BY PHIL CUSTODIO
Clarkston News Editor
City Council declined to weigh in, Monday night, on an administrative law opinion against the city regarding 42 W. Washington Street.
The city had 21 days from when the proposal for decision was written by Judge Peter Plummer on June 8 to file an exception.
The State Historic Preservation Office will meet in September and if it rules against the city, the council can object at that time if so desired, said City Manager Jonathan Smith.
“The board will read the proposal, take it into advicement, and make a decision,” Smith said. “I’m told sometimes they take the side of the administrative judge, sometimes they don’t.”
The case stems from a Clarkston Historic District Commission vote in August 2017 to deny a request by Lehman Investment Company to demolish the house and outbuildings at 42 W. Washington Street.
Lehman appealed the decision to the State Historic Preservation Office in October 2017, and the case was sent to the Michigan Administrative Hearing System.
Administrative Judge Plummer wrote an opinion in favor of the property owners, saying HDC should reverse its decision and allow the demolition. If the SHPO board agrees in September, council could file an appeal to circuit court, Smith said.
“There really isn’t anything to do tonight – it goes to the SHPO board,” he said. “The 21 day deadline was for (city attorney) Tom Ryan to get back to the SHPO board to say if we were to want to challenge the decision of the administrative law judge.”
Clarkston Historic District Commission voted on June 12 to recommend City Council challenge the proposal. Council member Scott Reynolds asked Ed Adler of Lehman, who attended the June 25 City Council meeting as a member of the public, what their intentions were for the property.
“It would be helpful to understand the full picture of it,” Reynolds said. “Being transparent could help the dialogue in this decision.”
The city is not entitled to that information when considering a request for demolition, Adler said.
“The answer is, it’s none of your business – you don not have the legal right to ask that question,” he said.
In his opinion, Judge Plummer agreed with Adler’s position, saying “that is not a legitimate inquiry when considering an application for demolition – any proposed use of the vacant lot will have to be reviewed by the Historic District Commission at the time it is proposed.”
Adler asked council members to read the opinion before making a decision on it.
“It’s quite scathing,” he said. “I was surprised. I read lot of judicial things and I’ve never seen a judicial law judge rip somebody up like that. It’s really is worth your time.”
According to the opinion, “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.”