BY PHIL CUSTODIO
Clarkston News Editor
Clarkston is on record as opposing an administrative law judge’s opinion in a lawsuit brought by a local developer. Some City Council members wanted to know why.
Mayor Steven Percival questioned city attorney Thomas Ryan at the July 9 City Council meeting.
“Jonathan (Smith, city manager) and I were in discussion about it since we received the opinion (on June 8). We talked about having an emergency meeting, and if we were going to have to do exceptions,” Percival said. “Before I went out of town, Jonathan indicated he was in contact with you and it (exceptions) wasn’t something that needed to be done. I come back and it’s done.”
Ryan said he received the opinion on June 8 and forwarded its to the city manager on June 11, the following Monday.
“I was looking for input. I got input from the HDC (Clarkston Historic District Commission, which voted on June 12 to recommend filing the exceptions),” Ryan said.
The day before the deadline to file exceptions, June 29, Ryan heard there was some resistance to filing the exceptions, “which was unfortunate because I sent the information as soon as I got it,” he said.
“If you thought there was some resistance from the council to file the exceptions why did you do it anyway,” Percival asked.
“The only official information I received from the city was from the HDC that they wanted them filed,” Ryan said. “The opportunity for exceptions was limited.”
Council member Rick Detkowski said his concern was exceptions were made without approval by the council.
Council member Sharron Catallo said the situation was clearly presented at the June 25 meeting.
“We knew about the HDC and Jonathan explained exactly what was going to happen,” Catallo said. “We were going to file those exceptionss, but it wasn’t really going to be anything until SHPO (Michigan State Historic Preservation Office, pronounced “ship-oh”) made its decision – we thought it was OK to file the exceptions.”
Reynolds said he read about the issue in the June 20 Clarkston News story “Historic-district hearing goes against city.”
“It wasn’t on the agenda – (property owner Ed) Adler spoke in public comment. That started some dialogue,” Reynolds said. “I see two errors, you don’t just go forward with something, you have to have authorization from your client.”
Anything involving a lawsuit to the city, council should be made aware of it before they read about it in the paper or hear about it from private citizens, he said.
“I didn’t even read The Clarkston News. I didn’t know any of it,” Catallo said.
According to HDC bylaws, the commission is an independent body, appointed by the council but reporting to SHPO, Smith said.
“The exceptions came from the HDC to go to SHPO – we weren’t part of that circle,” said Council member Eric Haven.
“The only thing Tom had was the 4-1 vote (of HDC),” Kneisc said.
“He also had the council not taking action on it,” said Percival, who was out of town during the June 25 meeting. “If you sought approval from the council, you didn’t get approval from the council. Why would you do it anyway?”
Ryan forcefully defended his actions, retorting to council, they should look in the mirror.
“I expected you guys would have a discussion about it. You had two meetings to do that,” he said. “The HDC had the same timetable – they discussed it and voted 4-1 to file exceptions. This body unfortunately took no action, and I’m sorry about that. But if I had been told no I wouldn’t have filed them but I wasn’t told anything.”
His objective was to protect the record for the city relative to the administrative law judge, he said.
If the city did not file exceptions, SHPO would say, “this must be a great decision. We’re just going to rubber stamp what the administrative law judge said, and the case is over,” Ryan said. “I didn’t want the city to lose that opportunity – if you want to take that off of my bill, I don’t have a problem with that. It’s not about the money. I communicate the information and you folks need to deal with the information or not.”
According to emails forwarded by the city, Ryan emailed a copy of the proposal for decision, noting the 21-day deadline, on June 11. On June 27, Smith emailed members of the City Council, advising them of the administrative law judge opinion, saying “this proposal will be provided to the SHPO Board for them to vote on in their next meeting (in September). In the meantime, Tom Ryan will be filing the request for an appeal, per the HDC’s 4-1 vote.” Later on June 27, Smith emailed a correction, saying Ryan was filing exceptions, not an appeal.
On June 28, Smith send an email to council members, “the exception comments were prepared because the HDC voted 4 to 1 in favor of submitting exceptions. They have not yet been submitted, but were going to be submitted via overnight mail in order to meet the Friday deadline. If exception comments are not submitted, Tom Ryan says the SHPO Board will almost certainly rubber-stamp the administrative law judge’s proposal. If we don’t submit exceptions, we can still appeal later, but the chances of succeeding are greatly reduced. Please respond to me (only) by 5 p.m., letting me know if you wish exception comments to be submitted to SHPO or not. Yes or no.”
Council members responded “yes” to the email and Ryan filed the exceptions on June 28.
“We all agreed, in light of the HDC vote, there was no harm in filing the exceptions. We’re not filing an appeal. That decision comes much later,” Smith said.
The email “straw poll” brushes up against the state Open Meetings Act, Percival said.
“Tom, you were taking stuff from what could have been a violation of the Open Meetings Act,” the mayor said. “If that email was sent out for a decision as to whether we should or should not file these and you were waiting for a quorum, that would be a violation of the Open Meetings Act. We have to be on top of this better that it was.”
Smith said the emails were just trying to get information, with replies only to him.
“But when you take information from those emails and you make a decision and have an action from that, it’s almost on that tightwire,” Percival said. “We’ve been beat up on the Open Meetings Act. We have to be very careful.”
Administrarive Law Judge Petter L. Plummer issued his opinion recommending the HDC’s decision be set aside and Lehman Investment Company be allowed to demolish the vacant residence and outbuildings at 42 W. Washington Street on June 8. Exceptions were due 21 days after, on June 29.
The issue was not on the June 25 City Council agenda. At the time, Smith said the deadline was for Ryan to file the exceptions with SHPO, which would issue a ruling on it at a future meeting, probably in September. City Council could appeal the SHPO decision if it so desired, Smith said.
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.
SHPO will consider the proposal for decision and the exceptions filed by attorneys for the city and Lehman Investment Company, if any, then will issue its own decision. After that, either side has 21 days to appeal that decision.
Reynolds said City Council should start considering a special meeting regarding an appeal if SHPO rules against them in September.