 35 acres owned by Corey Flaska—despite its “similarity” to the Robinsons’ land and plans, according to planning commission documents—was not part of the referendum. Despite its incomplete vetting process by the township and county planning review, Flaska’s property retains it rezoned business status—for now.

Glen Arbor Township continues an ongoing fracas over rezoning of two separate residential properties into recreational zoning (with commercial uses) within a residential, environmentally sensitive area, as previously reported in the Sun. Additional conflict has recently surfaced with the township’s planning commission recommendation to allow new single family residences within the business district(s)—a use which was removed from that same district in 2007 over concerns of scant land available for new businesses, and the community’s desire to keep the business district consolidated in its central village location.

Incompatible uses within an established district or neighborhood invoke the specter of spot zoning. Spot zoning, while not illegal per se, carries many negative consequences, according to legal and planning experts. It gives one property owner unfair advantages over others by allowing incompatible uses and/or structures within a zoning district. It sows discord, as neighbors pitch battle against neighbors and wage public opinion campaigns on social media.

It can depreciate property values, creating nuisances like increased traffic, noise, and unusual hours of activity, as when new commercial ventures are allowed in a quiet residential neighborhood. It often spreads like a rash in a district as a property owner seeks to acquire and rezone additional properties—permanently and haphazardly changing the character of a neighborhood. It unfairly denies all residents’ rights—formally expressed in their Master Plan and zoning ordinances—to shape their community in an orderly way. 

“Spot zoning invites unequal treatment and does not provide for public participation,” stated Daniel R. Mandelker of Washington University in St. Louis School of Law in a 2016 paper. “Consistency with a comprehensive plan is the correct test for deciding the validity of spot zoning.” 

The Michigan Planning Association states, “A Master Plan is a document and policy guide designed to help communities create a vision of what they want to look like in the future. Master Plans help guide communities in their decisions on land use development and preservation.”  With significant public input, “Planning Commissioners are the writers and caretakers” of this long-term guide, while elected officials enact zoning ordinances and zoning administrators enforce them. 

But as Mandelker points out, “Spot zoning may be an example of political capture by landowners or developers, who can pressure the legislative body into making decisions that favor them.” 

Brad Neumann, MSU Extension land use educator, told the Sun that zoning administrators and planners “may be under pressure from elected officials and others . . . as local revenue is largely based on property taxes. There’s a perverse incentive to approve developments to pay for township services . . . as development will be of higher value,” than single family primary residences, for example.  

Neumann acknowledged that growth and trending use patterns bring inevitable change to a community. He asked, “What conditions changed?” that would support Glen Arbor’s recent spot zoning decisions.

The Glen Arbor Township’s Master Plan, finalized on Feb. 22, 2019, states, “Preventing scattered business locations in other parts of the Township helps preserve the natural features in these areas. It is the intent of this Plan that scattered business uses will not be encouraged. Examples of areas which will be subject to increased pressure for business use are on M-22 south of the village and east along the Crystal River. The trend is already in evidence. Expansion in both areas may begin to dissipate the village area’s strength.”

Yet township officials had already begun to stage an expansion of the east M-22 corridor as a transitional neighborhood, with plans for a new Heritage Trail spur, and spot zoning of the Brammer and Mill properties on Feb. 4 (the status of the Mill, while separate from the Brammer property, is being used to justify rezoning of the latter). PC member and township trustee John Peppler stated that he believes this plan will be beneficial by a commercial standpoint. “There are other properties that are not right in the downtown area such as Crystal Harbor [Marina], on the Narrows Marina and Glen Craft Marina.”

PC chairman Lance Roman stated at a June 3 public hearing on allowing new single-family homes within the business district, “I spearheaded the effort to remove” residential in 2007; he now sees that as “a mistake.”

Although about 100 phone calls and 18 letters had been received expressing “concerns” about allowing SFRs back into the business district (including from the Glen Lake Chamber of Commerce who opposed it), none were made public before the PC’s hasty vote to recommend the change.

In its June 22 review of the matter, the Leelanau County Planning Commission noted, “While most Business property is located in the Village, there is also an area in The Homestead and a small area at the north end of Fisher Lake that are also zoned Business. If the proposed amendment is adopted by the Township Board, single family residential will once again be allowed in the Business Districts in the township”—and not just in the village, if the creation of a waterfront business district, separate from the village business district, is created.

Actions taken by the PC, the ZA, and the township board show a pattern of lack of transparency around these zoning issues. Zoning administrator Tim Cypher has characterized the proposed business amendment as merely a “text amendment which is a simple correction.”

As early as June 2019, the PC tasked a subcommittee to “clean up existing language in zoning ordinances” to “make them easier to read.” 

However, on March 4, 2021, the subcommittee’s discussion items included: “Restructuring of Zoning Ordinance:” including reducing six residential districts to three; combining Resort and Recreation Districts; and splitting Business District into Village Business and Waterfront Business Districts (no description or location provided of the WBD). There was no mention at this meeting or prior meetings of any public input or review of the significant overhaul of ordinances coming on the heels of the 2019 Master Plan revisions.

Also on March 4, after a complaint by PC member Bill Stege about the expanded scope of the work, “it was suggested by Roman to not put in too many changes other than reorganizing the present Ordinance.” The April PC was canceled (over lack of adequate notice of COVID emergency orders regarding Zoom meetings); Stege and Pamela Lysaght resigned from the commission via letter at the May meeting.

In addition to pressure and changing use trends—more visitors to the township and National Park, more STRs, more outdoor enthusiasts, and more remote workers—township officials appear to have pervasive conflicts of interest, with active realtors, STR owners, property owners of commercial parcels, and maintenance service provider dominating the PC and township trustee positions.

Regarding potential conflicts of interest, the Leelanau County Planning Commission (LCPC) noted in its June 22 review of the township’s rezoning process, “A member, or staff, are required to bring forth the potential conflict at a meeting. However, they do not decide if there is or is not a conflict. The rest of the members make a decision based on the policies and their decision is documented in the minutes.” While Glen Arbor appears to have a conflict of interest disclosure at its meetings, it is not uniformly applied, and as noted above, is based on informal self-reporting that may not accurately reflect conflicts. But if such conflicts are normalized as part of the fabric of doing business, fellow officials may not even “see” them.

When local governance goes awry, it’s not hard to see patterns, beginning with procedural and administrative actions. Community participation, where available, is limited and does not allow for substantive dialogue—in the public sphere—with officials. “Shoot me an email,” is a common response from ZA Cypher. “File a FOIA request,” is another from Pam Laureto, the township clerk. During the debate over the Mill’s zoning status last year, treasurer Lee Houtteman attempted to share question-and-answer information with residents who felt their concerns were not being heard or taken seriously—but he was shouted down by Supervisor Tom Laureto.

A perusal of township minutes shows a startling lack of meaningful content as well, particularly at the planning level. In its June review, for example, the LCPC stated, “The [township] Public Hearing minutes include a good deal of discussion by the planning commission members and not a lot from the public. Since this is a Public Hearing, it is important to capture the comments from the public.” 

The LCPC continued, “For all Public Hearings, the Public Hearing should be ‘opened’, public comment taken, and then the Public Hearing is ‘closed’ before any action is taken. Public comment should be captured during the Hearing, and then when it is closed, discussion and any action taken by the members is recorded. Many of the minutes staff has recently seen from planning commissions do not reflect these steps in their minutes. If these steps were properly taken by the township planning commission, the minutes should reflect that before they are approved.”

As the saying goes, “Bad results are usually the result of bad process.” Governance cannot simply be empty gestures that merely check boxes for form’s sake, such as reviews sent to the LCPC with little follow through on their recommendations, or honest public inquiry routed to burdensome FOIA requests, then fulfilled at great expense to the public, with unnecessary landslides of information to be sifted through.

Although honest mistakes can be made, repeated failure to follow rules and procedures erodes the public trust; costs taxpayers money, time, and energy; and can result in citizen referendums, court cases, and recalls of township officials. It can tear communities apart, as is happening in Glen Arbor Township.

Real remedies

Township officials, whether they are elected board trustees, appointed planning commissioners, or hired zoning officials, would benefit from cultivating the three Ts: Trustworthiness, Transparency, and Training. 

Trustworthiness must be earned, especially after a breakdown in community relations. In zoning and planning matters, officials should refer early and often to their Master Plan for guidance and clarity, as interpreted through zoning ordinance and the zoning maps. They should be able to engage in open dialogue with community members, by whatever means necessary—surveys, public hearings, Zoom sessions, and documentation of correspondence. Planning officials should not be active members of a profession that could routinely profit from township zoning activities—for example, realtors. Elected officials should abide by established standards as described by county planners and others, and must recuse themselves accordingly.

Transparency is a term often tossed around. But what does it really mean? Accessibility to township documents. Keeping better records, including timely posting of information and approved minutes. Willingness to communicate with constituents candidly about future plans, trends, and revisions to documents such as the Master Plan.

Training, while voluntary, is sorely needed in Glen Arbor and other Leelanau County townships for elected officials, planning commissioners, and the zoning administrator. The Leelanau County Planning Commission periodically offers trainings on topics such as conflicts of interest. The Michigan Association of Planning, as well as Networks Northwest, offer continuing education (CE) for zoning administrators. MSU Extension offers training for land use and community planners. Educator Brad Neumann estimates that, even for an experienced ZA, 18 CE hours per year are reasonable for such a complex discipline. New planning commissioners should receive training as well, with about six CE hours each year.  

Because so many governmental units find themselves embroiled in referendums and lawsuits, they are now being offered a discount by insurance carriers if they undergo training and continuing education, according to Neumann. Insurance carriers may also increasingly deny coverage to township officials if they engage in patterns of willful ignorance, negligence, or malfeasance.

Modern zoning laws are meant to provide predictability, consistency, and avoid conflict through fair access, transparency, and due process for all involved. As Glen Arbor and other townships grow and change, local government needs to flexibly and honestly assure that the “laws of the land” are followed.