Kinney Properties IV, LLC v. Shoreham, Village of

Filing 27

CONSENT JUDGMENT; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KINNEY PROPERTIES IV, LLC,
Žƒ‹–‹ˆˆǡ
v.

ƒ•‡ ‘Ǥ ͳǣͳͷΫ…˜ΫͲͲ͵Ͷ͸Ϋ
Chief Judge Paul L. Maloney

VILLAGE OF SHOREHAM,
Defendant.
____________________________________________________________________
Michael S. Bogren (P34835)
Scott A. Dienes (P53066)
Attorney for Plaintiff
Attorney for Defendant
PLUNKETT COONEY
DeFRANCESCO & DIENES PLLC
950 Trade Centre Way, Suite 310
728 Pleasant Street, Suite 204
Kalamazoo, Michigan 49002
St. Joseph, Michigan 49085
(269-226-8822)
(269-983-1400)
[e-mail]
[e-mail]
Timothy A. Stoepker (P31297)
Co-Attorney for Plaintiff
DICKINSON WRIGHT PLLC
500 Woodward Avenue, Suite 4000
Detroit, Michigan 48226-3425
(313-223-3500
[e-mail]
_____________________________________________________________________________/
CONSENT JUDGMENT
The parties, by and through undersigned counsel stipulate and agree as follows:
A.

Plaintiff Kinney Properties IV, L.L.C., (hereafter referred to as Plaintiff), a

Michigan limited liability corporation, is the owner of certain real property in the Village of
Shoreham (hereafter referred to as the Property).

B.

The Property is undeveloped land located on Lakeshore Drive, commonly

known as 3545 Lakeshore Drive and consists of parcels 11-43-0010-0069-02-0 and 11-430010-0070-00-0. (A legal description of the Property is attached as Exhibit A).
C.

Defendant Village of Shoreham (hereafter referred to as the Village), is a

Michigan municipal corporation organized and existing under the laws of the State of
Michigan and located in Berrien County, Michigan.
D.

The Property is zoned Open Space/Flood Plain pursuant to the Village’s

Zoning Ordinance and Zoning Map.
E.

The Plaintiff submitted to the Village various requests to rezone the Property

to allow for commercial development.
F.

None of the Plaintiff’s rezoning requests were approved by the Village

Council.
G.

Plaintiff filed the instant action alleging that the denial of the rezoning

requests violated the Michigan and United States Constitutions and violated Michigan
zoning enabling statutes. Plaintiff sought equitable relief and monetary damages.
H.

Defendants filed an Answer and Affirmative defenses, denying any violation

of the Plaintiff’s constitutional rights and denying liability to the Plaintiff.
I.

The parties have engaged in extensive settlement discussions through

Facilitation, pursuant to the Court’s Case Management Order.
J.

The parties acknowledge that there exists a mutual opportunity to resolve

this litigation in accordance with the terms and conditions of this Consent Judgment, in
order to avoid further costs and expenses, the uncertainty of a trial and to obtain finality,
without any admission of liability or wrongdoing on the part of any party.

K.

The parties acknowledge (1) that this Consent Judgment was freely and

voluntarily entered into, (2) that the Consent Judgment is in the public interest, (3) that the
Consent Judgment was approved by the parties as required by applicable law, (4) that the
Consent Judgment was entered into in good faith (5) that the uses, development,
construction and occupancy of said use on the Property as authorized by the Consent
Judgment are lawful conforming permitted by right uses of and on the Property
notwithstanding Defendant’s Zoning Ordinance or any other of Defendant’s ordinances
and/or codes, and/or laws, and/or rules/regulations to the contrary as they now exist or as
they may be lawfully amended in the future, and (6) that the use and development of the
Property as authorized by this Consent Judgment are consistent with public health, safety
and welfare.
L.

That this Consent Judgment does not constitute a rezoning of the Property.

M.

The parties agree to treat one another in good faith and will not take or omit

any action that will interfere with the spirit or intent of this Consent Judgment including,
but not limited to cooperation in obtaining such other governmental approvals required for
the development, construction and use of the Property as provided by this Consent
Judgment.
NOW, THEREFORE, pursuant the parties’ stipulated findings recited above, which
are incorporated into and made a part of this Consent Judgment, and pursuant to the
agreement and stipulation of the parties through their counsel, and as approved by the
Plaintiff and the Village of Shoreham Council IT IS HEREBY ORDERED AND ADJUDGED:
1.

Reference in this Consent Judgment to “Plaintiff” shall mean and refer to

Kinney Properties IV, L.L.C., and to any and all of its successors, assigns, trustees, grantees,

vendees and transferees and the terms and conditions of this Consent Judgment shall be
binding upon and inure to the benefit of those successors, assigns, trustees, grantees,
vendees and transferees. Reference to the “Defendant” shall mean and refer to the Village
of Shoreham and its elected and appointed employees, officials, boards, commissions,
trustees, agents, successors and assigns and the terms and conditions of this Consent
Judgment shall be binding upon and inure to the benefit of the those elected and appointed
employees, officials, boards, commissions, trustees, agents, successors and assigns.
2.

The Defendant shall not interfere with and/or prevent the development

and/or redevelopment, repair, remodeling, expansion, the use of the structures, buildings
and site improvements which are made and used on the Property as permitted by and
authorized by this Consent Judgment. In the event any portion of the Property, including
but not limited to the site improvements, buildings and structures thereon, are destroyed
in whole or in part by fire and/or any other form of casualty, the Plaintiff shall have the
right to rebuild and/or otherwise develop, construct, use and occupy the Property as
provided by this Consent Judgment and as otherwise provided by applicable law.
3.

Plaintiff shall be permitted to develop, construct, use, occupy and/or sell

and/or lease the Property in accordance with the terms of this Consent Judgment.
4.

The parties agree that, notwithstanding the Open Space/Flood Plain zoning

classification of the Property, and notwithstanding the Zoning Ordinance, and/or any other
of Defendant’s laws, codes, rules, regulations and ordinances to the contrary, the Property
may be used, developed, constructed and occupied with any one and/or more of the
following uses:
Business & Professional Offices as a Permitted Principal Use

Financial Institutions & Services Mortgage lenders as a Permitted Principal
use excluding, pawn shops, pay-day lenders, and money exchangers.
Food/Beverage Retail Sales & Services as a Special Exception Use, provided
that there will be no beverage use for the sole purpose of selling carry-out
only Specially Designated Dealer and/or Specially Designated Merchant
licensed beverages and provided that food/beverage retail sales will not be
sold in a convenience store format which is defined as a store that sells a
food/beverage mix of only prepared foods, snack foods, beverages, tobacco,
beauty aids, confectionery/candy and limited frozen foods and limited
bakery foods.
Furniture & Household Goods as a Permitted Principal Use
General Merchandise individually or collectively as a Permitted Principal
Use(s) as follows:
Apparel and Accessory sales and service
Art gallery/studios
Art/school/business supply
Bakery
Bicycle shop/repairs
Book and/or stationary
Camera and photography supply
Candy
Greeting cards
China/Glassware/kitchen/bath items
Drugstore with no drive-through window
Florist
Furrier
Gifts
Hobby/craft store
Jewelry
Leather
Music store
Pet shops
Retail picture framing
Toys

Sporting goods
Miscellaneous Sales & Services as Permitted Principal Uses as follows:
Barbers
Beauty salons/spas
Locksmith
Retail fabric shop
Tailor
Travel Bureau
Upholstery

Restaurants with indoor and/or outdoor seating including carry-out food
and on-premise consumption of licensed beverage as Permitted Principal
Uses, excluding drive-through windows and carry-out only restaurants.
Establishments for on-premise consumption of licensed beverages as a
Special Exception Use.
Nursing homes, assisted living senior residential units, independent senior
living units as a Special Exception Use.
Those uses currently permitted in the Open Space/Flood Zone District of the
Defendant’s Zoning Ordinance as specified in section 306 of the Defendant’s
Zoning Ordinance as of the date of this Consent Judgment;
Such other uses that may be permitted in the future on the Property
pursuant to the Zoning Ordinance as lawfully amended by the Defendant.
Uses accessory to all of the above uses, including, but not limited to off-street
parking and loading facilities.
5.

The extension of any utilities that may be required to serve any development

of the Property shall be at the sole expense and responsibility of the Plaintiff. The
Defendant represents to the Plaintiff that the Plaintiff shall be entitled to connect to the

sanitary sewer and public water lines adjacent to the Property to serve the uses permitted
by this Consent Judgment
6.

The development and construction and occupancy of the Property shall only

be subject to the following approvals/permits; (1) For those uses listed above as a
Permitted Principal Use, the same shall be approved upon the payment of lawful site plan
review fees and submission of a site plan application and site plan. The site plan shall be
reviewed by the Defendant’s Building Inspector only to determine compliance with this
Consent Judgment, the contents of the site plan shall conform with Section 903 of the
Zoning Ordinance and the requirements of this Consent Judgment. The site plan shall be
reviewed, approved or disapproved based solely on the criteria in paragraph 7 of this
Consent Judgment on or before 30 days from the submission of the site plan application,
site plan and site plan fees. (2) For those uses listed as a Special Exception Use, the site plan
shall be reviewed and approved as provided by this paragraph 6 of the Consent Judgment
and the granting or denial of the special exception shall be determined by the Village
Council as provided by criteria set forth in paragraph 7 of this Consent Judgment, as
provided by MCL 125.3502, MCL125.3504 and as provided by applicable law. The public
hearing for the special exception use will be conducted after the site plan is approved by
the Defendant’s Building Inspector and within 60 days from the Defendant’s receipt of the
special exception application. (3) Issuance of a building permit pursuant to the applicable
lawful building code administered by the Defendant’s Building Inspector and upon
payment of the lawful building/inspection permit fees. (4) Issuance of such approvals and
permits as are lawfully required by County, State, Federal or other local or
intergovernmental agencies having jurisdiction over the Property. All such approvals shall

be presented to the Defendant’s Building Inspector.(5) Issuance of a certificate of
occupancy by Defendant’s Building Inspector in accordance with Section 1003 G. of the
Zoning Ordinance.
7.

The following criteria shall solely govern and control Defendant’s Building

Inspector’s review and approval or disapproval of the Plaintiff’s site plan with regard to the
development of the Property pursuant to this Consent Judgment: (1) no building shall
exceed 35 feet in height as defined by Section 1402 of the Zoning Ordinance; (2) the
Defendant may not require a front yard building setback greater than 30 feet, and may not
require any side yard setbacks. However, if the Plaintiff elects to utilize side yards setbacks
the Defendant may not require a side yard setback greater than 10 feet for each side yard of
the Property, and Defendant may not require a building rear yard setback greater than 20
feet; (3) building lot coverage on the Property shall not exceed 40% of the size of the
Property; (4) off-street parking and loading for the uses on the Property shall be governed
by Article VII of the Zoning Ordinance provided that off-street parking in the front yard
shall be 30 feet from the front yard Property line and shall be landscaped as required by
section 704 I. of the Zoning Ordinance. Parking spaces shall be 9 feet by 20 feet; (5) signs
on the Property shall conform to the requirements of Article VI of the Zoning Ordinance as
is applicable to non-residential districts under the Zoning Ordinance; (6) the uses on the
Property may be constructed in individual/separate buildings or a single building on the
Property as determined by the Plaintiff; (7) the building or buildings shall be designed by
the Plaintiff in a manner to be consistent with the intended uses as authorized by this
Consent Judgment and so as to be reasonably compatible with the general design elements
of the Churchill Farms development located in the Village of Shoreham as reasonably

determined by the Plaintiff. The use of clapboard or equivalent siding and/or brick and
mortar by Plaintiff to construct the buildings or building permitted by this Consent
Judgment are materials deemed to be compatible with Churchill Farms; (8) No single
building shall be greater 20,000 square feet.
If Plaintiff’s site plan complies with the foregoing criteria, Defendant’s Building
Inspector shall approve the Plaintiff’s site plan. The following criteria shall solely govern
and control Defendant’s Village Council’s review approval or disapproval of Plaintiff’s
special use exception applications. Defendant’s Village Council shall approve Plaintiff’s
special exception application if it is determined that the special exception application is in
compliance with the following (1), If Defendant’s Building Inspector has approved
Plaintiff’s site plan such approval, inclusive of the criteria for such approval, shall be
binding upon the Village Council; (2) the special exception use shall be adequately served
by the following public services and facilities: police and fire protection, storm water
drainage, refuse disposal and water and sanitary sewer facilities; (3) the special exception
use will not involve activities or process, materials and equipment that will be detrimental
persons or property by reason of excessive noise, vibration, toxic emissions, fumes odors
or glare; and (4) the special exception use will not be hazardous to existing or future uses
in the same general vicinity and the community as a whole. In the Village Council’s review
of the above special exception criteria it is bound by the stipulation that the uses
authorized by this Consent Judgment are compatible with the uses on the surrounding
properties and the general community. In granting the special exception use the Village
Council may establish reasonable conditions to insure compliance with the special
exception criteria provided for in this paragraph 7.

8.

In the event the site plan is not approved as provided in this Consent

Judgment Defendant’s Building Inspector shall provide the Plaintiff written reasons for
such disapproval. In such event, Plaintiff shall have the right to correct and re-submit the
site plan in accordance with Defendant’s Building Inspector’s written denial whereupon
Defendant’s Building Inspector shall review and approve or disapprove the revised site
plan within 14 calendar days of submission of the same by the Plaintiff. The procedure set
forth for additional review and approval or disapproval of the site plan until the site plan is
approved shall be the site plan review. However, if Plaintiff disputes the decision(s) of the
Defendant’s Building Inspector the Plaintiff shall have the option at its discretion to
proceed with the remedies provided for in this Consent Judgment. In the event the Village
Council denies the special exception use, the Plaintiff shall have the option at its discretion
to proceed with the remedies provided for in this Consent Judgment.
9.

The parties agree to treat one another in good faith and no party shall take or

omit to take any action that will interfere with the spirit and intent of this Consent
Judgment. The parties shall execute any and all documents as are necessary to carry out
the intent of this Consent Judgment. Unless otherwise referenced in this Consent Judgment
the provisions of the Zoning Ordinance shall only apply for the approval of uses permitted
in the Open Space/Flood Zone district.
10.

In the event of a conflict between the provisions of the Zoning Ordinance and

the provisions of this Consent Judgment, the provisions of Consent Judgment shall control.
11.

The approval of ingress and egress to the Property for the uses authorized by

this Consent Judgment is within the jurisdiction of the Michigan Department of
Transportation.

12.

This Consent Judgment is declared to be in recordable form, and the

provisions contained herein are declared to be covenants running with and for the benefit
of the land and all portions or divisions thereof, and shall be binding on and inure to benefit
of the Plaintiff and Defendant and their respective successors and assigns. The Berrien
County Register of Deeds shall record a true copy of this Consent Judgment in the land
records of Berrien County.
13.

The terms of this Consent Judgment may be amended, changed or modified

only upon written agreement of the parties except as otherwise provided in this Consent
Judgment and any such changes must be approved and ordered by this Court. The parties
are not obligated or required to agree to any change in any of the terms of this Consent
Judgment.
14.

Except for the right to seek enforcement and remedies arising from a breach

of this Consent Judgment as provided in this Consent Judgment, all claims asserted by the
Plaintiff and all defenses asserted by the Defendant and all claims that could have been
asserted by either party in this lawsuit, including claims for money damages, equitable
relief, attorney’s fees and costs are merged into this Consent Judgment and forever barred.
15.

On before twenty one (21) days from the date this Consent Judgment is

entered, the Defendant shall remit costs to the Plaintiff in the amount of $35,000.00.
16.

This Court retains jurisdiction to enforce the terms of this Consent Judgment

and to assure compliance with the terms of the Consent Judgment, to accomplish the
issuance of all necessary approvals and permits provided for in this Consent Judgment. In
the event either party determines that the other party is in breach of the terms of this
Consent Judgment it shall provide written notice of such breach. For purposes of this

Consent Judgment, the failure of the Defendant to approve a building permit and/or
certificate of occupancy and/or the Defendant’s Building Inspector failure to approve
Plaintiff’s site plan and/or the failure of the Defendant’s Village Council to approve a special
exception use as required by this Consent Judgment shall constitute a breach of the
Consent Judgment. If any breach of the Consent Judgment is not cured within 30 days of the
written notice, the non-breaching party shall be entitled to seek relief from this Court with
regard to such breach, which relief shall include, but not be limited to, specific performance
of the terms and conditions of the Consent Judgment and/or the payment of damages by
the breaching party arising from said breach and the Court shall be authorized to grant
such other relief as this Court may deem equitable and just. The parties specifically
acknowledge that any breach of the terms of this Consent Judgment shall cause irreparable
harm to the non-breaching party and the non-breaching party shall be entitled to specific
performance. The Court shall also have the discretion to award reasonable attorney fees
and costs to the non-breaching party. Notwithstanding the Court’s continuing jurisdiction
over this Consent Judgment this matter shall be administratively closed upon entry of the
Consent Judgment.
IT IS SO ORDERED.

11/09/2015
Date: ___________________

/s/ Paul L. Maloney
____________________________________
Hon. Paul L. Maloney
United States District Court Judge

Date: November 5, 2015

__/s/ Bruno Trapikas___________________________
Bruno Trapikas, President
Village of Shoreham

Date: November 5, 2015

__/s/ Michael S. Bogren_________________________
Michael S. Bogren (P34835)
Attorney for Defendants

Date: November 5, 2015

__/s/ John Kinney________________________________
Kinney Properties IV, L.L.C.
By: John Kinney
Its: President

Date: November 5, 2015

__/s/ Timothy A. Stoepker______________________
Timothy A. Stoepker (P31297)
Attorney for Plaintiff

Date: November 5, 2015

__/s/ Scott A. Dienes_____________________
Scott A. Dienes (P53066)
Attorney for Plaintiff

Open.00560.50898.16144123-1