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ORDINANCE #204
AN ORDINANCE APPROVED UPON DETERMINATION OF THE COURT AND JUDGMENT THAT IT REPRESENTS
BETWEEN ALGOMA TOWNSHIP AND EASTBROOK COMPANIES THAT WILL AMEND THE ZONING ORDINANCE
OF THE TOWNSHIP OF ALGOMA
Site Condominium Planned Unit Development Project located on Edgerton A venue Site Plan #0004
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UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
EASTBROOK DEVELOPMENT COMPANY, Case No. 4:01-CV-10-g
and M.A.M. INVESTMENTS, LLC, HON. DAVID W. McKEAGUE
Plaintiffs, CONSENT JUDGMENT
v
ALGOMA TOWNSHIP,
Defendant. _________________________________/
William A. Hom (P-33855) Teresa S. Decker (P-32114) Randall W. Kraker (P-27776) Varnum, Riddering, Schmidt & HowlettLLP Attorneys for Plaintiffs
0 Mika, Meyers, Beckett & Jones, PLC Co-Counsel for Defendant 900 Monroe Avenue, N.W.
333 Bridge Street, N.W. P.O. Box 352 Grand Rapids, MI 49501-0352 (616) 336-6000
MichaelS. Bogren (P-34835) Plunkett & Cooney, P.C. Attorneys for Defendant 535 South Burdick, Suite 256 Kalamazoo, MI 49007 (616) 382-5935
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Grand Rapids, MI 49503 (616) 632-8000
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At a session of said Court held in the City of Lansing, Michigan this_ day of , 2002.
PRESENT: HONORABLE DAVID W. McKEAGUE U.S. District Court Judge
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Based upon the stipulation of the parties as evidenced by the signatures of their counsel
below, and the determination of the Court that this Judgment represents a reasonable resolution
of the pending dispute between the parties, IT IS ORDERED AND ADJUGED as follows:
Section 1. Development of Project. The property which Plaintiffs propose to
develop, the legal description of which is contained in Exhibit A to this Judgment (the
"Property"), may be developed as a single family detached residential housing community
Planned Unit Development (hereafter "the Development") in accordance with the terms of this
Judgment and in substantial conformity with the preliminary design plan and preliminary
pedestrian plan both having a revision date of February 6, 2002 attached hereto as Exhibit B
("the Plan"), except insofar as the Plan may be modified during the process of final site
development plan approval by the Township Board in accordance with Section 19 of this
Consent Judgn1ent. After obtaining approval from the Township Board, Plaintiffs may modify
the Plan to redesign the driveway into the Development from Edgerton A venue so as to create a
unified site of approximately 8-12 acres adjacent to Edgerton Avenue, which site may be
transferred, after obtaining approval from the Township Board, to a public school district for use
as a public school. If a public school district is not interested in such transfer, then the site may
be transferred, after obtaining approval from the Township Board, to another public or non-profit
entity for a use which preserves open space and provides a public benefit. Such approvals shall
be within the reasonable discretion of the Township Board. Any redesign of the driveway into
the Development shall provide for a 16-foot emergency access route from the Development to
Edgerton A venue.
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Section 2. Phasing.
(a) The Development may be constructed in phases. Changes in sales or
market conditions will dictate the phasing and changes in phasing are permitted. Prior to
commencing construction of a phase, Plaintiffs shall indicate to the Township Board the
parameters of that phase.
(b) Prior to the issuance of a building permit for a unit in a development
phase, the streets, water and sewer systems and the construction of common
improvements in that phase shall be completed and approved, or a performance guarantee
which complies with township ordinance shall be furnished by the Plaintiffs. However,
prior to the issuance of a certificate of occupancy for a unit, the water and sanitary sewer
systems shall be completed and approved and shall be extended to that unit and
connected. A performance guarantee may not be provided in lieu of such completion and
approval of the water and sewer systems; provided, however, that up to three model
homes may be completed, solely for the purpose of dealing with potential home buyers,
and not for the purpose of the sale of such model homes, without the providing of a
performance guarantee, but such guarantee shall be provided in all other circumstances,
as noted above, including the sale of any such model home.
Section 3. Fire Facilities. Plaintiffs will donate the sum of $50,000 to Defendant
within ninety (90) days of the date of the initial building permit for the construction of a single
family home on the Property. Such funds will be used by Defendant only for fire protection
within the Township, which may include the Township's donation of these funds to the Algoma
Township Fire Capital Fund.
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Section 4.
following features:
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Design Characteristics. The Development shall incorporate the
(a) The Development shall be constructed as a site condominium and
have not more than 230 residential units of one single family detached dwelling each.
Each unit shall have the area shown on the Plan and shall be located as shown on the
Plan. The minimum unit width shall be as shown on the Plan. The minimum setbacks
shall be as follows:
Front yard- 30 feet
Side Yard (not along street right-of-way) - 10 feet
Side Yard (along street right-of-way)- 25 feet
Rear yard - 3 0 feet
Lots fronting on cul-de-sacs shall have a front yard setback of 30 feet from
street right-of-way and shall have a width of not less than 80 feet, as measured at the 30-
foot front yard setback line, except that the two most southerly lots abutting the cul-de-
sac that is immediately west of the water system parcel abutting Edgerton Avenue (such
cul-de-sac being the most southeasterly cul-de-sac in the Development) may each have a
minimum lot width of 70 feet, as measured at the 30-foot front yard setback line. That
pmi of a lot fronting on a cul-de-sac that has less than the required minimum width may
be included when measuring the depth of the front yard setback.
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(b) Internal traffic circulation throughout the Development shall be by means
of private streets to be constructed by Plaintiffs and located as shown on the Plan. The
private streets shall comply with all Township requirements for private streets, except as
modified by this Judgment. The right-of-way shall have a width of 66 feet, the travel
width of the streets shall be 24 feet (26 feet if storm water drainage is included with
valley gutters), and each street shall be paved with bituminous pavement and a sufficient
aggregate base. The street grade shall not exceed 8%, except that a 10% grade may be
allowed on two locations on the site located in the southwest quadrant of the
Development to allow the preservation of existing slopes and mature trees. The private
streets shown on the Plan may extend for the distances from Edgerton A venue as shown
on the Plan, in view of the topography of the land, the location of the wetland areas and
for other reasons arising because of the nature of the land and its physical constraints. An
easement shall be provided for a future street connection immediately to the south, in the
southwesterly portion of the Development, as shown on the Plan.
(c) The private streets shall be maintained, repaired, replaced and
snowplowed so as to afford continuous access and unimpeded passage for vehicles
(including emergency vehicles) under all weather conditions. The Master Deed and
Condominium Bylaws shall have provisions requiring maintenance of the streets in
accordance with this Judgment and the other provisions of the Township ordinances
pertaining to public streets.
(d) The private streets shall have names approved by the Kent County Road
Commission.
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(e) All utility service within the Development shall be by means of
underground facilities. The Master Deed shall reserve easements for future private and
public utility service, including water and sewer, within the private road right-of-way and
within 10 feet on both sides thereof.
(f) All dwellings shall be built upon a full basement and foundation.
Dwellings shall have minimum building floor areas as follows:
(i) Each ranch-style dwelling shall have a m1mmum floor area of
1,350 square feet on one level, excluding any attached garage.
(ii) Each split-level dwelling shall have a minimum floor area of 1,250
square feet on the main level and the upper levels.
(iii) Each two-story dwelling shall have a minimum floor area of 1,400
square feet, with not less than 7 40 square feet on the first floor.
(g) One sign identifying the Development may be located at the entrance to
the Development off Edgerton Avenue. The sign may be illuminated and shall not be
larger than 36 square feet and shall not be higher than 6 feet. Such sign shall, however,
be subject to the further approval by the Township Building Inspector as to placement
and other features thereof in accordance with the Township sign ordinance. Additionally,
one temporary sign pertaining to the sale of the premises upon which it is placed may be
allowed provided it does not exceed 32 square feet in total area.
(h) All dwellings in the Development shall be numbered in reasonable
numerical order, so as to promote ease oflocating dwellings within the Development.
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(i) All matters required by law as being subject to Michigan Department of
Environmental Quality (DEQ) approval shall be submitted to the DEQ and all required
pennits or approvals shall be obtained, including approvals pertaining to any changes in
or impacts on the wetland areas which may require petmitting or other authorization
under state law or regulations.
Section 5. Private Wastewater Facility.
(a) Plaintiffs will construct at their expense, in accordance with applicable
standards of the Michigan Depmiment of Environmental Quality, a conmmnity
wastewater treatment facility with adequate capacity to serve the Development. Such
facility shall exceed minimal standards and shall be designed, constructed, operated and
maintained in accordance with applicable local, state and federal laws and regulations
and to minimize any discharges of contaminants to the environment. Plaintiffs will
provide to Defendant such design and construction plans as are submitted to the
Michigan Department of Enviromnental Quality with regard to the wastewater treatment
facility, and such plans will be submitted to the Township Engineer for review and
comment. The Township may provide such comments to the regulatory agency as it, in
good faith, believes are appropriate. There shall be no direct discharge from the
wastewater treatment facility into the Rogue River.
(b) Plaintiffs and the Township may enter into an agreement whereby the
Township agrees to assure the proper operation of the system, should the private parties
responsible for the same fail to do so; provided, however, that such agreement shall
assure, as reasonably detennined by the Township Board, that the Township shall bear no
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cost associated with respect to such undertaking. Prior to entering into any such
agreement, the Township Board shall be satisfied, in its reasonable discretion, with the
proposed community wastewater treatment facility and proposed discharge method and
levels, that such undertaking is not contrary to the public interest, and that an agreement
satisfactory to the Township Board has been reached with the Plaintiffs with respect to
such undertaking.
(c) The Master Deed and Condominium Bylaws shall contain provisions for
proper continued operation of the system, and such other conditions as are separately
required by the Township Board with respect to any undertaking to agree to assume
operation and responsibility for the system. Such provisions shall include, among other
matters, provisions constituting a petition and authorization for the Township to levy
special assessments on benefited units for repair, maintenance and replacement of the
system, should the Township or another governmental entity undertake responsibility for
the system where permitted or required by law. Any such undertaking of ownership
and/or operational responsibility for the system shall be canied out only in such a manner
that no cost to the Township results, and accordingly, any agreement between the
Township and the Plaintiffs on the matter shall include, among other provisions, such
letter of credit or performance bond provisions that shall be sufficient to assure that the
Township shall bear no cost associated with the operation, repair or replacement of the
system or any part thereof. The Township Board shall be satisfied, in its reasonable
discretion, with the terms and provisions of any such proposed letter of credit or
performance bond.
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Section 6. Water Supply Facility.
(a) Plaintiffs will construct at their expense, in accordance with applicable
standards of the Michigan Department of Environmental Quality, a private water supply
facility with adequate capacity to serve the Development. Such facility shall be designed,
constructed, operated and maintained in accordance with applicable local, state and
federal laws and regulations. Plaintiffs will provide to Defendant such design and
construction plans as are submitted to the Michigan Department of Environmental
Quality with regard to its private water supply facility, and such plans will be submitted
to the Township Engineer for review and comment. The Township may provide such
comments to the regulatory agency as it, in good faith, believes are appropriate. As a pati
of establishment of the privately-owned public water supply system, Plaintiffs shall enter
into an agreement with the Township specifying the terms under which the Township
may elect to assume ownership and operation of the system, should the same be
necessary in the reasonable judgn1ent of the Township Board. Such agreement shall be
satisfactory in form and content to the Township Board. The Township Board is not
required to approve the proposed water supply system or enter into such an agreement
until the Board is satisfied in its reasonable discretion with regard to all matters
pertaining to the legal establishment and operation of the system. Plaintiffs will execute
reasonable well protection agreements with Defendant with regard to existing water wells
on adjacent property in accordance with the outlined well protection agreement process
attached as Exhibit C to this Consent Judgment. The water supply system shall be
designed to facilitate connection to a public water system.
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(b) The Master Deed or Condominium Bylaws shall contain provisions for
operation of the system, and provisions constituting a petition and authorization for the
Township to levy special assessments on benefited units for repair, maintenance, and
replacement of the system should the Township or another governmental entity ever take
responsibility for the system. Any such undertaking of ownership and/or operational
responsibility for the system shall be carried out only in such a manner that no cost to the
Township results, and accordingly, any agreement between the Township and the
Plaintiffs on the matter shall include, among other provisions, such letter of credit or
performance bond provisions that shall be sufficient to assure that the Township shall
bear no cost associated with the operation, repair or replacement of the system or any pmt
thereof. The Township Board shall be satisfied, in its reasonable discretion, with the
terms and provisions of any such proposed letter of credit or performance bond.
(c) All aspects of the water supply system, including the installation and
operation of the water supply wells, shall have no serious adverse effect upon adjacent or
nearby lands, nor shall the drilling and operation of the water supply wells used in the
water system have any serious adverse effects on existing water wells in the vicinity or
the availability of water supply for such existing wells. Any such serious adverse effects
shall be a violation ofthis Judgment.
(d) The water supply system shall include the installation and maintenance of
valves and other necessary appurtenances of the water system that will enable the
Township fire department to conveniently cmmect its equipment to the water system for
purposes of fire suppression within the Development. The location and nature of such
fire protection measures, and the number and location of connection points, shall be
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subject to the approval of the Township Fire Chief, which approval shall not be
unreasonably withheld.
Section 7. Stormwater Drainage Facility.
(a) Plaintiffs will construct at their expense, in accordance with applicable
standards of the Michigan Department of Environmental Quality and that version of the
Kent County Drain Commission Stormwater Management Task Force Model Stormwater
Ordinance now being considered by the Township and as finally adopted by and then in
effect in the Township, stonnwater drainage, detention and treatment facilities with
adequate capacity to serve the Development. Subject to continued compliance with
Michigan Department of Environmental Quality standards, the parties hereto may by
mutual agreement modify the provisions of the above described Model Ordinance if such
modification would better serve the goals of this paragraph. Such facilities shall be
constructed, designed, operated and maintained in accordance with applicable local, state
and federal laws and regulations. The stormwater drainage plan and system shall be
subject to the approval of the Township Engineer, which approval shall be within the
reasonable discretion of the Township Engineer. The facilities shall have no serious
adverse effect upon adjacent or nearby wetlands, lands or surface waters, or upon
wetlands, lands or surface waters within the Development, by reason of erosion,
pollution, flooding, or otherwise. Any such serious adverse effect shall be a violation of
this Judgment. Plaintiffs will provide to Defendant such design and construction plans as
are submitted to the Kent County Drain Commission with regard to its stormwater
drainage, detention and treatment facilities, and such plans will be submitted to the
Township Engineer for review and comment. The Township may provide such
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comments to the regulatory agency as it, in good faith, believes are appropriate. The
response of the Kent County Drain Commission to the application, including any review
letter or other comment or information provided by the Drain Commissioner shall be
promptly submitted to the Township for its review. Any response on the part of the
Drain Commissioner shall be submitted by the Township to the Township Engineer for
review and comment. As a result, the Township Engineer may make further reasonable
requirements with respect to the stonnwater drainage system, and in that event, the
Plaintiffs shall comply with the same.
(b) The Condominium Master Deed and Bylaws shall required that all
facilities for storm water management be regularly maintained in properly functioning
condition.
(c) So as to help avoid the adverse effects of undue amounts of nutrients
which may affect the groundwater and other aspects of the lands, the site condominium
documents shall specify that only non-phosphorus fe11ilizers may be used on any lands
within the Development.
Section 8. Intersection Improvements. Plaintiffs will commission and pay for a
traffic study by Wade/Trim, traffic engineers, which will assess the impact of the Development
on the intersection of 11 Mile Road and Algoma A venue. The traffic study shall be completed
and a copy provided to the Township prior to the start of any construction activities on the
propeliy. If the traffic study indicates that improvements (which may include a traffic signal) are
required due to the Development and such improvements are constructed by the Kent County
Road Commission, Plaintiffs will pay 50% of the Township's share of the cost of such
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·improvements. If the Township will not bear any cost of such improvements, Plaintiffs will pay
25% of the cost of such improvements to the governmental entity undertaking the improvements.
Section 9. Soil Erosion and Sedimentation Control; Site Grading. In the
construction and use of the Development, Plaintiffs shall comply in all respects with any
required soil erosion and sedimentation pe1mit. A copy thereof shall be submitted to the
Township. Soil erosion protection and stabilization techniques and procedures shall be provided
continuously during all phases of the construction, until lawns and other landscaped areas are
established. All aspects of site construction and grading shall have no serious adverse effect
upon the Rogue River, any wetlands or adjacent or nearby lands. Any such serious adverse
effect shall be a violation of this Judgment.
Section 10. Wetlands. Any portion of the Development which are wetlands or which
have been designated as wetlands under applicable Michigan law shall not be filled, dredged or
developed to any extent without the approval of the Department of Environmental Quality, by
means of such permits as may be required by law. The design, layout and construction of the
Development shall be carried out only in such a manner as to have no serious adverse effect on
the quality and the waters of any wetland areas. Any such serious adverse effect shall be a
violation of this Judgment.
Section 11. Indemnification Agreement. Plaintiffs will enter into an agreement to
hold harmless and release Defendant from any potential liability related to design, construction,
operation and maintenance of wastewater, drinking water, stormwater facilities, and soil erosion
and sedimentation protection and stabilization techniques or procedures to be constructed by
Plaintiffs pursuant to this Judgment.
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Section 12. Approvals. In a timely fashion, Defendant will provide such reviews and
will issue any and all permits necessary for the construction and occupancy of the Development
which are within its authority to issue and to which Plaintiffs are reasonably entitled, and will not
interfere with Plaintiffs in obtaining any other governmental approvals required for the
Development. Notwithstanding the above, Defendant and its consultants shall be entitled to
make reasonable, good faith, pertinent comments and participate in the review process with
regard to the private wastewater, water supply, stormwater facilities and road improvements
proposed by Plaintiffs to the governmental agencies charged with approving such facilities in
accordance with paragraphs 5, 6, 7 and 8 hereof.
Section 13. Lighting. The Development will utilize low impact Consumers Energy
lighting of such design and height as to minimize the splashing and glare of light into the sky.
Such street lighting shall be installed at the expense of the Plaintiffs and shall have its cost of
operation paid by unit owners. Any other lighting within the Development will comply with the
Township's outdoor lighting ordinance. Plaintiffs will submit a proposed lighting plan to the
Township Board for review and approval, which approval shall be within the reasonable
discretion of the Township Board. The Township will establish a street lighting special
assessment district which will assess the unit owners for the continuing operational costs of street
lighting. Plaintiffs will pay the Township for the Township's reasonable costs of establishing a
street lighting special assessment district.
Section 14. Trespass. The Master Deed or Condominium Bylaws shall contain a
provision which admonishes unit owners to respect the property rights of others with regard to
property which is not a part of the Development.
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Section 15. Open Space Area.
(a) Within those areas designated as open space (including areas designated as
green space, natural area or park and recreation area) on the Plan, no buildings, structures
or other improvements shall be constructed, nor shall trees or vegetation be removed,
except to construct the natural walking or non-motorized riding paths, trail
improvements, gazebos, playground areas, structures to support recreational activities,
roads, utility services and stormwater drainage or grading measures necessary for the use
of or for the gaining of access to natural areas within the Development, as shown on the
Plan; provided, however, that small-scale structures, solely for the enclosing of utility
system equipment and for the storage of maintenance equipment for recreation areas may
be pennitted, if such enclosing structures are necessary for the feasible operation of
utility systems or for the maintenance of recreation areas and for no other purposes. Any
change to the sanitary sewer and water system isolation areas required by the Depatiment
of Environmental Quality or other agency having jurisdiction shall be submitted to the
Township Board for review and approval which approval shall be within the reasonable
discretion of the Township Board. The Condominium Master Deed and Bylaws shall
contain provisions preserving these areas as open space in perpetuity, and requiring that
the walking path be maintained in a usable condition.
(b) Playground areas, as shown on the Plan, shall include customary
playground equipment, picnic tables and similar equipment as shown on the Plan.
(c) The sanitary sewer and water system isolation areas shall be as shown on
the Plan or as may be required by the Department of Enviromnental Quality or other
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agency having jurisdiction. The Condominium Master Deed and Bylaws shall contain
provisions matching the restrictions imposed by the DEQ and other appropriate
restrictions upon those units which lie partially in the isolation areas.
(d) Provisions for the perpetual maintenance of the open space and other
natural areas within the Development shall be included in the Master Deed and Bylaws or
in separate restrictive covenants. Such instruments shall be subject to the approval of the
Township Attorney prior to recording.
(e) Inasmuch as the open space area, as shown in the Plan, is an essential part
of the Development as authorized by this Judgment, the open space area or any part
thereof, except for the 8-12 acre parcel refened to in Section 1, shall not be conveyed,
leased or otherwise transferred, assigned or encumbered separately from the balance of
the Development, and the ownership thereof shall continue to be vested in the Developer
or the Condominium Association, following the transfer of the general and limited
common elements and other aspects of the Development to the Association. Any such
conveyance, transfer or encumbrance of the open space area shall be a violation of this
Judgment, but the provisions of this subparagraph shall not prohibit agreements between
the Plaintiffs and/or the condominium association , with others, for the mutual use of
open space area within the Development for outdoor recreational purposes only. The
condominium documents establishing the open space area, and providing for the
pennitted uses therein, shall include provisions prohibiting the conveyance or other
transfer ofthe open space area as specified in this subparagraph. Such provisions shall be
subject to approval by the Township Attorney, before the recording of the condominium
documents.
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Section 16. Sidewalks. Sidewalks shall be installed as indicated on the Pedestrian
Circulation Plan, which shall be considered to be part of the Plan. The sidewalks shall be shown
on the street construction plans. A midblock sidewalk to the park and recreation areas, as shown
on the Plan, shall be provided. Sidewalks shall be constructed by each unit owner prior to
issuance of a certificate of occupancy for the dwelling constructed on each unit; provided,
however, that if because of inclement weather, a sidewalk cannot be constructed at the time the
dwelling is ready for a certificate of occupancy to be issued, then the certificate may nevetiheless
be issued, but the sidewalk shall be installed and completed as soon as weather permits, but in
any event not later than six months after issuance of the certificate of occupancy. The
Condominium Master Deed or Bylaws shall contain provisions requiring such sidewalk
construction by the unit owner.
Section 17. Sales Offices. Up to three single-family dwellings with garages finished
as sales offices may be used as temporary sales offices by the Plaintiffs for providing
information and soliciting sales of properties within the Development. Each such sales office
shall be located in a model home. Such offices may be located and relocated at the Developer's
discretion, except that only three such offices shall be in use at any time and no more than three
model homes (including any model homes authorized by Section 2(b) of this Judgment) shall
exist at any time. A dwelling in which the office is located shall in all respects have the
appearance of a single family dwelling, except that a sign of not more than 12 square feet
identifying the development and sales office may be placed on the propetiy, and removed when
the property is no longer being used for a sales office.
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Section 18. Approval of Site Condominium; Master Deed and Bylaws. The
Township Board hereby approves the Edgerton Site Condominium and the Plan for the
Development, subject to the tenns and conditions of this Judgment.
As to any requirements required herein to be included in the Master Deed and/or
Condominium Bylaws, such instruments shall specifically list such requirements and shall
provide that the same shall not thereafter be amended or deleted without the written approval of
the Township Board. Such provisions shall be reviewed by the Township Attomey before
recording, so as to verify their compliance with this subparagraph and this Judgment.
There shall be no provisions of the Master Deed or Condominium Bylaws which are
contrary to or at variance with the provisions of this Judgment or which would in any way hinder
the enforcement of this Judgment. To the extent that any such Master Deed or Condominium
Bylaw provisions may be contrary to or at variance with any of the provisions of this Judgment,
the same shall be applicable only to the extent permitted by the terms hereof.
Section 19. Final Review. Prior to commencement of construction of the
Development, or any part thereof, Plaintiffs shall submit all applicable plans and documents to
the Township Board for a final review to detennine compliance with this Judgment. In addition
to all information necessary to show compliance with the terms of this judgment and applicable
laws, rules, regulations and Township ordinances, the plans and documents shall include the
location of proposed water and sewer lines, stop signs and other traffic signs in the Development,
preliminary architectural sketches and/or a general statement as to the type of construction and
materials to be used in the proposed buildings or structures, the height and area of buildings and
structures, and a schedule of development and project staging.
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Section 20. Consultant Review Fees. Plaintiffs agree to reimburse the Defendant
within thirty (30) days of invoice, for the Defendant's actual fees and costs for services rendered
by the Defendant's engineer, attorney or planning consultant relative to the review of plans and
documents submitted for review under the tem1s of this Judgment. The Defendant shall cause
such charges to be reasonable and in amounts per hour equal to the nom1al billing rates normally
charged to the Defendant for the Defendant's work. Requests for payment or reimbursement
shall include itemized billings.
Section 21. Underlying Zoning. Except as modified herein, or pursuant to Section
19 above, the requirements of the R-A zoning district or any successor underlying dist1ict shall
apply to the Development.
Section 22. Enforcement. The Township may enforce the prov1s10ns of this
Judgment and applicable provisions of the Township Zoning Ordinance, Building Code and
other ordinances, laws and regulations to the extent and in the manner provided by law. In the
event the Plaintiffs shall fail to carry out, either at all or on a timely basis, any provisions or
requirement of this Judgment, other applicable law, ordinance or regulation, or any permit issued
for the Development, the Township may through its Building Inspector or other Township
agency issue and post a stop work order at the site of any improper or noncomplying part of the
Development, directing that all further construction of such part of the Development be ceased
forthwith, pending the compliance with any applicable provision of this Judgment, other
applicable law, ordinance or regulation or issued permit. Upon the issuance of such stop work
order, the Plaintiffs shall comply fully therewith without delay. Upon the correction and
restoration of any matters as to which the stop work order was issued, the Township shall
promptly rescind and remove the stop work order, whereupon the Plaintiffs may again proceed
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with the construction or other petmissible activity as to the Development. The issuance and
posting of any stop work order shall not be an exclusive remedy, but may be undertaken by the
Township in addition to all other lawful means of enforcement. Should any other governmental
body or agency issuing a permit for the Development notify Plaintiffs that a violation of the
petmit has occurred, Plaintiffs shall immediately notify the Township Supervisor of this event.
Any violation of a permit issued by any other governmental body shall be deemed a violation of
this Judgment. Should Plaintiffs' activities result in any serious adverse effect as is prohibited by
Sections 6(c), 7(a), 9, and 10, the Township is entitled to seek an order from this Comi for the
correction and restoration of such matters and the Township will be entitled to recover its
reasonable attorney fees and expert fees as are incurred with regard to such action.
Section 23. Modification of Judgment. In the event that the provisions of this
Judgment require modification to meet the lawful requirements of any other governmental
agency, Defendant will not unreasonably withhold consent to such modification, and an
amendment to this Judgment may be entered incorporating any such modification.
Section 24. Cooperation. The parties will deal with one another in good faith, and in
a timely matmer, and will neither take nor omit any action, by themselves or in concert with
others, which will interfere with carrying out the terms of this Judgment.
Section 25. Other Documents. The parties agree to execute in a timely manner, any
and all documents and/or enter into agreements as are necessary or convenient to carry out the
intent of this Judgment.
20
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Section 26. Written Changes. The terms of this Judgment may be amended,
changed, or modified, only by written agreement, unless otherwise specified herein. No waiver
of any provision of this Judgment shall be valid unless in writing.
Section 27. Binding Effect. This Judgment shall be binding upon, and shall inure to
the benefit of the parties hereto and their heirs, personal representatives, successors and assigns.
Section 28. Covenants. This Judgment is declared to be in recordable form and the
covenants contained herein are declared to be covenants running with the land and the Kent
County Register of Deeds is hereby ordered to record a true copy of this Judgment.
Section 29. Dismissal. Plaintiffs' claims, including those for damages, attorney fees
and costs, are hereby dismissed with prejudice; provided, however, that the Court will retain
continuing jurisdiction of this matter to ensure compliance with this Judgment.
Section 30. Attorneys Fees and Release. Neither party shall pay to the other any
costs or attorneys' fees attributable to this case and this Judgment shall constitute a mutual
release of all such claims by all parties in this case.
Section 31. Authorization. The persons executing this Judgment have represented to the
Court and the other parties that they have full and complete authority to consent to the terms of
this Judgment on behalf of their respective parties.
U.S. District Court Judge
21 By __ ~~~~~~~--~
Deputy C!er · U . S . District Courr
Western Oist. of Michigan
Date MAR ? 6 ;QQ(
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APPz==ANCE: Teresa S. Decker (P32114) Randall W. Kraker (P27776) Varnum, Riddering, Schmidt & Howlett, LLP Attorneys for Plaintiffs
::ODMA\PCDOCS\GRR\654656\6 22
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Wifi?am A. Horn (P33855) Mika, Meyers, Beckett & Jones, PLC Attorneys for Defendant
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EXHIBIT A
Description: That part of Section 27, T9N. R11W, Alscrna ToV\'("Jship, Kent County, Michigan. described as:
Commencii"!Q at the NE comer of said sectloh 27; thence N89°33'17•w 1331.37 feet along the North line, NE 1/4 to the NW OO!'llet, E 112. NS 1/4; thence S00°44'08JW 600.24 feet alotig the West line, E 112, NE 1/4 to the PLACE OF BEGINNING of thiS de50I!Pti
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PreHminory DesTgOPlon Al9oma Township Property rcro-~DIIdln~
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EXHIBIT ---=t=---OUTLINE OF WELL PROTECTION AGREEMENT PROCESS
1. Plaintiffs will enter into agreements as requested by any landowner with an existing domestic water well that is located within 1320 feet of Plaintiffs' water wells or an existing domestic water well located on property described in Exhibit I attached hereto, under which Plaintiffs will agree that if Plaintiffs' wells have any serious adverse effect on the landowner's existing domestic water wells, Plaintiffs will provide a comparable replacement well at Plaintiffs' expense.
2. Plaintiffs will mail notice to all property owners with existing domestic water wells located on property described in Paragraph 1 above regarding availability of well protection agreements.
3. A person desiring a well protection agreement should contact Plaintiffs to request the agreement, and provide verified information regarding the location, depth, size, age, condition, etc. of any well for which a well protection agreement is requested.
4. Plaintiffs may wish to verify the existing condition and capacity of any well for which a well protection agreement is requested. The well protection agreement will provide Plaintiffs with access for this purpose.
5. The well protection agreement will provide that Plaintiffs may have monitoring equipment on the property, to assist in determining whether Plaintiffs' operation is having an adverse effect on existing wells on the propetiy.
6. Under the well protection agreement, if the landowner believes that Plaintiffs' operations are having an adverse effect on the landowner's well, the landowner is to notify Plaintiffs and cooperate with Plaintiffs in investigating the situation.
7. The parties to the well protection agreement will agree that should there be a dispute regarding whether Plaintiffs caused any serious adverse effect on a well, the patiies will seek a determination from the MDEQ division which issued Plaintiffs a pennit for their water supply system.
8. Plaintiffs will deposit a $10,000 letter of credit in escrow with the Township to ensure funds are available to provide replacement wells. Whenever there is a draw upon the letter of credit, a new letter of credit for $10,000 shall be deposited with the Township. It is intended that Plaintiffs shall continuously maintain a $10,000 source of funds available to provide replacement wells.
9. The agreements shall expire 7 years after 90% of the units within the Development are occupied. Plaintiffs will notify the Township when 90% of the units within the Development have received a Cetiificate of Occupancy
::ODMA \PCDOCS\GRR\671548\3
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MAY 0 3 2002
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION .. '( -? -,~:; I'?· J.., '3 - I ' L. • \
EASTBROOK DEVELOPMENT COMPANY, and M.A.M. INVESTMENTS, LLC,
Plaintiffs,
v.
ALGOMA TOWNSHIP,
Defendant. _____________________________ !
Teresa S. Decker (P32114) Randall W. Kraker (P27776) Varnum, Riddering, Schmidt & Howlett LLP Attorneys for Plaintiffs 333 Bridge St., N.W. P.O. Box 352 Grand Rapids, MI 49501-0352 (616) 336-6000
----------------------------~/
.. ·-. . i .) ,,2;.-~::~i\
CivilActionNo.4:01CV108 ~·p~ HON. DAVID W. McKEAGUE
STIPULATION FOR CORRECTION OF TERM IN CONSENT JUDGMENT
Michael S. Bogren (P34835) Plunkett&Cooney,P.C. Co-Counsel for Defendant 535 South Burdick, Suite 256 Kalamazoo, MI 49007 (616) 382-5935
William A. Horn (P33855) Mika, Meyers, Beckett & Jones, PLC Co-Counsel for Defendant 900 Monroe Ave., N.W. Grand Rapids, MI 49503 (616) 632-8000
On March 26, 2002, the Court entered a Consent Judgment in this matter pursuant to the
stipulation and approval of the parties. Upon further review of the Consent Judgment as entered by
the Court, the parties have agreed to co1Tect the heading in Section 3 of the Consent Judgment.
During the negotiation of the terms and provisions of the Consent Judgment, the substance of
Section 3 changed and the heading was not changed to accurately reflect the substance of Section
3.
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The parties therefore request that the Court enter an order authorizing the replacement of
existing page 3 of the Consent Judgment entered on March 26, 2002 with the attached page 3 which
reflects a change only to the heading of Section 3.
Dated: ~J. G; , 2002
Dated:_\.\;_\\--~-'~--' 2002 \
H:\W AH\CLN\Aigoma\Eastbrook\CJ.Correct.Stip.wpd
VARNUM, RIDDERlNG, SCHMIDT & HOWLETT Attorneys for Plaintiff
By:~~ Randall W. Kraker (P27776) 333 Bridge St., N.W. P.O. Box 352 Grand Rapids, MI 49501-0352 (616) 336-6000
MIKA, MEYERS, BECKETT & JONES PLC Attorneys for Defendant
By:W.&S2~~
2
William A. Horn (P33855) 900 Monroe Ave., N.W. Grand Rapids, MI 49503 (616) 632-8000
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Section 2. Phasing.
(a) The Development may be constructed in phases. Changes in sales or
market conditions will dictate the phasing and changes in phasing are permitted. Prior to
commencing construction of a phase, Plaintiffs shall indicate to the Township Board the
parameters of that phase.
(b) Prior to ·the issuance of a building permit for a unit in a development
phase, the streets, water and sewer systems and the construction of common
improvements in that phase shall be completed and approved, or a performance guarantee
which complies with township ordinance shall be furnished by the Plaintiffs. However,
prior to the issuance of a certificate of occupancy for a unit, the water and sanitary sewer
systems shall be completed and approved and shall be extended to that unit and
connected. A performance guarantee may not be provided in lieu of such completion and
approval of the water and sewer systems; provided, however, that up to three model
homes may be completed, solely for the purpose of dealing with potential home buyers,
and not for the purpose of the sale of such model homes, without the providing of a
performance guarantee, but such guarantee shall be provided in all other circumstances,
as noted above, including the sale of any such model home.
Section 3. Fire Facilities. Plaintiffs will donate the sum of $50,000 to Defendant
within ninety (90) days of the date of the initial building permit for the construction of a single
family home on the Property. Such funds will be used by Defendant only for fire protection
within the Township, which may include the Township's donation of these funds to the Algoma
Township Fire Capital Fund.
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UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
EASTBROOK DEVELOPMENT COMPANY, and M.A.M. INVESTMENTS, LLC,
Plaintiffs,
v.
ALGOMA TOWNSHIP,
Defendant. _____________________________ /
Teresa S. Decker (P32114) Randall W. Kraker (P27776) V am urn, Riddering, Schmidt & Howlett LLP Attorneys for Plaintiffs 333 Bridge St., N.W. P.O. Box 352 Grand Rapids, MI 49501-0352 (616) 336-6000
----------------------------~/
Civil Action No. 4:01CV108
HON. DAVID W. McKEAGUE
ORDER FOR CORRECTION OF TERM IN CONSENT JUDGMENT
Michael S. Bogren (P34835) Plunkett & Cooney, P.C. Co-Counsel for Defendant 535 South Burdick, Suite 256 Kalamazoo, MI 49007 (616) 382-5935
William A. Hom (P33855) Mika, Meyers, Beckett & Jones, PLC Co-Counsel for Defendant 900 Monroe Ave., N.W. Grand Rapids, MI 49503 (616) 632-8000
This matter having come before the Court upon the Stipulation of the parties seeking to
COlTect the heading of Section 3 on page 3 of the Consent Judgment entered on March 26,2002, the
Court hereby directs the Clerk to replace existing page 3 of said Consent Judgment with the
substitute page attached to the Stipulation of the parties regarding this matter.
Certified as a True C.('py nald C. WeGt
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UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
EASTBROOK DEVELOPMENT COMPANY, Case No. 4:01-CV-108
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and M.A.M. INVESTMENTS, LLC, HON. DAVID W. McKEAGUE
Plaintiffs,
v
ALGOMA TOWNSHIP,
Defendant. _________________________________ /
Teresa S. Decker (P-32114) Randall W. Kraker (P-27776) Varnum, Riddering, Schmidt & HowlettLLP Attorneys for Plaintiffs 333 Bridge Street, N.W. P.O. Box 352 Grand Rapids, MI 49501-0352 (616) 336-6000
Michael S. Bogren (P-34835) Plunkett & Cooney, P.C. Attorneys for Defendant 535 South Burdick, Suite 256 Kalamazoo, MI 49007 (616) 382-5935
--------------------------------~/
CONSENT JUDGMENT
William A. Horn (P-33855) Mika, Meyers, Beckett & Jones, PLC Co-Counsel for Defendant 900 Monroe Avenue, N.W. Grand Rapids, MI 49503 (616) 632-8000
At a session of said Court held in the City of Lansing, Michigan this _ day of , 2002.
PRESENT: HONORABLE DAVID W. McKEAGUE U.S. District Court Judge
l . ' . " .
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Based upon the stipulation of the parties as evidenced by the signatures of their counsel
below, and the determination of the Court that this Judgment represents a reasonable resolution
of the pending dispute between the parties, IT IS ORDERED AND ADWGED as follows:
Section 1. Development of Project. The property which Plaintiffs propose to
develop, the legal description of which is contained in Exhibit A to this Judgment (the
"Property"), may be developed as a single family detached residential housing community
Planned Unit Development (hereafter "the Development") in accordance with the terms of this
Judgment and in substantial conformity with the preliminary design plan and preliminary
pedestrian plan both having a revision date of February 6, 2002 attached hereto as Exhibit B
("the Plan"), except insofar as the Plan may be modified during the process of final site
development plan approval by the Township Board in accordance with Section 19 of this
Consent Judgn1ent. After obtaining approval from the Township Board, Plaintiffs may modify
the Plan to redesign the driveway into the Development from Edgerton A venue so as to create a
unified site of approximately 8-12 acres adjacent to Edgerton Avenue, which site may be
transferr-ed, after obtaining approval from the Township Board, to a public school district for use
as a public school. If a public school district is not interested in such transfer, then the site may
be transferred, after obtaining approval from the Township Board, to another public or non-profit
entity for a use which preserves open space and provides a public benefit. Such approvals shall
be within the reasonable discretion of the Township Board. Any redesign of the driveway into
the Development shall provide for a 16-foot emergency access route fiom the Development to
Edgerton A venue.
2
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Section 2. Phasing.
(a) The Development may be constructed in phases. Changes in sales or
market conditions will dictate the phasing and changes in phasing are permitted. Prior to
commencing construction of a phase, Plaintiffs shall indicate to the Township Board the
parameters of that phase.
(b) Prior to the issuance of a building pennit for a unit in a development
phase, the streets, water and sewer systems and the construction of common
improvements in that phase shall be completed and approved, or a performance guarantee
which complies with township ordinance shall be furnished by the Plaintiffs. However,
prior to the issuance of a celiificate of occupancy for a unit, the water and sanitary sewer
systems shall be completed and approved and shall be extended to that unit and
connected. A performance guarantee may not be provided in lieu of such completion and
approval of the water and sewer systems; provided, however, that up to three model
homes may be completed, solely for the purpose of dealing with potential home buyers,
and not for the purpose of the sale of such model homes, without the providing of a
performance guarantee, but such guarantee shall be provided in all other circumstances,
as noted above, including the sale of any such model home.
Section 3. Development of Park and Recreational Facilities. Plaintiffs will donate
the sum of $50,000 to Defendant within ninety (90) days of the date of the initial building permit
for the construction of a single family home on the Propeliy. Such funds will be used by
Defendant only for fire protection within the Township, which may include the Township's
donation of these funds to the Algoma Township Fire Capital Fund.
3
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Section 4.
following features:
Design Characteristics. The Development shall incorporate the
(a) The Development shall be constructed as a site condominium and
have not more than 230 residential units of one single family detached dwelling each.
Each unit shall have the area shown on the Plan and shall be located as shown on the
Plan. The minimum unit width shall be as shown on the Plan. The minimum setbacks
shall be as follows:
Front yard- 30 feet
Side Yard (not along street right-of-way)- 10 feet
Side Yard (along street right-of-way)- 25 feet
Rear yard- 30 feet
Lots fronting on cul-de-sacs shall have a front yard setback of 30 feet from
street right-of-way and shall have a width of not less than 80 feet, as measured at the 30-
foot front yard setback line, except that the two most southerly lots abutting the cul-de-
sac that is immediately west of the water system parcel abutting Edgerton Avenue (such
cul-de-sac being the most southeasterly cul-de-sac in the Development) may each have a
minimum lot width of 70 feet, as measured at the 30-foot front yard setback line. That
part of a lot fronting on a cul-de-sac that has less than the required minimum width may
be included when measuring the depth of the front yard setback.
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(b) Intemal traffic circulation throughout the Development shall be by means
of private streets to be constructed by Plaintiffs and located as shown on the Plan. The
private streets shall comply with all Township requirements for private streets, except as
modified by this Judgment. The right-of-way shall have a width of 66 feet, the travel
width of the streets shall be 24 feet (26 feet if stom1 water drainage is included with
valley gutters), and each street shall be paved with bituminous pavement and a sufficient
aggregate base. The street grade shall not exceed 8%, except that a 10% grade may be
allowed on two locations on the site located in the southwest quadrant of the
Development to allow the preservation of existing slopes and mature trees. The private
streets shown on the Plan may extend for the distances from Edgerton Avenue as shown
on the Plan, in view of the topography of the land, the location of the wetland areas and
for other reasons arising because of the nature of the land and its physical constraints. An
easement shall be provided for a future street connection immediately to the south, in the
southwesterly portion of the Development, as shown on the Plan.
(c) The private streets shall be maintained, repaired, replaced and
snowplowed so as to afford continuous access and unimpeded passage for vehicles
(including emergency vehicles) under all weather conditions. The Master Deed and
Condominium Bylaws shall have provisions requiring maintenance of the streets in
accordance with this Judgment and the other provisions of the Township ordinances
pertaining to public streets.
(d) The private streets shall have names approved by the Kent County Road
Commission.
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(e) All utility service within the Development shall be by means of
underground facilities. The Master Deed shall reserve easements for future private and
public utility service, including water and sewer, within the private road right-of-way and
within 10 feet on both sides thereof.
(f) All dwellings shall be built upon a full basement and foundation.
Dwellings shall have minimum building floor areas as follows:
(i) Each ranch-style dwelling shall have a mm1mum floor area of
1,350 square feet on one level, excluding any attached garage.
(ii) Each split-level dwelling shall have a minimum floor area of 1,250
square feet on the main level and the upper levels.
(iii) Each two-story dwelling shall have a minimum floor area of 1,400
square feet, with not less than 740 square feet on the first floor.
(g) One sign identifying the Development may be located at the entrance to
the Development off Edgerton Avenue. The sign may be illuminated and shall not be
larger than 36 square feet and shall not be higher than 6 feet. Such sign shall, however,
be subject to the further approval by the Township Building Inspector as to placement
and other features thereof in accordance with the Township sign ordinance. Additionally,
one temporary sign pertaining to the sale of the premises upon which it is placed may be
allowed provided it does not exceed 32 square feet in total area.
(h) All dwellings in the Development shall be numbered in reasonable
numerical order, so as to promote ease of locating dwellings within the Development.
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(i) All matters required by law as being subject to Michigan Department of
Environmental Quality (DEQ) approval shall be submitted to the DEQ and all required
petmits or approvals shall be obtained, including approvals pertaining to any changes in
or impacts on the wetland areas which may require permitting or other authorization
under state law or regulations.
Section 5. Private Wastewater Facility.
(a) Plaintiffs will construct at their expense, in accordance with applicable
standards of the Michigan Department of Environmental Quality, a community
wastewater treatment facility with adequate capacity to serve the Development. Such
facility shall exceed minimal standards and shall be designed, constructed, operated and
maintained in accordance with applicable local, state and federal laws and regulations
and to minimize any discharges of contaminants to the environment. Plaintiffs will
provide to Defendant such design and construction plans as are submitted to the
Michigan Department of Environmental Quality with regard to the wastewater treatment
facility, and such plans will be submitted to the Township Engineer for review and
comment. The Township may provide such comments to the regulatory agency as it, in
good faith, believes are appropriate. There shall be no direct discharge from the
wastewater treatment facility into the Rogue River.
(b) Plaintiffs and the Township may enter into an agreement whereby the
Township agrees to assure the proper operation of the system, should the private parties
responsible for the same fail to do so; provided, however, that such agreement shall
assure, as reasonably detennined by the Township Board, that the Township shall bear no
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cost associated with respect to such undetiaking. Prior to entering into any such
agreement, the Township Board shall be satisfied, in its reasonable discretion, with the
proposed community wastewater treatment facility and proposed discharge method and
levels, that such undertaking is not contrary to the public interest, and that an agreement
satisfactory to the Township Board has been reached with the Plaintiffs with respect to
such undetiaking.
(c) The Master Deed and Condominium Bylaws shall contain provisions for
proper continued operation of the system, and such other conditions as are separately
required by the Township Board with respect to any undertaking to agree to assume
operation and responsibility for the system. Such provisions shall include, among other
matters, provisions constituting a petition and authorization for the Township to levy
special assessments on benefited units for repair, maintenance and replacement of the
system, should the Township or another governmental entity undetiake responsibility for
the system where permitted or required by law. Any such undertaking of ownership
and/or operational responsibility for the system shall be carried out only in such a mmmer
that no cost to the Township results, and accordingly, any agreement between the
Township and the Plaintiffs on the matter shall include, among other provisions, such
letter of credit or performance bond provisions that shall be sufficient to assure that the
Township shall bear no cost associated with the operation, repair or replacement of the
system or any part thereof. The Township Board shall be satisfied, in its reasonable
discretion, with the terms and provisions of any such proposed letter of credit or
performance bond.
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Section 6. Water Supply Facility.
(a) Plaintiffs will construct at their expense, in accordance with applicable
standards of the Michigan Department of Environmental Quality, a private water supply
facility with adequate capacity to serve the Development. Such facility shall be designed,
constructed, operated and maintained in accordance with applicable local, state and
federal laws and regulations. Plaintiffs will provide to Defendant such design and
construction plans as are submitted to the Michigan Department of Environmental
Quality with regard to its private water supply facility, and such plans will be submitted
to the Township Engineer for review and comment. The Township may provide such
comments to the regulatory agency as it, in good faith, believes are appropriate. As a part
of establishment of the privately-owned public water supply system, Plaintiffs shall enter
into an agreement with the Township specifying the terms under which the Township
may elect to assume ownership and operation of the system, should the same be
necessary in the reasonable judgment of the Township Board. Such agreement shall be
satisfactory in form and content to the Township Board. The Township Board is not
required to approve the proposed water supply system or enter into such an agreement
until the Board is satisfied in its reasonable discretion with regard to all matters
pertaining to the legal establishment and operation of the system. Plaintiffs will execute
reasonable well protection agreements with Defendant with regard to existing water wells
on adjacent property in accordance with the outlined well protection agreement process
attached as Exhibit C to this Consent Judgment. The water supply system shall be
designed to facilitate connection to a public water system.
9
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(b) The Master Deed or Condominium Bylaws shall contain provisions for
operation of the system, and provisions constituting a petition and authorization for the
Township to levy special assessments on benefited units for repair, maintenance, and
replacement of the system should the Township or another governmental entity ever take
responsibility for the system. Any such undertaking of ownership and/or operational
responsibility for the system shall be carried out only in such a manner that no cost to the
Township results, and accordingly, any agreement between the Township and the
Plaintiffs on the matter shall include, among other provisions, such letter of credit or
perfmmance bond provisions that shall be sufficient to assure that the Township shall
bear no cost associated with the operation, repair or replacement of the system or any part
thereof. The Township Board shall be satisfied, in its reasonable discretion, with the
tenns and provisions of any such proposed letter of credit or perfmmance bond.
(c) All aspects of the water supply system, including the installation and
operation of the water supply wells, shall have no serious adverse effect upon adjacent or
nearby lands, nor shall the drilling and operation of the water supply wells used in the
water system have any serious adverse effects on existing water wells in the vicinity or
the availability of water supply for such existing wells. Any such serious adverse effects
shall be a violation of this Judgment.
(d) The water supply system shall include the installation and maintenance of
valves and other necessary appurtenances of the water system that will enable the
Township fire depatiment to conveniently cmmect its equipment to the water system for
purposes of fire suppression within the Development. The location and nature of such
fire protection measures, and the number and location of connection points, shall be
10
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subject to the approval of the Township Fire Chief, which approval shall not be
unreasonably withheld.
Section 7. Stormwater Drainage Facility.
(a) Plaintiffs will construct at their expense, in accordance with applicable
standards of the Michigan Department of Environmental Quality and that version of the
Kent County Drain Commission Stormwater Management Task Force Model Stormwater
Ordinance now being considered by the Township and as finally adopted by and then in
effect in the Township, stormwater drainage, detention and treatment facilities with
adequate capacity to serve the Development. Subject to continued compliance with
Michigan Department of Environmental Quality standards, the parties hereto may by
mutual agreement modify the provisions of the above described Model Ordinance if such
modification would better serve the goals of this paragraph. Such facilities shall be
constmcted, designed, operated and maintained in accordance with applicable local, state
and federal laws and regulations. The stormwater drainage plan and system shall be
subject to the approval of the Township Engineer, which approval shall be within the
reasonable discretion of the Township Engineer. The facilities shall have no serious
adverse effect upon adjacent or nearby wetlands, lands or surface waters, or upon
wetlands, lands or surface waters within the Development, by reason of erosion,
pollution, flooding, or otherwise. Any such serious adverse effect shall be a violation of
this Judgment. Plaintiffs will provide to Defendant such design and constmction plans as
are submitted to the Kent County Drain Commission with regard to its stormwater
drainage, detention and treatment facilities, and such plans will be submitted to the
Township Engineer for review and comment. The Township may provide such
11
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comments to the regulatory agency as it, in good faith, believes are appropriate. The
response of the Kent County Drain Commission to the application, including any review
letter or other comment or infom1ation provided by the Drain Commissioner shall be
promptly submitted to the Township for its review. Any response on the part of the
Drain Commissioner shall be submitted by the Township to the Township Engineer for
review and comment. As a result, the Township Engineer may make further reasonable
requirements with respect to the stonnwater drainage system, and in that event, the
Plaintiffs shall comply with the same.
(b) The Condominium Master Deed and Bylaws shall required that all
facilities for stom1 water management be regularly maintained in properly functioning
condition.
(c) So as to help avoid the adverse effects of undue amounts of nutrients
which may affect the groundwater and other aspects of the lands, the site condominium
documents shall specify that only non-phosphorus fertilizers may be used on any lands
within the Development.
Section 8. Intersection Improvements. Plaintiffs will commission and pay for a
traffic study by Wade/Trim, traffic engineers, which will assess the impact of the Development
on the intersection of 11 Mile Road and Algoma Avenue. The traffic study shall be completed
and a copy provided to the Township prior to the start of any construction activities on the
property. If the traffic study indicates that improvements (which may include a traffic signal) are
required due to the Development and such improvements are constructed by the Kent County
Road Commission, Plaintiffs will pay 50% of the Township's share of the cost of such
12
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improvements. If the Township will not bear any cost of such improvements, Plaintiffs will pay
25% of the cost of such improvements to the governmental entity undertaking the improvements.
Section 9. Soil Erosion and Sedimentation Control; Site Grading. In the
construction and use of the Development, Plaintiffs shall comply in all respects with any
required soil erosion and sedimentation permit. A copy thereof shall be submitted to the
Township. Soil erosion protection and stabilization techniques and procedures shall be provided
continuously during all phases of the construction, until lawns and other landscaped areas are
established. All aspects of site construction and grading shall have no serious adverse effect
upon the Rogue River, any wetlands or adjacent or nearby lands. Any such serious adverse
effect shall be a violation of this Judgment.
Section 10. 'Vetlands. Any portion of the Development which are wetlands or which
have been designated as wetlands under applicable Michigan law shall not be filled, dredged or
developed to any extent without the approval of the Department of Environmental Quality, by
means of such pem1its as may be required by law. The design, layout and construction of the
Development shall be canied out only in such a mam1er as to have no serious adverse effect on
the quality and the waters of any wetland areas. Any such serious adverse effect shall be a
violation of this Judgment.
Section 11. Indemnification Agreement. Plaintiffs will enter into an agreement to
hold harmless and release Defendant from any potential liability related to design, construction,
operation and maintenance of wastewater, drinking water, stormwater facilities, and soil erosion
and sedimentation protection and stabilization techniques or procedures to be constructed by
Plaintiffs pursuant to this Judgment.
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Section 12. Approvals. In a timely fashion, Defendant will provide such reviews and
will issue any and all permits necessary for the construction and occupancy of the Development
which are within its authority to issue and to which Plaintiffs are reasonably entitled, and will not
interfere with Plaintiffs in obtaining any other governmental approvals required for the
Development. Notwithstanding the above, Defendant and its consultants shall be entitled to
make reasonable, good faith, pertinent comments and participate in the review process with
regard to the private wastewater, water supply, stormwater facilities and road improvements
proposed by Plaintiffs to the govemmental agencies charged with approving such facilities in
accordance with paragraphs 5, 6, 7 and 8 hereof.
Section 13. Lighting. The Development will utilize low impact Consumers Energy
lighting of such design and height as to minimize the splashing and glare of light into the sky.
Such street lighting shall be installed at the expense of the Plaintiffs and shall have its cost of
operation paid by unit owners. Any other lighting within the Development will comply with the
Township's outdoor lighting ordinance. Plaintiffs will submit a proposed lighting plan to the
Township Board for review and approval, which approval shall be within the reasonable
discretion of the Township Board. The Township will establish a street lighting special
assessment district which will assess the unit owners for the continuing operational costs of street
lighting. Plaintiffs will pay the Township for the Township's reasonable costs of establishing a
street lighting special assessment district.
Section 14. Trespass. The Master Deed or Condominium Bylaws shall contain a
provision which admonishes unit owners to respect the property rights of others with regard to
property which is not a part of the Development.
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Section 15. Open Space Area.
(a) Within those areas designated as open space (including areas designated as
green space, natural area or park and recreation area) on the Plan, no buildings, structures
or other improvements shall be constructed, nor shall trees or vegetation be removed,
except to construct the natural walking or non-motorized riding paths, trail
improvements, gazebos, playground areas, structures to support recreational activities,
roads, utility services and stom1water drainage or grading measures necessary for the use
of or for the gaining of access to natural areas within the Development, as shown on the
Plan; provided, however, that small-scale structures, solely for the enclosing of utility
system equipment and for the storage of maintenance equipment for recreation areas may
be permitted, if such enclosing structures are necessary for the feasible operation of
utility systems or for the maintenance of recreation areas and for no other purposes. Any
change to the sanitary sewer and water system isolation areas required by the Depmiment
of Environmental Quality or other agency having jurisdiction shall be submitted to the
Township Board for review and approval which approval shall be within the reasonable
discretion of the Township Board. The Condominium Master Deed and Bylaws shall
contain provisions preserving these areas as open space in perpetuity, and requiring that
the walking path be maintained in a usable condition.
(b) Playground areas, as shown on the Plan, shall include customary
playground equipment, picnic tables and similar equipment as shown on the Plan.
(c) The sanitary sewer and water system isolation areas shall be as shown on
the Plan or as may be required by the Department of Environmental Quality or other
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agency having jurisdiction. The Condominium Master Deed and Bylaws shall contain
provisions matching the restrictions imposed by the DEQ and other appropriate
restrictions upon those units which lie partially in the isolation areas.
(d) Provisions for the perpetual maintenance of the open space and other
natural areas within the Development shall be included in the Master Deed and Bylaws or
in separate restrictive covenants. Such instruments shall be subject to the approval of the
Township Attorney prior to recording.
(e) Inasmuch as the open space area, as shown in the Plan, is an essential part
of the Development as authorized by this Judgment, the open space area or any part
thereof, except for the 8-12 acre parcel refened to in Section 1, shall not be conveyed,
leased or otherwise transfened, assigned or encumbered separately from the balance of
the Development, and the ownership thereof shall continue to be vested in the Developer
or the Condominium Association, following the transfer of the general and limited
common elements and other aspects of the Development to the Association. Any such
conveyance, transfer or encumbrance of the open space area shall be a violation of this
Judgment, but the provisions of this subparagraph shall not prohibit agreements between
the Plaintiffs and/or the condominium association , with others, for the mutual use of
open space area within the Development for outdoor recreational purposes only. The
condominium documents establishing the open space area, and providing for the
pern1itted uses therein, shall include provisions prohibiting the conveyance or other
transfer of the open space area as specified in this subparagraph. Such provisions shall be
subject to approval by the Township Attorney, before the recording of the condominium
documents.
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Section 16. Sidewalks. Sidewalks shall be installed as indicated on the Pedestrian
Circulation Plan, which shall be considered to be part of the Plan. The sidewalks shall be shown
on the street construction plans. A midblock sidewalk to the park and recreation areas, as shown
on the Plan, shall be provided. Sidewalks shall be constructed by each unit owner prior to
issuance of a certificate of occupancy for the dwelling constructed on each unit; provided,
however, that if because of inclement weather, a sidewalk cannot be constructed at the time the
dwelling is ready for a certificate of occupancy to be issued, then the certificate may neve1iheless
be issued, but the sidewalk shall be installed and completed as soon as weather permits, but in
any event not later than six months after issuance of the certificate of occupancy. The
Condominium Master Deed or Bylaws shall contain provisions requiring such sidewalk
construction by the unit owner.
Section 17. Sales Offices. Up to three single-family dwellings with garages finished
as sales offices may be used as temporary sales offices by the Plaintiffs for providing
information and soliciting sales of properties within the Development. Each such sales office
shall be located in a model home. Such offices may be located and relocated at the Developer's
discretion, except that only three such offices shall be in use at any time and no more than three
model homes (including any model homes authorized by Section 2(b) of this Judgment) shall
exist at any time. A dwelling in which the office is located shall in all respects have the
appearance of a single family dwelling, except that a sign of not more than 12 square feet
identifying the development and sales office may be placed on the prope1iy, and removed when
the property is no longer being used for a sales office.
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Section 18. Approval of Site Condominium; Master Deed and Bylaws. The
Township Board hereby approves the Edgerton Site Condominium and the Plan for the
Development, subject to the terms and conditions of this Judgment.
As to any requirements required herein to be included in the Master Deed and/or
Condominium Bylaws, such instruments shall specifically list such requirements and shall
provide that the same shall not thereafter be amended or deleted without the written approval of
the Township Board. Such provisions shall be reviewed by the Township Attorney before
recording, so as to verify their compliance with this subparagraph and this Judgment.
There shall be no provisions of the Master Deed or Condominium Bylaws which are
contrary to or at variance with the provisions of this Judgment or which would in any way hinder
the enforcement of this Judgment. To the extent that any such Master Deed or Condominium
Bylaw provisions may be contrary to or at variance with any of the provisions of this Judgment,
the same shall be applicable only to the extent pennitted by the tem1s hereof.
Section 19. Final Review. Prior to commencement of construction of the
Development, or any part thereof, Plaintiffs shall submit all applicable plans and documents to
the Township Board for a final review to determine compliance with this Judgment. In addition
to all information necessary to show compliance with the terms of this judgment and applicable
laws, rules, regulations and Township ordinances, the plans and documents shall include the
location of proposed water and sewer lines, stop signs and other traffic signs in the Development,
preliminary architectural sketches and/or a general statement as to the type of construction and
materials to be used in the proposed buildings or structures, the height and area of buildings and
structures, and a schedule of development and project staging.
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Section 20. Consultant Review Fees. Plaintiffs agree to reimburse the Defendant
within thirty (30) days of invoice, for the Defendant's actual fees and costs for services rendered
by the Defendant's engineer, attorney or planning consultant relative to the review of plans and
documents submitted for review under the terms of this Judgment. The Defendant shall cause
such charges to be reasonable and in amounts per hour equal to the normal billing rates normally
charged to the Defendant for the Defendant's work. Requests for payment or reimbursement
shall include itemized billings.
Section 21. Underlying Zoning. Except as modified herein, or pursuant to Section
19 above, the requirements of the R-A zoning district or any successor underlying district shall
apply to the Development.
Section 22. Enforcement. The Township may enforce the prov1s10ns of this
Judgment and applicable provisions of the Township Zoning Ordinance, Building Code and
other ordinances, laws and regulations to the extent and in the manner provided by law. In the
event the Plaintiffs shall fail to cany out, either at all or on a timely basis, any provisions or
requirement of this Judgment, other applicable law, ordinance or regulation, or any permit issued
for the Development, the Township may through its Building Inspector or other Township
agency issue and post a stop work order at the site of any improper or noncomplying part of the
Development, directing that all further construction of such part of the Development be ceased
forthwith, pending the compliance with any applicable provision of this Judgment, other
applicable law, ordinance or regulation or issued pem1it. Upon the issuance of such stop work
order, the Plaintiffs shall comply fully therewith without delay. Upon the conection and
restoration of any matters as to which the stop work order was issued, the Township shall
promptly rescind and remove the stop work order, whereupon the Plaintiffs may again proceed
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with the construction or other permissible activity as to the Development. The issuance and
posting of any stop work order shall not be an exclusive remedy, but may be undertaken by the
Township in addition to all other lawful means of enforcement. Should any other governmental
body or agency issuing a permit for the Development notify Plaintiffs that a violation of the
permit has occurred, Plaintiffs shall immediately notify the Township Supervisor of this event.
Any violation of a pe1mit issued by any other governmental body shall be deemed a violation of
this Judgment. Should Plaintiffs' activities result in any serious adverse effect as is prohibited by
Sections 6(c), 7(a), 9, and 10, the Township is entitled to seek an order from this Court for the
conection and restoration of such matters and the Township will be entitled to recover its
reasonable attorney fees and expert fees as are incurred with regard to such action.
Section 23. Modification of Judgment. In the event that the provlSlons of this
Judgment require modification to meet the lawful requirements of any other governmental
agency, Defendant will not unreasonably withhold consent to such modification, and an
amendment to this Judgment may be entered incorporating any such modification.
Section 24. Cooperation. The parties will deal with one another in good faith, and in
a timely manner, and will neither take nor omit any action, by themselves or in concert with
others, which will interfere with carrying out the terms of this Judgment.
Section 25. Other Documents. The parties agree to execute in a timely manner, any
and all documents and/or enter into agreements as are necessary or convenient to carry out the
intent of this Judgment.
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(
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Section 26. Written Changes. The terms of this Judgment may be amended,
changed, or modified, only by written agreement, unless otherwise specified herein. No waiver
of any provision of this Judgment shall be valid unless in writing.
Section 27. Binding Effect. This Judgment shall be binding upon, and shall inure to
the benefit of the parties hereto and their heirs, personal representatives, successors and assigns.
Section 28. Covenants. This Judgment is declared to be in recordable form and the
covenants contained herein are declared to be covenants running with the land and the Kent
County Register of Deeds is hereby ordered to record a true copy of this Judgmen