KMart rezoning appealed

Mar. 3—ACME — A group's appeal against Acme Township's decision to rezone a former Kmart will move forward even as a judge agreed to dismiss part of it.

Acme Strong — No Light Industrial Here and a handful of other plaintiffs claim the township made errors in approving a planned unit development to Strathmore Real Estate Group.

The company wants to turn the vacant big box store, north of where U.S. 31 meets M-72, into indoor self-storage, warehouse space, pickleball courts, a fitness center, a coffee shop and a workshop for nonprofit Grand Traverse Men's Shed, as previously reported.

The company also plans several apartment buildings, housing 228 units, near the former KMart, and next door, eco-friendly cleaning products company Truly Free is turning the former Tom's Market into a shipping warehouse with a small retail space.

Acme Strong and other project skeptics claim warehouses and storage would violate the KMart's underlying zoning. Planned unit developments allow for some flexibility in land uses but plaintiffs argued an attempt to get around zoning limitations in the township's Corridor Flex district.

Plaintiffs also raised several issues — from a driveway for trucks that connects to a side road instead of a main road as zoning requires — to falling short on several planned development requirements. These were raised by Chris Grobbel, an outside planning expert who wrote his own point-by-point rebuttal of a report from the township's planning consultants.

On Monday, 13th Circuit Court Judge Charles Hamlyn agreed to dismiss part of the plaintiffs' challenge asking the court to take superintending control of the zoning decision. He sided with township attorney Jeff Jocks' arguments that court rules require the request to be dismissed as long as there's an appeal available.

Jay Zelenock, the plaintiffs' attorney, said court rules allowing two matters to be joined are permissive. Plus, the court hasn't yet determined if the plaintiffs can actually appeal.

David Glenn, an attorney for Strathmore Real Estate Group, and company Principal Jacob Chappelle, plus two other intervening defendants, said combining an administrative appeal and request for superintending control would involve two different and oftentimes conflicting sets of court rules.

Ultimately, Hamlyn said court rules on superintending control are clear: if an appeal is available, the request for superintending control must be dismissed.

"Not only is an appeal available, it's being pursued," he said, adding there's a hearing set for it on April 24.

"The civil side of this complaint for superintending control may become necessary but until this court makes a determination as to administrative remedies, it's essentially premature."

Zelenock said afterward the plaintiffs wanted to file both the appeal and complaint for superintending control to ensure no one could claim they hadn't been filed in a timely manner. By dismissing the complaint without prejudice and agreeing to hear the appeal first, Hamlyn left open the chance to bring the complaint again if necessary.

"The idea that the court ruled that one should be pursued first is an acceptable ruling to me that doesn't prejudice my clients' rights in any way," he said.

A message for Jocks was left Thursday.

Marc McKellar II, co-counsel for Strathmore Real Estate Group, Chappelle and the other intervening defendants, said he believes Hamlyn made the right call.

He's also confident the township and developer will prevail on the upcoming appeal.

"The township did an incredible job of preparing a complete record, and, given the efforts the township took and the efforts the applicant undertook to provide all the information and the amount of time the public had to view and make comments, it's pretty clear to me that the approval was appropriate," he said.

Strathmore Real Estate Group's plans for the property came under plenty of scrutiny before, with township residents, business and property owners packing township meetings to weigh in, as previously reported.

A few said they appreciated seeing the empty property repurposed, including for uses like pickleball courts and space for a nonprofit. Others said those uses were beside the point, since zoning shouldn't allow self-storage or warehouse space, which several argued are a poor fit for such a prominently situated property.

Along with the citizens group, those appealing the zoning decision are Nicole Rose Properties doing business as AAA Self Storage; James and Kristen Goran; Charles Kalil; Pete and Jan Fusi; and Spencer and Beverly Silk, court documents show — all are members of Acme Strong — No Light Industrial Here and live in Acme Township, own land or businesses there, or both, Zelenock said.

Other intervening defendants are East Bay Holdings North LLC and Michigan Development Company, court records show.