Agenda - Planning Commission - 12/03/2008

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() () \,,'c- /j ,( )) .,~., November 10, 20081 Volume 21 No. 21 Thereafter, in response to community hOIIieownerassociation con- cerns over "inconsistencies" in the PUD Plan, the township performed a study of the history of the administration of the PUD Plan. At the COn- clusion of that study, the township issued a Public Statement (the "In- structions"), which governed the procedural administration of the WCC qy the Commission. Importantly, the Instructions concluded that the , PUD Plan imposed a so-called "floating cap" of 500,000 square feet of commercial property on all development within the Wce. The town- ship instructed the Zoning Inspector to stop issuing zoning certificates for additional commercial development that would surpass the 500,000 square foot floating cap within the Wce. The township also said that ' any future applications for commercial development would be subject to a "two-step major deviation" development Plan modification. Six months late.r, WLP, using standard township procedures rather than the heightened "major modification" process, applied for zoning permits to build a 220,598 square foot Wal-Mart:.Supercenter. The Zoning Inspec- tor deni~d WLP's application, explaining that, in light of the Instructions, the application, among other things: (1) failed to meet the requirements for development plans; and (2)~xceeded the floating acreage. WLP appealed, eventually appealing to federal court. It claimed that the township's Instructions violated its procedural due process rights and that the PUD Plan was void for vagueness. , DECISION: Ordered accordingly (finding for WLP). The court determined that the Instructions were an amendment of the PUD Plan. A "reasonable" interpretation of the Instructions was that it was' a summation of the rn:aXimum allowable commercial development in subareas of the PUD. The "floating cap" condition was newly intro- dirced to the PUD Plan by the'Instructions since nowhere in the PUD plan was any such "floating cap" condition mentioned. Moreove.r, the institution of a "major modification" procedure that applied to all future commercial'development was also newly introduced to the PUD Plan by the Instructions. The effect of the Instructions was' to shrink the size of any potential development on a particular lot far below that originally allotted in the PuD Plan. ' ' The court found that since the Instructions were an amendment to the PUD Plan, they effected the deprivation of WLP's liberty interests and constituted an established state procedure for due process. The court ex- plained: where a landowner's liberty interests would be deprived by the passage of an amendment to a zoning ordinance, notice and opportu- nity to be heard (i.e., due process) were constitutionally required. Here, WLP was not given notice or an opportunity to be heard concerning the aniend,ments to the PUD Plan that took effect with the creation of the Instructions. Moreove.r, the procedUres set forth in the township's zoning @ 2008 Thomson ReuterslWest 9 I , I. I 71