Dispute over Superior Township Settlement

There’s broad consensus on open space and farmland preservation among Superior Township’s roughly 13,000 residents.

It’s evident in words like those on a banner in the township hall touting a commitment to preservation. It’s evident in actions like voter approval of a special tax to defend the community’s growth-management plan.

But for all the agreement, there’s discord over the means to that end.

Rather than fighting a lawsuit they say they expected to win, township officials have struck a deal with a development group that sued after a zoning change was denied.

Disappointed residents say the settlement bails out the developers, and is a retreat from a strategy of enacting and defending a strong master plan and zoning. Township officials say buying land and development rights – as the $400,000 settlement deal will do – is the only sure way to end the battle for good.

The real goal isn’t a legal victory, but the conservation of the community’s rural character, says township supervisor Bill McFarlane. “I feel we would have won the lawsuit this time, but land values will eventually go up again and we could be fighting this again in a year, or two years or five years.”

The Background

The property at issue is a 77-acre parcel on the northwest corner of Prospect and Geddes roads.

It’s a corridor that Ann Arbor’s greenbelt program, Washtenaw County’s natural areas preservation program and the Southeast Michigan Land Conservancy have all invested in, buying land or the development rights to hundreds of acres of property. Zoned agricultural, the land is also subject to the township’s prohibition on extending water and sewer service north of Geddes Road.

Developers sought a zoning change and proposed a privately operated sewage-treatment system to serve a planned 236-home subdivision. After the zoning change was denied in 2007, the limited-liability companies holding the land filed suit.

Citizen activists, township officials and the lawyer representing the township in the lawsuit all say the defense was solid.

“We had a watertight defense and were going to win in court,” says Jan BenDor, who worked to organize opposition to the settlement.

McFarlane and Fred Lucas, the attorney handling the township’s defense, say they, too, were confident.

Nevertheless, township officials opted for a settlement. Last week, they signed off on a multi-part deal that will end the 2008 lawsuit.

The Deal – and Reaction

Not final until authorized by the Circuit Court, the settlement will require the township to pay $100,000 to purchase a conservation easement on 40 of the 77 acres. In addition, Superior Township will pay $300,000 to acquire an 8.1-acre chunk of the land at the corner of Prospect and Geddes roads. Township officials will set that parcel aside for the future construction of a new fire house. [.pdf file of map from consent agreement]

The deal further OKs new business activities on the remaining 28.5 acres.

That provision, which is expected to result in the construction of a feed store and warehouse along Prospect Road, is among the more controversial components of the settlement. Reaction was strong, and at a Jan. 19 public hearing on the settlement, as many as 100 people piled into the township hall to voice their views on both sides of the issue.

Matt Schuster was among the residents unhappy with the plan. Neither the fire station nor the feed store are appropriate under the zoning or master plan that community members have worked hard to create, he told township officials.

“This doesn’t support our long-term goals,” he said, earning a chorus of “amens” from like-minded neighbors.

Fewer than 30 of the citizens who attended the hearing spoke. Those with objections or concerns slightly outnumbered those who backed the agreement set forth in a consent judgment. [.pdf file of agreement]

Some, like Schuster, objected to provisions of the settlement. Others focused on the the broader decision to settle.

Voters, who in 2006 approved a special tax to defend the township’s growth-management plan, expected to see the case litigated to a successful judgment, said Jan BenDor in an interview. Instead, she said, their dollars are “bailing out” developers.

BenDor – and others who spoke at the hearing – argue that a settlement invites future litigation.

Fred Lucas of Lucas and Baker in Onsted – who’s handling the case for the township – disagrees. “We’ve fought other suits and won, but that hasn’t deterred litigation,” he said.

Supporters of the settlement included those who favor setting aside land for a fire station. (The $300,000 for that purchase will come from a fire department building fund.)

Other supporters voiced enthusiasm for the provisions that will allow a feed and agriculture supply store. But homeowners close to the property targeted for the business had a different view.

Neighbors to the west voiced concerns about potential water contamination from stored fertilizer products at a feed store. Dennis Donahue, whose home would be nearest to the planned business, objected to the prospect of semi-trailer trucks and commercial activity that’s prohibited under the existing agricultural zoning.

“If having a feed store is appropriate, then our zoning should be changed to allow it,” Donahue said at the hearing, rebutting arguments that such an operation supports the community’s interest in preserving agricultural land use.

The zoning for the feed store parcel will not technically change. But, once-approved, the terms of the consent agreement will trump zoning and planning rules. That amounts to “spot zoning,” said critics, or “zoning by contract.”

The terms of the consent agreement are enforced by the court. They can only be altered if the  parties bound by the settlement – at this point, the township and Hummana LLC and NYR2 LLC – agree.

Hummana and the second limited-liability company are entities created by the real-estate interests that purchased the acreage for a proposed residential development. The Farmington Hills-based Friedman Real Estate Group is among the Hummana partners.

Commercial Activity

The feed store parcel includes an existing equestrian facility. Originally built by the Donahue family, it will operate as a public stable. The terms of the consent agreement allow additional structures, but limit uses and the total square footage on the parcel.

Hummana expects to sell that piece of property to Michael Schofield, who’s run an agricultural supply store on Whitmore Lake Road.

Lucas said that it’s true there’ll be a change – the township doesn’t allow commercial activity there now. However, the existing zoning would permit construction of one residence on every two acres. That’s potentially far more development, he said, as well as development that would affect the rural character of the Geddes-Prospect area.

Township residents critical of the settlement say there’s little chance of residential development anyway. The clay soil in the area is unsuitable for septic fields, said BenDor.

McFarlane’s more cautious: “Eventually someone will want to build there again. The only way to make sure the land isn’t developed is to own it or tie it up with an easement.” A conservation easement is an agreement that puts restrictions on property, such as preventing dense housing developments.

Sagging property values, which allow the township to spend less to acquire or protect land, present the opportunity to prevent development, he said. “And we have to do what’s in the best interest of the entire township.”

McFarlane also countered assertions about the intended use of revenue from the special tax passed in 2006. It was meant to be used for a variety of activities that would support the master plan, he told The Chronicle. “That includes purchasing land or easements. It’s not just a legal defense fund.”

The $100,000 to buy the conservation easement will come from that fund.

Land Preservation

Township officials had hoped to have partners in acquiring conservation easements.

Clerk David Phillips said they approached officials at the Southeast Michigan Land Conservancy, Washtenaw County’s natural areas preservation program and the Ann Arbor greenbelt program. All three have holdings nearby, including the conservancy’s LeFurge Woods Nature Preserve on the northeast corner of Geddes and Prospect. [Map of Superior Township's preserved land.]

With help from one or more of the land-conservation programs, it should have been possible to draft a settlement that didn’t include a commercial component, said Phillips. “We could have conserved more land.”

But the relatively short timeline and the nature of the property worked against it, and all three groups declined to participate.

Each program has its own criteria and focus. For example, the county program buys largely natural areas, Tom Freeman, who leads the program, told The Chronicle. Although some parcels have included a portion of agricultural land, the bulk of the properties are natural, he said.

For its part, the conservancy wasn’t able to respond as quickly as needed, said executive director Jill Lewis. The group was asked to participate in a predefined way that wasn’t a good fit, she said. Lewis declined to elaborate and the conservancy opted not to take a public position on the consent agreement.

“We’re not involved and we don’t think it’s a good idea to take a position other than we are in favor of land protection in the township and the 7-county southeast Michigan region,” Lewis said.

When the township failed to come up with additional funding to create a larger conservation easement – and boost the payout to Hummana – the company opted to slice off and sell the 28.5 acres with the stable, Phillips said.

McFarlane still holds out hope that a conservancy group may accept the conservation easement that is being secured. “It would tie the land up more and reduce the chance that a future township board would undo this,” he said.

But he’s satisfied that township officials have made the right decision for the long term, even though there’s some discontent today. “You can’t make everyone happy. I think about 25% are unhappy about this.”

“It’s a balance,” said McFarlane, “between what we’re getting and what we’re giving up.”

As for giving up on what some considered a bulletproof land-use plan: “I can sue you for anything,” Lucas said at last week’s hearing.

The plaintiff’s damage claim is “iffy at best,” Lucas said. “But you can never guarantee a result and if you succeed, nothing prevents another owner or developer from seeking rezoning again.”

About the writer: Judy McGovern lives in Ann Arbor. She has worked as a journalist here, in Ohio, New York and several other states.