Please note that I’ve referred 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.
Discussion:
LHDA, MCL 399.201a(b) and Clarkston Ordinance 152.04 define a “Certificate of Appropriateness” as the written approval of a permit application for work that is appropriate and that does not adversely affect a resource. (This is in addition to any other city permit approvals that may be required.)
LHDA, MCL 399.201a(n) and Clarkston Ordinance 152.04 define a “Notice to Proceed” as “the written permission to issue a permit for work that is inappropriate and that adversely affects a resource, pursuant to a finding under [MCL 399.205(6)]” (or Clarkston Ordinance 152.07(F); the ordinance has an incorrect cross-reference to 152.07(E)). In order to obtain a “Notice to Proceed, the LHDA, MCL 399.205(6), and Clarkston Ordinance, 152.07(F), require an HDC finding that the inappropriate work is necessary to substantially improve or correct safety hazards; the work would benefit the community (and all other city approvals have been received); retaining the resource would create an undue financial hardship when events are beyond the owner’s control and all feasible alternatives have been considered; or retaining the resource isn’t in the interest of the majority of the community.
LHDA, MCL 399.205(1), and Clarkston Ordinance 152.07(A), both require that applicants receive a Certificate of Appropriateness or a Notice to Proceed before work that affects the exterior appearance, or certain interior arrangements of a resource, is undertaken. There is no authorization to issue Memoranda of Administrative Approval (or a Memorandum of Approval, as it’s sometimes referred to) in the LHDA or the Clarkston Ordinance.
Notes:
The Memorandum of Administrative Approval is a made-up, local form of approval that is intended to allow the HDC to evade the requirements of the Open Meetings Act (OMA) and to provide a way to respond to a problem the HDC created by improperly demanding to be involved in ordinary maintenance and repair that does not affect the exterior of the resource, contrary to the LHDA and the Clarkston Ordinance.
The way the Memorandum of Administrative Approval works is that a quorum (three or more HDC commissioners) or a sub-quorum (one or two HDC commissioners) go to a site to look at something the homeowner is doing. They deliberate and decide whether the work should be approved, and if approved, they issue a Memorandum of Administrative Approval. They claim this procedure is intended to help the homeowner, but it’s really a way to avoid HDC commissioners being bothered with more than one meeting a month or having to call a special meeting to address a problem they’ve created for property owners and themselves by demanding that property owners seek HDC approval for all repair and ordinary maintenance work, whether or not the exterior of a resource is affected.
The OMA requires that a meeting of a quorum of commissioners must be properly noticed so the public can attend, and the OMA prohibits deliberation and decision-making outside of a public meeting. Violations of the OMA expose the individual commissioners to civil and criminal liability and the city to the expense of a lawsuit.
The LHDA, MCL 399.205(10), Clarkston Ordinance 152.07(K), and the Charter Proposal allow the HDC to create specific written standards and to delegate authority to issue Certificates of Appropriateness for specified minor classes of work that would be reviewed on a quarterly basis, and this would likely address the bulk of the Memoranda of Administrative Approval issues. Delegation under the Charter Proposal is contained in Section 16.9(d) (Commission Conduct, Orders, and Enforcement) and will be discussed below under that section. The HDC has refused to delegate any authority, preferring instead to violate the OMA and issue fictitious approvals that are not authorized by the LHDA or the Clarkston Ordinance.
Paid for by Susan Bisio, P.O. Box 1303, Clarkston, MI 48347 with regulated funds.)