Following more than three hours of conversation Thursday, the Park Township Planning Commission still had questions to ask about a rezoning application for a possible propane distributor on Highway M-60 Thursday. Commission members heard comments from the township zoning official, three attorneys, the property’s applicants, and 14 members of the public. Commissioners reviewed, adjusted, and approved a comprehensive list of statements called a “Finding of Facts.” With more of the review process still ahead of them, the commissioners voted to put the meeting into recess until 7 p.m. on December 3.
At issue at Thursday’s special meeting was a parcel of land located on the east-southeast side of highway M-60 across from Wilson Boulevard, partway between North Fisher Lake Road and Heimbach Road. The property has been for sale for several years by the heirs of its former owners, one of whom is an employee of the Nottawa Gas Company, a bulk propane distributor currently located on combined Highways M-66 and M-86 between Nottawa and Colon.
The gas company’s current facility is on leased land, and the landowner there would like to use that property for something else. Consequently, Nottawa Gas is looking for a new location, and would like to buy the M-60 parcel in order to construct a series of above-ground tanks for its propane sales and distribution operation, and a collection of buildings for its office and retail store operation.
The proposed property stretches from Highway M-60 several hundred feet back to Darr Road. It occupies two parts of the county’s current zoning map in such a way that it has a “bifurcated” or two-part zoning designation. The western portion of the property is in an “RR” or Rural Residential zoning district, while the eastern portion is in an “AR” or Agricultural-Residential district. Neither of those district’s zoning designations permit the gas company to build its proposed facilities.
Therefore, if the property sale and construction is to proceed, the property must be rezoned. Earlier this year, Nottawa Gas submitted an application to Park Township Zoning Administrator Doug Kuhlman to have the parcel conditionally rezoned.
As its name implies, conditional rezoning is one that is subject to specific terms and conditions that the applicant and the local governing body agree upon to make the changed designation more favorable. In the case of the Nottawa Gas property, those conditions could include measures to reduce the proposed facility’s impacts on surrounding neighbors.
A conditional rezoning is also dependent on the specific proposed use remaining the same, meaning that if it were to at some future point cease to host a bulk propane facility under the agreed-upon terms, the parcel could revert to its current zoning designations. Another business type would not be allowed, nor would any changes that violated the agreed-upon conditions. Any such change would give the Planning Commission cause to have the zoning designation revert back to what it is currently.
In its initial application, Nottawa Gas applied for the “CLI” or Commercial/Limited Industrial zoning designation. However, the company’s owners later updated and revised its application to the “C” Commercial designation after some communication with Kuhlman.
Master Plan Compliance
The revision came about because Kuhlman told the applicants the first proposed designation needed to be in compliance with another document. In Michigan, future zoning designations depend on a city, village, or township’s Master Plan. A Master Plan is a guiding document that most townships and municipalities adopt to guide future development and growth as it pertains to land use. State law requires zoning changes to be in accordance with future uses called for and mapped out in the Master Plan.
In the Park Township master plan, the proposed site falls within an area called the “Fishers Lake Suburban/Urban Residential Area.” This area calls for mixed-use development that includes residential growth as well as some commercial development as well. For that specific area, the Master Plan limits commercial growth to within 500 feet of the highway, and says, “commercial uses should be of a comparatively small scale and be of a character and design that offers an appealing welcome to those entering the township from the south and is sensitive to the desired rural character of the township.”
According to the Master Plan, the Fishers Lake Suburban/Urban Residential Area is not designated for Industrial or Limited Industrial use. The document does call for some industrial growth along Highway M-60, but only in an area that falls beyond Heimbach Road.
The Zoning Ordinance
According to the township’s zoning ordinance, Industrial uses include a variety of processes that involve the making or modification of products. Limited Industrial zoning permits a handful of uses that include warehousing. The sale of propane is permitted under the Limited Industrial designation, which was modified to allow it during a series of meetings in 2015 and 2016 after a different, previous applicant proposed a similar facility in another part of the township.
The Commercial designation permits a variety of retail and service operations. It does not expressly include the sale of propane, but by implication, it can be allowed through application for a Special Use Permit, which the planning commission must also review. For that to happen, the land must be designated for commercial use in the first place.
Kuhlman said Thursday that the decision to recommend approval or rejection of the rezoning application came down to whether the proposed gas facility represents a commercial or an industrial use, since only commercial use is called for in the Master Plan. Nottawa Gas representatives and their attorney argued the proposed facility is primarily a commercial facility because it retails pet and garden supplies and birdseed.
Several Planning Commission members also said it is primarily a commercial facility because the business retails propane directly to customers. Commission Chair Bill Brislen said the operation would clearly be a commercial one, since selling propane is no different than selling someone “a loaf of bread.” Commission Member Jack Coleman replied, “a loaf of bread doesn’t blow up if you set it on fire.”
Coleman said he felt the amount of propane proposed for onsite storage, which amounts to several hundred thousand gallons, constitutes an “industrial quantity.” Planning Commission Member and Township Trustee Mike Kinne said the ordinance doesn’t specify amounts, and in “almost every aspect” the proposed site fits the commercial designation.
Under the zoning ordinance, warehousing and storage functions fall under the Limited Industrial designation. However, the township’s attorney, Roxanne Seeber, said the question is already settled in favor of the commercial designation because of the way Kuhlman framed this issue, which points to implied permissibility as a special exception use under the commercial designation.
At least one commenter who spoke in opposition to the facility said rezoning the parcel would amount to “spot zoning,” which is not permitted under state law, and is a practice in which individual parcels of land are zoned according to a designation that does not otherwise occur on adjacent or nearby sites.
Attorneys present at Thursday’s meeting did not devote significant time in order to directly take up the spot zoning question, but there are several commercial properties nearby, including a restaurant and a gas station. Conversation Thursday placed primary emphasis on the alignment of the proposed commercial designation with the Master Plan’s call for commercial growth in the area.
Impacts on Neighboring Properties
Having reached apparent stasis on the question of commercial designation and the legality of zoning the parcel as such, Planning Commission members turned the conversation toward potential impacts.
In addition to Coleman’s reservations about the possibility that the proposed facility could be construed as industrial, he also said, “every business we allow sets the tone” for future growth. Coleman asked, “is that the tone we want?” He asked if it might be worthwhile to consider “something more beneficial to the township in terms of property values or acceptance from the community.”
Regarding the question of property values, Kuhlman included in his 92-page staff report to Planning Commission members a brief letter from Township Assessor Dale Hutson, who said he looked into properties around the current Nottawa Gas facility and found that new construction occurred there recently, and that home values had risen in the past few years. Coleman said the value increase was not as steep as other property value increases further from the facility.
Several other Planning Commission members also said they could not imagine the proposed facility would not affect residential property values nearby, although Brislen said it might be possible that the presence of a commercial facility would increase nearby properties’ value on the commercial real estate market.
Because property value impacts could be unclear, commissioners agreed to remove a statement from the draft Finding of Facts saying the proposed rezone “would result no in to change to property values” for nearby parcels.
There was some concern about the impacts on nearby residents’ quality of life. Nearly all of the 14 public commenters who spoke in opposition to the site addressed issues of light, noise, odors, traffic, impacts on wildlife and the views from their properties, and safety issues pertaining to hazardous materials, as did several written letters included with Kuhlman’s staff report. Kinne said, “my concern is people close to the property.”
In their application for a conditional rezone, Gas Company representatives included among their proposed conditions several measures meant to mitigate impacts on neighbors. Those measures included a berm and tree line in several places to serve as view blocks.
However, Kinne said he was “not confident they will totally abate the potential noise” or impacts from lighting, nor fully restrict neighbors’ view of the facility or its tanks. Kinne said there needed to be additional trees or better placement to ensure a fully effective view block. He also said the presence of downward lighting needed to be guaranteed.
Truck traffic and noise would be subject to the operational requirements of the business. Nottawa Gas representatives said Thursday their truck drivers can start working around 6:30 or 7 a.m. in winter, typically returning in the vicinity of 3 p.m. and sometimes as late as 5 p.m. Residential gas or heating emergencies can result in nighttime operations but are fairly infrequent. Bulk deliveries of propane to the facility typically arrive during the workday, but can occasionally occur as late as 7 p.m.
Kinne said he agreed with a statement by Coleman that the proposed M-60 driveway needed to be moved to reduce its potential for conflict with a neighboring resident’s driveway. The Finding of Facts draft provided by Kuhlman said the impact on M-60 traffic would be minimal. That statement received no significant objections from the commissioners.
As presented by Kuhlman in his staff report and reviewed on Thursday during discussion on the Finding of Facts, the rezoning application review proceeded under the assumption that the retail store building would constitute the property’s primary, commercial use. The propane storage tanks would constitute an “accessory use” defined by ordinance as “uses and structures customarily incidental to and subordinate to the permitted principal use.” Provided that the conditional rezone were approved, Nottawa Gas would have to apply for a Special Use Permit for that accessory use.
Discussion of Potential Hazards
In Section 501.3 of the Zoning Ordinance, the Planning Commission would have to consider several factors in approving a Special Use Permit. Among those factors include whether the proposed use “Will be designed, constructed, operated, and maintained so as to be harmonious and appropriate in appearance with the existing or intended character of the general vicinity and that such a use will not change the essential character of the same area.”
Another factor includes whether the proposed use “will not be hazardous or disturbing to existing or future neighboring uses.” The ordinance defines a hazardous material, in part, as “any materials that have been declared to be hazardous to any agency of the State of Michigan or of the United States,” a definition which includes propane.
Whether the mere presence of a hazardous material constitutes a hazard to neighbors will be one of the interpretations the Planning Commission would make in evaluating a Special Use Permit application. Most residents who spoke in opposition to the facility Thursday referenced the potential for an explosion risk. When a “Boiling Liquid, Expanding Vapor Explosion” (BLEVE) event occurs, it can produce a massive fireball that could ignite nearby structures if it were large enough. A fire carrying the risk of a BLEVE-type tank failure could force the evacuation of homes within a half-mile radius.
However, while spectacular and dangerous, such failures are also rare. Incidents on the type of scale that make BLEVE events notorious occur roughly once every few years worldwide. Included among Kuhlman’s staff report documents was a letter from Fabius-Park Fire Department (FPFD) Chief Josh Judsen. In his letter, Judsen said, “we are confident with the resources we have we will be able to mitigate any arise from an emergency response standpoint.” Brislen said the site also has access to several other fire departments, including those in Three Rivers and Mendon.
In reviewing the Finding of Facts Thursday, Coleman asked for language be added to a section about commercial uses in the vicinity pertaining to the presence of propane as a hazardous material. While the style of the business might be consistent with other commercial uses, Coleman said, the scale is different. The added language indicates there is no other business nearby that holds the same, high quantity of hazardous material.
Commissioners Discuss Process
For the remainder of the Finding of Facts review, Kinne and several commissioners agreed with passages saying the proposed facility is consistent or compatible with the master plan, with commercial zoning requirements, and with other nearby uses. Commissioners required no change to an item saying they had an obligation to strike a “balance between property owner rights and the rights of the municipality to ensure land use is consistent with the public good.”
However, also part of the Finding of Facts language was a requirement that commissioners’ work “comport with due process requirements.” On an item pertaining to whether public opinion may be considered in a zoning decision, Brislen said, “the question is whether zoning is a popularity contest by vocal opponents, or a legal decision based on case precedent.” The statutory criteria, he said, “should be considered and applied.”
Regarding language in the Finding of Facts about the Master Plan, Coleman said whie he agreed “that rezoning is consistent with the Master Plan, I just don’t think this type of business is consistent with it.” A sentence was added to reflect Coleman’s objection.
Near the conclusion of Thursday’s conversation, Seeber said according to correct procedure, the applicants must put forth the conditions it will agree to under its conditional rezoning application. The Planning Commission may indicate what it would like to see, but it put forth conditions on its own. Therefore, commissioners agreed to ask the applicants at Nottawa Gas if they would be willing to modify their conditions to address issues raised by commissioners Thursday.
Additional conditions could include those that address the driveway location, trees and berms that serve as view blocks, and lighting. They could also include other site plan requirements, including those that would address the fact that the St. Joseph County Road Commission does not recommend using Darr Road for truck traffic and would require upgrades in order to make it suitable for that purpose. Kinne advocated for those conditions Thursday, and commission member Deb Fenwick said she agreed with them.
Seeber and the commissioners drafted language to say the rezoning application “may be appropriate for conditional rezoning” because it would limit uses to those already specified by Nottawa Gas, but it does not provide “conditions sufficient to meet all concerns of the Planning Commission.” Nottawa Gas representatives present Thursday said they would be agreeable to revising their conditions.
If commissioners’ thinking regarding zoning compliance does not change, and the applicants return on December 3 with conditions that satisfy the concerns expressed by Kinne and others, the Planning Commission may vote to recommend approval of the conditional rezoning application. The matter would then proceed to county-level review before finally landing with the Park Township Board of Trustees for final approval.
If the conditional rezone is approved, future processes will include review of a detailed site plan and submission and review of a Special Exception Use Permit. A that time, additional consideration would take place regarding whether the township feels the propane hazard amounts to anything significant. Other, additional details regarding impacts on neighbors could be addressed at that time.
Because the December 3 meeting will be a continuation of Thursday’s public meeting, it is considered part of the same public hearing. It will therefore not receive additional public notice. However, Kuhlman said he will post attendance information on the township’s website and on the Township Hall’s door.
Dave Vago is a writer and columnist for Watershed Voice. A Philadelphia native with roots in Three Rivers, Vago is a planning consultant to history and community development organizations and is the former Executive Director of the Three Rivers DDA/Main Street program.