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(f), and Clarkston Ordinance 152.04, define “Demolition by Neglect” as neglect in maintaining, repairing, or securing a resource that results in deterioration of an exterior feature of the resource or the loss of structural integrity of the resource.
LHDA, MCL 399.205(11), and Clarkston Ordinance 152.07(L), state if the HDC determines that a historic resource is threatened with “demolition by neglect,” then the HDC can order the property owner to repair it. If the property owner doesn’t make repairs within a “reasonable” time, then the HDC or its agents can obtain a court order allowing the HDC or its agents (the contractors the HDC would hire) to enter onto private property to make necessary repairs. All costs for the ordered repairs are charged to the owner and may also be levied as a special assessment against the property.
The Charter Proposal recognizes that a “Demolition by Neglect” order is discretionary. It adds the extra step of involving the city council before the HDC enters an order against a property owner for “Demolition by Neglect” and before seeking a court order to hire people to enter onto private property and forcibly conduct HDC-ordered repairs against the property owner’s will.
This means the HDC must explain to the council why such an order is necessary. And, if the property owner doesn’t comply with an approved order within a “reasonable” period of time, then the HDC must present its case to the city council before seeking a court order to compel repair in the case of claimed “Demolition by Neglect,” including a proposed plan for entry and repair and a proposed court order that it wants a judge to approve.
At both points, the city council can ask questions and approve, reject, send the HDC’s request back for revision, or take any other appropriate action. Approvals involving an HDC “Demolition by Neglect” order, or an HDC request to obtain a court order, require a vote of five council members.
Notes:
Requiring council approval before an order involving “Demolition by Neglect” is entered against a property owner in the historic district recognizes that HDC commissioners are merely historic preservation hobbyists and aren’t required to have any special credentials to serve on the HDC. City council approval is appropriate because the city council is accountable to Clarkston voters, controls the purse strings, allocates money toward the legal services budget, and has the city attorney present at every council meeting to advise them (as well as the HDC commissioners seeking approval of such an order). The HDC shouldn’t fear council questions. It’s better to address the holes in their logic before an order is issued, because a judge will certainly ask questions.
The HDC hasn’t entered any “Demolition by Neglect” orders that I’m aware of, even when it was arguably appropriate for a couple of homes on Main Street. An HDC order demanding repair for “Demolition by Neglect” can prompt an expensive court proceeding. City council involvement is appropriate because taxpayers will be forced to foot the bill for the city attorney to defend the HDC’s actions.
Even if the property owner appeals from the HDC’s “Demolition by Neglect” order, one doesn’t just go “get a court order” if the property owner doesn’t comply. Court orders are issued only if there’s an active lawsuit, which means the HDC would need the assistance of the city attorney to draft a lawsuit complaint and a motion requesting the court order. The property owner would be served with both the complaint and the motion. It’s extremely likely the property owner would hire his or her own lawyers and force the HDC into proving its case in a lawsuit. This means the property owner gets to answer the complaint, perhaps file a countercomplaint against the HDC, oppose the motion for a court order allowing the HDC to force a repair, and could also ask for extensive discovery involving lay witnesses, expert witnesses, deposition testimony, and document exchanges, for example. Taxpayers may have to pay for the city to hire an expert witness because HDC members have no particular education and experience that would make them court-qualified experts.
Remember how the city acted during my five-year Freedom of Information Act (FOIA) lawsuit? That case involved a simple legal question, yet the city managed to drive up costs for both sides to somewhere in the $700,000 range because the city’s many attorneys claimed they needed to do boatloads of unnecessary discovery and then never used any of that discovery in their arguments in circuit court, the court of appeals, or the supreme court. There is nothing to stop a resident from responding to an HDC order in a similar way. The HDC and city council should never assume a lawsuit will be a slam dunk win, no matter how “right” the HDC thinks it is. Once the lawsuit starts, the costs can rapidly climb to levels that no one feels comfortable with.
The Charter Proposal very rationally requires the HDC involve the city council before the HDC embarks on what could be very extensive (and expensive) proceedings and/or litigation. The city received “free” attorneys through its insurance policy in my FOIA case, but lawsuits started by the HDC are not covered by insurance and must be fully funded by Clarkston taxpayers. We think our elected officials should be on board before that happens.
Please note that a “Demolition by Neglect” order is unique and entirely different than the standard application process that occurs at the HDC’s regular meetings when the HDC approves, disapproves, or asks for more information about an application before approval or disapproval. The Charter Proposal doesn’t affect that process at all.
Paid for by Susan Bisio, P.O. Box 1303, Clarkston, MI 48347 with regulated funds.)