Twp. attorney: Zoning not an issue for HOP, but number of kids is

A Nov. 1 letter from Oxford Township attorney Gary Rentrop contained both good news and bad news for House of Providence (HOP).

The good news – licensed child foster family group homes, such as those being proposed by HOP for a 118.32-acre property located at 3921 Barber Rd., are “allowed as a matter of right by state statute in all residential zones” and the agriculture zoning (AG) district, which the property is part of, constitutes a residential zone, according to the attorney.

The bad news – Rentrop believes HOP can have a maximum of six children in each of their foster family group homes, not 10 each as the organization is proposing.

Rentrop’s opinion letter, which was originally protected under attorney-client privilege, was released to the public at the township board’s Nov. 8 meeting in a 7-0 vote.

Founded and operated by Jason and Maggie Dunn, HOP houses foster youth who have been either been abused and neglected or unable to find a permanent family.

In response to Rentrop’s letter, the Dunns issued the following statement to this reporter via text message – “House of Providence has reviewed the township attorney’s opinion letter and we are thrilled that a state-licensed family foster home, like ours, is considered a ‘matter of right’ land use that ‘ must be permitted’ under the Michigan state statute and local ordinance in the township’s AG zoning district.

“We are incredibly grateful for the welcoming and cooperative spirit that the Oxford Township community has shown. We were overwhelmed with gratitude for the more than 600 supporters, many of whom were from Oxford, who attended our annual Wishes Gala, held at the Royal Park Hotel earlier this month, to lend their support to our project and for Michigan’s foster children. As they say, it takes a community to raise a foster child, and we feel so blessed to have so many people standing with us.”

HOP purchased the Barber Rd. property, which for many years operated as Hunters Ridge Hunt Club, for $800,000 last year with plans to build three residential houses on the site – one for foster females, one for foster males and one for foster disabled youth. HOP would like each to house up to 10 youths for a maximum of 30.

As part of HOP’s plans, the 118.32-acre parcel has been split into four parcels. The foster group homes will sit on three lots, which are 25.15 acres, 34.06 acres and 34.24 acres.

The remaining 24.85-acre parcel, which already contains a house, is where the Dunns plan to live with their eight children.

In his opinion letter, Rentrop cited Michigan’s Zoning Enabling Act (ZEA), which states, “a state-licensed residential facility shall be considered a residential use of property for the purposes of zoning and a permitted use in all residential zones and is not subject to a special use or conditional use permit or procedure different from those required for other dwellings of similar density in the same zone.”

State-licensed residential facilities are defined by law as places that provide “residential services for 6 or fewer individuals under 24-hour supervision or care.”

Included in that definition is a reference to the state’s Child Care Organizations Act which governs the operation of child foster family homes (private homes with four or fewer foster children) and child foster family group homes (private homes with six or fewer foster children).

According to Rentrop, the township zoning ordinance includes definitions of these two types of child foster family homes in one section, “but does not address these uses elsewhere in the ordinance.”

“However, even though the ordinance may be silent on this proposed use, the township is required by the Zoning Enabling Act to allow a child foster family home or a child foster family group home as a use permitted by right in any residential zone,” he wrote.

Rentrop went on to say that AG zoning districts, like the one where the HOP property is located, allow residential use so “it can be considered a ‘residential zone.’”

“While one might argue that the absence of foster family group homes from the list of permitted uses in an AG district means that it is not a permitted use (particularly in light of the fact that permitted uses do include child or adult family day care homes and adult foster care family homes), I am of the opinion this argument would not prevail,” he wrote.

“The fact that pursuant to (state law) a family child care home (one of the permitted uses in the AG district) is deemed a residential use of property for the purposes of zoning and a permitted use in all residential zones, together with the fact that a ‘dwelling’ is for residential use, compels an opinion that the AG district should be considered a ‘residential zone’ and thus, the proposed foster family group home use must be – as required by the ZEA – a permitted use in the township’s AG district.”

As for the number of youth that can live in these foster homes, Rentrop wrote, “State statute allows as a matter of right more than 4 but fewer than 7 children in a foster family group home,” therefore HOP cannot house 10 per home, as planned, nor can the township’s zoning board of appeals (ZBA) grant a variance to allow for more than six youths per home.

He cited the section of the zoning ordinance that states, “under no circumstances shall the ZBA grant a variance to allow a use not permissible under the terms of the ordinance in the district involved, or any use expressly or by implication prohibited by the terms of this ordinance in said district.”

“The township’s ZBA can only grant what are commonly referred to as “dimension” variances,” Rentrop wrote.

When a variance is granted by a ZBA, a property owner is given permission to depart from the literal requirements of a zoning regulation. An example of a dimensional variance would be the zoning ordinance requires a 20-foot setback for a building, but due to the physical characteristics of the land, only a 10-foot setback is possible, so the property owner requests the ZBA grant a 10-foot variance.

“It is my opinion that increasing the number of children in a foster family group home would be a ‘use,’ not a ‘dimension,’ variance, and thus not permitted,” Rentrop wrote.

Richard Rassel, the attorney for House of Providence, disagreed. It’s his belief, according to a memo he wrote to the township, that a variance could be granted by the ZBA because the issue here is related to density, not the use of the property.

Rassel argues HOP is proposing to build and operate a state-licensed residential facility, which “is a permitted use in the AG district.”

“Therefore, HOP is not seeking to use its property for a purpose other than those permitted by ordinance, but rather a density variance only,” he wrote. “HOP seeks only to build and operate state-licensed residential facilities housing 10 rather than 6 or fewer youth foster children, which relates to a non-use standard or density standard.”

In a Nov. 1 email to Rassel, Rentrop expressed his concern “that a home with more than 6 children would not meet the Zoning Enabling Act’s definition of a ‘state-licensed residential facility’ (limited to 6 or fewer individuals).”

” A facility with more than 6 children (presumably a ‘child caring institution’) thus would not be deemed a ‘residential use’ or a ‘permitted use’ in all residential zones under the ZEA,” Rentrop wrote.

 

 

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