City succeeds in lawsuit appeal

BY PHIL CUSTODIO
Clarkston News Editor
The state Court of Appeals ruled in favor of the City of the Village of Clarkston, overturning an Oakland Circuit Court ruling for the owners of 59 S. Main Street, known as the Sutherland House.
The owners’ lawsuit sought to change the zoning of 59 S. Main from multi-family to village commercial, allowing it to become a restaurant.
In the suit, the building owner claimed the city had no legitimate reason to deny the rezoning request. 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.
In January 2017, the circuit court agreed with the property owners, the city should rezone the Sutherland building from multiple residential to commercial for development into a restaurant, citing undue influence by and favoritism towards the Catallo family in Clarkston.
The appeals court reversed the circuit court’s findings in a ruling written by The Hon. Jonathan Tukel, Jane M. Beckering, and Douglas B. Shapiro, Sept. 25.
“Plaintiff’s reliance on other restaurants and commercial properties in the downtown area was misplaced,” the appeals court found. “Plaintiff paid particular attention to three restaurants now owned by Curt Catallo. However, it is undisputed that rezoning was not required for those properties to be used as restaurants because the properties where the Catallos implemented these restaurants already were zoned for commercial use.”
The city did not have to alter any zoning to accommodate Catallo’s restaurants, so those properties were not treated differently, the court said.
Also, 55 S. Main Street, located next door to 59 S. Main, was not similar. It had been used as a dentist’s office and there was no thought to convert it to multiple family residential use, they said.
“The rezoning of 55 S Main St. was essentially a correction of an error that had no bearing on how the property had been or would be used,” the court said. “In contrast, (59 S. Main) had been used for multiple-family residential, was in use as multiple-family residential at the time rezoning was sought, and plaintiff was seeking to rezone so that it could utilize the property for an entirely different purpose.”
The 59 S. Main owners can request reconsideration or appeal the case to the Michigan Supreme Court, said City Manager Jonathan Smith.