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Minutes:

Watersmeet Township Zoning Board of Appeals

Meeting of May 28, 2014 Watersmeet Town Hall

1) Meeting called to order by Chairman Edward Casey at 10:00 AM.

2) The Pledge of Allegiance was given.

3) Roll Call: Members Present: Chairman Ed Casey, Fred Duerkop, Joe Lomastro, Cheryl Pytlarz, and

Bill Neumann were present. A number of community members were present as well.

4) Chairman Ed Casey began the proceedings by stating the reason this meeting was being held. This meeting is being held to appeal the decision of the Watersmeet Township Planning Commission to grant “use by special approval” to Dan Wait and Craig Weinand to operate a vacation rental of a house on property located at E19385 Clearwater Lake Road within the Township of Watersmeet, in the State of Michigan. Chairman Casey stated that several of the appellants could not be present at this meeting and had sent letters stating their objections, to be read into the minutes. These letters are attached. Chairman Casey then read the first letter aloud. This letter (attachment 1) was submitted by neighbors Jim and Sharon Hoots and dated October 12, 2013. Since they could not attend this meeting, they authorized Jack Erhart to represent them at this meeting. Chairman Casey then read the letter submitted by Jack and Jean Erhart dated May 20, 2014 (attachment 2). Seventeen neighbors are listed on page two of this letter as being in agreement with the contents. Steve Tinti, attorney for the Wait and Weinand property owners, asked if there were signatures to which Chairman Casey replied “no”, simply a list of names and addresses. Jack Erhart asked that Chairman Casey read the letter submitted by George Natzke, dated May 19, 2014, which he proceeded to do (attachment 3). Jack Erhart asked Chairman Casey to read the final letter from Arnold and Karen Domanus originally dated September 9, 2013 and resubmitted May 22, 2014. Chairman Casey then read this letter (attachment 4).

5) Public Discussion: Julie Mathiesen of Cisco Lake asked about the contents of the documentation

package delivered to Zoning Board of Appeals (ZBA) members. Did it consist only of the letters previously read or did it also contain minutes of the various Planning Commission (PC) meetings relevant to the Wait-Weinand short term rental? Were copies of written communications between PC Chairman Roy D’Antonio and the Wait-Weinand folks available to the ZBA? Chairman Casey replied that there was no “package” as such, only the letters read and the applicable PC meeting minutes, available to the general public, were available to the ZBA members. John Sarama of Land O’ Lakes also owns several properties in Watersmeet Township. He questioned whether or not Watersmeet Township will be pursuing the property owners operating rental properties illegally? Joe Lomastro answered that neither the PC nor ZBA acts proactively as a “police state” to identify and prosecute illegal property uses. The PC depends on complaints from the public, filed with the Zoning Administrator (David Neumann) for investigation and subsequent action if warranted. Mark Erhart, the Township tax assessor, stated that in his professional capacity, he has heard countless testaments by taxpayers that what makes Watersmeet Township valuable is the peace and quiet, the overall tranquility and pristine beauty of the area, especially the lake areas. He

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cautioned that the township residents and organizations must remain very careful about embarking on precedent setting changes that could negatively impact these aspects of life within Watersmeet Township. He went on to state that he knows Dan Wait and is personally convinced that Dan and Craig would not allow activity on his property that would negatively impact the core factors that make this esoteric area attractive to the sensitivities of its full time residents. Jack Erhart stated that homes that are not selling due to the sluggish economy, is causing this rush to convert houses into short term or vacation rental units. Jack went on to state that the nearly unanimous objection of existing residents of Clearwater Lake should have prevented the issuance of the “use by special approval” to Messrs. Wait and Weinand to short term rent their Clearwater Lake property. Chairman Casey stated that the PC limited the scope of the rental operation, in this case, to the capacity of the on-site septic system. Mr. Erhart replied that while that limitation based on septic capacity is all well and good, the complaint by the residents is against the establishment of any commercial (vacation rental) operation in their single family residential lake neighborhood as defined by the Township Zoning Ordinance. ZBA member Fred Duerkop stated that the ZBA has “plenty of ammunition” to overturn the PC’s issuance of this special use permit and he has seen no documentation to show how the PC arrived at a unanimous 9-0 decision to issue the special use permit, in the first place. Pete Peterson, member of the PC, but speaking as a citizen, stated that both long and short term rental of property is allowed in the zoning ordinance because a property owner has a right to rent out his property. Short term rental requires the “use by special approval” process to ensure the applicant “does it right”, and does not disturb the neighborhood. He added that “everyone in Watersmeet Township must remain aware that property owners have rights too, not just neighbors” (who are also property owners). ZBA member Fred Duerkop read the duties proscribed by the State of Michigan for the function of the ZBA. If the PC and its zoning ordinance creates a rare condition, on the ground that is deemed “onerous” then it has the duty to rule against the ordinance and or the action of the PC. The complaints of the Clearwater Lake residents are to the potentially “onerous” long-term side effects of allowing this particular short-term rental. Mr. Pete Peterson replied that onerous side effects have not occurred at this point. In the future, if onerous conditions develop, the PC would be empowered to revoke or modify the special use permit as necessary. Attorney Steve Tinti reminded the ZBA that the duty for supplying evidence resides with the complaining party. Therefore since long-term rental is allowed in the ordinance as it applies to L-1 zoning, and short-term rental is allowed under “use by special approval” within this same ordinance, this short-term rental cannot be disallowed simply because the stated “principal use” for L-1 is single family residential. Fred Duerkop stated that based on attorney Tinti’s analysis on behalf of his clients, the Watersmeet Township Zoning Ordinance is essentially useless to regulate rentals. Mr. Tinti disagreed with that assumption. He went on to state that the Zoning Ordinance does provide protections and the applicable one in this case was the undersized septic system which was addressed in the conditional nature of this particular approval. Cheryl Pytlarz asked if the PC went down the list of requirements specified under section 7.09B.2.a-e with a check-off methodology. Roy D’Antonio, Chairman of the PC, said that when this matter was first heard in September of 2013, the only area in which the PC could gather hard evidence was item-(a) which asked the septic / water supply question. The second hearing by the PC on the matter was this spring when the septic capacity was verified and the limitation of four people was placed. Subsequently, occupancy of this home was limited in the special use permit to this capacity until and unless that septic capacity is increased. Cheryl recommended that a check list be filled out in the future by the PC to help the ZBA if an appeal is subsequently filed. Chairman Casey reminded all present that this appeal is based on items 7.09.2.(b-d). ZBA member Cheryl Pytlarz then asked if the PC discussed specifically items b-d at the public hearing as no details of that discussion appeared in the meeting minutes. Pete Peterson

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responded that he doesn’t write the PC minutes but believes everyone considered these issues, but also stated that his personal concerns are to issues of public health, general welfare and public safety. Jack Erhart pointed to the difference in lake use by the resident vs. the short-term renter. Long term renters presumably use the lake in ways similar to land owners which is to say; occasional and appropriate to the actual body of water. The short-termer or weekender brings an attitude of cramming in as much fun as possible as the clock ticks, on this natural aquatic water park. This occurs quite possibly without concern for either the immediate or long-term effects of these activities. Julie Mathiesen spoke in agreement to the above. She also agreed the septic requirements are reasonable and supported by state law. She continued however, that the PC did not consider all factors as she was present at both public hearings. She also stated that a web site currently advertises this property as sleeping up to fourteen persons even though the septic is currently only sized for four. Fred Duerkop spoke to his concern that items 7.09.b&c were not thoroughly discussed by the PC and suggested that the ZBA send the matter back to the PC to correct. Cheryl Pytlarz asked if this was a motion or should the ZBA begin discussing all of the matters brought up. Frank Kichak, a neighbor said that last year he counted sixteen people at the residence in question. He asked who would enforce the limit on renters. Julie Mathiesen asked how the PC or the public will know when and if the septic is upgraded to handle the needs of the advertised number of renters. Dave Neumann, the Zoning Administrator was asked how many special use permits have been issued within this township. He replied that in his seven years of service to this community, he has processed four short-term rental special-use permit requests. Judy Kichak stated that her experience with renters is that a lot of supervision is required as her own rental property in Ironwood has been often trashed, in the past. Jean Erhart stated that she and her husband as well as the other home-owners on Clearwater Lake bought their property to live on as non-commercial private residents. Mr. Wait and Mr. Weinand bought their property with the intent to rent it out as a commercial investment. Craig Hesse, owner of the Vacationland Resort stated in detail that his commercial resort operation is taxed and regulated as such, by the state. He feels that extending the right to small operators to operate these commercial mini-resorts as vacation rentals under the radar so to speak is unfair to the legitimate commercial business operators such as he and his wife, and is indicative of a decidedly unlevel playing field

being tilted by the township.

6) ZBA Discussion began with Cheryl Pytlarz reiterating that the ZBA does not have sufficient evidence of discussion of items b-d under 7.09B.2 by the PC. Dan Wait spoke to his nearby personal residence and guaranteed that complaints against his guests would be resolved personally and rapidly. Since he has not begun operations, there is no evidence of harm to any of the appellants. Cheryl Pytlarz proffered that maybe the ZBA should look at the application of items a-e under 7.09B.2 and rule based on the majority being satisfied. Item (a) has been addressed regarding the septic. Item (e) regarding traffic doesn’t seem to apply. Item (b) does not apply as long-term rental is allowed as a primary permitted use with long term rental being completely unregulated and short-term rental allowed as a “special use”. No evidence exists in this area that property values have been reduced as a result of the other short-term rental property existing on Clearwater Lake. Therefore item (d) doesn’t seem to apply either. This leaves only item (c) which is to say the neighbors don’t like it, on general principals even though operation hasn’t begun and no actual complaints have been registered. Therefore at least three out of five concerns have been addressed and satisfied. Bill Neumann offered comments wherein he agreed with Mr. Hesse that commercial operation is commercial operation whether it is short-term rental property, a B&B or a resort. He went on to suggest that the state is responsible for correcting this detail.

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7) Resolution: Joe Lomastro made a motion to rule that the PC did the correct thing in this case even

though he has basic disagreements with the Township Zoning Ordinance as it applies to short-term rental. Cheryl Pytlarz supported Mr. Lomastro’s motion with the same comments and reservations. A roll call vote was called for with Joe Lomastro voting aye, Bill Neumann abstained as he feels more information from the PC is necessary. Cheryl Pytlarz voted aye. Ed Casey voted aye, Fred Duerkop affirmed but stated that the PC needs to do a better job in the future. The total was four aye and one abstention in support of the Planning Commission decision to allow the Wait-Weinand “use by special approval” as issued.

8) Adjournment: Motion to adjourn at 11:45 AM by Cheryl Pytlarz, and seconded by Joe Lomastro, A unanimous yes vote followed.

Respectfully submitted by,

Richard Henriksen – Secretary pro-tem

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