Saugatuck Township on the shore of Lake Michigan has been battling against developer and natural gas tycoon Aubrey McClendon for several years to prevent the development of sensitive dune land in the community. They were subject to countless lawsuits, essentially draining the Township coffers until, last summer, they finally capitulated and came to an “agreement” with McClendon’s group, Singapore Dunes.
Well, they didn’t win. They capitulated. This is what “compromise” looks like in Michigan right now:
- Development in 12 of the 32 acres on the site.
- Up to 100 units to be built on the shoreline property
- A 66-slip marina
- A 25-suite inn
- A nine-hole golf course
Needless to say, those folks who have been fighting tooth and nail to prevent this devastating outcome are none too happy.David Swan said a proposed settlement between McClendon and Saugatuck Township essentially gives the billionaire businessman everything he wanted…
“I suspected that Mr. McClendon and his attorneys, Stephen Neumer and James Bruinsma, were trying to get the township behind closed doors and do a closed-doors settlement,” Swan, president of the Saugatuck Dunes Coastal Alliance, which funded part of the township’s legal fight, said Tuesday.
Ah, yes, a closed-door process that lacks transparency and public involvement. How convenient.
In an essay reposted at Eclectablog titled “Dunes Decision Troubling for All”, Alison Swan warns against what she called “zoning by consent decree”:
Singapore Dunes LLC v Saugatuck Township is the latest in a troubling string of Michigan cases involving the use of consent decrees (state and federal) to over-ride locally determined zoning. Unless the state of Michigan takes immediate, meaningful action, it will not be the last. The fate of a Pure Michigan treasure is at stake — and so are the fates of other Pure Michigan places, not to mention participatory democracy.
The locals are bearing the immediate financial and emotional burden, but every single citizen ofMichigan, especially anyone whose community is small and includes a natural or historical treasure, has a stake in the outcome of this litigation. If Singapore Dunes LLC carries the day, how long before another person with deep pockets decides to transform one of Michigan’s scenic treasures, no matter what the people of the community might have planned and zoned for?
Well, yesterday, a federal judge threw out the consent agreement.
A federal judge has thrown out a proposed legal settlement between Saugatuck Township and a private developer looking to build near Lake Michigan coastal dunes.
The agreement would have resolved a long-standing land-use case. Chesapeake Energy CEO Aubrey McClendon owns more than 300 acres in the township, including coastal dune land along Lake Michigan. He says Saugatuck Township officials unfairly singled out his company Singapore Dunes LLC when they banned any development on his property without special permits. He sued the township in over the zoning in federal court. […]
In a ruling issued Tuesday [pdf], the judge wrote the settlement would “impermissibly tie the hands of future Township Boards”. He also said the agreement didn’t address McClendon’s federal claims of unfair treatment. The parties are allowed to try to draft a new settlement if they’d like.
Here are some salient portions of Judge Paul Maloney’s ruling (all bolding is mine for emphasis):
Consent decrees offering relief through detailed land-use restrictions and allowances are not new to Michigan courts. Under state precedent, Townships have the power to negotiate settlements to land-use lawsuits against it and to authorize such relief, which the courts treat as a zoning variance. See Green Oak Twp. v. Munzel, 661 N.W.2d 243, 247 (Mich. Ct. App. 2003) (upholding board’s power to issue consent decree dealing with land-use restrictions and holding such a decree to be more akin to use variance than zoning ordinance,); Petoskey Inv. Grp., L.L.C. v. Alpine Twp., 2004 WL 2754684, *2–3 (Mich. Ct. App. Dec. 2, 2004) (similar). The terms of this particular consent decree, however, go beyond merely creating the equivalent of a zoning variance. They instead tie the hands of the Township Board beyond what is necessary to cure any alleged constitutional wrongs, and on that basis the proposed consent decree must be denied. […]
Section 18 of the proposed decree states that “[t]he rights of Singapore Dunes as set forth in this Consent Judgment are fully vested and enforceable, and no resolution, ordinance or ordinance amendment, government planning document, or regulation adopted by the Township shall impair those rights.” (Proposed Consent Decree, ECF No. 134, Ex. 1, at 14.) By its plain language, this provision would prevent the Township from ever modifying the zoning of the Denison Property, under any circumstances, so long as the consent decree remained in effect.
Regarding this “tying of the hands” argument, Judge Maloney said this:
The way to prevent procedural violations is to fix the procedures, not to prevent any future body, no matter how fair and unbiased, from taking an action.
In other words, McClendon’s extorted agreement would give him unfettered rights into the future since local governments would have not have recourse, now or in the future under the agreement as it is written.
McClendon’s lawsuit also argues that Saugatuck Township has four federal violations related to due process and unfair treatment. Here, too, Judge Maloney smacked them down, saying that they could be resolved by other actions and do not require restricting this board or future boards in the ways outlined in the agreement under Section 18 which says “[t]he rights of Singapore Dunes as set forth in this Consent Judgment are fully vested and enforceable, and no resolution, ordinance or ordinance amendment, government planning document, or regulation adopted by the Township shall impair those rights.”
None of Plaintiff’s federal claims supports the broad restriction on the Township Board’s authority contained in Section 18. Without such support, this court lacks the authority to allow the Board to contract away part of the “basic powers of government.”
His conclusion is, well, conclusive:
For the reasons discussed above, the court finds that the parties’ proposed consent decree impermissibly ties the hands of future Township Boards through (1) Section 18, forbidding the Board, indefinitely, from impairing Plaintiff’s rights; and (2) the provision of Section 4 forbidding the Board from rejecting a site plan for violating the requirements of SAUGATUCK TWP., MICH., CODE OF ORDINANCES ch. 40, art. IX, § 40-816(b)(1)–(3). Because such relief would not be necessary to remedy any of Plaintiff’s federal claims, this court lacks the power to order it. The court thus must deny the parties’ Motion for Entry of Consent Judgment and Final Order (ECF No. 134).
If the parties are able to negotiate a revised consent decree resolving these problems, the court will consider a renewed motion at that time. As discussed above, Plaintiff and Defendants shall provide notice and a public hearing regarding any subsequent agreements, and this court will set procedures for accepting and considering comment from non-parties on the filing of a renewed motion for entry of a consent judgment. Because of the above ruling, the non-parties’ Expedited Motion for Court to Set Fairness Hearing on Proposed Consent Decree (ECF No. 140) is denied as moot.
It’s hard to say where this will go from here. McClendon has exceedingly deep pockets and has clearly shown a willingness to spend his money to bleed Saugatuck Township dry. However, there is hope that a new consent decree will give the local government more control over their future and their fate, particularly as it relates to saving and preserving the Saugatuck Dunes, an area described as ” One of America’s 11 Most Endangered Places”.
For more on the long history of McClendon’s attack on Saugatuck Township, including suing Township clerks for vote tampering, as well as how he benefits from his powerful Republican political connections, I commend your attention to these two pieces: