On November 20th, Benzie Circuit Court Judge James Batzer, in a stunning development, ruled in favor of the downstate developer, Mr. Marshall Tobin, to enter as a final order a ‘Consent Judgment’ between Tobin and the City of Frankfort. In doing so, Judge Batzer overturned the City’s decision to conditionally rezone Tobin’s property on the east side of M-22 but control development along Betsie Bay by maintaining the single family zoning west of M-22. By approving the ‘Consent Judgment,’ a legal agreement as to the facts and law of a case by all of the parties, Judge Batzer approved a provision that strikes down as unconstitutional the long established single family district on the east end of Betsie Bay, within the Frankfort city limits.
However, Friends of Betsie Bay (FoBB), a legal party in the lawsuit, made up of neighborhood property owners and city residents who want to protect single family neighborhoods, opposed the Consent Judgment’ because there is no factual or legal basis for the court to hold the City’s single family district along the stretch between the highway and Betsie Bay as unconstitutional. The Friends have had legal standing in all the Tobin lawsuits and participated in lengthy proceedings before the City and the court to uphold the integrity of the City’s Master Plan and Zoning Ordinance.
Under established legal principles, a consent judgment cannot be entered unless all parties to a lawsuit agree to the factual findings and legal result of the judgment. Because the Friends exercised their legal right to refuse to agree to the finding that the City’s ordinance was unconstitutional, Judge Batzer reversed his decision from several years ago granting the organization the legal right to participate in the lawsuit. By doing so, Judge Batzer removed the barrier to the judgment in favor of Tobin and the newly elected City Council, who recently reversed its opposition to Tobin’s proposed condominium development on the bay side.
This is not Mr. Tobin’s first attempt to develop these two parcels, the first going back to 1997 with his former partner, Mr. Harold Kilp. Similar applications for rezoning and a planned unit development (PUD) were either deemed incomplete or denied. Mr. Tobin first sued the city in 2000 and the essence of all the applications have remained the same. Countless petition drives by individual residents have been given to the city since 2000 with an overwhelming number of residents signing to support the city in upholding its Master Plan and Zoning Ordinance
In the ensuing years, Mr. Tobin was able to delay the legal proceedings until the newly elected Council came into office in November 2009. The alleged opposition to the Tobin proposal by all three newly elected City Council members was erroneously reported in the Benzie County Record Patriot the week immediately preceding the election. All three newly elected candidates clearly supported the quick resolution to Mr. Tobin’s lawsuit with the city in a Meet the Candidate forum on October 22, 2009 and all voted within their first week in office to support the consent judgment, awarding Mr. Tobin even more than he initially requested.
While the newly elected Council members are sure to see this as an end to a long and costly legal battle, they are extremely short-sighted to acquiesce to Mr. Tobin’s relentless effort to get what he has wanted all along, rather than cooperate with the City and its residents by accepting the City’s decision to allow him to over build in this single family zoned residential neighborhood.
Mr. Tobin’s most recent claim, among others, that this was unconstitutional zoning and the Judge’s ruling of this claim, in support of Mr. Tobin, leaves the planning and zoning of Frankfort totally exposed for any future developer to use as a legal precedent to get any development proposal they envision to be profitable in Frankfort.
As the Benzie County commissioners go through a process of possibly rescinding the County Planning & Zoning efforts, Frankfort has its own but refuses to uphold it, even while the City’s Planning Commission is undergoing a rigorous Master Plan update spending taxpayer dollars from the city and state to do so.
The Friends of Betsie Bay, a local, grassroots, non-profit 501c 3 organization was organized in 1999 when Mr. Tobin and his former partners had their first development proposal for this bay area. The Friends are strong advocates of area land uses that promote a community in harmony with the natural environment of the Betsie Bay area. Please snail mail any inquiries to Friends of Betsie Bay, PO Box 528, Frankfort, MI 49635 or email: firstname.lastname@example.org