BY PHIL CUSTODIO
Clarkston News Editor
Owners of 59 S. Main Street, known as the Sutherland House, have prevailed in their lawsuit against the city.
The Hon. James M. Alexander, Oakland County Circuit Court judge, ordered the city to approve Larry Barnett and CBC Joint Venture’s request to rezone the property for use as a restaurant.
On the agenda for Monday’s City Council meeting was a resolution to adjourn to closed session after the Jan. 9 meeting to discuss written attorney-client privileged communication and specific pending litigation, received on Jan. 4 and 6, and to consult with the city attorney regarding trial or settlement strategy in connection with the CBC Joint Venture vs. City of the Village of Clarkston lawsuit.
The city has 21 days to file an appeal, said Rich Little, interim city manager.
The judge noted in his summary disposition order, dated Jan. 4, the property is zoned RM, multiple-family residential, and operates as an apartment home. Over the years, it has also been zoned for and used as a doctor’s office, house and apartment, bar and restaurant, and a fruit and vegetable market.
The judge noted:
• February 2015, the owners, who are the plaintiffs in the case, filed an application for re-zoning for a village commercial zoning to operate as a bar and restaurant. In March 2015, Clarkston Planning Commission recommended approval of the rezoning;
• March 2015, review by planning consultant Richard Carlisle, “inclined to recommend that commercial zoning is appropriate,” but “would be more comfortable knowing the request has been more narrowly refined”;
• March 2015, city council sent plaintiff’s request back to the planning commission for discussion of conditional rezoning to a restaurant and bar, rather than generally commercial use;
• June 2015, plaintiff filed an amended application for rezoning the property to VC, limited to use as a bar and restaurant;
• June 2015, Carlisle again recommended approval for commercial use of the property, saying it was compatible and consistent with the zoning ordinance, and also said the new use “must be conductive to the historic nature of the property”;
• Aug. 10, 2015, City Council voted to deny the rezoning request; and
• October 2015, plaintiff filed complaint on claims the city violated equal protection and due process rights, amounted to a taking under the United States and Michigan Constitutions, and constituted a deprivation of rights under U.S. law.
The suit sought to order the city to rezone the Sutherland building at 59 S. Main Street from multiple residential to commercial for development into a restaurant, citing undue influence by and favoritism towards the Catallo family in Clarkston.
In the suit, the building owner claimed the city had no legitimate reason to deny the rezoning request, particularly when faced with nearly identical requests from others.
The city granted similar rezoning requests made by Curt Catallo, the son of City Council member Sharron Catallo, including operating a bar and restaurant and an industrial kitchen directly across the street from the plaintiff’s property, the judge noted.
The city disputes the claim Sharron Catallo improperly influenced the planning commission and city council to deny plaintiff’s requested rezoning.
Attorneys representing the city, provided by the Michigan Municipal League, said the denial was appropriate because:
• Request was not consistent with the Clarkston Master Plan, which includes preserving the historic character of the city;
• The property and five homes to the south are all historic structures within the Historic District and were constructed as private residences over 100 years ago. Rezoning would jeopardize the historic nature of the structure of the restaurant were to fail;
• Current multifamily designation contributes to the spirit of the downtown area, by adding pedestrian activity adding to the vitality of the downtown village core;
• Current zoning provides a good transition between historic homes to the south and commercial properties to the north;
• Zoning has been for multifamily since 1986 at plaintiff’s request. Residential property owners abutting property have relied on this zoning designation for 30 years. A sudden change would disturb the character of the area and the expectations of residents; and
• Rezoning it because of commercial property next to or across the street would create a domino effect and jeopardize the historic nature of the area.
The plaintiff’s claims included:
• Nearby property is zoned and used for commercial purposes, so imposition of residential restrictions on similarly situated property is unreasonable and invalid;
• Several similar properties are zoned commercial without regard to proximity to residential zones;
• Neighboring property at 55 S. Main, 54 S. Main and 14 N. Main are all zoned commercial and directly adjacent to residential zoned properties;
• All commercial properties on Main Street from Waldon to 14 N. Main Street are adjacent to residential properties with no buffer;
• The city does not usually impose buffer or transition restrictions on similarly situated property, so the decision to do so with the plaintiff’s property is unreasonable and invalid;
• Refusal to reclassify property is not consistent with general land use patterns in the area;
• Property has been zoned and used for commercial purposes in the past 50 years, including a bar and restaurant; and
• Plan includes preserving the historic character of the building with minimal exterior changes.
The court noted U.S. and Michigan Constitutions provide equal protection of the laws, and found the plaintiff’s proposed use of the property is suitable for and consistent with the city’s stated objectives in the subject area, and defendant’s denial of the rezoning request was arbitrary.
The order is for the city to approve the plaintiff’s rezoning request and may not prevent the plaintiff from opening a restaurant and bar on the property as proposed.
The opinion does not require the city to approve any request for a liquor license, which was not an issue presented to the court.
The takings and deprivation claims were dismissed.
The plaintiff failed to establish any taking has occurred, and it not been “deprived as all economically beneficial or productive use of the land, because he operated the property as a fully occupied apartment house and realizes some income,” the court ruled.