PPCM-1216: The Planning Commission got it wrong.
The Thursday, June 13, 2019 regular meeting of the Sterling Heights Planning Commission proved to be a frustrating one for me. At the end of the meeting, and over my numerous objections (although ultimate acquiescence), Sterling Heights approved the location for a new automotive performance shop, Prestige Performance Motorsports, Inc., at 43677 Utica Road. In the process, the city’s Planning Commission lost sight of its purpose. Further, I think we may have established a precedent which we will later come to regret.
Although I am undoubtedly going to be accused of beating a dead horse by taking to the blog today to present this opposing view, I think it is important for the residents and the city administration alike to understand this case, because it has a direct bearing on how the Zoning Ordinance itself is viewed and understood. I think it is also important that the Planning Commission consider its role in the city in light of the law which established it.
Before you’ll understand my objection to how the meeting went and the outcome of the vote, you’ll need to understand a few dusty little corners of the city’s Zoning Ordinance, as well as a few things about the aftermarket automobile parts, service and repair businesses. As far as the Zoning Ordinance is concerned, you might need an attorney to explain some of the finer points, and I’m not qualified. As far as the aftermarket automobile parts, service and repair business, the details will probably only be familiar if you are either an automobile enthusiast, as I am, or someone in the automobile parts, service and repair industry, which I was in my early career. I’m going to try to make this as straightforward as possible for those readers who are neither lawyers, gearheads or mechanics, but I admit right up front that this is a case about the details, and the typical resident, from all indications, simply doesn’t care about the details until, say, a mosque is being built or a concert venue is being proposed.
Regardless of that, let’s take a gander at how the sausage is made, shall we?
Prestige Performance Motorsports, Inc.
Prestige Performance Motorsports, Inc. is a new start-up business which wishes to locate in Sterling Heights at the above address. According to the City Planner’s Staff Report,the owners of the business intend to operate an automotive service facility which “conducts tuning and calibration inspections and testing for automobiles. The business performs engine modification, repairs and maintenance related to said testing, which can include supercharging and other services connected to the engine. The company expects to service 15-20 cars each month.”
These sorts of requests come before the Planning Commission in the form of something called a ‘Special Approval Land Use’, or SALU.
What is a Special Approval Land Use?
A SALU is a use defined in the city’s zoning ordinance as one which “may be necessary or desirable to allow in certain locations in certain districts; but because of their actual or potential impacts on neighboring uses or public facilities, there is a need to carefully regulate them with respect to their location for the protection of the community.”
The SALU process stands in contrast with the more typical cases of development within the city which are for “permitted specified uses which are mutually compatible,” e.g. building a house in a residential zone. For example, you don’t need the Planning Commission’s special approval to build a house in a residential zone; that is a permitted specified use.
On the other hand, certain uses are spelled out in the law as requiring the developer, land owner or tenant to go through the process of obtaining approval from the Planning Commission before they can proceed to do as they wish. The idea is to protect the existing uses nearby from new uses whose nature are so much more intense that they would be disruptive and possibly have a negative impact on the lives and property values of the people and/or businesses adjacent to the new use.
What is the M1 Light Industrial Zone’s Intended Use?
In this particular case, 43677 Utica Road is zoned M1, a.k.a. ‘light industrial’. The M1 zone is intended for ‘industrial activities whose external effects are minimal and in no way detrimental to surrounding districts, plus wholesale, warehousing and intensive service activities of a nature such as not to justify their inclusion in the commercial use district, but whose external effects also are nondetrimental’ (Sec 19.00, Intent). Included in the M1 zone as special approval land uses are both “Auto service centers and reconditioning establishments” (Sec 19.02 D) and “Automobile repair garages. (Sec 19.02 E).
In particular, Automobile repair garages are subject to the following condition:
The site for any such use shall (except for frontage on a public street) abut only land within a commercial or industrial district.
In other words, an automobile repair garage cannot be located on property that abuts a residential zone. 43677 Utica Road abuts a residential zone. It’s in the fine print: you can’t have a repair garage next door to a place where people live. It’s not allowed.
What’s at issue here?
The question is this: is an automotive business that installs superchargers rightfully considered to be an “auto service facility” or an “automotive repair garage” under the law?
This is the crux of the case in my view. Does the use fit the law or not? Is this an auto service facility or an automotive repair garage? Is the Staff Report from the City Planner accurate or not? Is this a request for a service center or a repair garage?
When you try to understand the difference between the two classes of automotive businesses, sometimes it is helpful to have examples. A typical “auto service facility” does minor, everyday maintenance to cars and trucks. They change oil and other fluids, replace tires, perhaps install new batteries, perform detailing services, and maybe swap out a minor component like a radiator or brake pads. Good examples of such places include the oil and lube facilities at places like Walmart, Uncle Ed’s Oil Shop, and the like.
On the other hand, an “automotive repair garage” is a more intense use, with a more complete set of services. They are noisier, and they tend to produce noxious fumes and hazardous materials which can be flammable or poisonous. We are talking about collision repair facilities like Gerber Collision & Glass, new car dealership garages such as the one found at Buff Whelen Chevrolet, or independent repair shops such as Sterling Car Care. You will notice where such places are located: far away from residential areas.
Remember the Buff Whelan Fire?
You might recall the fire which destroyed Buff Whelan Chevrolet’s garage a summer or two ago. The intensity of the fire that resulted from an accident in handling spilled gasoline provides all of the evidence I need to know there is solid reasoning behind locating these places far away from where people make their homes. A building made of concrete and steel collapsed, and the damage resulted in a loss of tens of millions of dollars.
My philosophy as a Planning Commissioner
The primary issue for me when I consider a SALU is the impact on the residents. My philosophy is simple and familiar: a man’s home is his castle. It doesn’t matter to me if a man’s home is a mansion, or if it is a house trailer, at the end of the day the two ought to be viewed equally under the law.
Of a secondary nature is the impact of an SALU on nearby businesses. Occasionally we will see a case where a proposed SALU might have a negative impact on a neighboring business. Usually under those circumstances, the neighboring business, if it is successful and likely to stay in business for the foreseeable future, can afford to hire legal representation to help it make its case against the SALU if it feels it needs to do that.
This is not necessarily so for residents; lawyers are costly, and a resident hiring an attorney can’t write it off as a business expense. Unfortunately in our society, justice tends to go to the party that has the best representation, and the best representation tends to go to those who have the means to pay for it.
So as a public official, this is something in the back of my mind as I consider these cases. I am not biased in favor of the residents, mind you, but I am more inclined to allow for the fact that they can’t show up with an attorney representing them, and thus their argument against something may not be nearly as polished as the argument being made by the attorney who was hired to represent the interest that is for it.
So what’s the big deal about installing a ‘supercharger’?
Most of us, I think, have some idea of what a typical automotive service operation looks like: we’ve had the tires changed on our car, or the oil changed, or perhaps some minor engine work like having belts or the battery changed. What’s the difference between this and installing a supercharger?
First, a supercharger is a device which forces a high volume of the air and fuel mixture into an engine under pressure. The engine burns this mixture to produce mechanical power, and the more of it coming into the engine, the more power the engine will make. They are significant “power adders” which can increase the speed the vehicle can accelerate at dramatically.
In an automotive servicing operation, often you can stand in the waiting room at the ‘auto service facility’ and look through a window and watch the mechanics as they work. The jobs take very little time and are relatively inexpensive. In fact, much of the time you can just sit in your car while they climb down into the grease pit underneath and change your oil. These minor procedures, aside from the screech of the occasional air gun, are not very noisy, nor do they produce much in the way of toxic or flammable refuse.
Let’s contrast those types of service operations with the typical supercharger installation. This is best done with a current example.
Supercharger Installation Example
Many will recognize the Chrysler 300C as a popular, V-8 powered passenger automobile common on the streets of Sterling Heights. Many tens of thousands have been produced.
As it turns out, a certain percentage of the people who own this model are performance-oriented customers, so supercharger installations are not an uncommon vehicle modification.
Here’s a short video which depicts the installation of a name-brand, Whipple supercharger on a late model Chrysler 300C:
Interpreting the Video
Even for those of you who are not mechanically inclined, watching the mechanics in this video removing the front bumper cover of this vehicle in order to install the water-to-air intercooler system probably starts to give you the idea that this is not a 15 minute oil change or a tire swap. In fact, it is not a typical “service” operation at all.
For those of you who might be a bit more mechanically inclined, you’ll notice that the mechanics remove and install a significant part of the fuel system of the vehicle, including the upper and lower intake manifolds, the fuel rails and fuel injectors, replace the engine’s throttle body with a new unit in a different location, modify the belt accessory drive system, attach an intercooler, and then button everything up before taking the vehicle over to the chassis dynamometer and testing.
Not depicted in the video are any additional services that are common, such as replacing the vehicle’s exhaust system, tuning the new fuel system with a computer, chassis modifications to lower the vehicle and install more powerful braking components, and the like.
So is a supercharger a simple bolt-on accessory? No.
Now that you’ve seen a typical, common supercharger installation on a popular vehicle model for yourself, I think you may agree that somebody who stands at a podium and tells you that “modern superchargers are simple to install” and are “just a bolt on accessory” is either:
- A. Very new to the process and doesn’t understand what is involved, or
- B. Not telling the truth.
Here’s the truth: supercharger installation is an intricate vehicle customization costing thousands of dollars which includes many separate but related modifications to the vehicle from its stock form.
Although not terribly dangerous, per se, it does involve disconnecting the fuel system and dealing with the flammable gasoline that remains behind, and it requires some modification to the vehicle’s body components.
If the vehicle is not a popular model such as the Chrysler 300C, a generic supercharger may be installed, and there may need to be modifications made to the hood and other parts of the car body front end in order to make everything fit.
If the vehicle is an older vehicle, made sometime before the mid-1980s, it is very likely that the entire fuel system will have to be removed, modified, and replaced in order to update it to accept the type of “modern supercharger” that Prestige Performance Motor Sports intends to sell.
This would include removing and modifying the entire fuel tank and the fuel lines running from the rear of the vehicle to the engine compartment. This will have to be done in order to support a change to a modern supercharger’s fuel injection system rather than the carbureted fuel system that older vehicles came with.
Without a single doubt, this is a modification that should be done in an “automotive repair garage.”
I need to remind you that this sort of modification — removing and modifying a fuel tank — does not come without a certain risk of fire, as was the case with Buff Whelan Chevrolet.
Problems with the Zoning Ordinance
It is very common that laws such as the city’s Zoning Ordinance spell out, sometimes in great detail, what the definitions of the terms used in the law are.
I have not been able to complete an exhaustive search, but from what I can tell the terms “auto service facility” and “automotive repair garage” are not defined in the text of the city’s ordinance. This poses a nearly insurmountable problem for the Planning Commission: it is difficult to nigh on impossible for non-automotive oriented members of the commission to understand these terms without a clear set of definitions. This is why I opened up my questioning with a question to the municipal attorney, Clark Andrews, asking him to define the difference between the two. He struggled with this a bit, but in all fairness I didn’t tell him in advance that I was going to be asking a question on an intricate, fine point in the law.
How do other places define the term?
For an example of a city defining these terms at the zoning ordinance level, we look to The City of Covina, California. It defines these two terms simply in its code of ordinances as follows:
- 17.04.072 Automobile repair garage.“Automobile repair garage” means a building enclosed on not less than three sides by walls, except when fronting on a dedicated street or alley the building shall be enclosed on all sides by walls and/or doors, and used for the servicing of motor vehicles, including tube and tire repair, battery charging, storage of automobiles and supplies related to the servicing of motor vehicles, engine overhauling and automobile upholstering. (1964 Code Appx. A § 0.30.)
- 7.04.075 Automobile service station.“Automobile service station” means a business which offers for sale gasoline from pumps, tires, tubes, batteries and lubricants, and which may offer, in addition, such related services as battery charging, tube and tire repairs, nonmechanical auto washing, lubrication services, minor motor tune-ups, brake services, wheel alignment, and where otherwise permitted in the zone where located the rental of trailers, cars or trucks from the premises where parking stalls are provided for the storage of such vehicles. The storage of merchandise for such sales and for the performance of such services is included. This definition does not include major motor tune-ups, automobile repairs, body and fender work, overhauls, painting, upholstery work, auto glass work, welding, tire recapping or auto dismantling; nor the sale of trailers, cars, trucks and boats stored upon the premises. (Ord. 1574 § 1, 1984; 1964 Code Appx. A § 0.30.)
Closer to home, it seems fairly standard for the city to look to the Michigan Compiled Laws for guidance in circumstances such as this.
The Motor Vehicle Service and Repair Act, a.k.a. Act 300 of 1974, MCL 257.1302, in Section 2, Subsection (m) seems to offer some guidance:
(m) “Facility” or “motor vehicle repair facility” means a place of business that is required to register under this act and that, for compensation, is engaged in the business of performing, or employs individuals who perform, maintenance, diagnosis, vehicle body work, or repair service, or, beginning July 1, 2016, BAIID service, on a motor vehicle. The term does not include any of the following:
(i) A person that engages only in the business of repairing the motor vehicles of a single commercial or industrial establishment or governmental agency.
(ii) An individual who is repairing his or her own or a family member’s motor vehicle.
(iii) A business that does not diagnose the operation of a motor vehicle, does not remove parts from a motor vehicle to be remachined, and does not install finished machined or remachined parts on a motor vehicle. This subparagraph does not apply to a motor vehicle repair facility that engages in the business of performing, or employing individuals who perform, vehicle body work.
(iv) A BAIID facility described in section 625k(14)(d) of the Michigan vehicle code, 1949 PA 300, MCL 257.625k.
Further, in MCL 257.1302a (e), we find the definition of “Minor repair services”:
(e) “Minor repair services” means lubrication; oil changes; installing, changing, or otherwise servicing the antifreeze or other coolant; body repairing, except for unitized body structural repair; or the replacement, adjustment, repair, or servicing of any of the following parts and assemblies:
(i) Air cleaner element.
(ii) Accessory drive belt.
(iii) Air pump hose.
(iv) Twelve-volt battery.
(v) Ground cable for 12-volt battery.
(vi) Hold-down strap for 12-volt battery.
(vii) Positive cable for 12-volt battery.
(viii) Battery-to-starter relay cable for 12-volt battery.
(ix) Crankcase vent air cleaner.
(x) Crankcase vent air cleaner hose.
(xi) Engine oil filter.
(xii) Exhaust pipe, muffler, catalytic converter, or tail pipe and associated attaching parts.
(xiii) Fuel filter.
(xiv) Fuel line flex hose or line.
(xv) Fuel tank, except for a tank that contains a fuel pump.
(xvii) Heater hose.
(xix) Idler pulley, adjust only.
(xx) Ignition coil output wire.
(xxi) Lightbulb or headlamp.
(xxii) Motor or transmission mount.
(xxiii) Ornamental accessories.
(xxiv) Positive crankcase ventilation control valve.
(xxvi) Radiator hose, upper or lower.
(xxvii) Radiator reserve tank.
(xxviii) Rear spring, leaf or coil, except a MacPherson strut-type assembly.
(xxix) Shock absorber that is not built in combination with other parts of the suspension.
(xxx) Analog speedometer.
(xxxi) Vapor canister hose.
(xxxii) Wheel, except alignment.
(xxxiii) Windshield washer hose.
(xxxiv) Windshield washer tank.
(xxxv) Wiper blade.
Not being an attorney of any sort, much less a municipal attorney, I am not qualified to tell you if the City of Sterling Heights or its Planning Commission is bound to use the same terminology as the state while it attempts to decipher what the intent of the law as written in the Zoning Ordinance might be.
Common sense, however, would suggest that it would be an excellent place to start.
What is my role as a Planning Commissioner
When I joined the Planning Commission to replace Al Kollmorgen, I swore an oath to uphold the law, from the U.S. Constitution and the Michigan Constitution right on down to city ordinances.
When I was reappointed to my own term this past year, I was required to take the same oath once again.
I don’t take this lightly. It is my duty to perform according to the way I was sworn to.
Upholding the Law
By “uphold” I understand that the oath I took means that I don’t get to legislate. My role is to interpret, in a quasi-judicial capacity, yet from the perspective of a resident in the community, what the law means and how it is to be applied. In my view, I am beholden to act within the law, not circumnavigate it, creatively interpret it to mean things that it doesn’t, or to ignore it if convenient while the cameras are pointed at me. If there is an authority on the law present, I am duty bound to accept his or her explanation of the law because I am not an expert in the law.
What the Michigan Municipal League Says
According to the Michigan Municipal League’s “Planning Commissioners Handbook”, (page 3, §5) “Decision makers must, within the constraints of the law, allow for development which is consistent with the existing or planned character of the community and reject that which is not.”
Also pertinent on page 17 of the same document is the statement: “Your job is to follow the standards and requirements of the zoning ordinance. You are obligated to protect the interests of the applicant, the neighbors and the entire community.”
One of the statements my fellow commissioners made to me during the back-and-forth on this topic was enlightening as to the perspective of my fellow commissioners. She asked (and I am paraphrasing), “what is your objection to the installation of superchargers, anyway?” My response to her was that we were not there to decide whether or not the law was correct – i.e. determine that a practitioners of an activity should be excused from constraints in the law against it because the law doesn’t make sense.
Instead, our job is to try to determine what the law is, what it means, and how it should be applied as fairly and consistently as possible. If a use doesn’t fit in a particular place because of something that is in the law, whether explicitly or not, it’s our duty to vote it down. We, of course, have some discretion, much as a police officer has the discretion to decide to NOT ticket you for going 2 MPH over the limit and just warn you instead.
To me, the question as to whether or not the proposed facility is in fact an ‘automotive repair garage’ seems to me to have a very clear cut answer. It is. And the law is very clear on the rule of where an ‘automotive repair garage’ can be located and where it cannot.
If this seems to be a pedantic view on the Planning Commission and the duty it is charged with, that is because it is. The Planning Commission is not the place to make it up as you go along.
This Decision Shouldn’t Stand
43677 Utica Road is, according to the law, not a suitable place for an automotive repair garage. Prestige Performance Motorsports, Inc., is in fact an automotive repair garage because they will be selling and installing automotive superchargers.
The decision the Planning Commission made on June 13, 2019 on the case known as “PPCM-1216 Prestige Performance Motor Sports, Inc. 43677 Utica Road” is incorrect.
It should be officially reviewed by the Planning Commission and changed.
I am unsure as of this writing as to whether or not this is possible. I recall an instance in which a Member of City Council recanted an earlier yes vote on something and changed the direction of the decision on a 4/3 vote.
This vote was not close; regrettably, and in my frustration with the process, I declared that I knew when I was beat, and instead of forcing the commission to vote my motion down with my amendment, I withdrew the amendment and voted “yes” on the suggested action as given in the City Planner’s Staff Report.
If I had it to do again, I would accept my defeat and would stand on principle by going on record as having been voted down, rather than meekly withdrawing my amendment. Alas, that’s a decision I don’t get to take back.
However, I think that if nothing else comes of this, the zoning law needs to be modified, and soon. Definitions of terms need to be added if they are to vary from the definitions the state uses. The entire thing needs to be modernized in light of the Master Plan we commissioners approved more than two years ago now.
And I think we as Planning Commissioners ought to seriously examine what we think our purpose in serving on this commission should be in light of the law. I heard a comment from one commissioner who stated “it’s not the law — it’s just an ordinance!” I believe a little remedial education might be in order, especially if he is not the only one who feels that way.
View the meeting replay for yourself
If you care to watch as I beat a dead horse for more than an hour, feel free to visit the video replay of the meeting.