Category Archives: Tobin Project

The Tobin Affair…an editorial note, Suz Mclaughlin

Not too long ago someone said to me “Whatever happened in the Tobin case?” When I responded, “We lost…” She said “It seemed to die without a whimper”. That got me to remembering all the effort, time and money the Friends of Betsie Bay invested in assisting the City of Frankfort to uphold their Master Plan for the Lake Street area when downstate developer, Marshall Tobin, first proposed the development of a large multi-family condo in this single family residential area and I came to one conclusion…We did not lose!

FOR TWELVE YEARS, in two major lawsuits of the different development proposals, the Friends of Betsie Bay steadfastly maintained the Frankfort Master Plan should be upheld to protect the neighborhood, the land use, and the Bay. For twelve years we managed to do just that with the guidance of our expert environmental lawyer, Jim Olson. That’s huge! We took this all the way to the Michigan Court of Appeals and they determined the Friends didn’t have a legal ‘investment’ to stand on.

These kinds of legal battles are never pretty and not many seek to become engaged in such a lengthy commitment. The Friends stood up to the plate and followed through, despite the odds. This was never about defeating Mr. Tobin; this was about the legal precedent this case would set for all of Frankfort in our planning and zoning efforts. Effectively, there is now a ‘spot zone’ in this area. Spot Zones are defined “…as a provision in a general plan which benefits a single parcel of land by creating a zone for use just for that parcel and different from the surrounding properties in the area…” (legal.dictionary.com). We hope to continue our efforts to support the City to legally address this issue to protect the neighborhood and all of the City’s planning and zoning.

Many feel Mr. Tobin is unlikely to pursue his proposed development but at this point, that’s his legal right to do so. We were quite effective in reaching out to Mr. Tobin for last year’s first phragmites treatment and we plan to continue our relationship in a positive manner. That’s not dying with a whimper!

Benzie Circuit Court Denies Motion to Reconsider in Tobin Lawsuit

PROPOSED FRANKFORT DEVELOPMENT LEGAL UPDATE

In an effort to clear up some of the confusing legal issues left with Judge Batzer’s ruling of November 20th, on the Tobin project, the Friends of Betsie Bay attorney, Jim Olson, filed a Motion to Reconsider in December with Judge Batzer. Not too surprisingly, Judge Batzer, on Monday, February 8th, denied FoBB’s motion.

As you may recall from our late November update, Judge Batzer’s ruling of November 20th, was favorable for the City of Frankfort and Mr. Marshall Tobin to enter a long contested ‘Consent Judgment’ that was based partially on a claim of Mr. Tobin’s that the Frankfort Zoning was unconstitutional. Judge Batzer also ruled the Friends of Betsie Bay, would no longer be considered as long term Interveners in support of the City’s efforts to uphold it’s Master Plan and Zoning Ordinances. This decision also prevents any citizen efforts for a public referendum which would allow the voters to decide this issue.

The Friends of Betsie Bay can now bring this matter to the Court of Appeals. We will continue to keep you updated as information becomes available.

Frankfort Tobin Ruling Update

TOBIN UPDATE 12/31/09

The Friends of Betsie Bay Board made a very difficult decision on December 2nd to begin an appeal process on the recent devastating ruling from Judge Batzer’s Circuit Court on November 20th, as noted in your newsletter. Unfortunately, due to the short time factor for an appeals process we were unable to solicit much input from the membership.

The Board sincerely felt caught between a rock and a hard place with this decision but in the end we all felt very clear if we didn’t attempt to change this precedent-setting ruling, all land use issues and future development in Frankfort and indeed all of Benzie Co. could be seriously compromised.

We hope you will support our decision and keep informed of the ongoing legal battle through this new website. We will need our membership to help support this legal effort financially and hope we can continue to count on you! Please do send us email to let us know how you feel about this decision. We really need your feedback as we go forward in this legal battle.

Please also help us to encourage new members to assist us in this cause as well.

Thank you,
The Friends of Betsie Bay Board

Court Rules Frankfort Zoning Unconstitutional

Betsie Bay USGS Historical MapOn 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: friendsofbetsiebay@gmail.com