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Keweenaw Development

Some Harbor Web Editor Views On Keweenaw Development Issues

November 5, 2000. Letter to Zoning Board of Appeals

Regarding Determination of Permitted CD-EP Uses

Dear Chairman Heikkila and Board Members:

It is my understanding that you are scheduled to meet on Thursday, November 9, 2000, and may at that meeting consider whether a "ski hill" or a "ski resort" should be considered as a Permitted Use within the CD-EP zoning district.

While the result of the Proposal B referendum may render the determination moot, at least as it pertains to the 680 acre Mt. Bohemia property, I understand that you may decide to consider the matter as it might pertain to the thousands of additional Keweenaw acres also zoned CD-EP.

I write to convey my assessment that a "ski hill" or "ski resort" are neither consistent with the stated purpose of the CD-EP District, nor would either use fall within a reasoned and record based interpretation of the phrase, "low intensity recreational uses such as…" as set forth in the listing of CD-EP Permitted Uses. I also argue that Ordinance amendment, not interpretation, is the stipulated Ordinance procedure for adding uses not specifically already permitted. I offer as an alternative, the option of recommending to the Planning and Zoning Commission, and County Board, that they establish, by Ordinance amendment, "ski hills" (but not "ski resorts") as a listed Special Use within the CD-EP District.

I would prefer to present these views in person, but your meeting date conflicts with the monthly meeting of another Keweenaw organization that I serve as treasurer.

I am enclosing my October 31st, Keweenaw Issues commentary pertaining to the issue of "low intensity use". It focuses on the economic impact claims of the Lac La Belle ski hill promoters, and attempts to show the inconsistencies between those claims and the promoters further contention that a ski hill is a "low intensity recreational use". In that context, I offer the commentary as germane to your Thursday deliberation.

In making your determination as to whether a "ski hill" or "ski resort" should, by interpretation rather than amendment, be authorized as a Permitted Use within the CD-EP District, you are governed by the language of the Ordinance itself, particularly the Sections dealing with the Board of Appeals, Interpretation (1.5), and, in this case, the stated purpose for which the CD-EP District was created. That language reads:

The CD-EP District, "has been created to account for lands designated as part of an open space system to preserve total environmental character, particularly in connection with conserving significant natural resource characteristics found within the county and encouraging multiple use forest activities where appropriate." The Ordinance then lists five specific conditions of lands to be so protected.

It's difficult to assess what underlying motivations were involved in the 1975 establishment of the CD-EP District (few records of those proceedings), but the language, including the listing of land conditions, suggests the intent was two fold. To protect lands unsuitable for development (flood zones, unstable soils, etc.), and to protect lands from development so that they would be available for forestry or mineral extraction. In a sense a "holding action". I suspect there was also the recognition that land so restricted would justify lower taxable values.

Until and unless the County Board designates a parcel zoned CD-EP otherwise, the presumption must be that a parcel zoned CD-EP continues to be needed for the purposes for which it was created. Given that, a "ski hill" or a "ski resort" must be viewed as uses inconsistent with the stated intent of the District. Such uses neither protect lands unsuitable for development, nor do they protect lands from development so that they would be available for forestry or mineral extraction.

The Ordinance then identifies three Permitted Uses and two Special Uses. Two of the three Permitted Uses, Forestry and Extraction, were previously and specifically identified as among the purposes for which the CD-EP District was created. The origins of the third Permitted Use, Low-Intensity Recreational Uses, and the two Special Uses, Hunting Lodges and Sanitary Landfills, are less clear.

It's significant to note, however, that all of the identified "such as" low-intensity recreational uses, and the two specifically identified Special Uses where already established within lands designated CD-EP when the Ordinance was adopted. (I assume "Sanitary Landfills" was considered as a more acceptable term for the many "bear pit" trash and garbage dumps.) It would not be unreasonable to assume that their inclusion in the Permitted and Special Uses was intended solely to accommodate established uses. The same procedure was utilized in the identification of Permitted and Special Uses within the other newly created Zoning Districts.

It's also worth noting that two of the identified uses, Hunting Lodges and Sanitary Landfills, were apparently considered sufficiently unique that any expansion of the then existing uses or new such uses would require individual review by County Planning officials. They were thus classified as Special Uses. If a Hunting Lodge was considered sufficiently unique to require individual review, certainly a "ski hill" or "ski resort" would be.

I would argue, therefore, that it would be reasonable to interpret the language contained within the identification of Permitted Uses in the CD-EP as intended solely to be inclusive of the identified already established "such as" uses. I would further argue that there is no evidence, either within the record of the proceedings leading to the adoption of the language, or the circumstances of that time, to justify an interpretation that the language "such as" encompasses uses not mentioned.

If the County wishes to add either "ski hills" or "ski resorts" to the listing of Permitted Uses or Special Uses within the CD-EP District, or any other District, the remedy, as set forth in the Ordinance, is amendment, not interpretation.

It seems implausible and totally inconsistent, that County officials, having just recently determined that it was necessary to amend the Ordinance to permit a ski resort in the Resort Service District, a far less restrictive district, would now consider allowing such a use in the CD-EP simply by interpretation.

Providing for the consideration of a "ski hill" as a Special Use would be most consistent with Ordinance's handling of uses with unique operational and impact characteristics that deserve additional review by County planning and zoning officials.

If, for whatever reason, you decide to set aside considerations related to the purposes for which the CD-EP District was created, and considerations related to the listing of Permitted Uses within that District, and base your judgement solely on whether an operating ski hill or ski resort is a "low intensity" use of land, I direct your attention to my attached Keweenaw Issues commentary. In it I state why I believe the operation of a ski hill, and especially a ski resort, while in some circumstances a desirable use of land, can hardly be viewed as low intensity activities.

I believe strongly, however, that to limit your deliberation to just the "intensity" question moves the matter completely out of the context of our Zoning Ordinance and its purposes. Your duty is not simply to find justification for classifying "ski hills" or "ski resorts" as low intensity activities. I submit that you must also justify the inclusion of such uses among Permitted Uses in the CD-EP District as consistent with the stated purposes for which the District was created, and permissible without amending the Ordinance

As I hope is evident from the content of this letter, I am no stranger to the difficulties associated with zoning and zoning ordinances. I spent the initial sixteen years of my work career in service as a city planner and city manager, devoting a good deal of my energy to developing and administering zoning ordinances. I subsequently worked for one of our country's major commercial developers, having the opportunity to address the variety of challenges private sector property developers and owners encounter in the scores of zoning variations that exist throughout the country.

I thank you for your consideration of my comments, and will be pleased to assist you in your difficult and important work in any way I can.


George Hite

cc. Jane Pelto
Keweenaw County Zoning Administrator

For earlier Harbor Web Editor correspondence on Keweenaw development issues, please go to: Opinion

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