STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR THE COUNTY OF GRAND TRAVERSE.
CONCERNED CITIZENS OF ACME
TOWNSHIP, a Michigan nonprofit corporation,
Plaintiff,
Case No. 05-24483-CH (Consolidated)
HON. PHILIP E. RODGERS, JR.
v
ACME TOWNSHIP, a Michigan general
law township, and the ACME TOWNSHIP
BOARD OF TRUSTEES,
Defendants/Third-Party Plaintiffs/
Counter- Defendants,
v
VILLAGE AT GRAND TRAVERSE, LLC
and MEIJER, INC.,
Intervening Defendants/Third-Party
Defendants/Counter - Plaintiffs,
and
In re VILLAGE AT GRAND TRAVERSE, LLC and MEIJER, INC.
and
CONCERNED CITIZENS OF ACME
TOWNSHIP, a Michigan nonprofit corporation,
Plaintiff
v
VILLAGE AT GRAND TRAVERSE, LLC and
MEIJER, INC.,
Defendants.

James F. Pagels (P32242)
Attorney for Plaintiff

Christopher M. Bzdok (P53094)
Tracy J. Andrews (P67467)
Jeffrey L. Jocks (P67468)
Attorneys for Defendants/Third-Party Plaintiffs/
Counter-Defendants

Timothy A. Stoepker (P31297)
Peter H. Webster (P48783)
Attorneys for Intervening Defendants/
Third-Party Defendants/Counter-Plaintiffs

Brian G. Goodenough (P42347)
Thomas R. Meagher (P32959)
Ronald D. Richards, Jr. (P61007)
Co-Counsel for Counter-Defendants/Third-Party Plaintiffs
Kenneth M. Petterson (P43416)
Co-Counsel for Third-Party Defendants

DECISION AND ORDER AND FINAL JUDGMENT
      Plaintiff/Appellant appealed the October 29, 2004 approval of a Special Use Permit ("SUP") by the Acme Township Board regarding a project identified as "The Village at Grand Traverse Mixed Use Plan Development." The project was proposed by the Village at Grand Traverse, LLC. The record below was certified, the parties filed briefs and the Court entertained the oral arguments of counsel. At the conclusion of the oral arguments, the Court took the matter under advisement to further review the briefs and exhibits. For reasons that will now be described, the Special Use Permit authorized by the Acme Township Board did not comply with its Master Plan, is inconsistent with the Township's authority to review and approve, modify or deny site plans and must be vacated.
     
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      Standard of Review
      The standard of review by the Circuit Court of the Township's decision is whether such decision was supported by competent, material and substantial evidence upon the whole record. Const 1963, art 6,  28. Art 6,  28 provides as follows:
      All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law. This review shall include, as a minimum, the determination whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record.
      The Circuit Court is the proper court to review the Township's decision because circuit courts have appellate jurisdiction from all inferior courts and tribunals except as otherwise provided by law. Const 1963, Art 6,  13. See, Carleton Sportsman's Club v Exeter Twp, 217 Mich App 195; 550 NW2d 867 (1996).
     
      Master Plan
      The Township's Master Plan is found at R Vol 1, No. 15 and is comprised of an original Master Plan dated 1999 and a Town Center Report to the Master Plan dated 2001. The Township's Master Plan foresaw a traditional village concept for its Town Center, one that preserved natural resources and would "build-out neutral." The Town Center itself was described as a traditional type of small town layout that would be pedestrian oriented and would look more like the village of Elk Rapids than a suburban mall. It would be adjacent to walkable neighborhoods like those found in Traverse City. The Master Plan best describes the Township's view of this development as follows:
      When people think of Acme, they think of this area in the same way that
      "Elk Rapids" evokes the charming main street of that village. Parking would be located on
      the street and behind the buildings in small public parking lots.
      Master Plan Town Center Report at p 10.
      The project approved by the Acme Township Board bears no resemblance to the Villages of Elk Rapids or Suttons Bay. It does not have a small town appeal. It is a regional shopping mall.
     
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      The planning consultant, Joel Russell, who assisted in the development of the Township's Master Plan reviewed the parking areas and their relationship to building footprints and drew the conclusion that the project was a suburban shopping center and not a traditional village. R Vol 4, No 25, tab 40, Joel Russell Report, p 11.
      Clearly, the Township Board's approval of a Special Use Permit for a regional shopping mall cannot be consistent with its Master Plan. It is not to say that this Township may never approve a regional shopping mall. Significant regional shopping malls are presently located in Garfield Township and may one day be built in Acme Township. However, nothing in the record before the Court explains how the project as approved is claimed to be consistent with the traditional village concept embodied in the specific Master Plan references to Elk Rapids or Suttons Bay. Mr. Russell described this best in his report where he stated:
      I don't think this plan shows much resemblance at all to the pattern of traditional villages in the region. Your explanation of the commercial reasons which this is so does not justify waiving the requirement. If this requirement is impractical, then the Zoning Ordinance should be changed to reflect changed objectives or "new realties." The Township Board can, if it so chooses, decide that the new urban village concept is impractical, but it should do so consciously. . . if the Township wants to allow [a suburban shopping center as an alternative to what the Town Center zoning requires, it should amend its ordinance accordingly. R Vol 4, No 25, tab 40, p 8.
     
      While this Court is aware that the specific zoning associated with the Town Center Report was invalidated in a prior ruling from this Court, the Town Center Report is the Township's description of its vision for development on this property. No portion of the Township's Master Plan supports the development of a regional shopping mall.
      The Michigan Legislature has strongly endorsed planning to promote public health, safety and general welfare. MCL 125.322; MCL 125.273. Michigan courts have also recognized the importance of planning. In Padover v Farmington Twp, 374 Mich 622, 639; 132 NW2d 687,695 (1965), Justice Adams said:
      'Township government is the entity entrusted with local land use decisions. Township trustees are locally elected and are generally responsive to their electorate. Within this Circuit, Garfield Township has shown a propensity for substantial growth and development. The record in Acme Township embodies a philosophy that growth be orderly and consistent with a small town atmosphere. The variation in approach to land use has been considered both economically and politically healthy.
     
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      Unless the pattern is set and followed, proper growth can never materialize. The alternative is to pay the price in crime, juvenile delinquency, inadequate sewers, inadequate roads, inadequate schools, inadequate parks, and, worst of all, inadequate human beings--a pattern that has been all too clearly evident upon the American scene. A city, village or township, is entitled to work out a better destiny for itself under such clear statutory authority.
      Troy Campus v City of Troy, 132 Mich App 441; 349 NW2d 177 (1984) was an action challenging a zoning ordinance restricting the use of land to single family detached dwellings, churches, schools, nonprofit swimming pools, noncommercial recreational areas, and golf courses. Testimony supported the conclusion that a single family subdivision plat on the land would violate a number of planning principles. In reaching this conclusion, the Court said:
      A zoning ordinance, as an exercise of the police power, must bear a
      reasonable relationship to the public health, safety, or welfare. Janesick v Detroit, 337 Mich 549, 556; 60 NW2d 452 (1953). A zoning ordinance is invalid if it fails to advance a legitimate governmental interest or if it is an unreasonable means of advancing a legitimate governmental interest. Kropf v City of Sterling Heights, 391 Mich 139, 158; 215 NW2d 179 (1974).
     
      The test of the validity of a police power regulation requires a balancing of the public interest against the private interest.
     
      See also, Saba v Township of Monroem, 394 Mich 531; 232 NW2d 584 (1975). ("A proposed use should be permitted if reasonable under all circumstances.")
      In the instant case, the Village project cannot be rationalized with the Township's Master Plan. The entire population of Acme Township according to the 2000 census was 4,332 persons. Built out, the Village would provide 796 units of housing and itself increase the population of the Township in excess of 50 percent.
      On the commercial side, the project is acknowledged to contain square footage greater than that of the two regional shopping centers in Garfield Township combined. The significant traffic issues associated with this development have not been fully researched. To the extent they have been documented as a part of the certified record, it is evident that significant road improvements will be required for which there is no present funding. Minutes of June 8, 2004 Traffic Meeting, R Vol I, No 22.
      Having reviewed the Village's Concept Site Plan and the Township's Master Plan, it is evident that there is not material, substantial and competent evidence to support the Special Use
     
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      Permit. To the contrary, no rational, thoughtful township official could possibly find that this proposal is consistent with a walkable community of quiet pleasant streets akin to the older neighborhoods of Traverse City or the Villages of Elk Rapids or Suttons Bay. If a township of 4,000 residents is going to approve a regional shopping center that will impact several counties, such approval must be consistent with the Township's own Master Plan.
     
      Site Plan Review
      The Township professes to have a two-stage approval process. In other words, a special use permit can be granted without the submission of economic, environmental or traffic data. Theoretically, these studies are submitted at the time of site plan review and may be independent grounds for rational and reasonable approval, modification or disapproval of the proposed project. The two-step review process is described in Section 8.22.5 and reads as follows:
      (1) A mixed use planned development application shall be submitted to the
      planning commission and township board for review and approval following the procedures set forth in Sections 8.1.2(3) and (4).
      (2) Upon issuance of a special use permit for a mixed use planned development, the developer shall request site plan approval for all or any portion of the proposed development prior to the issuance of a land use permit for any construction.
     
      The mixed use development at issue was not authorized under the unconstitutional Town Center zoning provisions but under the Township's zoning provisions for mixed use planned development. The standards for such a development include those specifically designed for mixed use planned developments and the general SUP standards. These are found in sections 8.22.4 and 8.1.3 of the Zoning Ordinance. If a project receives approval with respect to these standards, then a conceptual SUP is issued and site plan review follows. Standards for site plan review are found in section 8.1.3(4). Site plan review is intended to be meaningful and contemplates approval, modification or denial of projects which have received conceptual approval. This interpretation of the Township Zoning Ordinance is consistent with the Rural Township Zoning Act which similarly provides that "decisions rejecting, approving or conditionally approving a site plan shall be based upon requirements and standards contained in the zoning ordinance, other township planning documents, other applicable ordinances and state and federal statutes." MCL 125.286c.
     
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      While one can criticize the grant of a conceptual SUP for a regional shopping center in the absence of marketing, traffic and environmental data, the process is legally sufficient so long as the site plan review process is meaningful and the Township retains the authority to approve, modify or reject the project based upon the reasonable implementation of those requirements and standards described in the Rural Township Zoning Act. MCL l25.286c. Construction may not lawfully begin until after the site plan is approved, and, therefore, vested rights may not arise until after site plan approval. See, Section 8.22.7, Township Zoning Ordinance.
      With this two-stage approach to zoning review, the Village was granted a conceptual SUP in the absence of any traffic studies, environmental review or an evaluation of economic impact. Given the scale of this project and its predictable impact on population, traffic and other businesses within northwestern Michigan, sound discretion would have required that these studies be produced prior to granting conceptual approval. While that was not done and while the failure to do so is not illegal, it strains credibility to suggest that having failed to require and evaluate this data that the Village would be guaranteed approval of its project subject only to cost allocation as to how road improvements or environmental remediation might be accomplished.
      The Township Zoning Ordinance provides that a Special Use Permit may not be approved and a site plan issued unless the issues of traffic are reviewed and approved. Traffic issues include vehicular and pedestrian circulation within the project itself and ingress and egress to the project and the impact on "affected public services and facilities." Sections 8.22.4(1) and (6) and 8.l.3(1)(a) and 8.l.3(4)(q).
      The environmental impact of a proposed project must also be reviewed and approved. A Special Use Permit and an approved site plan require compliance with environmental standards. Sections 8.22.4(1) and (7) and 8.l.3(1)(a), (b) and (4)(f).
      Finally, a study of the market and economic impacts of the project must also be completed. An affirmative finding with regard to the market study must be based upon a determination that the project will "promote the use of land in a socially and economically desirable manner and be designed to protect the. . . economic well being of those who will use the land use activity under consideration, residents and landowners immediately adjacent to the proposed land use activity, and the community as a whole." Section 8.l.3(1)(a) and (b). Emphasis added.
     
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      Here, significant hurdles to the granting of a Special Use Permit and an approved site plan include the consideration of traffic, the environment and market impact. The proposed project is not one which may be assessed simply relative to its impact on other commercial enterprises within the Township but must be analyzed with regard to the community as a whole. The shear magnitude of the Village suggests the prospect of not only empty store fronts on the main streets of Elk Rapids, Suttons Bay and Traverse City, but also of empty store fronts in existing strip malls as well as the regional malls known as the Grand Traverse Crossings and Grand Traverse Mall. Also, there will be a significant increase in population within Acme Township and a massive increase in traffic associated with this development.
      If the Special Use Permit was properly approved by the Township Board, the Village would have to be consistent with the Township's Master Plan and the site plan review process also would have to be meaningful. However, the SUP as granted strips the Township of meaningful site plan review and serves merely as a cost allocation device to lessen the traffic impacts of a project that is approved in all other respects. The SUP speaks in terms of responsibility for necessary infrastructure improvements and special assessments for such improvements. The only disputes subject to judicial review are those regarding monetary contributions for infrastructure improvements. Traffic, environmental and market studies have been reduced to mere formalities that do not provide the Township authority to rationally and reasonably modify or disapprove the project.
      While this Court has labored in pre-trial proceedings to avoid comment on the politics in Acme Township, it is evident that here they rear their ugly head. The approval of a project of this scale has been the subject of ongoing debate within the Township and lead to the unprecedented removal of Acme Township's entire government in the last election. The lame duck trustees lawfully moved forward and handled Township business during the remaining portion of their terms and lawfully reviewed this project as an agenda item. They abused their discretion, however, in approving this project and attempting to prevent a future Township Board from engaging in meaningful site plan review. The lame duck trustees did so by approving a regional shopping mall not contemplated by its Master Plan and by granting a form of Special Use permit that made findings relating to the environment, traffic and the market without having yet had those studies submitted.
     
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      The specific finding contained within the SUP at (xi) is as follows: "... the proposed is in accordance with the spirit and purpose of the Ordinance since the application is what is contemplated when the mixed use planned development section of the Acme Township Zoning Ordinance, Acme Township's Master Plan and Smart Growth Objectives as set forth in the applicant's narrative." This "fact" is simply wrong. As shown in the previous discussion, a regional shopping center of this massive scale is not contemplated by Acme Township's Master Plan. If the Township desires such a development, it is free to amend its Master Plan.
      Finding (xii) states that the project does not have adverse economic impacts on the east one-half of Section 3 or the west one-half of Section 2. This "fact" is not supported by any market data and is economically disingenuous. Any rational assessment of this development must consider the impact it will have on the community as a whole. If such a project is to be developed and staged over time, it must be with recognition that the decisions made by the representatives of 4,000 residents will reverberate throughout northwestern Michigan and impact commerce well beyond this Township's borders. If a rural township government is going to make such decisions, it must be expected that potential adverse economic, social or environmental effects be seriously considered and assessed as part of the approval process.
      The SUP approved by the Township Board removes the provision recommended by the Planning Commission that would make a traffic study a factor in the overall approval process. Instead, this consideration of traffic has been reduced to a determination of monetary contributions for infrastructure improvements.
      Similarly, environmental impact is not a factor in approval. In approving the SUP, the Board eliminated any reference to an environmental study and required best management practices in controlling storm water and a wetland delineation. The Court is not suggesting that the Village is unwilling to implement a state of the art storm water system or that it would be insensitive to the environment. Quite to the contrary, counsel for the Village have indicated a desire to maximize environmental benefits associated with its project and to provide state of the art methodology to minimize adverse environmental impacts. The point is that the lame duck Township Board illegally stripped its successors of the ability to determine what these environmental impacts are and what appropriate remediation should be made or whether or not the project is incompatible with the environment. Decisions granting, altering or denying the project must be made reasonably and rationally in concert with existing law. The Township may
     
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      not act arbitrarily or capriciously in evaluating a development proposal nor may it entirely abdicate its responsibilities.
      Similarly with regard to the market study, the proposed project is not a small strip mall which has a set of economic consequences largely limited to Acme Township. It is intended to have a far greater reach. A project of this scale cannot survive unless it attracts customers from throughout northwestern Michigan. Such a development will have some adverse impact on existing businesses within Grand Traverse and its contiguous counties. The Planning Commission appropriately recommended that a market study be completed and that such a study justify and support the development before overall approval be given. Yet, nothing contained within the SUP as presently issued would provide the Township Board with the authority to modify or disapprove the project based upon a rational and reasonable assessment of adverse market impact.
      Conclusion
      For reasons that do not appear within the certified record, the predecessor Township Board provided conceptual approval to the Village's SUP without amending its Master Plan and for a project the scale of which is grossly inconsistent with its Master Plan. No competent, material and substantial evidence has been presented to this Court that would support the notion that this project bears any reasonable relationship. to that "charming main street" envisioned within the Master Plan. The Township may approve a regional shopping center but such an approval will require an amendment to the Master Plan.
      Having provided conceptual SUP approval, the prior Township Board then stripped itself of meaningful site plan review and eliminated any meaningful control over the scale of this project with regard to traffic issues, environmental impact and potential adverse market conditions. Such approval is inconsistent with the two-step review process described within the Township Zoning Ordinance. The Township Board may not abdicate its authority under its own Zoning Ordinance without properly amending the Ordinance. Ordinance amendments are subject to referendum, a right which does not exist with regard to administrative determinations. Here, the Township not only implicitly rewrote its Ordinance to provide a qualitatively different type of site plan review than is otherwise required, it did so with respect to such key issues as traffic, the environment and a market study for a project that will obviously have
     
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      regional economic consequences. It is startling to learn that a rural township government rejected by its own citizens would approve a commercial project the scale of which dwarfs even the most intense commercial development presently within Grand Traverse County and do so in the absence of meaningful traffic, environmental and market studies. The notion that a township board could exercise its discretion so cavalierly and so irrevocably change the nature of the township and the county shocks the conscious.
      Significant commercial development has occurred in Grand Traverse County. Such development has proceeded in the face of referenda, litigation and political challenge. Despite such hurdles, these developments have been constructed and appear to be commercially viable. There is no reason in the law or in this record to allow Acme Township's prior Board to so irresponsibly deviate from the reasonable procedures and standards created by township government and endorsed by state statute as preconditions to a meaningful change in land use. This Court finds that in approving the conceptual SUP, the prior Township Board attempted by administrative permit to create approval for a project without meaningful site plan review. The attempt to do so violates the Township's own Ordinance and renders the Special Use Permit invalid.
      Accordingly, the Court hereby vacates the Special Use Permit and returns this matter to the Acme Township Planning Commission for a determination regarding a resubmitted project that can rationally be shown to bear some reasonable relationship to the Township's Master Plan. Alternatively, the Township may wish to amend its Master Plan in a fashion consistent with the scale of this project. In either event, a conceptual Special Use Permit may not obviate the requirement for meaningful review of all aspects of the project described within the Zoning Ordinance and which are obligations of the Township as the body responsible for determining land use.
      The delays associated with this process are inherent to the regulation of land use in an ordered democracy. Land within the Township does not appear to have become less valuable and the developers' purchase of substantial acreage for a significant price is not a factor which should be of consequence in determinations made at the Township level.
      Ultimately, the Township must consider this project rationally and reasonably and apply its Ordinance in a fair and evenhanded manner. Any project approved must be consistent with
     
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      its Master Plan and its Zoning Ordinance. Such consideration will surely require that more than lip service be paid to the social and economic ramifications of this project.
      For all the foregoing reasons, the appeal is granted, the Special Use Permit vacated and the project remanded to the Acme Township Planning Commission for further review. Consistent with these rulings, the remaining issues contained within this litigation are rendered moot. The issues were of public consequence and no costs or sanctions will be imposed.
      IT IS SO ORDERED.
      This opinion resolves the last pending claim and closes the case.
      HONORABLE PHILIP E. RODGERS, Jr.
      7/06/0