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Judge denies injunction request, orders Zoning Board of Appeals to decide on permitted uses

Keweenaw County Prosecuting Attorney Donna Jaaskelainen, standing, addresses Twelfth Circuit Court Judge Garfield Hood during the hearing of her request for an injunction against Crosswinds/Black Bear/ Lake Superior Land Co. Sept. 7 in the County Courthouse in Eagle River. County Zoning Administrator Jane Pelto is seated at right at the table.

EAGLE RIVER ’Äì Twelfth Circuit Court Judge Garfield Hood decided Thursday, Sept. 7, to deny Keweenaw County Prosecuting Attorney Donna Jaaskelainen’Äôs request for an injunction against Crosswinds Communities, Inc./Black Bear/Lake Superior Land Co., whom she believed to be in violation of the Keweenaw County Zoning Ordinance by their intention to continue construction of a ski hill at Mt. Bohemia. Judge Hood also remanded the matter of permitted uses in Conservation-Environmental Protection zoning to the County Zoning Board of Appeals (ZBA), nullifying the July 10th meeting at which they tabled the decision on whether a ski hill is a permitted use in a CD-EP district.

Said Judge Hood, "I hereby vacate and nullify anything that the Zoning Board of Appeals did at that meeting. It was contrary to law."

Judge Hood held that the ZBA violated the Open Meetings Act by going into a closed session at that July 10 meeting. During that session, he added, they improperly discussed, debated and came to a conclusion as to what they were going to do.Noting Michigan Law requires them to make such a decision, he referred to legal language using the word "shall."

Judge Hood quoted a Michigan statute which says, "The County Board of Zoning Appeals shall act upon all questions as they may arise in the administration of the zoning ordinance, including interpretation." (Italics ours.)*

He added the "mandatory shall" requires the ZBA to make an interpretive zoning decision, which they did not do when they tabled the decision on whether or not a ski hill is a permitted use in CD-EP.

Jaaskelainen, however, did not agree that the ZBA had violated the law by tabling the decision. She had said in her brief that the ZBA "decided to table the issue until the people of Keweenaw County had the opportunity to vote on the referendum issue."

In fact the 1975 Keweenaw County Zoning Ordinance appears to describe interpretation as a power rather than a duty of the ZBA. It says the County ZBA "shall have the power to ’Ķ Classify a use which is not specifically mentioned along with a comparable permitted or prohibited use for the purpose of the use regulations in any zoning district." (Section 11.4, 1b 3)

The Sept. 7 injunction hearing related to construction of the Mt. Bohemia ski hill attracted a capacity, standing-room-only crowd to the Courthouse in Eagle River.

The judge complimented County Zoning Administrator Jane Pelto for her foresight in placing the permitted use issue before the ZBA.

Judge Hood said the hearing on the injunction is not the proper method or vehicle for a decision on the issue of permitted uses in CD-EP zoning. That should be decided by the ZBA, and any objection to their decision would then be made through an appeal,he added.

Jaaskelainen presented her complaint, requesting an injunction based chiefly on two points:

1. that CD-EP zoning does not allow a ski hill;
2. that Resort Services zoning does not allow a ski hill unless the voters decide to approve the zoning change from CD-EP to RS on Mt. Bohemia and the amendment to the zoning ordinance that would allow ski hills as a permitted use in RS zoning.

"I come before you today to ask what is a permitted use," Jaaskelainen said to Judge Hood.

Jaaskelainen had pointed out in her Analysis/Arguement that Crosswinds’Äô application in March for the zoning change and the amendment to include ski hill, including base lodges, lifts, storage and maintenance buildings, restaurants and related uses was evidence that ski hills are not a permitted use in CD-EP.

"Otherwise if the above-described uses are within a permitted use in CDEP why request a rezoning of the District," her argument asks.

Jaaskelainen told Judge Hood that, while the zoning changes and amendment were approved by the County Board of Commissioners on April 11, the (May 24) Notice of Intent for a petition for a referendum on the issue put the changes and amendment on hold.

"Once that Notice of Intent was filed, the RS permitted use of ski hill was stopped," she said.

Jaaskelainen said she did not come before the court when Crosswinds/Black Bear was cutting down trees because it could be argued that was forestry, which is a permitted use in CD-EP.

The 1975 Keweenaw County Zoning Ordinance lists permitted uses under CD-EP as follows:

1. Forestry.
2. Public or private low-intensity recreational uses such as parks, golf courses, conservation clubs, and campgrounds.
3. Extraction of sand and gravel resources.

Judge Hood commented that "extraction of sand and gravel resources" could have a greater visible impact on the landscape than a ski hill.

Frederick Elias, attorney for the Defendants in this hearing, argued that a ski hill is a permitted use in CD-EP because it is less intensive than other uses the county ordinance lists as permitted in CD-EP zoning.

Elias’Äôs brief, the Sept. 1, 2000, Defendants’Äô Opposition to Plaintiff’Äôs Motion for Preliminary Injunction, states, "It is important to note that the existing zoning ordinance does not limit uses to the named uses, but states that other similar uses are within the ordinance by adding the words ’Äòsuch as.’Äô This being the case, a ski hill is certainly consistent with other low intensity uses such as a golf course (with its carts, pesticides and intense water usage) or a campground (with their cars, trailers, mobile homes and open fires). A ski hill is definitely less intensive than the other permitted uses under the zoning ordinance, such as ’ÄòForestry’Äô or ’ÄòSand and Gravel Extraction’Äô (which would effectively turn the Parcel into a replica of the Lunar surface)."

During the hearing, Elias said, "I walked the hill yesterday. It’Äôs nature at its finest, your honor. It’Äôs certainly different than a sand and gravel extraction pit ’Ķ"

The Defendants' Opposition document also includes an attached outline and diagram comparing the impacts of golf and skiing in order to support the Defendants' position that ski hills are of lower intensity than golf courses.

Judge Hood agreed that "such as" as used in the ordinance suggested the possibility of other low-intensity uses. He asked Jaaskelainen if she was prepared to provide testimony as to what low intensity recreational uses are. She said she was not.

Elias added, "Other than her opinion, your honor, the County Prosecutor has not offered any study, any report, any plan, any expert testimony, any land use authority to have stated that a use of a ski hill is ’Ķ substantially more intensive than use of a golf course or any of the other permitted uses. That being the case, your honor has no evidence upon which to justify issuance of an injunction."

Elias’Äôs brief included several exhibits in support of his argument, including a the July 27, 2000 letter to Frank Ellias, his law partner, which states that "no County building permits are required for the chair lift apparatuses and Keweenaw County will not be requiring a building permit (issued by the county) for construction or operation of these systems."

The letter, signed by Keweenaw County Zoning Administrator Jane Pelto and former Keweenaw County Building Code Official William J. Kovaleski, Jr., adds that a copy of the state safety permit, issued by the Department of Consumer and Industry Services (CIS) to allow installation/construction and operation of ski lifts, needs to be filed with the Building Code Official prior to commencement of work and certificates of final inspection need to be filed when completed.

Elias said in his brief that because of the July 27 letter, "Black Bear believed that it could proceed with its construction of the ski lifts and related accouterments, and that it was only precluded from building cabins and restaurants on the Parcel until after the vote on the referendum on November 7, 2000."

While Elias’Äôs exhibits include copies of the applications for the state Ski Lift Permits, the July 28, 2000, letter from Pelto to Frank Ellias reminding him of the ZBA’Äôs tabling of the permitted use issue is absent.

However, Jaaskelainen mentions the July 28 letter in her brief. In that letter Pelto states that the ZBA’Äôs "decision was to table the issue, of defining Permitted Uses within CD-EP and RS, until the referendum issue is resolved."

Pelto adds, "I must abide by their decision in this matter, since they are my only recourse, according to the Ordinance, for a literal interpretation of Permitted Uses in CD-EP and RS. The County does not require a building permit for the conveyancing system, but it is yet to be determined whether a ski resort and its related structures will be considered low-intensity recreation within the CD-EP zone. The Zoning Board of Appeals will eventually determine this. Whether ski resorts and their related structures will be a Permitted Use within RS will be determined by the referendum results in November."

Elias made no mention of the July 28th letter in his brief or in his presentation at the hearing. Moreover, his brief appears to interpret the July 27 letter from Pelto and Kovaleski as encouragement to continue construction. It states: "In early June 2000, Black Bear began construction of the ski lifts and related accouterments on the Parcel in reliance upon the afore-referenced permits issued by the County in May and again in June. Black Bear continued its construction while the State issued it permits and the County Clerk and Building Department encouraged its efforts."**

Two statements indicate either that the Defendants’Äô attorneys ignored the July 28 letter or that their interpretation of it is different from the prosecutor’Äôs.

First, in his brief, Elias says, "Plaintiff’Äôs August 29, 2000 Complaint contains the first and only notice to Defendants that a ski hill is not permitted on CD-EP zoned land."

Second, in a signed affidavit attached as an exhibit to the brief, Lonie Glieberman, president of Black Bear Entertainment Adventure & Recreation Company, says the same thing: "The County never notified Black Bear that it could not construct ski lifts or their accouterments on the Parcel. Plaintiff’Äôs August 29, 2000 Complaint contains the first and only notice to Black Bear that a ski hill is not permitted on CD-EP zoned land."***

In a July 19 letter to attorney Frank Ellias, Jaaskelainen reminded him that "the ZBA tabled the issue of permitted use within CDEP until the referendum issue is resolved."

She adds, "It would be my opinion that any building activity on Mt. Bohemia would be in violation of the County Zoning Ordinance and that any building on Mt. Bohemia would subject Crosswind/Black Bear and Lake Superior Land Company/International Paper Co. to Civil and/or Criminal sanctions.

"I believe the Department of Consumer and Industry Services has jurisdiction over the licensing of the ski lifts and you are correct in that the County would not assume any jurisdiction over the operation of said ski lifts. However, I do not believe you are correct in saying the Department of Consumer and Industry Services have jurisdiction over the County zoning or building permits issues."

In late July, Lori Donlan, communications specialist for the CIS media office toldKeweenaw Today, "The Ski Lift Construction Permit does not override the local zoning requirements ’ĶWe’Äôre more concerned about the safety issue from our end."

Jaaskelainen told the Court that an August 24, 2000, letter from Ellias & Elias, P.C., signed by Frank Ellias, indicating his clients’Äô intentions to go forward with construction of the ski hill, was what prompted her to request the injunction. In that letter, replying to the prosecutor’Äôs July 19 letter, Ellias says her statement that building activity on Mt. Bohemia would subject his clients to Civil and/or Criminal sanctions "is completely erroneous and contrary to Michigan law and precedent."

Ellias cites MCLA 125.212 to support his argument that the impending referendum does not eliminate the uses of property that are allowed by its zoning ordinance.

Ellias notes "while it is true that no effect can be given to the new RS zoning set forth in (the 1975 County Zoning Ordinance) until after the referendum, it is also true that there is absolutely no statutory prohibition against the construction or utilization of the property in accordance with the existing CD-EP zoning." He adds, "The referendum concerns the location of various improvements on the ski hill and adjacent areas. It does not prohibit or authorize a ski hill." (Italics Ellias’Äôs)

The August 24 letter also states in its conclusion, "Be further advised that any interference with construction or use of the ski hill, as threatened in your July 19, 2000 letter, will result in substantial economic damages because of the limited time remaining to prepare for the ski season. Such being the case, please be assured that Black Bear shall seek to recover against the County any economic damages which result from any litigation based upon the flawed opinions which I have disposed of in this letter."

Frederick Elias’Äôs brief also argues that "the balance of equities favors Defendants as they will lose over $1.3 million in revenues if construction is halted for the next two months."

Steve Tinti, attorney for Lake Superior Land Co., told the Court the county’Äôs 1975 Zoning Ordinance has no mention of a ski hill and no definition of low intensity.

"My client as a landowner has been deprived of protection afforded by the Keweenaw County Zoning Ordinance," Tinti said. "That’Äôs called taking your property rights. I don’Äôt think Keweenaw County wanted to do that."

Lake Superior Land Company’Äôs attorney Steve Tinti, standing, addresses Judge Garfield Hood, far left, during the injunction hearing Sept. 7. Seated at the table are, l. to r., Lonie Glieberman, president of Defendant Black Bear; Frederick Elias, attorney for the Defendants; Donna Jaaskelainen, Keweenaw County prosecuting attorney; and Jane Pelto, Keweenaw County zoning administrator.

Mark Pontti, public affairs manager for International Paper, parent company of Lake Superior Land Co., was unable to attend the hearing, but said, "The Lake Superior Land Company (LSLC )/International Paper (IP) looks forward to a positive and productive development relationship with the County of Keweenaw to allow for the positive growth and economic expansion of the region. Toward that goal LSLC/IP is committed to provide input as a significant private landowner in the region to provide a positive economic development to the County of Keweenaw. With the rulings of the court it is clear that with everyone's input the quality of governmental decisions can be improved."

County Board Chairman Lyle Peterson said after the hearing that Jaaskelainen had mentioned the possibility of an injunction request to the Board of Commissioners, "but she didn’Äôt say for sure that was the route she would go."

Peterson added the Prosecuting Attorney supercedes the county board on legal matters.

"She’Äôs our advising attorney so we try to follow what she wants," he said.

Peterson said he was impressed with Judge Hood and believed "he made a firm decision."

Judge Hood suggested to Jaaskelainen that she should let the ZBA know what the laws are. In coming to a decision on permitted uses, he added, the ZBA should consult experts since such a decision should not merely be based on personal opinions.

"It seems to me that they ought to be prepared to call (expert) witnesses," the judge said. "I would see that they have all the evidence that Keweenaw County or whoever is running the show can muster ’Ķ It has to be in a form that I can look at if this matter is brought back on an appeal."

The judge said this mandated ZBA meeting is to be a public meeting, complying with Michigan law and recorded in detail.

"I would ask that they have a certified court reporter there," he said. "Minutes are to be taken at the meeting, and they are to be distributed publicly in Keweenaw County within 72 hours."

Wendell Carlson of Lac La Belle

Lac La Belle resident Wendell Carlson said he believed the ZBA tabled the decision on permitted uses because "it’Äôs a hot potato." He added he believed a ski hill is "absolutely" low intensity.

"It’Äôs a good thing (for Lac La Belle)," he said.

*Editor’Äôs Note: Keweenaw Today was unable to locate the cited statute, but similar wording can be found in Act 183 of 1943 (the County Zoning Act), 125.220.

**Editor’Äôs Note: Elias may have mistaken Pelto’Äôs title here, as the brief does not mention any letter from the County Clerk in this context.

***Editor’Äôs Note: Footnote No. 2 in Elias’Äôs brief indicates that Black Bear, not Crosswinds Communities, Inc., is the actual Defendant in this case. The note states, in part: "Crosswinds Communities, Inc. and Crosswinds Commercial, Inc. are both Michigan corporations, but neither should be a party to this action since neither is an investor, lessor, partner or participant in the development of any property relevant to the instant matter."

’ÄìMichele Anderson
September 9, 2000