County grants Clous permit, pursues new wetlands tack

TRAVERSE CITY – Grand Traverse County has given Eastwood Custom Homes Inc. the go-ahead to fill and grade nearly five acres of residentially-zoned land along Garfield Road, dropping past demands for wetlands setbacks at the site.

Drain Commissioner Kevin McElyea agreed to issue a permit in early December after Eastwood filed a lawsuit asking the Grand Traverse Circuit Court to compel him to grant that authorization.

McElyea's decision confirms a change in long-standing county wetlands enforcement that has been in the offing for months: The county is no longer requiring a 25-foot buffer around wetlands when property is developed.

Developers may not have their new-found freedom for long, however. McElyea plans a county-wide effort to have individual communities adopt setback requirements similar to the county's old policy. Strangely enough, individual communities have wetlands-related powers that Michigan counties are denied, attorneys say.

The Eastwood lawsuit was filed on Nov. 2 and followed up on the company's application in August to fill and grade about 4.93 acres along Garfield between South Airport and Hammond roads in Garfield Township.

It was filed shortly after the regulatory underpinning for the county's wetlands policies started to come unglued-partly due to an unfavorable opinion from the state attorney general's office.

In a letter to county Prosecutor Alan Schneider, Chief Deputy State Attorney General Gary Gordon had argued that the county has no latitude to regulate wetlands as a means of controlling storm water overflows.

McElyea as well as previous drain commissioners had insisted on setbacks to help do this, and the authority was enshrined in a 15-year-old county ordinance.

At least for now, McElyea's decision brings an end to a three-year tug-of-war over wetlands setbacks on the Eastwood property. In 2003, the Traverse City builder and HomeStretch, a non-profit that builds workforce housing, had hoped to develop a residential project, Fox Run Apartments, on the site. But those plans fell through after the setbacks issue cropped up.

The issue has been important to Eastwood's owner, Bill Clous, said Matt Vermetten, his attorney. As with any real estate development, the Garfield Road project's financial viability could hinge on the amount of land available for it, he said.

But Clous wanted a fair deal from the county more than he even wanted financial viability, Vermetten said. "I think my client's viewpoint was, 'This just isn't right.'"

Michigan Department of Environmental Quality originally gave HomeStretch and Eastwood the go-ahead to fill and grade at the site in 2004. It did not require any buffers, according to court filings. It even "allows certain earth changes in the wetlands," the Eastwood complaint said. But the drain commissioner's office did require the setbacks.

McElyea said he was simply taking his duties as drain commissioner seriously.

"I have had some concerns about the effect of over-paving on water overflow," McElyea said. "But I do try to balance the needs of both the developer and the community."

But the difficulties were apparently a deal-breaker for HomeStretch. Without an ongoing dispute over setbacks, "I am confident the (HomeStretch) deal would have been done," Vermetten said. "People who are involved with workforce housing don't want to get involved in contentious situations."

But the regulatory situation shifted in Clous' favor when the Grand Traverse prosecutor's office reviewed some of the township's ordinances recently. In some cases, the ordinances exceed the county's jurisdiction under Michigan law, attorneys concluded.

"We were going through some of the county's ordinances and found that the county authorization to adopt some health and safety measures is limited," Schneider said. That's when he asked the state attorney general's office for an opinion.

It confirmed that counties are only empowered to enact ordinances on matters specifically allowed by Michigan law – and concluded counties had no authority to regulate wetlands as a way to control storm water flooding.

As a result, Clous can grade and fill land that had been reserved for buffers, at least as far as the drain commissioner's office is concerned. But any project still has to go through Garfield Township's approval process. As of early December, no site plans had been submitted for the property.

Clous said he envisions a residential project for the site, but the details haven't been worked out yet.

Meanwhile, Vermetten said his client is out "several hundreds of thousands of dollars" in lost business opportunities, plus legal, engineering and other professional costs.

Even though the permit has been granted, the lawsuit is still seeking damages "commensurate with the expenses and the loss of business" that Clous has suffered, the complaint said.

To keep the original MDEQ permit alive, Eastwood has had to apply for a one-year extension of the time limit for getting county approval. That was set to expire on Dec. 31. Even then, it had to rush its lawsuit into court in November so it would have a decision before the MDEQ deadline, Vermetten said.

With the onset of cold weather, it will be hard to begin working on the site now, Vermetten said. "There were men and machines nearby who could have done that," he said. "It's going to be hard to get them in there now."

Other property owners could have a case against the county if they have had setbacks unfairly imposed on them, he said. "Does that mean they were damaged? Maybe not," he added. Their case may depend on how badly they were hurt.

As McElyea sees it, his new hands-off policy has left a vacuum, and he plans to fill it. He has already begun a series of meetings with the county's 15 communities, asking them to adopt setback provisions uniformly across the township.

While counties aren't authorized to impose wetlands restrictions to control storm water, there is nothing to prevent townships from doing so, McElyea said.

"I have kept (the proposal) similar to what we have in the county ordinance now," he said. He expects to wrap up his presentations to the communities by Feb. 13.

If a majority of communities adopt the guidelines, the county would be prepared to take on an enforcement role, if it were asked. The sheriff's department and prosecutors would then be well positioned to enforce the townships' laws and prosecute violations. "We'd offer that, assuming that a township did not want to do that on its own," Schneider said.

There is precedent for that role, since the sheriff's department enforces township junk and noise ordinances and county prosecutor's office handles violations, Schneider said.

But if communities mostly take a piecemeal approach, they will have to handle their own enforcement, McElyea said. BN