By: Benjamin J. Gohs, Associate Editor
Nearly a month after the Boyne City Zoning Board of Appeals’ (ZBA) decision to rescind Devlon Corporation’s zoning permit, the developer has filed suit in Charlevoix County’s 33rd Circuit Court.
Devlon hopes to convince Judge Richard Pajtas that the company’s Boyne Beach Club development has seen substantial progress toward completion on its marina and condominium project – which last saw on-site construction activity in 2008 – a stance which the City of Boyne did not share when the ZBA voted 3-1 on Aug. 2 to rescind the permit.
“Because this is a record that is going to court, it’s in the ZBA’s best interest to make sure the record is as clear and as accurately reflects what occurred and what your thinking was (at the Aug. 2 meeting),” said Boyne City Assistant Planning Director Shannon McMaster during the ZBA’s Sept. 6, regular meeting.
The ZBA made what it called minor typographical changes to the minutes from the Aug. 2 meeting concerning the Devlon Corporation’s zoning permit. He added, “I don’t think there are any substantial gaps. These are minor considerations – a comma there a semicolon here.”
Devlon filed its motion of appeal on Sept. 1. During the ZBA’s Sept. 6, meeting, board members discussed several related issues including the claims by a Devlon legal representative during the Aug. 2, meeting that the city’s attorney may have had a conflict of interest by representing the city planner, the ZBA and the city. Devlon’s lawyer said it may have been akin to having a lawyer represent the judge, jury and prosecutor of a case.
“I don’t think it’s any action we have to take,” said ZBA board member Bob Carlisle. “I just wanted to make sure the city is aware you may see this in another form – I have no idea.”
McMaster added, “My first thought is that there is not a conflict because it is all the city.” Carlisle said he just does not want the city being caught off guard in the event this is used as a defense by Devlon. The board then discussed whether financing must be approved before a development project may be granted a zoning permit.
“We want to remain progressive and inviting business to the community,” said ZBA member Lynn Murray.
But, he added, “I’m thinking, for nothing more than the sake of posterity, never having a situation like this arise again if it would be possible to.”
ZBA member Pat Kubesh said developers need to have all their “ducks in a row” before they pull their permits.
“If you don’t have financing up front it’s going to bit you down the road as it did in this case,” he said.
McMaster said the zoning ordinance is intended to regulate the use of land, but there are mechanisms which can be used to help avoid situations such as this.
“We don’t do final engineering approvals, generally speaking,” he said. “We don’t require people to have the money to get approval to build something.”
But, McMaster added, “We do have performance bonds to make sure work gets done in a timely manner – we have been making use of it increasingly to make sure projects get done.”
Devlon officials have claimed that numerous circumstances out of their control have significantly contributed to the setbacks cited by city officials.
The project, which has been valued between $3.5 million and $6.6 million, is now seeking brownfield redevelopment grants in order to help fund it.
“I honestly think that the brownfield thing is another excuse in a sense,” Kubesh said. “That’s strictly my opinion. I have no fact on that.”
Officials at Devlon’s Canadian headquarters declined to comment on the matter.
Devlon recently challenged the city’s citation to have rubble removed from the property, which is located along Lake Street across from the Glen’s plaza. The city prevailed in court, but action was stayed until the outcome of this next court proceeding is known.
Boyne Beach Club timeline
Sept. 8, 2004 – The original permit for the Boyne Beach Club was issued.
July 2006 – Due to lack of activity, the permit expires and Devlon Corporation appeals the decision.
The board reinstates the permit with an expiration date of Oct. 8, 2007.
September 2007 – Devlon obtains a building permit for the Boyne Beach Club project.
Oct. 8, 2007 – Devlon receives a footing inspection for the pool building.
Oct. 11, 2007 – A foundation inspection for the pool building was approved by the Charlevoix County Department of Building and Safety.
December 2007 – Workers begin framing the walls and roof of the pool building. City staff note that it does not appear to be in accordance with approved plans.
Jan. 2, 2008 – Devlon is notified the structure being built was not approved and is notified to stop work.
Jan. 18, 2008 – Devlon submits an application amendment on the approved plan to change the pool building design.
Feb. 18, 2008 – The amendment request is heard and approved by the planning commission.
Late Spring 2008 – The shell of the pool building was erected.
No more physical construction has occurred on the site.