BY PHIL CUSTODIO
Clarkston News Editor
An administrative law judge ruled in favor of a downtown developer against the city.
Administrative Law Judge Peter L. Plummer issued a Proposal for Decision recommendation, June 8, to overturn the city Historic District Commission’s decisions against proposed development of 42 W. Washington Street.
“I find that the Clarkston HDC’s decision denying petitioner’s application for a Certificate of Appropriateness was contrary to the statutes, ordinances and required processes – and, therefore, arbitrary, capricious and an abuse of discretion,” Plummer wrote in his opinion.
City Council can file an exception to the Proposal for Decision with the Michigan Administrative Hearing System within 21 days.
The HDC met on June 12 and vote 4-1 to recommend challenging the judge’s opinion, said HDC member Cory Johnston.
“I voted against the action as I agree with the opinion,” Johnston said. “That opinion agrees with my vote and statements made originally in August of 2017 when the demolition was denied.”
The case stems from an HDC vote on Aug. 29, 2017, to deny the Certificate of Appropriateness requested by Lehman Investment Company, which owns the Clarkston Mills on W. Washington Street and includes downtown developers Ed Adler and Robert Roth.
Lehman applied for the certificate in order to demolish the house at 42 W. Washington, just to the west of the Mills building.
HDC said the demolition and resulting open space would “negatively affect the character of the historic district and in particular adjacent historic resources.” Also, the owners did not submit a plan for redevelopment, so the commission “had no way to determine whether future proposed new construction on this lot would meet the standards.”
The house is more than 50 years old and could be worth reconsidering as a historic resource “as recording an important place and time within the community,” according to the HDC at the time.
The owners appealed the decision to the State Historic Preservation Office on Oct. 26, 2017, saying the HDC was inconsistent in its decisions – in 2004, the commission approved demolition of a home built in 1957 on Waldon Road. Also, the W. Washington house was built in 1953 and includes a residential structure and garage, both cinder-block construction, with “no redeeming historical structure or architectural features,” they said.
Judge Plummer agreed with the property owners, and said HDC does not have the authority under statute to deny the certificate based on what may become a historic resource in the future, nor for the other reasons it stated.
“The evidence we presented demonstrate Mr. Adler has always taken care of his properties,” said John D. Mulvihill, Adler’s attorney. “He develops property for the good of the city.”
The Proposal for Decision recommends HDC set aside its decision and issue the certificate of appropriateness, “granting permission to demolish the vacant residence and outbuildings owned by Lehman Investment Co.”
The case represents one of several issues Lehman has with the city. The city also rejected a rezoning request for 42 W. Washington, and issued a work-stop-order on a tree-clearing project at M-15 and Waldon Road, Mulvihill said.
Adler and Lehman Investment Company applied for the rezoning from residential to commercial. City Council voted on May 22, 2017, to deny the rezoning request. Reasons included zoning ordinance standards were not satisfied, the Planning Commission recommended against it, Master Plan is against non-residential intrusions into residential areas, preserve property values, the plan was incompatible with adjacent residential areas, a petition against rezoning was signed by every adjacent property owner, the Mill Pond serves as a natural dividing line, and there was already sufficient commercially zoned property in the city.