Report on Revising the "New" Elmwood Zoning Ordinance, With Special Reference to the AO-1 District

by Erik Saxon, Derith Smith, and Steve Van Zoeren

This report was prepared at the request of the Board of Trustees by Erik Saxon, Derith Smith, and Steve Van Zoeren, with contributions by a number of other individuals.

After the new Elmwood Zoning Ordinance was passed by the Planning Commission and the Board in December 2002, it was brought to a referendum vote and defeated by a 3-1 vote. The purpose of this report is to suggest how, in the opinion of its authors, we can go about the task of revising the new ordinance in such a way that it will pass muster with the voters.

We should make it clear at the outset that this report does not contain alternative language which can simply be substituted here and there within the failed ordinance to make it better. The issues we raise below are difficult and complex. One of the problems with the process that generated the new ordinance-and one of the reasons it failed-is that these questions were shortchanged. All the topics discussed below under "Specific Recommendations" deserve a fuller and more careful discussion than can be accomplished here.

Rather, our goals here are to help define the process and agenda that will have to be followed to produce an acceptable zoning ordinance, not to provide the specifics of that ordinance. If and when these questions arise for discussion, we will be more than happy to contribute suggestions and to participate, if we are allowed, in the discussion.

But the final responsibility for addressing the issues will lie with you, the members of the Planning Commission. What we are proposing here is that these are the issues you must address. If you don't care for our suggestions, it is of course your privilege to accept other solutions. But address them you must. These are important issues which, in our opinion, cannot be ignored.

In what follows, our suggestions are of two types. One set has to do with the process by which a revised ordinance should be created; the other with some specific, substantive issues. Let's begin with the process.

Recommendation #1: Broaden the composition of the Planning Commission to include representatives of the diversity of views in our community on these issues. In particular, include representatives of that broad majority of township residents who are concerned about issues of sprawl, planning, and rapid development.

We want to begin by acknowledging the efforts of the Planning Commission. You work long hours, for nominal pay, out of a concern for your community's well-being. We believe that every member of the Planning Commission who was involved in the production of the ordinance did their best to produce a document that they, and the community, could be proud of.

Nevertheless, we must acknowledge the ordinance produced was unsatisfactory to the great majority of township residents. How did this happen? One important reason, we would argue, is that this commission has not included members who represent the broad spectrum of views present in our community, and that those who have represented those views have been removed.

Of course, the Planning Commission is not responsible for its own membership. You do not appoint yourselves, or your fellow commissioners; that responsibility lies with the Board of Trustees. Nevertheless, we believe it is important at the outset to say that one important reason that the earlier draft was at odds with what the voters of Elmwood want is that lack of diversity on the body that authored it; and that it will be difficult to fix the ordinance until the Planning Commission's composition is broadened.

Recommendation #2: Welcome and encourage input from the public, even when that input may disagree with your own views.

Another important way to develop a zoning ordinance that agrees with the wishes of the public is to allow, in fact encourage, them to participate in your discussions.& Elmwood is a small community. The meetings of the Planning Commission are not so packed with spectators that artificial limits need be placed on the amount of their contributions. Rather, we would encourage you invite and attend to public comment.

Recommendation #3: Respect and use the input of your professional consultants

The process that led to the creation of the failed new Zoning Ordinance goes all the way back to the drafting of the Master Plan. Along the way, several different firms and consultants were used, most recently Leslie Sichterman of Gordie-Fraser.

These firms along the way proposed many useful suggestions and approaches. Although some were accepted, all too often those, which conflicted with or led in directions away from the agenda of the township board were rejected or ignored.

Pay attention to your professionals. They are experienced; they have something to offer. Often they can provide creative technical solutions to difficult problems.

Recommendation #4: Respect and follow the Master Plan

Besides the public and your professional advisors, there is a third entity which should have an important voice in the formulation of the Zoning Ordinance you are charged with producing -- the Elmwood Township Master Plan.

The Master Plan has a special status in the drafting of this and every other good Zoning Ordinance.

First of all, it is the statutory basis for the zoning ordinance. As the Michigan Township Planning Act of 1959 says, the Master Plan is "the basis on which the zoning plan is developed."

Second, it represents the fruit of a sustained attempt to gather and account for the opinions of the township's residents. In 1996, as part of the preparation for the drafting of the Master Plan, a Community Attitude Survey was done. 1,800 surveys were distributed. 715 were returned and tabulated. This rate of 40% was very high. As the survey's authors said, "The response rate alone indicates the residents intense interest in the future development of the Township" (Master Plan, p. 31).

However, the Master Plan played little role in the drafting of the failed ordinance.

Insofar as the Master Plan was mentioned at all in the process of its drafting, it was often as an obstacle to be overcome. At one point, when a contradiction between the Master Plan and the ordinance being produced became too obvious and flagrant, the Master Plan was actually amended by the Board. But for the most part it was ignored.

The implementation of the Master Plan's recommendations must be the starting point and the guiding light of any process that will produce an acceptable zoning ordinance for Elmwood. We will have more to say below about the guidance that the Master Plan offers on various specific issues.

These are, we believe, the corrections to the drafting process that must be made if we are to have any hope of producing a satisfactory zoning ordinance. Now let us turn to some more specific policy recommendations.

Specific Recommendations for Problems that Must Be Addressed in the New Zoning Ordinance

Recommendation #5: "Balance the rate of land development with the availability of public facilities and services such as adequate roads and public water and sanitary sewer systems. Encourage development where those types of facilities and services exist." (Master Plan, p 33)

One important issue which must be addressed and which is almost completely absent from the failed ordinance is that of distribution.

One of the most important themes of the Master Plan and one of the cardinal principles of good land use planning is that incentives should be provided to encourage development in those areas either already supplied with services or to which services can be easily extended. When development is allowed to proceed in a haphazard fashion outside these areas, leapfrogging into undeveloped areas, we have sprawl, sprawl that not only destroys the character of the area but which also costs money.

How can sprawl be avoided and development steered toward appropriate locations?  Again, we are not seeking to provide a definitive answer here but simply to suggest a range of solutions; others are possible..

One solution is that of an urban services boundary. With an urban services boundary, the local government specifies a fixed limit beyond which urban services like water and sewer are not planned and allows only low-density development beyond it. The advantage of the urban services boundary is that it is clear and simple and effective; the disadvantage is its rigidity and the difficulty of drawing the line. Urban service boundaries have been done with some success in some locales, most famously in Portland OR, and the Elmwood Board of Trustees started the process of drafting one some years ago.

Another solution is to distinguish between areas served by services or to which services can be extended, and those, which don't meet that criterion. If developers want to build in areas beyond those which are served, they can be required to bear the costs of extending the services, so that these costs do not later fall on the taxpayers. Certainly there would be problems of definition with such an approach, but one advantage is that such a border would be dynamic and moveable; as development expands out from the center of the township, the frontier of the served area would expand as well. At the same time it would prevent the uncontrolled sprawl that is a chief danger to Elmwood.

Leslie Sichterman suggested another solution, something like the last. In Leslie's approach, which was contained in an early draft of the Zoning Ordinance, high-density developments would be evaluated based upon their proximity to other such developments. An approach like this one acknowledges that there are already islands of development in the undeveloped areas of the township; by concentrating new developments in proximity to those existing developments it minimizes sprawl into new areas and will make it easier someday to link developments together with systems and services.

There are other solutions available as well in addition to the three outlined above, and you may want to consider some of them also as you undertake the task of drafting an ordinance that prevents sprawl and minimizes burdens on taxpayers, property owners, and voters.

Recommendation #6: Do the planning and projections necessary to evaluate the outcomes and effects of different overall densities on the township, and design the zoning ordinance to control density appropriately.

Perhaps the most-discussed aspect of the failed new zoning ordinance has to do with density.  Should the maximum allowable density in the AO-1 District be one unit per ten acres, one unit per acre, or somewhere in between?

This question cannot be answered apart from question about distribution raised above, nor from the point system that we will discuss below.

Suppose that the township's AO-1 District is classified under one of the schemes mentioned above into zones which are service-friendly, and those which are not. The maximum allowable density in those areas which are 'service-friendly' should be higher than that allowed in the areas which are not. This would encourage developers to locate their developments in appropriate areas, while still allowing for less intense development in those areas where it should be discouraged.

Of course, this does not answer the question of what the upper densities in those areas should be. It also does not address an even more important question of what their typical density should be. That is, assuming that some form of the point system is retained, we should have a realistic goal of making sure that the majority of properties evaluated according to the scale should fall in the middle of the scale. A scale where all properties can reach the top--and don't forget that developers will always be pushing for ways to reach that top--or where all properties are at the bottom is no scale at all.

What about the overall density in the AO-1 district? Where do we begin with this question? We can make a number of suggestions.

First, we should take seriously the rule stated in the Master Plan that developments which cannot be supplied with water, sewers, and other municipal services should be limited to one unit per 2.5 acres. This requirement was late removed by the Board so that it would not interfere with the zoning ordinance; it should be restored.)

Second, we should consider the question of buildout. We can model a number of different scenarios at different densities, and then ask ourselves what kind of outcome we will have, and what kinds of changes the township will have to make to accommodate those outcomes. In fact, we have already done this in a very preliminary way, and we will be glad to make those calculations and materials available to you when you deal with this important question

Third, we should consider a much-disputed notion from our current zoning ordinance--that of essential character. Although this phrase has been debated and defined to the point where it has lost much of its meaning, it does reflect the strongly held preference of the great majority of the township's residents-expressed most recently in the July 29 vote-- to not transform the township into something other than the largely rural and agricultural area it is now. Good design can help to minimize the impact of development, but we must acknowledge and plan for the impact of greatly increasing the number of the township's residents and ask whether we can sustain such increases without becoming yet another bedroom suburb.

Recommendation #7: Devise a point or other system for evaluating developments that encourages development near the center, controls the eventual overall population density of the township, and encourages true clustering with usable open space

The failed draft uses a point system to allow developers to earn credits for various design features. As the number of points increases, so does the overall density to which the development is entitled. Although other systems are possible, we will discuss the point system below as the primary mechanism for shaping development in the township.

First of all, the system should be designed to encourage development in one of the patterns described above. This can be accomplished either by having two separate point schedules for service-friendly land and land which is not, or by building point incentives into a single schedule for siting developments appropriately.

In either case, we must make sure that the point system is one that is strict enough to encourage the features we want to see. As we have shown several times, the point system in the failed ordinance was so lenient that almost any property could be developed at densities near the top of the scale by a determined developer.

Rather, as we suggested above, we should have a scale that is set in such a way that most properties fall somewhere in its middle, with smaller numbers at each of its extremes.

Aside from the question of density, we should look at the point system in terms of the design of the developments it encourages. Take the design of Lincoln Meadows as an example of what the failed ordinance would have encouraged. Lincoln Meadows' design is almost indistinguishable from the example in the Master Plan of the kind of conventional subdivision development that clustering is supposed to avoid.

This kind of "subdivision in a hayfield" development shows few of the advantages of true clustering. In particular, the so-called open space that it creates will be useless, both for the residents and for the community at large. Do we really need another field filled with knapweed?

Rather, we need a point system that will encourage the creation of open space that will be of real use to the community, as well as to the residents of the development.

Recommendation #8: Accommodate the needs of farmers and other large landowners to make small splits without however undermining the larger goals of the ordinance

It is essential that the ordinance accommodate the desire of farmers and other landowners to provide homesteads for their children. Such splits will typically occur outside the site condo process, and thus are subject to the 10-acre minimum lot size which many have argued is not practical in such cases.

The so-called Development Option B in the failed ordinance was meant to accommodate these cases, but as is so often the case with that document, the cure is worse than the disease. In fact, it encourages large developments outside the site condo process and encourages the division of larger parcels by allowing them a higher density.

A number of alternatives exist. For example, we can have a sliding scale of allowable splits, depending on the size of the parent parcel. In one version of this scheme, the number of splits would be the same as are allowed by the underlying density of ten acre lots (e.g., 4 per 40 acres), but allow smaller lot sizes, thereby allowing the landowner to retain large parcel suitable for farming or other uses. Whether those other uses should include further development or not would be a question for discussion.

Another alternative is so-called quarter-quarter zoning. Van Buren County, in the SW part of the state has instituted such an arrangement (see http://www.vbco.org/planningeduc0007.asp for details). In quarter-quarter zoning, a certain maximum number of splits is set for each quarter of a quarter section, and typically such splits are required to be contiguous. Again, this has the effect of preserving larger parcels for farming or other uses.

There are certainly other ways this goal can be accomplished; this is one of those areas where your professional consultant can help in formulating alternatives.

Recommendation #9: Take steps to encourage agriculture in the Agriculture District

Our final recommendation is one which cannot be accomplished by the Planning Commission, but which is important for any plan to preserve the desirable and rural character of Elmwood Township. Historically the defining feature of what is now called the AO-1 (Agricultural / Open Space) District of the township has been agriculture. If we indeed want to preserve the character of the AO-1 district, we must look for ways to preserve, encourage, and sustain agriculture. PDRs, tax abatements, and other strategies should all be considered. While good zoning rules cannot be dependent upon such policies, it should be part of a larger policy vision for our township.

It is certainly possible to create a good zoning ordinance for Elmwood Township. We are fortunate to have a good Master Plan, if only we follow it. There is a lot that is good, especially in its technical aspects, in the failed ordinance. And we have a clear mandate from the voters, reinforcing the message of the Master Plan, that we need a document that will encourage development in appropriate areas of the township, control densities in such a way as to preserve the essential character of the Ag District, and encourage good designs in site condominium development. We can do this all in a way that respects the interests of all members of the community, including farmers and other large landowners.

The key to the production of such a document will be the process we outlined at the beginning of this presentation. Open the membership of the Planning Commission to representatives of the majority opinion in the township, listen carefully to the public, and heed your Master Plan. We can make Elmwood Township an example for communities in Northwest Lower Michigan and beyond, of an approach that will allow development that will preserve the best in our home, and which will protect the interests of all its citizens. Speaking for ourselves and those who support us, we are ready, willing, and able to contribute to this process if we are allowed.

A public meeting of the subcommittee that drafted this report was held on Tuesday 30 September.  The authors would like to acknowledge the useful comments and suggestions made by its attendees.