Let’s compare the state law, our local ordinance, and the proposed HDC charter amendment and discuss the why’s behind things. Once you clear the disinformation smoke, it’s pretty clear the HDC charter proposal is far less constricting than the “Charming” group and their public supporters have made it out to be. Claiming the charter proposal “guts” the historic district ordinance is simply another lie, and like all the others, the “Charming” group fails to provide any detailed support for its baseless claims. In fact, the charter proposal expands what the HDC can do by allowing it to issue civil infractions with fines for violations, something it cannot do now.
I’ll refer to the Local Historic Districts Act (MCL 399.201, et seq) as the LHDA, the Clarkston ordinance (152.01, et seq of the Clarkston Code of Ordinances) as the Clarkston Ordinance, and the HDC charter proposal as the Charter Proposal. The section headings below match the Charter Proposal. I’m going to skip the general policy section of 16.1 because it contains general statements. I’ll also skip the definition section of 16.2 unless the definitions are relevant to a particular section because most of the definitions originate in the LHDA and are adopted by the Clarkston Ordinance and the Charter Proposal.
One housekeeping note before I get started about the terms “onerous” and “reasonable” (or “unreasonable”) because members of the city council and the public have asked about these terms, and some have suggested the use of these words make the Charter Proposal unworkable.
The word “onerous” is defined by looking at the entire proposed HDC charter amendment. The boundaries of HDC action are not onerous if they are consistent with the requirements of the Charter Proposal.
The words “reasonable” and “unreasonable” are terms of general understanding and usually come into play during a lawsuit. It allows a judge to look at everything and decide if the HDC’s (or a property owner’s) actions fall within the realm of what is acceptable. A judge would do this by looking at the language of the Charter Proposal and all the facts and circumstances that prompted the lawsuit, something most people would want a judge to do in the interest of fairness. After all, there might be reasons for a delay, or perhaps an action ought to be considered in the whole scheme of things rather than using some black and white test with no consideration for extenuating circumstances. The opponents of the charter proposal completely ignore the fact that the LHDA and the Clarkston Ordinance also use the word “reasonable” without defining it and no one thinks that’s problematic. (MCL 399.205(11) and (12), and Clarkston Ordinance 152.07(L)(2) and (M), allow the HDC to obtain a court order in connection with a finding of “Demolition by Neglect,” or for “Restoration or Modification” if the owner doesn’t comply within a “reasonable” period of time after the HDC orders the owner to do so.)
The proposed HDC charter amendment doesn’t do anything to encourage lawsuits; people and the HDC (with council approval since it’s a budgetary issue) will decide whether that’s appropriate. The Charter Proposal’s preference for the HDC to work things out with property owners will go a long way toward reducing lawsuits. Legal expenses for lawsuits brought by the HDC, and to defend against lawsuits against the HDC that don’t ask for damages, are not covered by the city’s insurance policy, so anything that acts to reduce lawsuits means less legal expense for Clarkston taxpayers.
Paid for by Susan Bisio, P.O. Box 1303, Clarkston, MI 48347 with regulated funds.)