By Robert Tomlinson
NOTTAWA TWP. — An omnipresent dollar store chain with multiple locations throughout St. Joseph County will be going into the village of Nottawa after all.
On Jan. 19, a settlement was reached and filed in a lawsuit brought by Midwest V LLC against Nottawa Township and the township’s board of trustees in the United States District Court for the Western District of Michigan related to the denial of a rezoning request to build a Dollar General store on M-86 in the village of Nottawa.
As part of the settlement agreement, according to court documents obtained by the Commercial-News, it would allow the property in question to be “used or developed as provided … as if the property was zoned for commercial use.” The settlement paves the way for Dollar General to build a store at 26262 M-86, located next to Alpha Building Center and across the street from Pilgrim Fellowship Church.
Township Supervisor Dave Peterson said in an interview Monday the settlement means the plan will not be going back to the township’s planning commission nor the township’s board for approval, and once site plans, land divisions and permits are approved, construction on the new store will commence.
“They’re allowed to proceed with the permitting for a store, so a few things they have to do are some land splits and site plans to take care of the next steps,” Peterson said.
The lawsuit by Midwest V, a real estate development company that works with Dollar General to locate and acquire land for its properties, was filed in United States District Court on Sept. 22, 2022, a month after the Nottawa Township Board of Trustees unanimously denied a rezoning request for the property from agricultural to commercial. That decision by the township board followed a July recommendation from the township’s planning commission that the rezoning request and site plan for the property be denied.
Rezoning of the property was heavily opposed by residents that attended public hearings in July and August. During the hearings on the rezoning request, many of the over 100 residents in attendance expressed their displeasure with Dollar General as a business, the idea of a mixed-use commercial district along M-86 and M-66 referenced in the township’s updated master plan, and the need for Nottawa to remain a rural community and support locally-owned businesses.
No residents ever spoke in support of bringing the multi-state dollar store chain to their area, however the rezoning was recommended and supported by both Zoning Administrator Doug Kuhlman and Township Attorney Roxanne Seeber, according to the lawsuit.
In the September filing by Midwest V, the company accused the planning commission and the board of trustees of violating the company’s rights to due process under the 14th Amendment and violating their equal protection rights under the law. They claimed no “reasonable basis” existed for the township’s denial of the request, and that the change is consistent with the zoning of other similar parcels in the area and consistent with the call for a “commercial corridor” along M-86 in the township’s updated master plan from 2021.
The claim also made mention of Alpha Building Center right next door to the property, which is zoned commercial, and claimed the denial constituted “exclusionary zoning,” which is prohibited by state and federal law.
As for their claim of violating equal protection rights, Midwest V claimed in its filing that the township “treated Midwest differently than similarly situated persons” and that the denial was “not rationally related to a legitimate governmental interest.”
The township, which was required to respond to the lawsuit within 21 days, failed to file a response with the court by the Oct. 14 deadline. Midwest V requested a default judgement at this point, which was entered on Oct. 19. However, in a Nov. 2 filing with the court, Midwest V’s attorney stated that both parties “have since communicated” and agreed that the township may respond to the entry of default by Dec. 30. An extension of this deadline was filed on Dec. 21, which mentioned that the parties “believe they have reached a settlement.” The settlement was proposed on Jan. 17, and accepted on Jan. 19.
In the settlement, it states the township board and the township planning commission “deny all allegations of wrongdoing and specifically deny the claim they violated Plaintiff’s constitutional rights.”
Background of the process that led up to the lawsuit was laid out by Midwest V in their September filing. According to the filing, John and Treva Yoder, the original owners of the property, received tentative approval from the township previously to split their vacant 17.8-acre parcel into two parcels, with the smaller one facing M-86 being 1.6 acres. Midwest V say they learned about the parcel in late 2021 and commenced the process to purchase the parcel, which was agreed to for $240,000 on Jan. 25, 2022. The parcel’s sale was contingent on zoning and “any other municipal approvals for the construction of a Dollar General store,” according to the filing.
Midwest V filed the rezoning petition with the township on June 28, 2022 to request the zoning change from agricultural to commercial. The planning commission required Midwest V to submit a site plan for review and approval, although Midwest V claimed in its filing that the township’s ordinance “does not require any site plan review by Defendant Township’s Planning Commission for a project of this nature.”
The public hearing regarding the rezoning change and site plan review was held on July 19, in which a staff report was filed by Kuhlman in support of granting the requested change. The report, according to the lawsuit, highlighted the master plan’s section on commercial development along M-86 and M-66 and that the site plan “meets or exceeds those requirements of a site plan as generally required by the ordinance.”
The Planning Commission unanimously approved a “finding of facts” related to the rezoning, however denied the rezoning request in a 6-0 vote, and voted 5-1 to recommend denial of the site plan. Midwest V’s lawsuit claimed the township “did not provide any reasons supporting its denial.”
During the July 19 hearing, Planning Commission chair Bill Butcher said the commission is “here to serve the community of Nottawa Township,” and in his opinion, “there’s not benefit in my mind to do a re-zoning to commercial, and it makes no sense to put another building there as it is.”
“The idea of this thing is that, yeah, they’ve gone through all the channels, yeah, they’ve gone through all the hurdles. I don’t understand what kind of marketing plan was put together regarding why it needs to be there when we’re already saturated with the number we’ve got here,” Butcher said at the time, referencing the Dollar Generals located in Centreville, Mendon, and Colon, which are all within four to eight miles of Nottawa.
Following the denial, the recommendation to not rezone then went to the St. Joseph County Planning Commission, which recommended approving the rezoning request, finding that “the Township Planning Commission’s ‘Findings of Facts’ does not support denial of this request,” concurring with Kuhlman’s review and that the rezoning would be “an extension of commercial zoning across the street.” The report also recommended placing a moratorium on rezoning requests along the M-86 corridor, and although it was not recommended by both Kuhlman and Seeber, it was ultimately approved by the township board at their August meeting. The moratorium, Peterson said Monday, is still in place.
According to the lawsuit, Kuhlman, on July 28, sent a five-page memo to the Nottawa Township Board, in which he called the decision made by the township’s planning commission “inappropriate,” and that it was “persuaded by the number of people present in opposition to the project, and attorney present indicating that if they approved the request they would be seeking a referendum.”
“I think it is extremely critical to point out that you cannot make a determination as to a request based on the name of the company or the applicant that is making such a request. One must make a decision on the use of the parcel,” Kuhlman wrote. “One must also understand that we are a free enterprise society, and we cannot base our decision on protecting another business from competition.”
Kuhlman laid out the reasons why the rezoning needed to be approved, writing that rezoning the parcel to commercial for a retail commercial business was a permitted use under the township’s zoning ordinance.
As for the public’s dissention of the possible rezone, Kuhlman wrote that the public did have remedies, including a referendum, if they weren’t happy with the outcome of the township board’s vote. However, he wrote in the memo that “merely the threat to do them if you don’t make a decision in their favor should not be the reason for your vote.”
“I can’t stress enough that you [sic] decision needs to be based on the Nottawa Township Zoning Ordinance, and not the public’s determination as to if such business is needed in the township or not,” Kuhlman wrote.
The township’s attorneys also attempted to dissuade the township board from voting against the rezoning, arguing in an Aug. 11 memo that the township should “divorce itself from the ‘Dollar Store’ idea and just make a determination as to whether the rezoning is appropriate for the subject property.” It also noted that the planning commission had previously approved the addition of a warehouse to Alpha Building Center, “and the same neighbors were opposed.”
Ultimately, the township board voted unanimously to deny the rezoning at their meeting on Aug. 15, supporting the township planning commission’s recommendation. Peterson said Monday that decision was made because of the opposition from the residents and that a mixed-use corridor had not been implemented as of yet in the township’s master plan.
However, the memo from the township’s attorneys stated that although the township doesn’t have a “mixed-use district” zoning classification, “a particular zoning classification is not required” for the township to have approved the rezoning.
“Even though the township does not presently have a ‘Mixed Use District’ zoning classification, it may nevertheless consider whether the proposed zoning – commercial – is a ‘mixed use,’” the memo stated.
It is not known when construction on the Dollar General will begin in Nottawa.
Robert Tomlinson can be reached at 279-7488 or email@example.com.