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Zoning Board of Appeals to decide on low-intensity recreation

EAGLE RIVER ’Äì Whatever the outcome of today’Äôs vote on Proposal B, the Keweenaw County Zoning Board of Appeals (ZBA) intends to meet at 7 p.m. Thursday, Nov. 9, to interpret provisions of the county Zoning Ordinance pertaining to permitted uses in the Conservation District-Environmental Protection (CD-EP) and the Resort Service (RS) districts of the county. Whether or not the County Prosecuting Attorney’Äôs appeal of a Circuit Court order to the ZBA and her request to the Michigan Attorney General’Äôs Office concerning alleged conflicts of interest on that board will affect the meeting is not clear at this time.

The purpose of the meeting is to answer questions by County Zoning Administrator Jane Pelto concerning the definition of "low-intensity recreational use." CD-EP zoning allows "low-intensity recreation," but the county Zoning Ordinance is vague on just what that includes. Pelto first asked the ZBA to clarify the definition last July, but they tabled the issue during their July 10 meeting after going into what was called an "illegal" closed session with County Prosecuting Attorney Donna Jaaskelainen. The board then approved a motion by ZBA member and Zoning/Planning Commission Chairman James Regis to postpone the decision until after the referendum. Although the ZBA met once after this, Pelto did not receive an answer to her question.

"It’Äôs still based on my request," Pelto said of the upcoming Nov. 9 meeting. "If I have a question they (the ZBA) are supposed to answer it."

Keweenaw County Voters are deciding today whether or not to approve a proposal (Proposal B) to rezone 680 acres on Mt. Bohemia, now zoned CD-EP, as RS and to add an amendment to the Zoning Ordinance to allow a ski resort and its related uses as a permitted use in RS. If the majority vote "no," and the area remains CD-EP, the ZBA could decide that a ski hill and its related uses, or a ski resort, are "low-intensity" and can be built in CD-EP. However, the "no" vote also would turn down the proposed amendment to RS, thus leaving the question as to whether a ski hill can be built in RS as a permitted use. Thus, Pelto would like a clarification of permitted uses in both CD-EP and RS zoning as well as a definition of "low-intensity" recreation.

"They would be defining the type of recreational uses that would constitute low-intensity uses ’Ķ and how extensive the use could be," Pelto said. "Would it include the structures as well as the uses?"

Pelto noted she also wants to know what the RS permitted uses are in relation to a ski hill. Should the majority vote "yes" on Proposal B, these answers would give her a better definition of RS zoning.

Only about .66 percent of all of Keweenaw County is now zoned RS, Pelto explained. A "yes" vote on the referendum would bring the total land in RS to .99 or almost one percent (2400 acres of a total of 241,894 acres in the county would then be zoned RS). Pelto said presently RS-zoned areas include parts of Copper Harbor, Phoenix, Delaware, the Keweenaw Mountain Lodge, the north shore of Lac La Belle, Mendota Village (the area of the Lac La Belle Resort), Neil Isaacson’Äôs Golf Course and some small strips in towns. Close to 70 percent of county land is now in CD-EP zoning, Pelto added.

In a Sept. 7 Circuit Court hearing County Prosecuting Attorney Donna Jaaskelainen requested an injunction to delay any decision on whether ski hills can be built in CD-EP until after the Nov. 7 referendum. Twelfth Circuit Court Judge Garfield Hood decided at that hearing to deny Jaaskelainen’Äôs request, and he remanded the matter of permitted uses in Conservation-Environmental Protection zoning to the County Zoning Board of Appeals (ZBA), nullifying the July 10 meeting. Besides ordering the ZBA to meet and decide on permitted uses in CD-EP, Judge Hood also recommended that, when the ZBA meets to make their decision, they should have a court reporter at the meeting (so that a transcript would be available if needed), minutes should be taken and distributed publicly in Keweenaw County within 72 hours of the meeting, ZBA members should thoroughly review the Zoning Ordinance before the meeting, Jaaskelainen should copy Michigan laws that apply to the ZBA’Äôs activities for them and "expert witnesses" should be available to assist the board in making their decision.

According to the transcript of the Sept. 7 hearing, Judge Hood said, "Their decision has to be analytically arrived at, the basis for their decision has to be expressed in detail, and it has to be in a form that I can then look at if the matter is brought back up on appeal."

ZBA Chairman Jim Heikkila said the county’Äôs insurance company would be sending a statement for the board to consider at the meeting. He added he did not have funds to hire any "experts" to testify on the matter but would listen to any experts who choose to attend the public meeting.

"Crosswinds is going to have somebody present ’Ķ some kind of an expert," Heikkila said. "The judge has asked us to listen to experts, and that’Äôs what we intend to do. I’Äôll listen to any expert that’Äôs out there."

He added he realized that, while Crosswinds’Äô "expert" may be testifying for the developer’Äôs point of view, others would possibly be have an opposite opinion.

"Everybody in that room is going to be on one side or the other," Heikkila said.

Although Jaaskelainen appealed Judge Hood’Äôs order in early October, with a request to expedite the case so it could be heard before the referendum, the Michigan Court of Appeals, on Oct. 24, denied the request to expedite. It could take months before her appeal is heard. In addition, Jaaskelainen has written to the Michigan Attorney General’Äôs Office concerning questions of conflicts of interest on the ZBA.

In a letter to Heikkila on Oct. 9, Jaaskelainen wrote, "The appeal stays the Order of Judge Garfield Hood until the matter is resolved before the Michigan Court of Appeals. Therefore, the Zoning Board of Appeals shall not meet to discuss the matters as addressed by Judge Hood until the Court of Appeals renders their decision. To do so now would negate my request and furthermore would expose the County to liability because of Judge Hood’Äôs improper vacating of the Zoning Board of Appeals meeting.

"Furthermore, pursuant to a request by a constituent, I have requested an opinion from the Attorney General’Äôs office regarding the membership of the Zoning Board of Appeals and any conflict of interest pursuant to the Incompatible Public Offices Act. If a member of the Zoning Board of Appeals would be deemed in violation of the Act, any action by the Zoning Board of Appeals may be improper, mute and an exercise in futility."

Whether or not Jaaskelainen has changed her mind about the ZBA meeting on the low-intensity decision is not clear, since she was unavailable for comment today.

Concerning the conflict of interest letter, Heikkila said, "I don’Äôt know what transpired about it."

A spokesperson for the Attorney General’Äôs office said Monday no decision had yet been made on Jaaskelainen’Äôs conflict of interest query.

- Michele Anderson
November 7, 2000