Zoning Board of Appeals cases
Oct 3, 2022 ZBA decisions
Outrageously, and illegally, the ZBA threw out three of the four interpretation requests in LuAnne Kozma’s case, saying that they were “not appropriate” because they would “usurp the position and authority of the Zoning Administrator.” However, that is exactly what the ZBA is supposed to do! Kozma wrote back using the township attorney’s own words when he trained the ZBA, contradicting his assertions.
The three requests were: that boathouses have been prohibited in the township ordinance since 1979 and the recent ZBA decision prohibiting excavation also prohibits this building; a building’s design depicts the use; and the “public assembly” design of the proposed Law boathouse/dining/event facility that is not allowed in a Residential zoning.
The fourth interpretation request the ZBA decided (while still referencing the Law’s project throughout their discussion) was a 4 to 1 vote in favor of this motion:
“Attachment of one building to another by a 100-foot covered porch, breezeway or similar structure does not constitute a structural connection and does not obviate the necessity to conform with all requirements of the Hayes Township Ordinance, including accessory buildings, and in particular such buildings that intended use and requirements within the relevant [LD?] R-1.”
Two ZBA members called out the attachment as “gaming the system.”
Township attorney's letter asserting ZBA decisions would "usurp position and authority of the Zoning Administrator"
Kozma response to township attorney's letter: that's what the ZBA is supposed to do
Laws' attorneys' letter supporting throwing out the case
New ZBA case filed on Aug 31 to interpret zoning ordinance sections regarding anticipated Law boathouse/dining and event facility (see brief, right, and Public Notice and exhibits below.)
Zoning Ordinance Sections requested for Interpretation, as described in attached Brief:
§ 3.14(2) in terms of boathouses not being allowed
§ 2.02 Definition of Principal Use
§ 2.02 Definition of Use
§ 9.02(6) Zoning Administrator can revoke permit if applicant makes a false statement or misrepresentation
§ 3.15 Home Businesses
§ 2.02 Definition of Accessory Building
§ 3.05 Accessory Buildings
§ 4.05 Low Density Residential District (R-1)
§ 5.03 Site Plan
Exhibit A – Affidavit of L. Kozma
Exhibit B – Video of shoreline
Exhibit C – Compiled Excerpts of Historical Hayes Township zoning ordinances
Exhibit D – Emails between Ron Van Zee and Scott Law, October 2019
Exhibit E – Laws’ boat basin application and letter confirming PC approval, 2019
Exhibit F – Law’s zoning permit application and permit issued in 2020 for “boathouse”
Exhibit G – Laws’ joint permit application to EGLE and USACE
Exhibit H – EGLE permit granted to Scott and Debra Law, Dec 15, 2020
Exhibit I – US Army Corps permit granted to Scott and Debra Law, June 9, 2022
Exhibit J – Emails by Laws agent Bert Ebbers to USACE, Dec 6 and 9, 2022
Exhibit K – Champion to Narten (email), 2021
Exhibit L – Transcript of statement by Laws’ attorney Schaeffer to Charlevoix County Circuit Court, July 2022
Exhibit M – Kozma v Hayes Township, Charlevoix Circuit Court case #21-0604-27CZ
Exhibit N – Email by Chris Boal, Aug 14, 2022
Exhibit O – Map and parcel list showing nearly 500 contiguous acres of property owned or controlled by Scott and Debra Law
Exhibit P – MCL 125.1504 and International Building Code A-2 Public Assembly, pages from ICC website
Exhibit Q – Charlevoix County Building Department plan review of Laws’ building application to confirm Laws won’t use Pavilion building for corporate events; Law’s response
Exhibit R – ZBA August 22, 2022 public hearing draft minutes, lines 682-690
Exhibit S – Nixon v. Webster Township, Michigan COA Case # 343505 (1-21-20)
Interpretation Case
Appeals Case
Petitioners' presentation given to ZBA at Aug 22 public hearing for Interpretation Case
Please scroll down below.
Interpretation Case continued: below are the public notice, an introduction to the case, the brief and exhibits filed with the Township, and more documents
Appeals Case continued: below are the public notice, and introduction to the case, the brief and exhibits filed with the Township, and more documents
Filed on September 27, 2021, this case by LuAnne Kozma, Elisabeth Hicklen and Irene Fowle has yet to be heard before the Hayes Township Zoning Boarding of Appeals (ZBA). No hearing date is scheduled.
This “interpretation request” case is a 52-page document, along with many exhibit documents. (Read them below). The request asks the ZBA to interpret the Hayes Township Zoning Ordinance and rule that all of the 50-foot Shoreland Protection Strip is indeed protected from removal and excavation, and to recognize that when uplands are converted to bottomlands, the horizontal location of the Ordinary High Water Mark moves inland since it is by definition an elevation, below which is bottomlands and above which is uplands. It is the physical demarcation between uplands and bottomlands.
It took two lawsuits brought by Kozma in Charlevoix County Circuit Court to compel Hayes Township to schedule a hearing: one to compel Zoning Administrator Ron Van Zee to “immediately” transfer the requesters’ papers to the ZBA as required by state law (the Michigan Zoning Enabling Act).
The second case was to compel ZBA Chair Tom Darnton to hold a hearing and not decide by himself–without the entire ZBA–that the appeals portions of the case were “untimely.” In the course of the case, the Township agreed to hold the hearing. It also capitulated and agreed with requesters that the Township’s earlier approval of the Laws’ boat basin in 2019 and zoning permit for the boathouse in July 2020 were indeed EXPIRED after 12 months, as specified in the Zoning Ordinance. (The appeals challenged the Township’s September 2021 public statements to the contrary). These Township admissions mooted the appeals portions of the case.
What remains are the requesters’ four interpretation questions.
January 26, 2022 Hearing Sabotaged, Had no Quorum
When the Township did schedule to hear the case on Jan 26, the requesters did not know–but the Township did know–that ZBA member Roy Griffitts was also the paid Deputy Supervisor. Employees are prohibited by the Michigan Zoning Enabling Act from serving on a ZBA. In addition, the Michigan Planning Enabling Act prohibits employees from serving on Planning Commission, and Griffitts was serving on both.
As a result of Griffitts’ unlawful status and participation, the ZBA that day had no quorum and no business could be conducted. ZBA member Bruce Deckinga was an alternate at the time, not a regular member.
In addition it was unlawful for ZBA member and Township Trustee Doug Kuebler to hear the cases, because he voted to approve the Laws’ boat basin application in 2019 while he was a planning commissioner.
As if two reasons why Griffitts could not participate were not enough, he also showed his extreme bias in favor of the Laws’ project and his contempt for the rule of law that the Zoning Ordinance is to be followed strictly, when said directly after the meeting ended to another ZBA member (and was audio-recorded) that the Laws were “freaking multi-millionaires” who could “do anything they damn well please” and that the requesters’s arguments were all “speculation.” This was serious malfeasance. More below.
April 20 Rescheduled Hearing Totally Botched, then Cancelled by Township after Failing to Provide Required Public Notice
Read in the Appeals case section in next column about this ————>
On May 25, the ZBA held a hearing for another case. It noticed it properly, and followed its agenda as laid out in its Rules of Procedure (it did not follow this for the Jan 26 nullified hearing). Chair Darnton stated without dissent by any other ZBA member,
“As far as the 26th is concerned I think certainly the record establishes that we didn’t have a quorum of people who could properly have been serving at the time. . . . My thinking about it is that although events subsequent to that meeting established that we didn’t have a quorum, it was not anything that we were aware of at the time. … Any other thoughts on the board different from that?” (No answer from anyone).
ZBA won’t act to set new hearings
On June 1, Ellis Boal and LuAnne Kozma appeared before the ZBA with a letter they sent the day before, asking the ZBA to schedule hearings. The ZBA didn’t even want to put it on their agenda.
The Township keeps arguing that they are only “continuing” the hearing that began January 26. But how can one “continue” a hearing which had no quorum and at which no business could take place?
August 22, 2022 Public Hearing
The ZBA finally scheduled the hearing for Aug 22. An agenda for the day included no information at all as to what case it was that the ZBA was to hear or who the petitioners were. The hearing lasted all day. Co-representatives Ellis Boal and Luanne Kozma presented a 2-hour slide presentation and put forth the case. The ZBA altered its agenda to allow Zoning Administrator Ron Van Zee to respond to the case, against its Rules of Procedure that did not allow for that. Instead of the Zoning Administrator “introducing the case and presenting the exhibits,” LuAnne Kozma did that.
ZBA VOTED 4-1 on the first of ten interpretation requests, the question of whether the Shoreland Protection Strip is protected from excavation and ruled that the Hayes Township Zoning Ordinance PROHIBITS excavation of the Shoreland Protection Strip for a boat basin or channel, as specified in Sections 3.14 subsections 1 through 4 and 8.
The ZBA adjourned the hearing to August 29 at 10 am to continue taking up the remaining 9 Interpretation questions.
READ THE INTERPRETATION CASE, by Kozma, Hicklen and Fowle, and see all exhibits, posted below.
On December 20, 2022, LuAnne Kozma filed an appeal to the Hayes Township Zoning Board of Appeals to challenge determinations made by Zoning Administrator Ron Van Zee in a sworn affidavit to the circuit court regarding how he would permit the Laws’ proposed boathouse because the building would be “part of the house,” and that there is “nothing” in the zoning ordinance regulating boat basins and canals. This case has not yet been heard, after two scheduled hearings (on Feb 2 and April 27) were utterly sabotaged by Township officials’ various actions violating the Michigan Zoning Enabling Act, as described below. No new hearing date is scheduled.
What the Case is About
The appeal is a 53-page brief with 43 exhibits (some are the same as the Interpretation case) that outlines why the Laws’ project is indeed in violation of the Hayes Township Zoning Ordinance. The building plan is commercial in every respect, for business use as Scott Law himself said to Mr. Van Zee he would use it for, and the design is commercial for public assembly for dining and events, not residential use. The “intended use” must be reviewed, as should site plans and scale drawings. Boathouses specifically are no longer allowed in the township as of 1979. Boat basins and canals are in numerous ways not allowed because they are “structures” by the ordinance’s definitions, and not allowed within 100 feet of the Ordinary High Water Mark. “All of the land” of the Shoreland Protection Strip shall remain in place to do its job of filtering pollutants from reaching the lake.
And as in the interpretation case, this case demonstrates with ample evidence the OHWM would move inland in an artificial basin and channel, and the proposed boathouse/dining and event facility would be placed over the waters of Lake Charlevoix below the OHWM. Letters from the US Army Corps of Engineers, State of Michigan Department of Environment, Great Lakes and Energy, and even the Laws’ own application documents prove this to be true. Documents show that an earlier project (the DeVos boat basin) allowed by Hayes Township, was in violation of the ordinance too and was not a precedent since the ZBA never made a decision on it. (Only ZBA decisions are precedent, not erroneous decisions by zoning administrators, as the township attorney confirmed during the ZBA training.)
Township Sabotaged the February 2 Hearing with Illegal ZBA Member and No Quorum
A hearing was set for February 2, 2022. But after the January 26 partial hearing held for the Interpretation case was determined to not have a quorum due to the malfeasance of ZBA member Roy Griffitts being unlawfully on the ZBA, the Feb 2 meeting opened only to announce that the public hearing could not be held at all, nor could any business take place, also due to lack of quorum.
The Township Botches the Rescheduled April Hearings for Both Cases
A hearing was rescheduled for April 27, 2022 for the Appeals case, and April 20 for the Interpretation case. But the Township kept Roy Griffitts on the ZBA and Planning Commission, despite the state laws prohibiting him from serving on either body after he was hired as Ron Van Zee’s deputy supervisor, a statutorily-mandated paid position. Kozma sued the township in March 2022 because it did not have a legally-formed ZBA with Griffitts still on it.
But then Township recklessly failed to publish a public notice in the newspaper (and to the Laws and their neighbors) 15 days before the hearings as required by the Michigan Zoning Enabling Act. Kozma filed a mandamus motion in the court to have the Township cancel the hearings, as any decision by a ZBA without proper public notice would be invalid. (As held by a Michigan Supreme Court case, Baura v Thomasma, that the Hayes Township attorney even noted in his training materials, so the Township knew full well). In a knee-jerk reaction, the Township tacked a notice to the Township Hall door. The notice was rife with errors, the main one being it was untimely but it also said the two hearings would be on February 20 and 27, not April 20 and 27. The other errors were numerous: it gave the public no instruction as required as to who they can send their comments to and by what date, prejudiciously said the appeal was challenging an “alleged determination,” and put both cases in the same public notice. It also did not mention that the Interpretation case was about the Laws’ parcel, and said that the hearings would be “continued” from previous hearings. However, with no quorums present in January and February, no business could take place on those dates and hearings were not “continuing.” The extremely erroneous notice also said the public could stop by Hayes Township hall during “normal business hours” to review the ZBA documents, but the Township doesn’t hold any hours at all. It is closed at all times and only open to the public by appointment.
The Township published the erroneous notice in the Petoskey News just 6 days before the first hearing and, noticing the error about February, published a “corrected” notice just 4 days before the hearing. None of the notices met the 15-day and other statutory requirements.
The circuit court judge scheduled a hearing for April 20 to rule on the erroneous, untimely notices. To avoid the embarrassment, the Township cancelled the hearings, while maintaining that it was fine to not issue public notices.
The ZBA finally scheduled the case for August 15.
READ THE APPEALS CASE, by Kozma, and see all exhibits, posted below.
LINKS TO EXHIBITS
For Exhibits 1 through 31, see Table of Contents above)
Exhibit 32 – EGLE permit
Exhibit 33 – USACE Public Notice
Exhibit 34 – Section C with uplands and bottomlands
Exhibit 35 – Boal to Hayes Township Location of OHWM
Exhibit 36 – Champion to Van Zee
Exhibit 37 – Changing OHWM
Exhibit 38 – Protecting Michigan Inland Lakes
Exhibit 39 – Tip of the Mitt OHWM Memo
Exhibit 40 – Guy Meadows letter on OHWM
Exhibit 41 – EGLE Joseph Haas email on OHWM
Exhibit 42 – The Price of a Permit – Interlochen Public Radio
Exhibit 43 – Golski proposed findings, Kozma rebuttal
Exhibit 44 – Letters from supporters
Exhibit 45 – Little Traverse Bay Band letter on OHWM and email to tribe from Ron Van Zee
LINKS TO EXHIBITS
Exhibits A through T (see table of contents above)
Exhibit U – EGLE Permit
Exhibit V – USACE Public Notice
Exhibit W – Section C with uplands and bottomlands
Exhibit X – Boal to Hayes Township Location of OHWM
Exhibit Y – Champion to Van Zee
Exhibit Z – Changing OHWM
Exhibit AA – Protecting Michigan’s Inland Lakes
Exhibit BB – Kozma to Hayes Board of Trustees Jan 10, 2022
Exhibit CC – Kozma FOIA
Exhibit DD – Pavilion Building Permits
Exhibit EE – Tip of the Mitt OHWM Memo
Exhibit FF – Law Cabins
Exhibit GG – Signed affidavits
Exhibit HH – Letters from boathouse experts
Exhibit II – Letters from supporters
Exhibit JJ – Jump drive cover page
Exhibit KK – Hayes Township ZO 2009
Exhibit LL – Guy Meadows letter on OHWM
Exhibit MM – EGLE Joseph Has email on OHWM
Exhibit NN – The Price of a Permit – Interlochen Public Radio
Exhibit OO – Newspaper articles, Charlevoix Courier Feb 2022
Exhibit PP – Golski proposed findings, Kozma rebuttal
Exhibit QQ – Trager ZBA Hearing and Decision
Exhibit RR – Little Traverse Bay Band letter on OHWM and email to tribe from Ron Van Zee
Interpretations requested in question form, and proposed "findings of fact"
The secret memo by the Laws to the ZBA that was not revealed to petitioners before or during the Aug 15 public hearing
Hot mic comments by illegal ZBA member
Letter to ZBA about hot mic comments
Two Hayes Township ZBA members were caught on a HOT mic a minute or so after the first ZBA hearing (that had no quorum) ended on January 6. In the very same room, as the public milled about, member Roy Griffitts, who was not legally able to serve on ZBA while also the paid Township Deputy Supervisor, indicated his extreme bias for the boathouse project, and willingness to disregard the zoning ordinance, saying:
“This is the second floor. So this area here, unfortunately, they used the term ‘event area.’ They could have called this a ‘lounge.’ They could’ve—It’s a private building. You can call it anything you want. …
You know, and their claim is, one of the problems with this is, is they’re speculating, all of their arguments are speculating. ‘Well, they built this big building therefore it’s going to be commercial.’ They built this big building because they’re freaking multi-millionaires and they can afford to build a big building. They can do whatever they damn well want. It’s private property.” —Roy Griffitts, disgraced ZBA member
