Category: Jason Kniesc

Before I begin with what I have to say, I’d like to give a big shout out to James Tamm and Kevin McQuillan, who’ve apparently been lurking in the shadows. And that simply won’t do! You know me – I’m all about the sunshine, so let’s shine some light on this.

So, who the heck are those guys, you might ask? They are two of the many lawyers representing the city in my FOIA lawsuit, and they have apparently been monitoring my 1^st Amendment activity over here on behalf of Clarkston city government. That’s right! The government is monitoring what I have to say.

Now, I’m the first to admit that this is a public site, and government officials, representatives, and agents are entitled to do whatever anyone else can do, so they are free to read whatever I post publicly. But these lawyers like it over here so much that they thought it would be a good idea to try to disparage me and to use the existence of this website to cast me in a negative light to the circuit court judge. Yup. They are trying to gain a tactical advantage by putting the website address in a public court filing and using it as a basis to attack me. I guess they’re switching things up a little, and instead of denigrating me on the basis of my sex and marital status, they’ve moved on to attacking me for engaging in constitutionally protected activity.

Hey guys, you might want to spend some time perusing the Michigan Rules of Professional Conduct before reading further. Since you want to bring the judge or his clerk over here to look at what I’m doing, maybe you might want to have an explanation prepared for the many things you did during the lawsuit that might be problematic. For example, I’m sure the judge would be delighted to know that one of you lied to him about the status of a stipulation of facts during a hearing because he apparently thought it would provide a tactical advantage.

How do I know it was a lie? Well, first of all, it wasn’t true (duh). Secondly, and more importantly, he admitted to my attorney immediately after the hearing that he knew what the status was, which means he knew the words were untrue as he was speaking them out loud. I was there, and I was appalled. I used to be a litigator and spent a lot of time in court. I have never, ever lied to a judge about anything, large or small.

Well, now that we’ve given a big shout out and welcomed our new friends, let’s move on to the topic at hand – the Church Street occupation. I confess, I wasn’t paying that much attention to the city council this summer. Big mistake, apparently.

When the end of Church Street was shut down to allow for outdoor dining, I assumed that the city had somehow established that it was doing this for a general public purpose and that any restaurant or business could use that space. As I’m going backward through recorded city council meetings, I’m beginning to wonder if my initial conclusion was wrong.

On November 9, 2020, I shared a letter that I received in a post titled “A Warning From a Neighbor,” found here: https://www.clarkstonsecrets.com/a-warning-from-a-neighbor/ The letter’s author titled it “Honcho’s Intent to Permanently Occupy Church Street.” At the city council meeting that evening, council members Wylie and Luginski assured everyone that even though permanently closing Church Street and creating a publicly owned green space had been discussed in connection with establishing a Social District, a permanent closure would require public input and serious investigation, something that hasn’t occurred yet. We were promised that a permanent closure would be for public use and not for the use of any specific business – or Honcho in particular. I posted unofficial detailed minutes of the meeting here: http://www.clarkstonsunshine.com/november-9-2020-city-council-meeting-held-virtually/

So, we weren’t supposed to worry – Honcho wasn’t going to “permanently” take over the end of Church Street. But was the street temporarily closed only to benefit Honcho from the very beginning?

On the Clarkston Sunshine page, I’ve been posting very detailed minutes, specific references to documents within council packets, and links to video recordings with time markers so that the anyone can listen to only those portions of the meetings that are of interest as a form of public service, since the city isn’t very good at telling us what it’s doing in the minimal minutes that it publishes. I started going backward in time because I’d missed watching a number of meetings, and I honestly was shocked to hear the October 12^th discussion about the Church Street closing. (The unofficial, detailed minutes, with document and video references can be found here: http://www.clarkstonsunshine.com/october-12-2020-city-council-meeting-held-virtually/)

At the October 12 meeting, Curt Catallo, owner of Honcho, the Woodshop, and the Clarkston Union, asked the council if it would be worth asking the Planning Commission if the Church Street closure could be extended through the winter into spring so that they could maintain social distancing within their restaurants, keep the people of Union Joints employed, and allow patrons to eat in a socially distant way. Catallo also wondered if it would be worth putting a tent over the space to get through the winter. As everyone knows now, Catallo built a gigantic and grotesquely ugly tent at the end of Church Street. (Does anyone find it the least bit ironic that this occurred at the same time the Historic District Commission was [and is] pursuing legal action against private property owners for some hardly noticeable fencing along their property? No favoritism there, I’m sure. 🙄)

In response to Catallo’s questions at the October 12^th meeting, council member Wylie told us that Church Street was deliberately left off the Social District plan because they believed that Catallo would be asking for an extension to use our public street for his private business. Wylie said that if Church Street were included in the Social District, then Catallo couldn’t use it – because it would have to be open to everyone. (So I guess that answers my question – the closure of Church Street has only ever been for the benefit of Catallo.) Wylie and Kniesc admitted that the city’s intention is to make Church Street a permanent part of the Social District, but it was “cleaner” to leave it out now – so that Union Joints could present a different use if they wanted to extend the current arrangement.

To be fair, I don’t know exactly what the “current arrangement” with Catallo is. It’s entirely possible that he could be paying fair market value for using the end of a city block for his private business purposes on a temporary basis. As I said, I missed a number of meetings during the summer. If that’s the case, then I’m sure it will be mentioned during a council meeting and I will note it as I write the unofficial minutes of that meeting. Notwithstanding, it doesn’t appear that the city council has any authority to take this action under the Clarkston Charter – even if Catallo is paying us the fair market value. Let me tell you why I think that is, and I would encourage anyone to explain in the comments where the authority to give the exclusive use of public property to a private business is authorized because I can’t find it in the Charter, which I’ve linked to here: http://villageofclarkston.org/DocumentCenter/View/415/ClarkstonCharter.

The Clarkston Charter was approved by city voters and is the equivalent of our constitution. The Charter establishes the framework for city government. It’s filled with requirements – not suggestions – and it can’t be changed unless we vote to change it.

City council members are elected by us and are responsible to us. The Charter establishes the authority and limitations of the six council members and the mayor.

Section 4.2 of the Charter (“Elected Officers and Powers”) gives the six city council members and the mayor the ability to:

• • adopt such ordinances and resolutions as it shall deem proper in the exercise of its powers
  • determine all matters of policy of the City and adopt ordinances and necessary rules and regulations in the exercise of its power
  • raise revenues and make appropriations for the operation of the city government and provide for the public peace, health, safety and welfare of persons and property, subject to the limitations of law

Charter section 4.27 (“Rights as to Property”) gives the council the power:

• • to acquire for the City by purchase, gift, condemnation, lease, construction or otherwise, either within or without its corporate limits, and either within or without the County of Oakland, private property, for any public use or purpose within the scope of its powers [whether or not it’s mentioned specifically in the Charter]
  • to maintain and operate these acquisitions to promote the public health, safety and welfare

There are also other Charter sections regarding the use of public property:

• • Section 4.28 (“Trusts”) allows the city to “receive and hold any property in trust for cemetery, park or other municipal purposes”
  • Section 6.6 (“Emergency Ordinances”) permits emergency ordinances to “[b]e enacted only to meet a public emergency affecting public peace, health, safety or welfare of all persons or property.”
  • Section 8.20 (“Disposition of Real Property Held by the City”) allows the city to decide, 90 days after acquiring title, whether property acquired through a tax lien “is needed for and should be devoted to public purposes” or whether it should be sold “at a price which shall not be less than its market value . . . ”
  • Section 11.4 (“Disposal of Plants and Property”) prohibits the city from selling, exchanging, leasing, alienating, or disposing of “property, easements, income or other equipment, privilege or asset belong to and appertaining to any utility which it may acquire” unless we agree after voting on it in a special election
  • Section 12.1 (“Contracting Authority of Council”) – gives the city council the authority to make purchase, sale, and lease contracts on behalf of the city, but this authority must be in accordance with the provisions of law (and the Charter is our constitution)
  • Section 12.2 (“Purchase, Sale and Lease of Property and Services”) requires that the city council establish an ordinance that provides procedures for the purchase, sale, or lease of real and personal property and services for the city manager (specifying when competitive bidding and council approval is required)
  • Section 12.3(e) (“Limitations on Contractual Power”) notes that the city council’s power to sell, lease, or dispose of real property is conditioned on a public hearing, five affirmative council votes, and approval of the voters if required by law

(The bolding of certain words is all mine.)

Did you notice a pattern? There always has to be a public purpose. The Charter gives the city council ZERO authority to give away public property for the exclusive use of a private party, no matter what their motivation is. (There’s also no COVID exception to this limitation – I checked.) By allowing Honcho to exclusively occupy the end of Church Street, the city council appears to have granted what amounts to a no charge, short-term, exclusive lease of public property for the private use of Honcho restaurant. I’m placing the blame squarely on the city council, because as Catallo has told us repeatedly, members of city government served up the opportunity to use part of Church Street to Catallo on a silver platter.

Even if this conduct was authorized by the Charter, and even if the taxpayers were receiving some sort of reimbursement for the fair market value to compensate them for shutting down a street that they own, I don’t think that even the most creative council member can articulate how this benefits public health, safety, and welfare – though we can all clearly see how it benefits one well-connected private business owner in particular. There are slightly fewer than 1,000 people who live in Clarkston, and there are likely very few of them who work for Union Joints – so no public purpose there. The taxes paid by Union Joints are the same whether they occupy Church Street or not – so no public purpose there either. Nor do the sales taxes that Honcho and every other business in the city collect from their patrons and pay to the State – a pittance that comes back to us in the form of revenue sharing – amount to a public purpose.

We pay the city attorney to attend all city council meetings now. This means that he would be aware of what transpired at the meetings, and I’ll wait to hear his comments when this issue was discussed as I continue to go backwards in time listening to city council meetings. Perhaps the city council asked the city attorney for an opinion on the legality of temporarily giving part of a taxpayer-owned street as a gift to benefit one business owner while depriving the owner/taxpayers the ability to use it. If so, I’m sure we’ll find a reference to payment for such an opinion in the legal services billings near the beginning of the original occupation of Church Street.

But so far, in light of the city council members rather shocking admission on October 12^th, I’ve seen nothing that:

• • provides any Charter authorization for giving a freebie to a private business
  • allows the city to ever hand off public property for the private use of a business owner
  • explains how taking access to a city street away from the taxpayers who own it and giving it to a private business owner can possibly equate to any sort of public purpose whatsoever

I’m sure that it will be all cleared up when I listen to the previous meeting recordings, right? And, if I’m wrong and the city council has the authority to do this, I would like to hear it. As a matter of fact, I think that most Clarkston residents would like to hear it, given the amount of criticism I’ve read on the Village of Clarkston Facebook page about this issue.

So, dear readers, what are your thoughts?