BYC dock postponed again by VBT Board of Zoning Appeals

After almost two more hours of discussion on the issue, at its regular meeting March 14 the Van Buren Township Board of Zoning Appeals again postponed action on the Belleville Yacht Club’s request for an exception to the 40 foot maximum dock length set by ordinance.
The BZA also had postponed action on the BYC request at its Jan. 10 meeting, where a public hearing was held, and then did not hold a February meeting. The planning commission also held a public hearing on Jan. 11 on the dock site plan and reviewed a revised preliminary site plan at its Feb. 8 meeting.
At the March 14 BZA meeting, the problem was that three board members said they were voting in favor of the BYC’s request and three said they would vote against it, leaving a perceived tie.
In most governmental bodies, a tie vote means the motion does not pass. VBT Director of Planning and Economic Development Dan Power was given a five-minute recess in the BZA proceedings to research whether a full board was needed to vote on the issue.
According to the board’s Rules of Procedures, the board is made up of seven members and two alternates, but the agenda listed only six members, who were all present.
The only missing member was alternate Charles Larocque. An alternate would vote if one of the members is absent. Larocque was reappointed to the BZA by the township board at its Nov. 11 meeting. He was not identified as an alternate in the appointment.
Planning commissioner Gerald Cullin was in the audience ready to vote if the preliminary planning commission appointee Jeff Jahr could not.
In the BZA Procedures rules, Section 7, on voting: “Any decision made by the BZA shall require a majority vote of the membership of the BZA…”
After the break, Director Power told the BZA that for the request to be granted needs a “majority” present and there was less than a majority of BZA present. To pass a motion needs a majority vote of members of the BZA.
“The decision of the BZA is final and can only be changed through an appeal to circuit court,” Power said.
BYC representative Scott Jones had presented a different proposal at this meeting, reducing the BYC request for 120 feet for the dock to 85.3 feet and a new dock configuration. He also said side setbacks had been revised from the previous 12 feet to 21 feet.
When BZA member Aaron Sellers asked what was different from last time when Jones said that EGLE [Environment Great Lakes and Energy] told him his layout was safer, Jones said the BYC took into consideration the public comments on safety and reduced the number of boats to 16 and got rid of the T-docks which were encroaching on BYC neighbors.
Jones said they would love to have more than 16 boats. When Seller asked how many boats they can have now, Jones said 16.
Chairman John Herman said they have had their public hearing and normally they don’t have public comment on this part of the agenda, but he invited members of the audience with something new to say to come forward.
Jeff Riggs of Potter Dr. in Belleville said he liked the reduction in the length of the docks. He said the Denton Road bridge could be shut down to boat traffic for construction and when that happens a vast amount of the lake traffic will be in front of the BYC, Sandy’s Marina, and the DNR boat launch next to the BYC. He suggested the BYC redesign the docks further to get down to 50-ish feet.
Sellers asked if it is safe to assume the bridge will be closed. He said it is now passable.
Power said he will check and can report back at the next meeting.
Jack Ridenour of Harmony Lane handed each BZA member a printout of a 2011 story in the Independent. He said Jones and the BYC had requested a marina be built on his property on North Liberty Street and the story quotes then interim director of VBT Planning and Economic Development Terry Carroll saying VBT did not have the authority to grant a marina because of the FERC [Federal Energy Regulatory Commission] license.
He said now the township has a lake ordinance and he questions what authority VBT has to grant this request. There were only four things the township could grant on the shore and a marina wasn’t one of them.
Sellers asked Power if he was confident the BZA could rule on the exception. Power said there was a lot of discussion on lakeshore use between 2014 and 2016 and an ordinance was passed. He said it still is likely to require FERC and EGLE approval.
Power said the regulatory bodies allow the township’s vetting of the ordinance before the plan is submitted to those agencies.
“Maybe we can’t approve construction without FERC and EGLE approval,” he said, adding, “There is authority to go through this process.” He said in 2011 there was not an ordinance and there was an opinion that the township could not give approval.
Kathleen Walsh of Harmony Lane said the ordinance was written after 2011, but the FERC contract has not changed. She said she had a copy of it. She said things have been constructed on the lake without approval and nothing happened to those violating the ordinance. She asked that nothing be started until all the state and FERC regulations are met so the township doesn’t authorize violation of the contract.
Corey Gibson of East Huron River Drive said he is happy the requested length is no longer at 120 feet. He said all the public hearings and work by the township have been a waste of taxpayer money. He pointed to the tiki lounge which was built first before getting permits. And the docks were 50-ish feet and went to 80 feet without permission.
Herman said they have a non-conforming dock now and they want to improve it and clear the site.
“They got to this point without permits,” Gibson insisted.
Linda Ridenour, of Linda Vista, said there is a difference between non-conforming and built without permits. She said she believes there is nothing wrong for a municipality to take it down if it was built without a permit. She said she had been a code enforcement officer for 15 years.
She said the Remerica office she drove by on the way to the meeting is private property next to Harris Park. She said if the business wants Harris Park as a private park, would the township give it to a private group for use?
“I don’t think that’s fair,” she said, noting the BYC operates all winter long without a boat dock and they do just fine.
She said 40 feet is less lake access than most of the people on the lake have. She said Johnny’s, Sandy’s and Hayward’s would want more access, too.
Ridenour said she was on the ordinance writing committee and the intent was 40 feet. No question. She said people can put up a dock as long as they want for personal enjoyment up to that point.
Peter Creal said this dock has caused a division in the community. There are passionate people who are against the project but praise the BYC for all the good things it does in the community.
He said he is not a member of the BYC and he listed many of the positive things the private club does. He said it is a positive energy in the community. He said Jones is a visionary and founding member of this club who chose to invest in the community.
Then, BZA chairman John Herman went around the board table to get statements from each of the BZA members present.
“I do not believe the new proposed length will be a problem,” said Aaron Sellers. “I would vote yes.”
Jeff Jahr, planning commission representative, gave a lengthy presentation on each of the five items listed by Power as needing to be addressed and concluded that all five were lacking and he would not be voting for the exception.
He said the docks that were in place when the ordinance passed were legal non-conforming. One was removed and replaced with 85 foot dock that is not permitted. It is not legally non-conforming.
“I have a copy of the FERC license and I strongly suspect … that anything is going to have to have FERC approval,” he said, stressing he is not a lawyer. “It makes it a federal project.” The lake goes through the hydropower plant, he said. The license has any structure limited to 75 feet and this may not make it past FERC.
BZA vice chairman Amos Grissett said, “Mr. Jahr, you put it in great words, words from my heart. What I’m thinking.” He said FERC and the fire department have to give their stamps of approval.
“Those are for a planning committee site plan,” Herman said, adding, “Our [BZA] decision is final.” He said if approved by the BZA, it goes ahead to the planning commission, staff, public safety department and, once approved by the board of trustees, goes to FERC.
Grissett said he agrees with Jahr’s comments to all five issues and, “To me, I can’t go with it.”
BZA board secretary John Haase said these were the same five items they had back in January and they went to the planning commission and back and they’re still the same five.
“This is different than a variance,” he said. “It’s an exception.” He said it is not precedent-setting. He said the planning commission got more information for them and got the safety lights. “I think they meet all five criteria and will be a benefit to the community. I’m in favor of supporting their request.”
Trustee Kevin Martin, the township board liaison to the BZA, said, “Commissioner Jahr is pretty much on point.” He said he had a safety concern on the length of the dock and the ordinance says 40 feet.
Herman said this is not a a residential area and it’s not a marina, either. It’s a club, he said.
“Our decision is final,” Herman said, noting the present request is one-third less than originally proposed. He said as far as the Denton Road bridge, they can’t make a decision on something that might happen in the future. “I was inclined to give approval on the permit, with stipulations on part of the motion,” he said.
At this point he gave Jones the option to ask for a postponement, but Jones asked for a vote.
Power reported he got word that the county says it’s safe to go under the bridge, but when it’s under construction he assumes there will be a period where it will be closed.
Sellers said the BZA is split and they are not making the final decision, but just getting it to the next level.
“What we do is not really final,” Herman agreed.
“There’s a potential for it to be 75 feet,” Seller said.
Haase asked what if they end up with a tie and Herman said it fails.
Power said the motion should be in the affirmative, so if the motion fails the exception fails.
That’s when the confusion began over whether there were enough members to vote.
Jones requested that they delay the vote until they have a full board, or at least an odd number.
After much discussion, the request was postponed to the full board at the next meeting.
Also on that night’s agenda was a staff-requested interpretation of ordinance wording of maximum building height of a residential building and whether it should be limited by one or both – height in feet and height in stories. If building height is limited only by the height in feet, the number of stories would not be applicable, so long as the building height does not exceed 30 feet, Power said. A public hearing was held on the issue and nobody spoke.
A motion to interpret the ordinance in the traditional interpretation with both measurements and the most restrictive prevailing, with the planning commission to consider the wording at its earliest convenience, was made by Jahr and seconded by Grissett.
The vote was a tie, with Grisset, Martin and Jahr voting yes and Herman, Haase and Sellers voting no. It was considered as failing and will be put on the next agenda.
Two residents and their design professionals were in the audience. Lawrence and Margaret Zelanka of Ormond Drive said they had a building permit for a two-and-a-half story house in 2019 but then COVID came and the permit expired. The house they want to build does not exceed 30 feet and Power sought a general ordinance interpretation.
A motion was made by Haase, which passed, to direct the staff to go back to the applicant and help them bring a variance request back to the BZA and work with the planning commission.
Sellers said he felt sorry for the couple who have been waiting for four years to build their house.
The two-hour-and-40-minute meeting adjourned at 9:40 p.m.