The turmoil surrounding Hessel lot 22 on Hill Crest Lane continues to cause uncertainty for lot owner Brad Koster and the Clark Township Planning Commission. At the Tuesday, February 10, meeting, commissioners shared differing opinions from attorneys at the Michigan Townships Association (MTA) and Alpena-based firm White, Mack, and McDonald, which were solicited by telephone prior to the meeting.

A special land use permit submitted by Mr. Koster to use the residential lot for commercial parking for the Hessel Harbor Association was reviewed by the commission at its November 11, 2008, meeting. The commission could not reach a consensus, voting a 4-4 tie, which defeated the measure.

A parking lot is not an allowable use for a residentially zoned lot under the Clark Township Zoning Ordinance, Article Eight, Section 804 (R-1 Single Family Residential District), item three (Special Land Uses).

The lot, however, has been used for commercial parking by the Harbor Association since it formed in 2001. Members are deeded one car parking space for each dock owned, Mr. Koster said, and the lot accommodates 25 of the 45 spaces for members to use.

Commissioners Paul Smith and Joe Eger contacted MTA Thursday, February 5, to see if the case is still considered open and if the commission followed the proper procedure concerning the split vote.

Mr. Eger said it is the opinion of the Michigan Townships Association that the case is still open and could be re-heard before the commission, however, the case should have been sent to the township Zoning Board of Appeals (ZBA) as a "legal non-conforming use," not to the planning commission.

Mr. Smith said MTA considers the split vote a "no" vote on the subject.

"It dies as a 'no' vote, or it just stays on the books as a 'no' vote. As far as bringing it back up at this point for a vote of denial, it does not have to be done," he said.

Commissioner Gary Wellnitz said the opinion of attorney Daniel White, of Alpena-based White, Mack, and McDonald, is that Mr. Koster should petition the commission to change the lot use to commercial.

"That way it's put to bed forever. If it goes the other route, through the ZBA, then that can change if ownership of the property changes, and we could be seeing this again down the road," he said.

It is Mr. White's opinion, he said, that little resistance would be seen as a result of re-zoning the lot as commercial owing to its pre-existing use for parking as well as the fact that several nearby lots are zoned commercial.

The decision, however, to resubmit the permit application to the planning commission as a zoning change, or to submit it to the ZBA as a variance for a legal non-conforming use, belongs to Mr. Koster.

"I haven't made up my mind yet. I don't know. I'm going to look at what my options are," he said. "My concern is the long-term solution for the Harbor Association, and that would be that we're rezoned. That would give [association members] the most protection in the future and then it would become a conforming use on a commercial piece of property."

The commission recommends that the Clark Township board seek opinion from its attorney, James Murray, of Plunkett and Cooney in Petoskey, regarding the opinions of the other two attorneys.

"We have these conflicting attorney opinions, one being an insurance company, the other being a township authority. Both of these guys are what we call free attorneys," Mr. Eger said.

"I'm sure that insurance attorneys are going to go the path of least resistance, so they're not ever going to get sued, and the MTA is going to go the opposite direction, to do what they believe is the correct ordinances and procedures within townships."