History‎ > ‎2. Second Plan (2008)‎ > ‎

Defeat

So, what happened?

On September 8, 2008, City Council voted 7 to 4 to approve the 42 North site plan. From the meeting minutes:

Resolution to Approve 42 North Site Plan, Development Agreement
and Wetland Use Permit, 15.32 Acres, 1430 South Maple Road (CPC
Recommendation: Approval - 7 Yeas and 1 Nay)


A motion was made by Councilmember Lowenstein, seconded by
Councilmember Teall, that the Resolution be approved. On a roll call, the vote was as follows with the Mayor declaring the motion carried:

Yeas:  7  -  Mayor Hieftje, Councilmember Rapundalo, Councilmember Lowenstein, Councilmember Greden, Councilmember Higgins, Councilmember Teall and Councilmember Easthope

Nays:  4  -  Councilmember Suarez, Councilmember Kunselman, Councilmember Anglin and Councilmember Briere

In the days just before the City Council voted to approve the 42 North project, we had expressed confidence that the project would be rejected. When the Council voted to table the issue pending a new traffic study, we had at least 5 of 10 votes (6 needed to approve). We turned our attention to convincing the Council members to express legally defensible positions when voting against the project. For example, at that meeting member Teall said she would vote against it because the neighborhood wanted her to. That reason would have killed us in court. Unfortunately, when it came time to tally the final vote the Council relied upon legal advice that indicated to them that the City could not prevail in court, should the developer sue.

The City Code provides the standards for approving a site plan in Chapter 57 section 5:122(6):

“Standards for site plan approval. A site plan shall be approved by the appropriate body after it determines that:

    (a) The contemplated development would comply with all applicable state, local and federal law, ordinances, standards and regulations; and

    (b) The development would limit the disturbance of natural features to the minimum necessary to allow a reasonable use of the land, applying criteria for reviewing a natural features statement of impact set forth in this Chapter; and

    (c) The development would not cause a public or private nuisance and would not have a detrimental effect on the public health, safety or welfare.”

Apparently, the Council was advised that the “public health, safety or welfare” standard was unenforceable. In a 1956 opinion, the Michigan Supreme Court held that  a zoning statute that allowed a city to deny a permit based on public health, safety or welfare concerns was unenforceable because the standard was so vague as to be no standard at all. That case was Osius v City of St. Clair Shores, 344 Mich 693; 1956 Mich. LEXIS 450 (1956). We believe this is the basis for the legal advice provided to the Council, but we cannot be sure because the communication between Council and its legal staff is confidential.

In our opinion, the problem with the reliance on Osius, is that subsequent cases have dismissed (but not reversed) that opinion. For example, seven years after Osius in Florka v City of Detroit, 396 Mich 568; 1963 Mich Lexis 504 (1963), the Michigan Supreme Court found that the Detroit planning commission had sufficiently clear standards under an ordinance that required the commission to determine whether a particular use was “not detrimental or injurious to the neighborhood.” The Court expressly dismissed Osius, leading us to believe that the Court would find harm to neighborhoods to be an adequate standard when rejecting site plans. Similarly, the Michigan Court of Appeals rejected a claim that an ordinance lacked sufficiently precise standards in Natural Aggregates Corp v Twp of Brighton, 213 Mich App 287; 1995 Mich App Lexis 409 (1995). In that case an ordinance required an administrative body to determine that a permit would “not detrimentally affect the public health, safety, morals and general welfare of the citizens of Brighton Township”. The Court found that this standard was sufficiently precise to pass constitutional muster. Again, the Court of Appeals expressly dismissed the holding in Osius.

Nonetheless, the cadre of pro-development Council members found they had no choice but to approve the 42 North plan because they could not apply the public health, safety or welfare standard. We are especially disappointed that three of the four members representing the fourth and fifth wards, where the project is located, voted to approve the plan.

The question that remains is whether the Council will now act to remedy the constitutionally deficient standards expressed in section 5:122(6). The unenforceable standard has been brought to their attention and they have acted upon the belief that the standard is illegal. They should now cure the defect they have identified.

We thank everyone who signed the petition, offered suggestions, did research, printed and distributed flyers, and contributed to the many elaborate position statements we submitted. We have great neighborhoods in the South Maple area. Together we will be able to change the composition of the Council in the years to come. Until then, thank you for caring about your neighbors.

Although the City Council approved the site plan for the second version of 42 North, the severe economic downturn halted the project. In 2009, there were brief discussions of a modified version of this project, which is discussed on our Third Plan page. We also have a page devoted to the various updates posted during the period when this second plan was under discussion - Chronology


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South Maple Group,
Jan 25, 2012, 8:42 AM
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South Maple Group,
Jan 25, 2012, 8:30 AM
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South Maple Group,
Jan 25, 2012, 8:32 AM