Plans to redevelop the long-vacant Kmart property in Acme Township might or might not hit a roadblock following an appeal percolating in local courts.

Acme Township trustees voted 6-1 in October to approve a planned development (PD) application that would turn the old Kmart and Tom’s buildings and their surrounding property into a new mixed-use development. As planned, the project would bring a fitness center, indoor pickleball courts, office space, apartment units, a coffee shop, self-storage, warehouse space, and the headquarters for both a local nonprofit organization (Grand Traverse Men’s Shed) and an e-commerce operator (Truly Free) to the sizable Acme parcel. But a group of local residents, calling themselves “Acme Strong,” contend that township trustees erred in approving the PD and that the development violates key aspects of Acme’s zoning ordinance and township master plan. In November, that group filed a Claim of Appeal with the 13 Circuit Court of Grand Traverse County, seeking to have the PD thrown out.

The PD, Acme Strong claims, “will allow the majority of the former Tom’s and Kmart buildings to be used as non-zoned light industrial and warehousing.” Currently, the properties “are zoned commercial flex/multi use village,” which Acme Strong says is “intended to be residential and walkable shopping, dining, etc.”

“The approval of the Planned Development PD 2022-01 came in the face of dozens of taxpayer letters of opposition, a formal petition of over 100 mostly residents and some business owners, [and] findings of a third-party planning/zoning consultant [who agreed the application] was way beyond stretching zoning ordinance definitions,” an Acme Strong press release proclaims. “Little to no discussion was had on project compatibility with the area/corridor… Discussion was only had on how to get around ordinances to force fit into a PD project.”

In particular, Acme Strong takes issue with plans for e-commerce retailer Truly Free, which is slated to take over the former Tom’s Food Market building next door to the Kmart facility. That part of the project was actually approved earlier than the rest of the plan because township trustees concluded it had a comparable use to the former Tom’s grocery store. Truly Free makes non-toxic, eco-friendly laundry, bathroom, kitchen, and home cleaners and sells them – mostly online – in refillable, reusable containers. Township officials decided this operational structure was ostensibly a retail use and therefore only required a minor amendment to the existing special use permit that had been in place for Tom’s. Acme Strong sees this decision as an example of how trustees played fast and loose with township zoning in order to push the PD through to approval.

“New use definitions were developed on the fly, calling the planned tenant Truly Green something close to a grocery store like Tom's, when the business owner and applicant clearly presented that it was an eco-chemical manufacturing factory that had a large e-commerce customer interface component,” Acme Strong argues. “Per the application, most of the floor space is planned for chemical formulation, repackaging, R&D, Storage, handling and shipping. Clearly light industrial, if not heavy.”

The court will now decide whether Acme Strong has a case to delay the Kmart/Tom’s project or even roll back the PD approval entirely. A tricky aspect for the group could be the fact that, by definition, a PD is a zoning plan tailored to a specific property. As such, an approved PD can allow uses that would normally not be permitted for a property under a municipality’s zoning. PDs are especially popular in cases where a developer is proposing non-conforming uses but also offering features that a municipality wants. In this case, township officials attached conditions to their PD approval to make sure the developer – the East Lansing-based Strathmore Real Estate Group – would follow through with building a planned 186 apartment units on the site.

Acme Strong’s case – which will be defended in court by local attorney Jay Zelenock – hinges largely upon a review of the PD by third-party zoning and land use consultant Chris Grobbel. Last fall, before Acme Township officially approved the PD, Acme Strong retained the services of Grobbel and his company, Grobbel Environmental & Planning Associates, to perform an “independent site plan, special land use, and zoning regulatory review” of the matter.

In his report, Grobbel determined that Acme Township officials – including both the planning commission and the board of trustees – had committed multiple errors in allowing the PD to proceed to an approval vote. Perhaps most notably, Grobbel argued that Strathmore had not actually met the criteria necessary “to qualify for the PD option” under township zoning. Such criteria include that a PD “not be used for the sole purpose of avoiding the applicable zoning requirements,” that nonconforming uses be allowed only when they “shall result in an improvement to the public health, safety, and welfare in the area affected,” and that a PD not be allowed “solely as a means of increasing density or as a substitute for a variance request.”

“The township erred in advancing this application as an acceptable PD project,” Grobbel concluded. “Rather, a large-scale, high-impact, unconventional big box store redevelopment project appears to have been shoehorned into the PD process – without providing adequate community benefit from residential density transfer, meaningful open space preservation, or a vibrant mixed-use project adequately providing and protecting pedestrian-based traffic amid an existing sea of asphalt.”

Acme Township had a deadline of Wednesday, January 11 to lodge a response to the Claim of Appeal with local courts. Township Supervisor Doug White says the township filed its response on Tuesday that and that the response “basically defended our position.”

“We went through the process, we felt the applicant reached what they needed to in that process, and we believe we have followed the proper course and done our due diligence [in approving this PD],” White tells The Ticker. “We as a board feel we have done our proper deliberations on the whole site plan review, and our planner – who has been here for years – thinks we are fine.”

Zelenock, as Acme Strong’s attorney, is asking that the court reverse or vacate the PD approval, direct Acme Township “to conduct any needed further proceedings consistent with this Court’s rulings,” and grant “whatever other relief that is permitted and appropriate under the circumstances.”

White confirms that Acme Township has notified Strathmore of the Claim of Appeal, and that both parties are now standing by to find out how the filing will affect the PD and the project as a whole. “We’re waiting to see what the courts feel is right,” he says.