3/7/02
Blissfest and county reach agreement on prolonged zoning
dispute
BY FRED GRAY
NEWS REVIEW STAFF WRITER
In an act of mutual grace, Emmet County and the Blissfest have reached an
out-of-court settlement that will allow the music organization to continue
to hold its once-a-summer weekend festival on its farmland in rural Northern
Michigan.
The agreement, described as a consent judgment and announced Thursday after
two days of private mediation, provides for a long list of conditions
enforceable by the county and circuit court that limit the size, duration
and conduct of the festival.
It also requires the Blissfest to give the county a conservation easement on
much of its 120 acres of Readmond Township property.
The agreement, approved unanimously by the six county commissioners present
at a special board session Thursday, is subject to the approval of Emmet
County Circuit Judge Charles Johnson, whose suggestion that the parties
submit to mediation prior to a scheduled four-day trial provided the legal
basis for negotiations.
"This is a win-win agreement," said county controller Lyn Johnson, a
sentiment shared by all participants, who credited the mediation process and
good will of the parties for the success.
County civil counsel Kathleen Abbott said that before entering negotiations,
she fully expected the dispute to be resolved in court. But, she said, it
appeared by the end of the first day of negotiations that the parties might
be able to compromise.
County commissioners Jack Jones and James Harris, who participated in the
talks on behalf of the board, agreed that a major factor in establishing an
atmosphere conducive to agreement was the Blissfest negotiators' focus on
achieving their mission, rather than protecting property values.
Harris said the county also adopted a conciliatory stance. "It was never
our
intent to have the Blissfest go away and disappear or relocate," he said.
The county was represented in mediation by controller Johnson, Abbott,
Harris and Jones, while the Blissfest was represented by its executive
director Jim Gillespie, president Ron Fowler, board member David Trautman
Jr., and attorney James Olson of Traverse City. County planner Max Putters
served as a resource person for the county.
All but Olson and mediator Peter Doren, also of Traverse City, were present
at Thursday's special board session in the county building in Petoskey.
All parties were under strict orders not to discuss the mediation with
anyone, a condition that was strictly observed.
Shortly after the meeting began, the board went into a closed executive
session to discuss the mediation efforts with Johnson, Abbott, Putters and
county clerk Irene Granger.
When the public meeting resumed half an hour later, highlights of the
proposed settlement were posted on two large whiteboards and left in open
view. The whiteboards presented the first evidence to the public that a
resolution was at hand.
Despite the wide interest in the outcome of the dispute, there were only
three Blissfest representatives, several members of the public and a
reporter in attendance as the six members of the board quickly voted their
unanimous approval.
The audience included Petoskey attorney Mark Hilal, who represented 29
neighbors in their effort to put an end to the festival, claiming the
Blissfest lacked authority under county zoning to conduct the festival and
had become a nuisance that interfered with their property rights.
The neighbors had intervened in the lawsuits filed by the Blissfest and the
county, but dropped out shortly before Judge Johnson ruled early last month
that the county's Zoning Board of Appeals had acted properly in finding that
a special use permit issued in 1992 did not include authority for the
Blissfest to conduct its summer festival.
During the period for public comment, Hilal, speaking on his own behalf,
asked on what legal basis the county had negotiated a settlement of zoning
issues, normally a process reserved for the county planning commission, the
ZBA and the courts.
Hilal said his concern was that "if you rattle the saber loud enough, the
county would give you what you want in a consent judgment." He said he
believed the county was in effect legislating conditions of property use
outside its authority.
Commissioner Stefan Scholl, himself a lawyer, said he had reviewed the
documents thoroughly and in his view, there was a serious question whether
the Blissfest had the legal authority to conduct the festival, and the
outcome of litigation "would not certainly be decided in the county's
favor."
Scholl said he believed the county took that possibility into account in
deciding to mediate, rather than litigate, the issues, and he considered the
conditions of the agreement "well thought out" and had effectively put
an
end to further litigation.
Harris said the mediation had been suggested by the judge as a means of
avoiding the protracted legal process, and that alone provided a basis to
attempt to resolve the problems.
Paraphrasing Voltaire, Harris said: "This is not a perfect document but it
is the best of all possible worlds. We knew it would not please everyone but
we feel it was the result of the earnest efforts of both the parties.
"We felt we would probably get more definition through mediation than in a
trial. If we had litigated, and one side or the other had prevailed, then
all of these things would still have to be worked out.
"I would say the mediation process is a very good avenue to follow, and I
think the mediator did a great job."
As one of the conditions of settlement, the controversial special use permit
was rescinded and the Blissfest submitted a site plan that details the
permitted uses on the property for the festival. Use of leased parcels for
temporary camping and parking was prohibited without zoning approval.
The agreement limited ticket sales to a daily maximum of 4,500, about the
number sold for the event in each of the last two years, and the Blissfest
agreed to conduct only one three-day festival a year.
The prize for the county was Blissfest's agreement to give the county a
conservation easement for the wooded portion of the original 40 acres and
all of the adjacent 80 acres acquired later, or about 80 percent of its
total property.
Among other things, the easement preserves open space, wooded areas and the
natural habitat, in perpetuity.
The agreement provided for a number of enforcement mechanisms, including a
cash deposit with the county each year to assure compliance - $5,000 for
this year subject to reduction in subsequent years depending on the history
of compliance.
It also provides for a minimum of 20 temporary showers to discourage use of
Lake Michigan and other nearby lakes for bathing by festival participants.
Many of the other conditions were restatements of rules and policies the
Blissfest had adopted on its own during the 21 years of the festival. Others
were conditions Blissfest organizers had long said they would be willing to
negotiate, such as the establishment of a broad-based review committee.
Winter
fireworks at Emmet County Board meeting February 15, 2002
BY FRED GRAY
NEWS-REVIEW STAFF WRITER
The fireworks are still flickering from the Emmet County Board of Commissioners
meeting Thursday night that began quietly with the unanimous approval of Lisa
Blanchard as a new board member and then quickly erupted into name-calling over
the make-up of the county's information technology committee.
And as the night's pyrotechnic finale, the county released a bombshell
announcement that it had agreed to participate in "facilitative
mediation" with the Blissfest in their long-standing dispute over property
rights and zoning issues in Readmond Township.
The Blissfest mediation, which removes the dispute from the public spotlight,
was suggested by Emmet County Circuit Court Judge Charles Johnson. It comes a
month before the start of a scheduled four-day trial over the Blissfest's right
to continue with its weekend summer music festival on its 120 acres of
farm-forest property on Division Road near Cross Village.
The board voted to authorize board members Jim Harris and Jack Jones, and civil
counsel Kathleen Abbott and county controller Lyn Johnson, to participate on
behalf of the county in the mediation process.
Both Harris and Jones attended the planning commission meeting in 1992 when it
granted a special use permit to then-property owner Howard Rice that the
Blissfest has cited as authority for it to conduct its festival.
Blissfest will be represented in the mediation effort by its attorney, James
Olson of Traverse City, and Blissfest executive director Jim Gillespie,
president Ron Fowler and board member Dave Trautman.
Gillespie said today he considered mediation to be a positive step.
"We're going to enter into good-faith negotiations to try to resolve this
thing. It's a good thing whenever two parties can get together across the table
and try to work things out. The trial would be costly for both the county and
the Blissfest," Gillespie said.
The mediation will be conducted by trained facilitator W. Peter Doren of
Traverse City. Details have yet to be worked out.
The appointment of Blanchard, 43, to fill the unexpired term of conservative Jim
Erber, who resigned in January, was unanimous, and a surprise to Blanchard who
appeared at the meeting after the vote. She will represent the county's sixth
district - Resort Township and western parts of the city of Petoskey.
Now in her fourth term on the county's nine-member planning commission,
Blanchard said in an interview today she gives the board "a lot of credit
for selecting someone who doesn't think exactly like they do on every single
issue.
"They are allowing for diversity of opinion. I really appreciate that. They
didn't find a clone to take the position."
The only woman on the seven-member board, Blanchard has a long history of public
service in the area. She said her views include support for the Blissfest and
opposition to a four-lane bypass around Petoskey.
"I do not want to stop Blissfest," she said. "But I trust Kathy
and the mediators and the members of Blissfest to come to a fair
settlement."
"We don't need four lanes through our countryside," she said, adding:
"I'm very excited about the open-space committee of Bear Creek, Resort and
the city of Petoskey that is working to preserve the beauty of our
countryside."
A graduate of Albion College, she holds a Masters Degree in Public
Administration from the Maxwell School at Syracuse, N.Y.
The night's most vigorous moments were reserved for commissioner Stefan Scholl,
who took expressed sharp personal offense that he had not been named to head the
board's Information Technology/Equalization committee.
Instead, board chair Nick White announced the position would go to commissioner
Al Behan.
Scholl said he found it "absolutely appalling and outrageous and an
insult" that he had been denied the position he had openly expressed his
strong interest in.
He said he was "anxious to move the county into the 21st century" by
overseeing development of a first-rate county Web site, and to that end had
become proficient in FrontPage Web authoring software.
Scholl said he is also a member of Emmet 20/20, a private group that seeks to
encourage citizen participation in government and to prompt the county to
develop a Web site useful to the citizens of the county.
White said he understood that under the rules he and board vice chair Jim Tamlyn
had to agree on appointments of commissioners to most committees, which included
information technology.
The list of candidates for the position that White had been given by county
clerk Irene Granger said he was to make the appointments "with the advice
and consent" of the vice chair.
White said that Tamlyn wanted Blanchard to take Erber's place on the committee
instead of Scholl, but the two compromised by placing Scholl on the committee
but not as chair.
Tamlyn turned to Scholl, saying he opposed his membership on the committee and
explained his reasons.
Scholl asked for a ruling on Tamlyn's right to block the nomination. Civil
counsel Abbott consulted the board's bylaws and advised White that contrary to
the information he had been given, White only needed to consult the vice chair
but did not need his consent.
Scholl then asked White "to show some backbone" and name him chair of
the committee, which White did.
White said that after the meeting Scholl had apologized to him for his abusive
statements.
Behan, a former Petoskey city assessor considered an appropriate chair of the
committee charged with overseeing the county's equalization department, said he
was not concerned that Scholl had replaced him as chair.
"The committee should actually be separated into two committees to address
each part," he said.
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| Neighbors
expected to drop out of lawsuit against Blissfest |
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| BY
FRED GRAY NEWS-REVIEW STAFF WRITER The group of 29 area residents who filed an appeal before the zoning board of appeals almost a year ago to prevent the Blissfest organization from holding future music festivals on its Readmond Township property is about to drop out as intervenors in the legal proceedings brought by Emmet County, according to the county's civil counsel. Attorney Kathleen Abbott told the county's planning commission Saturday that she expects the neighbors will be dismissed from the lawsuits before the end of the week, leaving the county and the Blissfest as the sole parties. "It is my understanding that the neighbors' position is they believe the county can advance the interests of the community sufficiently that they need not continue to be involved in the litigation," she said. Petoskey Attorney Mark Hilal, who has represented the group of neighbors in the proceedings, agreed and added: "The reason we intervened in the first place was because we had concerns when the county withdrew its request for a preliminary injunction." Blissfest executive director Jim Gillespie said the organization would respond with a statement later today. Abbott said she expected Circuit Court Judge Charles Johnson to rule "any day now" on the Blissfest organization's challenge to the Zoning Board of Appeals' ruling last April that the Blissfest lacked the authority under county zoning to conduct its annual festival. Abbott and county planner Max Putters met with the seven planning commissioners at the Little Traverse Township Hall for their annual retreat Saturday to review the past year and look ahead to the challenges for the year ahead. Abbott provided an update on a number of outstanding issues, including pending measures to protect steep slopes, the Cross Village Food Farm's request for a special use permit for educational and social programs, and the Blissfest case that began well over a year ago. But it was the complex Blissfest imbroglio that the commissioners focused on, with two cases pending in Emmet County Circuit Court and a third in District Court. Several said they view it as a test of whether the county has the will, and in this case the legal right, to enforce its zoning ordinances. Abbott said the county is seeking to enjoin the Blissfest from conducting activities in violation of a ZBA ruling last April that the special use permit granted to then-property owner Howard Rice 10 years ago did not include the Blissfest's right to hold its festival on the 40 acres. The Blissfest, which subsequently purchased the 40 acres from Rice, has challenged the ZBA decision both as to its timeliness, intent and jurisdiction of both the ZBA and the county. Abbott said she expects Judge Johnson to rule soon on whether to uphold the ZBA's finding that the neighbors' case was so unique and precedent-setting as to constitute an exception to the board's general rule that appeals must be filed within 30 days. She said she also expects him to rule on the Blissfest's claim that the ZBA was really reversing a planning commission decision of 10 years ago, and not invalidating Putters' enforcement memo of last April that extended limited authority to the Blissfest to hold its festival. "The Blissfest is taking the position that it (the SUP) should have been appealed way back in 1992 and it wasn't." She said the distinction is crucial because by law, the zoning board does not have authority to overturn a planning commission decision but it can reverse one by the county planner. Abbott said a third case - this one before the District Court - seeking to enforce a ticket issued by the county to the Blissfest for conducting the festival despite the ZBA ruling is being held in abeyance pending the decisions of the circuit court. "Depending on how the judge rules on the appeal of the ZBA decision, we may or may not need a trial on the remaining issues. The attorneys have agreed to that," Abbott said. "We have a hearing coming up in March, and that is the point at which a number of these issues should be decided that will set out the rules for the county as to what we can do and can't do." Commissioner Jim Harris said the bottom line issue is whether the county can enforce its zoning codes. "We have certainly allowed these folks to continue, and continue, and continue, and sort of made our codes and our enforcement sort of the scarecrow, it seems to me. And it seems to me, in the view of the public, we're coming to this: Either we enforce our codes or we just forget it." Commissioner Katie Derrohn added: "There's no reason for having codes if we're not going to enforce them." Abbott said she expected a resolution of the issues. "That's why we filed our suit, that's why we've asked for injunctive relief. Litigation is not an economical way to pursue these things - in the sense of economy of time or expense." Putters added: "That's why we try so hard to get corrective measures, rather than try to haul them into court right away. That's the long way to go. It takes a while maybe to do it by arm twisting and cajoling, but we do everything we can to get it corrected before we have to go to court." Derrohn said the minor violations have to be addressed as well. "It's the little ones that your neighbors will see," she said. "I'm cognizant of that," Abbott responded. "Once you get into the court system, things seem to stretch out interminably." Putters opened the meeting by announcing that Harris had received the Northwest Michigan Council of Government's Outstanding Planning Commissioner of the Year award, to be presented at a lunch on Feb. 15 at the Holiday Inn on the waterfront in Traverse City. The commissioners elected John Eby chair, Derrohn vice chair and James Scott secretary, and decided for a number of reasons to hold meetings on differing days of the week through June instead of on the regular Thursday nights. |
| ZBA
rules Blissfest appeal was timely |
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FRED GRAY NEWS-REVIEW STAFF WRITER The Emmet County Zoning Board of Appeals on Tuesday ruled that the challenge to the Blissfest's authority to hold its annual summer festival was an "exceptional" one and not subject to the board's normal 30-day deadline for filing appeals. The ZBA's 4-0 decision returned the case to the Emmet County Circuit Court for a review of the board's findings and further proceedings on the issue of whether the ZBA had jurisdiction to hear the appeal in the first place. The board, with two newly appointed members, heard attorneys for both sides present arguments, supplemented by the views of a number of Blissfest supporters who helped fill the county boardroom to overflowing. At the end of nearly two hours of presentation and debate, newly appointed ZBA member James Harris, a long-time county commissioner and chairman of the planning commission, made a lengthy motion that recited the complex history of the case. Harris concluded that the board's by-laws had been satisfied as to the exceptional case standard and the case had been properly heard by the board. The appeal, filed on March 1, 2001, by Petoskey attorney Mark Hilal on behalf of a group of 26 neighbors, challenged a memo written by county planner Max Putters in April 2000, and now the focus of one of Northern Michigan's longest and most complicated zoning cases. In the memo, Putters interpreted a 1992 special use permit issued to former property owner Howard Rice as providing the Blissfest with the authority to hold its annual summer weekend festival on the original 40 acres it purchased from Rice. On April 17, 2001, the ZBA voted 3-2 to reverse Putters' interpretation. The Blissfest then appeal the ruling to the circuit court, which returned it earlier this month to the board with an order to make findings as to the timeliness of the April appeal. The board membership has changed since the April ruling, with Harris replacing Jim Tamlyn, and Richard Cobb filling the vacancy left by the resignation of Marty Gargaro in October. Tamlyn had voted with current board members Alyce Conrad and Don Hartman to reverse the Putters decision. Current ZBA member Vic Shanley, who voted with Gargaro to support the Putters' memo, did not attend Tuesday night's meeting. Conrad and Hartman, the only current ZBA members who were on the board when it heard the April appeal, said timeliness had not been addressed. "It didn't seem to be an issue at the time," Conrad said. Hilal opened Tuesday's session on Blissfest by stating that the ZBA had decided the case on its merits at the April hearing and the only issue before the board was to make findings as to the timeliness of the appeal. He then asked the board to look beyond the restriction in its by-laws that sets a 30-day deadline for filing an appeal, and to consider the case as an allowable exception to the rule. Hilal said the board is charged first and foremost with enforcing what is best for the county and should consider the "precedential potential" of reversing its April decision and allowing the Putters' memo to stand. "This is the case of a very good zoning administrator who made a human mistake" in issuing a memo which if allowed to stand would make it difficult for the county to enforce its zoning ordinances in the future by opening the door to battles over interpretation of special use permits by memo, Hilal said. That consideration alone was sufficient to make the case "exceptional" on the timeliness issue, regardless of who knew what and when, Hilal said. Harris asked Putters whether he had seen anything like the Blissfest case in his 25 years as the county's chief planner. "I don't think so," Putters said. "This is an unusual case." Attorney Jim Olson of Traverse City argued for the Blissfest that the board should narrowly construe the issue of timeliness and should not consider the merits of the case, which he said Hilal was asking the board to do. "The question is whether there was evidence to create an exception to the timeliness rule," he said. He said Hilal was trying to "bootstrap" his case with his appeal to policy issues in order to overcome the 11-month gap between issuance of the Putters memo and filing of the appeal. Olson said the appeal did not fall within the usual definitions that courts allow for exceptions to timeliness rules, such the need to review large volumes of documents or severe illness of parties to the case into account. He said the precedential value of reversing the Putters memo would allow memos of administrators to be questioned months after they were issued and decided in a prejudicial way. Olson said Hilal's clients were fully aware of the issues that were addressed in the Putters memo in April 2000 and should be held to the 30-day standard for appealing it. "We pride ourselves on being a country of laws. You need to make findings solely based on the facts before you. "It is far-fetched to conclude that the filing of the appeal was timely when no effort was made for a year after the Putters memo was filed to challenge it," he said. |
| Emmet
ZBA to make findings on Blissfest case |
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| BY
FRED GRAY NEWS-REVIEW STAFF WRITER The Blissfest zoning case returns today, Tuesday, to the Emmet County Zoning Board of Appeals at 7:30 p.m., with two of the board's five members attending their first official meeting. Circuit Judge Charles Johnson charged the board earlier this month with making findings on the timeliness of the appeal filed by some 26 area residents opposed to future summer weekend music festivals on Blissfest's farmland in Readmond Township. Since Johnson's ruling, former ZBA member Jim Tamlyn has been replaced by James Harris as the county commissioner on the board, and Richard Cobb of Good Hart has filled the vacant position left by the resignation of Marty Gargaro at the end of October. Lawyers for both sides, Mark Hilal of Petoskey for the residents and James Olson of Traverse City for the Blissfest, will present arguments before the ZBA, whose by-laws in part state: "Every appeal shall be taken by the applicant within 30 days of the date of order, refusal of permit, requirement, or determination of such department from which the appeal is taken, provided the Board may in exceptional cases for good reason grant additional time." The "exceptional case" provision is likely to draw the focus of the arguments, since almost a year lapsed between the memorandum issued by county planner Max Putters on April 5, 2000, and the appeal filed by Hilal's group, referred to in court documents as the "intervenors," on March 1, 2001. Putters' memo said a Special Use Permit issued to former property owner Howard Rice in 1992 and assumed by the Blissfest when it purchased the property in 1995 gave the Blissfest the authority to hold its summer festival at the size and scope of the time when the SUP was issued. On April 17, 2001 the ZBA by a vote of 3-2 reversed Putters' interpretation of the SUP. The Blissfest then appealed the ZBA decision to the circuit court, on grounds that in the ZBA had not addressed whether the appeal was timely. The Blissfest said its only recourse to make the ZBA accountable for its decision was through the court. Judge Johnson found the record of the ZBA's deliberations as to timeliness to be "inadequate" and ruled: "If the determination by the zoning board of appeals is that those matters were untimely, then the decision of April 17 of this year will be vacated." "If the decision is that the matter was timely, then findings should be made and presented to this court and further proceedings will be follow." "The court will retain jurisdiction until that determination has been made by the zoning board of appeals." County civil counsel Kathleen Abbott said Monday she would attend tonight's ZBA hearing to make certain the ZBA members follow correct procedures. But she said she would not speak for or against the merits of the case, despite the fact she is charged with defending the ZBA and with enforcing the county's zoning ordinances. She said whatever findings are made in tonight's hearing, the case will likely be returned to the circuit court. |
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| Give
Blissfest the green light |
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| We'd
hope we'll hear some harmonious news on Blissfest and the growing zoning
dispute with neighbors and government. For those of you who haven't heard the sad new song, the decades-old
folk-music-festival-in-a-field is in jeopardy. Not because of lack of
interest. It is its popularity that may kill the music. With upward of 4,200 attending the show annually, the Blissfest
organization had visions of expansion. That was put on hold when
opposition and rezoning questions became apparent. But it drew attention
to another zoning issue: Was Blissfest legal in the first place? No, the zoning appeals board found. The event no longer fits within
the special use permit granted on the 120 acres of field and woods in
Readmond Township years ago to a previous land owner. And that decision put the future of the 20-year-old festival in
doubt, Blissfest organizers stubbornly vow to press on with the festival
and have filed suit against the county in court. The festival has normally been held on the second weekend in July. So
the matter needs to get settled quick. There are relatively few opportunities to hear good folk music in
Michigan, let alone so much at once. Blissfest is a valuable part of
Northern Michigan summers, culturally and economically. It would be a
travesty to see it end. Of course, it's not in our back yard. The site is remote but not
without neighbors. Even at one weekend a year, 5,000 or so folks kicking
up the dust around Northern Emmet County - festival-goers also head to
Good Hart, Cross Village and other places to swim/wash up and buy
supplies - is a burden which organizers have not or cannot adequately
address. We believe some compromise is in order here. We think that Blissfest must recognize the negative impacts it has on
the community and back off plans for expansion, while making better
arrangements to meet the needs of 4,200 people on site. It must cancel
if it does not have legal right to hold the concert this year. Neighbors must realize that Blissfest has been going on once a summer
for a decade at that site. Once a year for such an opportunity for
awesome music is not too much for the rest of us to ask. Planners need to step back and look at their own processes. The
festival has been allowed to legally operate for years, now suddenly it
cannot. Legally anyway. The county should issue the festival a temporary
use permit this year while the issues are ironed out for 2002. We cannot imagine what will happen if Blissfest goes ahead this summer despite the ruling.
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| ©Petoskey News-Review Charlevoix Courier 2001 |