On Monday, attorney John Day filed a Petition for Mandamus in Wayne County Circuit Court asking the court to direct Van Buren Township to approve the parcel divisions requested by his client Louis Kovach.
On May 8 the VBT Parcel Division Board denied Kovach’s request for splits of a portion of the former Coy Kendall Greenhouse property at the corner of Bemis and Martinsville roads.
The petition filed Monday questions the legal authority for the denial and says, in any case, the township is estopped from raising the legal authority because Kovach and the late Homer Morris were led to believe the requested divisions were legal by the former VBT Director of Planning and Economic Development Bryce Kelley.
The letter of denial from the township said Kovach has the right to appeal through the VBT Board of Zoning Appeals.
But, in a June 22 letter to the parcel Review Board, Day said it is their opinion that there is no authority for the Board of Zoning Appeals to be involved in this matter.
“It is clearly beyond the scope of authority granted in the Township’s Zoning Act and the Township’s own Ordinance,” Day wrote.
Day sent a courtesy copy of the petition he planned to file on behalf of his client to the VBT Parcel Review Board on June 22, saying Kovach has asked the filing of the law suit with the court to be put on hold for one week to give the township a chance to reconsider and avoid unnecessary fees and expenses on both sides.
When there was no response, Kovach gave the township a second week to reconsider. When, again, there was no response, he directed his attorney to file the 15-page petition with the court.
In the petition, after arguing the legal aspects of the land division, Day goes into the details of his estoppel argument. (According to an on-line business dictionary, estoppel supports a claim for damages of the party that had a good-faith reliance on a misleading representation of another party.)
The petition states Homer Morris, a former owner of the property, went to VBT Director of Planning and Economic Development Bryce Kelley, who also sat as a member of the Parcel Division Board.
Together they developed a plan for using the division provisions of the Land Division Act to divide his property into 11 buildable sites.
“Due to his positions within the Township, Homer Morris had no reason to believe that the facts and ideas as presented by Mr. Kelley were not correct,” the petition states.
“In fact, when the plan was submitted to the Parcel Division Board for the easterly properties, it was approved. This occurred even though the application contained divisions that included the 30-foot access strips for the flag lots which the Township now rejects.
“In reliance upon Mr. Kelley and the actions of the Parcel Division Board, Homer Morris borrowed money from Louis Kovach, spent that money on the engineering and demolition costs related to implementing the project.
“Mr. Kovach was induced to loan the money based upon the representations of Mr. Kelley when the plan was explained to him and then later approved by the Parcel Division Board.
“It would seem wholly inequitable, that after incurring nearly $400,000 in debt, the Township be allowed to deny these divisions based upon information the Township possessed from the beginning.
“No one at the township advised either Mr. Morris or Mr. Kovach these divisions were prohibited (in the Township Ordinance) and both men relied to their detriment,” the petition states.
On behalf of his client, Day asks the court for an order of Mandamus directing the township to approve the divisions as authorized by the Land Division Act. Also, the township should be estopped from raising any defenses against this action.