The PUD stops here
Planning Commission voted yes on 45" foot max height by right and approving PUDs in the Waterfront-Lakebluffs and Deep Water Port districts. The amendments now go to Council for review.
Frankfort skyline showing the city’s current tallest structure, a 45-foot-high Michael Fitzhugh–designed mixed-use building.
Audio recording of the meeting
The Planning Commission held a public hearing on October 19 at 5:30 p.m. to hear responses to zoning ordinance amendments for planned unit developments (PUDs) in our two waterfront districts. The proposed changes are the result of several months of consideration by the commission, under advisement by Village attorney Bryan Graham and the planning consultant Sara Kopriva of Beckett & Raeder, whom the Village hired to help with our zoning ordinance and master plan updates. The amendments now go to Council for approval, rejection, or modification.
The Planning Commission consists of Janet (Jen) Kennedy (Traverse City, chair; until recently co-owner of the Mayfair Tavern), Ryan Fiebing (Furnace Street), Michael Murphy (Washington Avenue), and Charles Kalbach (Washington Avenue); one seat on the five-member commission is vacant. Kalbach was absent. Thirteen members of the public attended the public hearing. Clerk Bobbi Benedict took minutes.
The Village zoning map, showing the PD and DD districts in green and blue.
00:01:20 Summary of Changes Sara Kopriva described the proposed changes, which were made in consultation with her and the Village’s attorney Bryan Graham. Planned unit developments are described in Article 24 of the zoning ordinance. It’s proposed that PUDs go through their own separate approval process because they will likely involve mixed-use projects (for example a building that has a store on the ground floor and apartments above) or creative or unconventional new uses or combinations. Currently, PUDs are allowed only in these two districts, DD, and PD (the green and blue areas on the map above) and the C-1 Commercial District (10/30/22). The ordinance allows for a preapplication approval process in which developers can meet with the Planning Commission to go over site plans and get feedback before they hire engineers or develop their site plan. Kopriva said this type of process means “usually the community can get more of the components they’re looking for [in a development] because [the developer] hasn’t already spent money on the design of the project”—the community in the form of the planning commission is part of the process.
00:03:30 As amended, the zoning ordinance now describes a PUD process with two parts: (1) a site master plan approval process, which Kopriva said is similar to a special use permit process, which includes a public hearing and ensures the project meets the standards for a special use. At this stage, the Planning Commission review an overall plan stating the uses involved in the project and how dense it would be, but not what the buildings would look like or exactly where on the lot the building is located—for example, there might be shaded areas specifying “residential,” and “commercial.” After a public hearing on this rough master plan, if it’s determined that it meets our zoning standards, the applicant would create a final site plan for each phase of the development, with information on what the structures look like, setbacks, and other details. These approvals will stay with the Planning Commission rather than going to Council.
“This comes out of a recommendation from your attorney and also from myself. Council may have some interest in it, but the Planning Commission is the one that deals with the ordinance, has the training in it, has the expertise. It also doesn’t allow for politics to come into play. Sometimes when things go to Council they can be more interested in the number of votes vs. what the ordinance actually says.” In her experience, when councils don’t follow the recommendation of the Planning Commission, it can cause issues, including potential legal challenges. “Council has the final say [on these changes], and they may decide they want final say in all PUDs, and they can change this amendment. We will forward along the attorney recommendation so they know where it’s coming from.”
The zoning ordinance includes new objectives and standards for approval, but allows for some creativity and flexibility. It’s based on the master plan (adopted in April 2018), which the planning commission will be revamping with public input. “You do have a good master plan now,” Kopriva said, “but that’s our next step, to review that and make sure the goals and objectives are still the priority for the community. “We also require compliance with our special use standards and site plan standards that are in the ordinance already, to ensure that it’s a quality project that meets the ordinance and is something the community wants.”
“There are specific, additional requirements for the Waterfront and Deepwater Port Districts. This allows for variations in uses and setbacks and heights as long as the applicant is meeting the standards and criteria in the ordinance. So just because it says you can give relief doesn’t mean you have to. It’s not just a free for all. It has to be supported by the master plan and other requirements,” Kopriva said.
00:10:25 The maximum height has been increased in the Waterfront/Lakebluffs and Deepwater Port districts from 35 feet to 45 feet. Lot coverages were also amended to 50 percent from 35 percent. Language in the ordinance that allowed for no height restriction was removed; in the old version, a developer can go as high as Council will let them as long as a couple of standards are met; now, if a developer wants to go higher than 45 feet, they need to go through the PUD process; without the amendment, a developer could claim a “use by right” to go 85 feet if other standards are met and Council approved it—the planning commission would have no choice but to approve the project. “Now we’re saying, you can have 45 feet, but if you want to go higher than that, we want more, we want more as a community,” Kopriva said.
00:11:40 Kennedy said the maximum lot coverage by all buildings change was made to the DD Waterfront-Lakebluffs District, increasing it from 33 percent to 50 percent; the PD Deepwater Port District was already at 50 percent. The Residential District is 50 percent and Commercial is 90 percent; Kopriva said 50 percent is a relatively low maximum for mixed use development, but increasing the max height from 35 to 45 (the Commercial District allows 40 feet right now), we are more likely to get better quality and more interesting development. “We looked at Frankfort’s requirements for their building height and we looked at current structures in the Village and drawings and models of what 35 and 45 feet would look like and how that felt here.”
00:14:00 “The use by right in the DD district is limited to single family houses as of right now,” Fiebing said. “Currently according to the ordinance the only thing you can do by right in that district is build a[n up to] 35-foot-tall single-family house. Any other use would have to go through a PUD process. The current PUD process, as amended, is much more robust. If we did pass the 45-foot max, the only thing that could be done by right is a[n up to] 45-foot single family house or a two-family dwelling. The DD doesn’t allow multifamily currently as a special use, whereas the Residential District does, so it’s still very protected. There are only a few uses by right or special uses, so everything else would go through the PUD process, which now has additional standards and requirements, much more sound than the current ordinance, and also now lays out the process more clearly than in our current ordinance. It’s not a difficult process, but there are lots of steps.”
Page 1 of the draft amendments shows lot max coverages and heights.
00:17:00 Kopriva explained that because Council is the policy setting board, these procedural and standards amendments go to them for approval; the Planning Commission can’t change zoning standards or procedure rules once they’re set. The PC, and the Village attorney, are recommending these amendments to Council. Council can approve these changes, make other changes themselves, or send it all back to the PC to make changes; they can also reject all the changes. Another public hearing will be held if more changes are proposed.
00:18:25 Correspondence
Kennedy said she would read the letters from those members of the public who had requested that their letter be read aloud at the meeting. Per Benedict, other emails received by the office but not in time for meeting came from Dan Kelly (Beulah), Julie Stone (Beulah), and Michele Cannaert (owner of the Conundrum Café).
Linda Manville (Lincoln Avenue) expressed concern that giving the Planning Commission final say in PUD decisions was undemocratic and that elected Village officials should have that final say. She also expressed concern that developers would be dictating what construction would occur in the DD and PD districts.
David Beaton (Lincoln Avenue) expressed opposition to the changes, saying he was fearful that the board was “influenced by outside folks with an agenda,” citing the fact that one of the people who spoke publicly at previous meetings was the lawyer for the bayfront landowner. He said he strongly opposed three things: 1. “taking final decision on PUD from village council; there will be no accountability to the taxpayers; a developer controlled or influenced commission could prevail. We have no staff support to help the commission make its decisions [we do have a planning consultant and an attorney who specializes in zoning]. Beaton said he had spoken with longtime resident and former Village president Jim Gilbert, who had offered this advice: “Get a lawyer or planner from outside the county.” [Beckett & Raeder is based in Ann Arbor and Bryan Graham’s firm is in Bellaire.] 2. “Height increase: the two districts need to be environmentally protected. Let’s explore all our options: Mott Foundation, GTRLC, and wealthy Frankfortians.” 3. “Concern that the wording was not final in one section at a previous meeting and that the commission appeared to [defer] to the developer’s attorney.” He expressed concern about preserving the beauty of the area and access for fishermen and trail users.
Arlene Sweeting (Lincoln Avenue) described a problem that occurred in Sarasota, Florida, when developers got involved in the planning process and overrode rules concerning height restrictions. Hotels were permitted that didn't conform with residential restrictions and more units were allowed when developers argued the change did not constitute an increase in density. Changes were made without the county leadership’s or residents’ input.
Kennedy briefly summarized letters whose writers had not asked for a public airing: Ryan King (nonresident) said he desires a couple of buildings over four stories and provided some example images; Jim Barnes (James Street, Frankfort; owner of EcoBuilding Products in Elberta) is not in favor of PC having final PUD say and thinks 45 feet is too high; Nancy and Patrick Griffin (Frankfort) are not in favor of the PC having final say.
00:30:00 Public Comment
Kennedy said the PC cares very much about the public’s input but wouldn’t be responding to questions or engaging in dialogue during public comment. She asked that speakers direct their comments to the Planning Commission and not toward other members of the public present. The three-minute (standard) time limit was kept by the clerk.
Bill Shaw (Washington Avenue) “Anything that changes the character of the community should be political. At the very least there should be a dollar limit. If the project is over $5 million, you [the PC] don’t want that responsibility. It should be a community responsibility. $600 million would change the character of Elberta, and that needs to involve the whole community. As far as building height, a penthouse [alone] could be 20 feet, so ’s not 45; we’re looking at potentially 65. The 45 should include the penthouse and any other structures above.”
Emily Votruba (Washington Avenue; Village Council member) I phrased my comment as a question even though I acknowledged the PC would not be responding at this time. “Could the Planning Commission actually make a decision that differed substantially from our zoning ordinance and master plan, and if they did do that, what sort of recourse would the community have? My sense is that the answer to that is no, that any decision the planning commission made would conform to our zoning ordinance which has already gone through a public process and is meant to follow the master plan, which has gone through a public process. And also every member of the Planning Commission has been appointed by council, so in effect, there is public representation to that extent. But could the Planning Commission go rogue and approve something that was just way out of our ordinance? Also: 45 feet is the maximum height for the downtown area of Frankfort. The east end of Frankfort is 50 feet, but for reference, 45 feet is the height of the burgundy building near Betsie Bay Furniture.” I also asked whether the large lots in the two districts could be subdivided.
A page from the Planning Commission’s bylaws. The PC can’t have more than one nonresident (currently that position is held by Janet Kennedy) and must consist of one council member (currently Ryan Fiebing).
Mike Palermo (Lincoln Avenue) “I don’t understand why the PC is so stuck on this 45-foot elevation. Anybody I’ve talked to that’s a resident in the village is not in favor of this, or the 50 percent structural footprint, because by the time you add parking and sidewalks, it really minimizes the amount of greenspace. As a sidebar, quit using Frankfort as an example. They haven’t had any development on their waterfront in 10 or 15 years and nothing down there is 45 feet. If we're going to compare ourselves, let’s go with a community that’s in the same situation we’re in.
Jim Barnes read from his letter and offered additional comments. He said he was not in favor of the increase in building height to 45 feet, “which cannot be denied once established as a use by right. Height restrictions will be a factor in avoiding overbuilding directly along Elberta’s coveted waterfront. I’m not in favor of having the Planning Commission be the final arbiter and decision maker. Although the Planning Commission will have done the heavy lifting with the developer to come up with a plan that should be acceptable to the Village Council, it is super important to have another set of eyes analyze the application before it's approved. Over the course of working with the developer, some members of the planning commission could become loyal to the developer and not the community. Our current Planning Commission is doing exceptionally well, but who knows who will be on it when an application is presented, and who knows who they could be most influenced by. Let’s avoid the risk of putting the final decision in the hands of an unelected Planning Commission. The village will have to live with whatever decision is made. A decision as important as this should be in the hands of the Village Council, its elected officials.” Barnes went on to praise and express faith in the current PC and Council’s decision making and quality of the members but said the composition of the groups may be different in five or 10 years when a PUD application comes in. “I’ve known Jen for 35 years. … I have all the confidence that she’s going to do great, and Michael Murphy I’ve known for 35 years too; I have confidence he can make a decision in the community’s best interest. Ryan I’ve only known for a year, but he’s counseled me on developments, he’s sent me so much information, I know so much more about development now than I ever would without the work that he’s done.”
David Caldon (of Varnum LLP, attorney for Elberta Land Holding Company, which owns much of the property in the Betsie Bay waterfront portion of the two districts) “The changes to the PUD ordinance are really good and helpful. It greatly increases the amount of oversight the Planning Commission has and gives more teeth to the building review application. Our client doesn’t have a strong preference on whether the approvals stay with the PC or go to council. Our client has confidence in the Planning Commission members and also in the Village Council.” Caldon said the PC had closely studied the building height increase over many months. “Some of the reasons I’ve heard the Planning Commission express are that it’s consistent with the master plan; it would facilitate commercial and residential development on the waterfront; it would facilitate additional housing options, create more affordable housing by increasing the housing stock, and focus development where it's intended, on properties served by water and sewer, thereby reducing sprawl.” He said ELHC supports the height and lot coverage changes. “Our client believes these changes are beneficial for these reasons: allows the village to compete with the city of Frankfort for capital investment opportunities, [creates] a potential increase in shopping, retail, restaurants, and other community investment opportunities that could bring more revenue and provide more amenities for Elberta residents” including well-paying jobs and increased property values.
Stewart Grudzien (Benzonia; owner of 213 Furnace Street) “I’m right across the street from where this would all take place.” He expressed skepticism about how much economic benefit development would bring.
John Devine (Figg Road, Frankfort) “I want to applaud all of you on the commission. It was smart to have your consultant flesh out the PUD process. It will be helpful for future development. What’s unique about Elberta is that the waterfront and the DD rims the bay, and if you get the development Elberta deserves and the economic prosperity that will help the community that's great, but you also don't want to do it at the expense of those who live in Elberta. You have to be conscious of where on a map those districts actually are and where the height will come into play; 45 is high. Frankfort may have it, but they don’t use it. The [Michael Fitzhugh–designed] building a lot of people feel is inconsistent with the downtown. I would caution against that. You guys have done a phenomenal job. Whether we have a deep enough bench in the community to fill your roles down the road, I’m not sure.
00:48:10 Hearing Closed; Discussion Among PC Members
Kennedy said the PC had received the recommendation to have the PUD decision stop at the planning commission level from the Village’s attorney Bryan Graham, and that she felt the decision about final PUD approval should be up to Council. She asked if the other PC members wanted to revise that part of the document before sending it to Council.
Murphy said, “As I interpret the attorney’s advice, policy gets made and enforced by the Village Council, and this [planned unit development approval] is considered administrative. If someone refuses to comply with zoning, it becomes a legal question. There’s got to be some good reasons for his rationale, but it sounds like we’re hearing a lot from the public that they want to be able to hold someone accountable, so if someone is elected by the community are they held to a greater standard of accountability? In theory it would make sense that they are, but that could be totally wrong.”
Fiebing said, “The attorney makes some statements about liability. Whatever the Village Council decides, I would support. I think either method of approval is great. I can see both sides. I wouldn’t want to remove it from our amendment [now], because it’s something that our attorney told us to put in.”
Murphy asked Kopriva for her “helicopter view”: “by convention, what are you seeing out in the world today?”
Kopriva said that in the past 20 years, “it’s all shifting toward the planning commission.” The change to leave these approvals in the PC’s hands is often made because litigation occurs after a council changes or denies a PC’s recommendation; “[council] gets in the weeds, or they completely deny a project that’s been approved; they end up in court and they say, let's not do that again. I have seen that shift.” In addition, she said, planning commissions have more time and opportunity to get educated about zoning and plans, and there are more resources available in terms of advice and consultants, or staff to help with the process, to fully understand the implications of various decisions and whether the community’s ordinances and standards are being met by a particular project.
00:56:58 Kennedy asked what would happen if Council decides to keep final sign-off in Council’s hands. Kopriva said another public hearing on these amendments would have to be held. Council could either send the amendment back to the PC to change and hold another public hearing, or Council could hold the hearing themselves.
Kennedy asked Kopriva what would happen if a future PC ever made a decision that didn’t align with the Village’s zoning ordinance or master plan, addressing the public’s concern about future rogue boards.
Kopriva said, “It’s a five-member board, you need three to make a decision. You do have standards in your ordinance, and that’s part of what we’re working on [what the Village has contracted with Kopriva and Graham to help the PC do, update our ordinance]—those standards have to be met, and you have to go through the process of findings of fact for each of those standards to find they’re met. Could the planning commission go rogue, three members all together? Yes, it could happen, but if you’re not following your ordinance, not basing your decisions on facts, if you don’t have justificaitons for your decicsions, if you're blatantly disregarding your zoning ordinance, a judge is going to send it back. There will be repercussions.”
Kopriva mentioned that there’s a process for removing a Planning Commission member, “probably in your bylaws.”
Murphy referenced Palermo’s comment about the increased maximum lot coverage of buildings. If the other 50 percent is paved for parking, that would create “more surfaces that will make water run fast … how do you provide more catchment or runoff mitigation? I think it’s important to address that down the road. We can’t control water events, flooding, but it’s in our control to take preventive [measures].” Murphy referenced the water catchment plantings on Forest Avenue in Frankfort and a permeable-surface parking area in the park.
Kopriva said, “As the ordinance is drafted, 50 percent is buildings only and the rest could indeed be paved. The [updated] master plan and zoning ordinance could change that. You can build stormwater management into your ordinance. Right now drains and stormwater is at the county level, but that doesn’t mean the village can’t be more strict or allow incentives or bonuses if you have permable areas for parking, etc.”
Murphy asked how such incentives would be offered.
Kopriva said, “You may want to require a certain level of stormwater mitigation and then offer incentives for more advanced efforts, such as rain gardens.”
Fiebing said the PUD process supports incentive strategies. “[PUD] requires an environmental impact study, and if owners provide catchments or rain gardens as a way to mitigate adverse effects, we’d be more likely to approve that design. As we get into more of that in the master plan, things could be added to the zoning ordinance.” Kopriva agreed and said if water management measures were in the zoning ordinance they would apply to everybody and not just planned unit developments.
1:06:34 Recommendation to Council
Kennedy made a motion to recommend to the Village Council the enactment of the zoning ordinance amendment, with a minor change to correct a typo. Murphy seconded the motion and the roll-call vote was unanimous yeas.
1:07:38 Public Comment
Grudzien asked if the commission had considered how new development would be built with only Furnace Avenue for access, whether the infrastructure was adequate to support a big building, and how environmental impact would be assessed.
Margie Devine (Figg Road, Frankfort) “As much as I respect all the work you’ve been doing, I find the outcome of today’s meeting deeply disappointing. I feel unheard and unseen, and I think you passed over the 45 foot thing completely. You spent time discussing the ultimate authority. You’re making decisions from a place of fear, fear of future legal issues rather than really trusting your heart to do what is right for this particular village, which is so unique. As much as I like you all personally, I’m very disappointed in you.”
Votruba “We have a five-person Village Council right now, and two of the members of the Village Council [Votruba and Fiebing] were appointed, not elected, because people had to leave and there was a vacancy. So: Run for Village Council if you’re a resident, or encourage people you know who are residents to run for Village Council, and that way you’ll get more of the elected representation you want.”
Pat Palermo (Lincoln Avenue) “I too am saddened by what is going on. We all know there’s development, and we want it to some extent, but every one of us searches for that place—where can I go for some peace and quiet? where can I go for some beauty? The last thing I want to see happen is for this to turn into a Mackinac type of city, and I’m afraid that’s going to happen.… It’s just sad. Thirty feet is fine.”
Barnes said he had spoken with Russ Mix, who was on the planning commission 20 years ago when ELHC submitted a plan for development. He said Mix said the commission settled on a plan then made a recommendation to the Council assuming that the Council would “nuke it,” and were shocked when Council approved it unanimously. “So you can’t make any assumptions at any level. It would be a real injustice for the community if the elected Village Council opted out of being well informed. If I as a Frankfort resident can come to planning commission meetings, it seems an elected Village Council member could come to the meetings and get up to speed. If you're an elected official you have to do the work or you're not doing your citizens justice.”
Shaw “I do think that by passing it on you’re basically endorsing it. I can’t really believe that’s true, but that’s how it seems to us. We want you to make the decision as individuals living in this community. I don’t care what a lawyer says. I don’t care what the developer person from Ann Arbor says. You’re the community members, you’re the ones that live here. If this is what you believe, that’s one thing. If you’re just doing it because the experts tell you, that’s not good enough. This is our community, it’s unique.”
Fiebing “I personally highly endorse 45 feet, as a young person who’s had trouble finding affordable places to live in northern michigan. Northern Michigan isn’t prioritizing housing enough. It’s a crisis for people in my age range. There are a lot of people here who are retired. They want to keep Elberta a small, perfect beach vacation town forever. I think other people in Northern Michigan want to live here. Elberta doesn’t even have enough people to volunteer for the Planning Commission. I think we should prioritize adding more people to our community rather than trying to keep people out. It will create a stronger community overall.”
Teri Reisner (Crapo Street) “I don’t have a problem with 45 feet as long as the footprint, the parking infrastructure issue, is taken care of. My problem is, I also belong to this small community, and I want to see it stay that way, but housing is a big problem. Has there been any talk about the value of these houses, and are they going to be affordable for peope coming in? Ryan, are you going to be able to afford one of these places? Am I going to be able to afford one of these places? Would my sister be able to? A bartender or server? The people that work here. Or is it going to be the retirement community that's buying one of these and they're gone for the winter. I have not heard one ounce about that.”
Fiebing “I think housing stock needs to be added to relieve pressure on the aging housing stock, so people aren’t renting a dilapidated house for $1,000, $2,000 a month. As newer housing is available those rents go down. Personally, I think we should prioritze adding housing, subsidized housing, market rate housing—all housing. People say this is a heart decision: I think a heart decision also would be to allow people to join the community whether or not you like the way their house looks, if it has a flat roof, or if there’s four families living in the building, so we can have a year-round community. Maybe not all of them would be year round, but more tourism also supports the people who do live here, and the 45 feet falls well within traditional village design.”
Teri Reisner said she was concerned about the proliferation of Airbnbs. Kennedy mentioned the Village’s short-term-rental ordinance, which stipulates a maximum of 25 short-term rental licenses in the Village at any one time.
Caldon “I heard some people say they were disappointed in the Planning Commission. I know I’m the attorney for the property developer, but so the public knows, the Planning Commission has spent a lot of time with its attorney and the consultant, and that does add a lot of oversight, and that does make it more difficult to develop the property if you’re not a good developer. If you are a good developer, most of the stuff in the ordinance is going to be OK to work with. …Regarding height and affordability: “It’s important for people to understand that a lot of people have offered to buy this property, and a lot of them want to build a really big home there. That certainly would not be affordable. I think the height limit really does go toward the poential for affordability. It runs to that type of development. As far as access to the property, there are easements and provisions for the public to have access to the waterfront. They’re good property owners, they’re good people, they care about what happens to the property and they want to find a developer that’s a good fit for the community.”
Mike Palermo “I’m not against development. But if you give them 45 feet and they throw an HVAC unit on top and they put those on pitched roofs too, if it’s that type of structure it’ll need a pill box or a penthouse for an elevator or mechanical room, a water tower for fire suppression if it ends up being a sprawling building, and you’re starting to look at quite a bit more than 45 feet. As far as affordable housing, you’re talking about waterfront property. I can’t afford the home that I have now, if I had to buy it today. With what single family homes are going for in Elberta now, you start throwing up condos—attracting more people could help the community, but thinking that waterfront is going to be afforable—boy, that would be nice.
Tom Reisner (Crapo Street) asked what would happen in the case of a tie vote, since there are currently four people on the Planning Commission.
Fiebing “You have to reopen negotiation and create a new motion to make a decision. The original motion would fail.”
Tom Reisner “I agree you’re not going to create affordable housing on the waterfront, but when you go to Frankfort in the winter those people aren’t here, and so you still have that community feeling. People at the Cabbage Shed park almost in my yard in the summer, and I dont like it, and I don’t go to the Cabbage Shed in the summer.”
Shaw “You actually have four people [on the commission] now, one’s absent?”
Murphy “Yes, there’s room for five. We’re hoping one of you fine people…”
Kennedy “Yes, we’ve been asking. We put an ad in the paper. So if you’re interested or know anyone …”
Reisner “So does an absentee vote count? No? So really, you’re only three. Because if I look back at the minutes, it looks like a lot of times one person is absent.”
1:29:29 Kennedy adjourned the meeting.
Water gardens on Forest Avenue in Frankfort meant to absorb street runoff were installed in summer 2022. Photo taken by Emily Votruba July 30, 2022.
