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Residents cite original purposes of CD-EP zoning

EAGLE HARBOR, EAGLE RIVER ’Äì A November 5, 2000, letter to the Keweenaw County Zoning Board of Appeals from an Eagle Harbor resident asked the board to consider the context and stated purpose of Conservation District-Environmental Protection (CD-EP) zoning in their November 9 decision. The letter also stated adding "ski hills" or "ski resorts" to permitted uses or special uses within any district, according to the language of the ordinance, should be by amendment rather than interpretation. Although an attorney for Lake Superior Land Company said no record reveals the original intent of the Zoning Ordinance wording, the submitted letter and public comments at the ZBA meeting referred to both the original purposes of CD-EP zoning and the language of the 1975 ordinance.

The ZBA decided on November 9 to allow ski hills and their related structures ’Äì lodges, lifts and maintenance and storage buildings ’Äì as a permitted use under CD-EP zoning.

In his November 5 letter to ZBA Chairman Jim Heikkila and ZBA members, Eagle Harbor resident George Hite cites the purpose of the CD-EP District, as defined in the language of the county’Äôs 1975 Zoning Ordinance. The ordinance states:

"The CD-EP (Conservation District-Environmental Protection) has been created to account for lands designated as part of an open space system to preserve total environmental character, particularly in connection with conserving significant natural resource characteristics found within the county and encouraging multiple use forest activities where appropriate."

The ordinance then states these CD-EP purposes:

• to conserve land areas which are subject to periodic flooding;
• to keep lands open from intensive development because of potential mineral resource extraction reserves;
• to keep areas open from intensive development because of unsuitable and unstable soil conditions;
• to keep land open for general conservation purposes such as the preservation of hydrologic functions of adjacent tributary stream land areas and the preservation of timber resource areas.

It then lists as permitted uses: forestry; public or private low-intensity recreational uses such as parks, golf courses, conservation clubs and campgrounds; extraction of sand and gravel resources. Special uses listed are hunting lodges and sanitary landfills.

Hite’Äôs letter states: "It’Äôs difficult to assess what underlying motivations were involved in the 1975 establishment of the CD-EP District (few records of those proceedings), but the language, including the listing of land conditions, suggests the intent was two fold. To protect lands unsuitable for development (flood zones, unstable soils, etc.) and to protect lands from development so that they would be available for forestry or mineral extraction. In a sense a "holding action." I suspect there was also the recognition that land so restricted would justify lower taxable values.

"Until and unless the County Board designates a parcel zoned CD-EP otherwise, the presumption must be that a parcel zoned CD-EP continues to be needed for the purposes for which it was created. Given that, a "ski hill" or a "ski resort" must be viewed as uses inconsistent with the stated intent of the District. Such uses neither protect lands unsuitable for development, nor do they protect lands from development so that they would be available for forestry or mineral extraction."

Hite goes on to discuss permitted and special uses under CD-EP, noting, "It would not be unreasonable to assume that their inclusion in the Permitted and Special Uses was intended solely to accommodate established uses."

During the November 9 ZBA meeting public comment period, Mohawk resident Sandra Britton also pointed out the original purpose of the permitted uses: "Nobody was trying to say that an industrial sand or gravel extraction would be permitted, but all of the logging companies and all the contractors had their own gravel pits that they used here and there; and, in order for them not to be illegal under our zoning, it had to be put in ’Äì sand and gravel ’Äì but ’Ķ it wasn’Äôt meant to be on a major scale. This was to accommodate the use of this land that we were making at that time."

Britton also countered Black Bear’Äôs comparison of ski hills to the "permitted" golf courses as evidence of a ski hill’Äôs low intensity by explaining the concept of a golf course at the time of the (1975) ordinance: "At that time ’Ķ golf courses were indeed considered low-intensity use; but, from all the resort management information that I got for eight years as an owner, golf courses are now considered one of the highest environmental intensity uses ’Ķ Times have changed, and unfortunately our Zoning Ordinance has not been brought up to date with it."

In his statement to ZBA members at the meeting, Jon Soper, Michigan Tech professor of Engineering Electromagnetics, pointed out that while the ordinance lists a golf course in CD-EP, the buildings for a golf course go under special uses in RS.

"The building itself per se is only allowed in the RS district, not in the CD-EP district, so I read this as saying the CD-EP won’Äôt allow for human structures. I don’Äôt even think it would allow for lifts," Soper said. "I think RS is the appropriate district for the ski hill with the lifts and the lodges."

James Regis, ZBA member and county Zoning/Planning Commission chairman, noted also, "In CD-EP it doesn’Äôt allow for buildings."

Regis also pointed out that a hunting camp in CD-EP needs a special use permit. (Regis, whose motion that a ski hill is not low-intensity was unsupported by the board, was the only ZBA member to vote against allowing ski hills and their related structures in CD-EP as a permitted use.)

Concerning special uses, Hite’Äôs letter continues, "It’Äôs also worth noting that two of the identified uses, Hunting Lodges and Sanitary Landfills, were apparently considered sufficiently unique that any expansion of the then existing uses or new such uses would require individual review by County Planning officials. They were thus classified as Special Uses. If a Hunting Lodge was considered sufficiently unique to require individual review, certainly a ’Äòski hill’Äô or ’Äòski resort’Äô would be."

Hite’Äôs letter advises the ZBA, "If the County wishes to add either ’Äòski hills’Äô or ’Äòski resorts’Äô to the listing of Permitted Uses or Special Uses within the CD-EP District, or any other District, the remedy, as set forth in the Ordinance, is amendment, not interpretation.

"It seems implausible and totally inconsistent that County officials, having just recently determined that it was necessary to amend the Ordinance to permit a ski resort in the Resort Service District, a far less restrictive district, would now consider allowing such a use in the CD-EP simply by interpretation."

Keweenaw County does not have history as to how its Zoning Ordinance was adopted ’Äì what they intended. He said the ZBA’Äôs job is interpretation of the words as written, not amendment of the ordinance.

"If you want to change the words, go to the Planning Commission, then you go to the County Board and then, in certain instances, if people feel strongly about it, you can actually go to a referendum," Tinti said. "The problem we have (highlighted by Judge Hood) is real simple ’Ķ ’ÄòTell us what low-intensity use is.’Äô"

Tinti added, referring to Judge Hood’Äôs advice, "You’Äôd better have some facts. You’Äôd better have some background ’Ķ some experts. You have some materials that were submitted to you. All those things are part of the record (on which) you must make the decision, because an individual or person who doesn’Äôt like that decision or disagrees has a right to go to Circuit Court ’Ķ Nobody’Äôs erasing words. You’Äôre giving meaning to what those words are."

Hite’Äôs letter indicates he is aware that the ZBA’Äôs job is interpretation rather than amendment, but he reminds them that their interpretation job should take into consideration the context and purposes of the Zoning Ordinance: "I believe strongly ’Ķ that to limit your deliberation to just the ’Äòintensity’Äô question moves the matter completely out of the context of our Zoning Ordinance and its purposes. Your duty is not simply to find justification for classifying ’Äòski hills’Äô or ’Äòski resorts’Äô as low intensity activities. I submit that you must also justify the inclusion of such uses among Permitted Uses in the CD-EP District as consistent with the stated purposes for which the District was created, and permissible without amending the Ordinance."

Hite’Äôs letter was not read during the November 9 ZBA meeting, nor was it mentioned as going on record with the other exhibits presented to the ZBA for consideration in their decision.

- Michele Anderson
November 11, 2000

Click here to consult the Keweenaw County Zoning Ordinance at the Keweenaw Liberty Library.