A controversial Old Mission Peninsula development is back before the township board for another public hearing this (Tuesday) evening.

Peninsula Township trustees must reconsider approval of 81 on East Bay after 13th Circuit Court Judge Philip Rodgers ordered the matter back to the township hall.

The development would be constructed on the former 83-acre Boursaw farm, north of where Bluff Road dead ends at Sleepy Hollow Road. Developer Kevin O’Grady proposed 81 on East Bay in January 2015. In October O'Grady won approval for a development that includes 41 home sites and 40 boat slips by a 4-2 board vote.

The planned unit development proposal actually calls for less development than what would be allowed by right — 65 homes, based on the property’s zoning. But the project’s earth moving, density, and marina-like shore development stirred the ire of some neighbors who would like to see the land retain its rural character.

Township resident James Komendera helped establish Preserve Old Mission Peninsula, which hired attorney Scott Howard to appeal to the 13th Circuit Court. There, Rodgers sided with developers on all but one of the issues, finding that township officials created a record of “competent, material and substantial evidence” to support their findings that the project met the requirements for a special use permit.

Rodgers, however, found that the township should not have voted prior to receiving recommendations from the fire department about an access road to be constructed into the development and plans from the township engineer about earth grading. He ruled that officials could not merely trust that they would find those plans acceptable.

“Recommendations and opinions of experts may be scientifically sound, but be undesirable in the overall context of the project,” Rodgers wrote in the January opinion.

Howard believes those questions are big enough to force the township board to reconsider the project.

“We think that it should — there are substantial issues with site grading. I mean, the amount of earth that they’re moving is pretty astounding,” Howard says. “There are also concerns about what’s in the soil from historical orchard and farm use. That’s information that’s not been provided by the developer.”

Howard adds that the addition of the access road will reduce the amount of open space in the plan to a level below what’s required by ordinance.

Township Supervisor Pete Coreia could not be reached for comment. Joseph Quandt, former attorney for the developer, referred questions to attorney Philip Settles, who’s taken over the case. Settles also could not be reached for comment.

Howard has already appealed Rodgers' decision to the Michigan Court of Appeals.

The original vote on the project did not include one of the township trustees, Jill Byron, who was persuaded to recuse herself because she “liked” a Facebook page run by a group opposed to the development. Howard argued that Byron was improperly removed from the discussion and vote, but Rodgers disagreed.

Rodgers found that while state law enables officials to express opinions, township policy forbids trustees from making any comment on an issue prior to a vote, noting that  “liking” a Facebook page counted as a comment. Howard says he believes state law supersedes township rules and Byron should have been allowed to participate.