Scott Sullivan, Editor
The U.S. Army Corps of Engineers Friday issued a draft memorandum of agreement to be included as part of approving a developer’s proposed boat basin north of the Kalamazoo River channel to Lake Michigan.
Granted, said permit would be the last step, shy of court injunctions, needed by NorthShore of Saugatuck to build a 6.5-acre marina accommodating 50 boats, 40 to 80 feet long, ringed by 23 homes on land once occupied by Singapore, a lumber settlement buried over in the 1870s by sand.
The Corps notice was sent one day after the Michigan Appeals Court handed down a mixed ruling on NorthShore’s battle with the Saugatuck Dunes Coastal Alliance, a 501c3 conservation group seeking to thwart or at least curb development on the owner’s land.
NorthShore, whose principal is Holland businessman Jeff Padnos, bought 308 acres north of the channel from the Aubrey McClendon estate in March 2017 and announced plans soon after to build around 40 homes on it, largely clustered so as to place 208.3 acres in a conservation easement.
About 17 of those lots exist by right or were pre-approved as result of a 2012 federal court settlement between then-owner McClendon and the township. A road and utilities to these Lake Michigan westerly lots has been completed, with two homes on it now built and occupied.
The Alliance, which has contested development of the privately-owned land some members call “the wild heart of Saugatuck” since 2007, has appealed both Saugatuck Township and Michigan Department of Environmental Quality (since renamed Environmental, Great Lakes & Energy) permits granted the basin portion.
The Corps has for more than two years weighed NorthShore’s basin request in terms of hydrology and legality. The SDCA has contested it.
The developer in April 2018 released, at the Corps’ request, a study it had contracted through Ball State University archeologist Matthew Purtill. The 32-page report found no “buried town of Singapore” under the sand in terms of intact buildings, but did find four “archeological sensitive” sites that could be information-bearing and must be circumvented in building plans. NorthShore agreed to abide by those terms.
“We’ve been exchanging red-line versions of our proposal with the Corps since then,” NorthShore builder Scott Bosgraaf told The Commercial Record four months ago.
The Alliance Aug. 6 unveiled what it called a practicable alternative to NorthShore’s proposed basin project. It would feature a smaller excavation for 36 boats tucked into a crook near the river mouth, employing a 650×10-foot wave attenuator to provide them shelter.
The environmental group claimed its conceptual alternative was both feasible and would minimize harm to resources such as nearby critical dunes, historic areas and interdunal wetlands.
NorthShore spokespersons didn’t buy it. Last week’s MOA letter suggests the Corps doesn’t either.
From the Corps
The agency, in its case study issued Friday, says the SCA-proposed attenuator would not provide enough wave protection for boats, nor would its plan necessarily be a less-damaging alternative to historic sites on land.
Further, the Corps said, the Alliance plan would not provide enough slips to accomplish the owner’s purpose of concentrating development enough on few enough acres to preserve the 208.3 acres elsewhere.
NorthShore by right could still build homes on its proposed boat basin land and elsewhere, likely many more than it now proposes.
“The alternatives available to the Corps,” the agency’s MOA letter concludes,” are to issue the permit as proposed, issue the permit with modifications or special conditions, or deny the permit. The Corps cannot compel the applicant to pursue an alternative without their agreement.”
“Based on our findings,” wrote Donald J. Reinks on behalf of Corps regulatory office chief Charles Simon to involved parties Friday, “we are proposing to develop a memorandum of agreement with SHPO (the State Historic Preservation Office), the SDCA, the applicant and other consulting parties to resolve adverse effects on historic properties.
“The MOA would include measures identified through the consultation process to avoid, minimize and mitigate for impacts to historic properties. (It) would be included as a special condition in a Corps permit, if issued, pursuant to 33 CFR 320.(r)(i) and 33 CFR 325.4. Upon development of the MOA, you may decide whether to concur with and sign it as a concurring partner” (a review required by Section 106 of the National Historic Preservation Act).
“We request your input within 30 days,” it says.
“We have been waiting a long time for this,” said Padnos of the study. “We can certainly attest that the Corps’ review has been thorough. We have hired experts in each special area to assure that our plans comply with all requirements and that we employ leading practices in all that we do.
“We are also pleased,” he continued, “that the Corps agreed that the SCDA-proposed alternative dockage concept, eliminating our boat basin, is not a viable fit for our project.”
“In essence,” countered Alliance president David Swan, “this is where we were back in December 2018. The consulting parties disagreed with the applicant’s proposed plan for handling the damage done to Singapore.
“We need to see what the other parties suggest regarding the development of a practicable alternative, which is one of the first steps required in a Section 106 Review.”
From the Courts
State appeals judges Michael Gadola, Jane Markey and Amy Ronayne Krause Thursday affirmed Allegan County Circuit Court rulings that upheld the township zoning board of appeals denying the Alliance had legal standing to appeal prior planning commission approvals of NorthShore’s basin project.
But they also, per the 2018 Olsen vs. Chikaming Township ruling, remanded to the circuit court a determination on Alliance base issues about the project.
The SDCA contends planning commission approvals violate township ordinance Article XII, Water Access and Dock Density Regulations, Section 40-910(h) of which reads: “In no event shall a canal or channel be excavated for the purpose of increasing the Water Frontage.
The group does not cite ensuing Section 40-910(i), which says, “To the extent applicable, this article shall be considered when the Township receives a Planned Unit Development application. At the discretion of the Township, and as allowed by the standards in Section 40-779 and Section 40-780, the requirements of this article may be modified.”
Planning commission preliminary and final approvals in 2017 were for a PUD and granted as advised by township attorney Scott Smith. Whether the prior section saying “In no event” makes the ensuing one moot is a question the Alliance argues.
Without legal standing, the appeals court couldn’t hear it. The Olsen ruling now means it can.
NorthShores and the Alliance both viewed this as a victory.
“We are pleased,” Swan said, “that the Court of Appeals remanded the case to Allegan County Circuit Court for further consideration of our claim that this proposed boat basin marina is contrary to the plain language of the zoning ordinance.
“That language clearly states: ‘In no event shall a canal or channel be excavated for the purpose of increasing the water frontage,’” the Alliance head said.
Bosgraaf said the ordinance interpretation had been discussed and already won. “The Alliance can reintroduce it,” he said. “I don’t expect more to come of it.”
“We at North Shores,” said Padnos, “are gratified that once again the courts have upheld previous decisions to approve our conservation-based plan for developing our property in Saugatuck. “Our approvals date back to fall 2017 and spring 2018. The SDCA has been appealing them ever since, following a strategy which they themselves have described as ‘death by 1,000 paper cuts.’
“This ruling from the Court of Appeals affirms prior rulings that we have carefully complied with all the many rules and regulations governing projects like ours.
“If you take a look at the top page of the Court’s ruling,” the owner continued, “you will see that the actual defendants in this case included not only us, but also Saugatuck Township and the Saugatuck Township Zoning Board of Appeals. This is another reminder that while the SDCA is pursuing its ‘paper cuts’ strategy against us, they are also bleeding area taxpayers as well.
“We hope this prolonged appeal process is nearing an end, but we are prepared to meet any challenge necessary to see our plan through to completion.
“Our development continues to make excellent progress and is gaining momentum and public support as it becomes better known,” Padnos continued.
“After more than two years of work gaining approvals, paving roads, building sidewalks and planting trees and beach grass, we are starting to ramp up our marketing. We did not want to do this until we felt close to obtaining the final approvals we need.
“Although we do not have this yet, we finally believe that the end is in sight. We are delighted to have two very satisfied new homeowners, with more on the way,” he said.