Category: Michigan Municipal League (MML)

There really is no end to how many private organizations and individuals entreat the city council to give your tax dollars to them, and the council continues to give your money away, wrapped up in a pretty bow, because they believe they magically possess the authority to make “in-kind” (non-cash) contributions to charities and local businesses. The most frequent way they do it is to allow favored organizations to use any or all of Depot Park without paying the $200 resident (or $250 non-resident) user fee that everyone else has to pay. They also reacted positively to a tentative proposal to use your tax dollars to pay for reserved parking spaces for restaurant and other private employees in private parking lots. Yet, we’re told we don’t have enough money for infrastructure. Huh. Wonder why.

I’m going to explain how we’ve gotten to where we are and also why I think using any taxpayer asset to subsidize any private person or organization is unlawful. The city is flirting with another lawsuit if they don’t stop giving away taxpayer resources to private organizations.

You don’t need a cash exchange to convey a benefit to an organization, and the parade of organizations coming to council to ask for freebies knows exactly what they are asking for (and receiving). For example, at the July 10, 2023, city council meeting, a representative of the Clarkston Independence District Library said he was there to “ask for consideration for an in-kind partnership to waive the fee for reserving the gazebo in Depot Park.” In a comment to a blog post on this site (within which I was criticizing these forced taxpayer gifts), a board member from the Clarkston Community Historical Society (CCHS) said she could assure me “the return on investment greatly exceeds a $200 waived park fee.” Got that? The CCHS board member correctly perceives that this forced taxpayer contribution is a city “investment” in the CCHS. FYI, in addition to the Depot Park user fee waiver, taxpayers are also forced to “invest” in the CCHS by paying wages to the two Clarkston employees who are required to work the CCHS’s weekend-long annual event in Depot Park. Rather than full reimbursement, the CCHS decides how much it’s going to “donate” toward the wages and taxpayers are forced to pay the rest. (And the financial benefit of the user fee waiver to the CCHS is $250, not $200, since it isn’t located in the City of the Village of Clarkston.)

The taxpayer-funded giveaways aren’t stopping any time soon. Your city council will soon be formally asked to consider an outrageous request to use taxpayer dollars to pay for parking space leases, in private parking lots, so employees of private companies can park for “free” (even though there are no-cost options available to these employees that wouldn’t require any taxpayer assistance). The operative word there is “private,” and as I’ll explain later, the city council has zero authority to spend public (taxpayer) money for any private purpose without a state statute or city charter provision authorizing it (and even then, the expenditures are strictly limited).

As you know, we have a parking problem in the city. It’s definitely not caused by the non-restaurant businesses. They’ve been here for a long time, and they are hurt by the restaurants (almost) as much as the residents are. As if we don’t have enough restaurants already, Robert Esshaki just received final approval to build yet two more in the space that once was the popular Rudy’s Market and the old Clarkston News building, and he plans to open the first one within the next year and a half. (Isn’t that awesome. 🤬)

Esshaki knows there aren’t enough parking spaces for his patrons. The city gifted Esshaki with a few taxpayer-owned parking spaces next to his Rudy’s Market when it was open because he didn’t own any parking spaces for the use of his store’s patrons. With the purchase of the Clarkston News building, Esshaki now owns a handful of spaces between that building and East Washington, but that’s not nearly enough for his restaurants’ needs (and he plans on expanding the building into that parking lot, eliminating even more parking spaces). And, like every other restaurant owner, he could not care less if his patrons parked in your front yard. (That’s literally true – your city council considered chopping down shade trees and paving the city-owned grassy strip between the sidewalk and street on some side streets just to create more parking for restaurant patrons.)

Esshaki is just the latest on the scene. The biggest parking offender by volume is Curt Catallo, who owns the Union Woodshop, Honcho, the Clarkston Union, and Union General (he also owns Union Adworks on Main Street, but that doesn’t contribute to the parking problem downtown). Honcho is the latest of the Catallo restaurants in Clarkston to open. Before the city council took action to protect narrow Church Street, an emergency vehicle wouldn’t have been able to travel down the street between all the Honcho patrons’ cars.

The city just opened paid parking in the Depot Road parking lot. I must give credit where credit is due – even though I’m not a fan of our current mayor, he has been consistent – before and after his last election – in wanting to expand paid parking to fund roads and sidewalks rather than increasing our taxes through either new or renewed millage.

The Depot Road parking lot had some unique issues that needed to be resolved before it opened. For example, there is a small area behind some Main Street businesses that is privately owned that needed to be recognized and dealt with. To address the issues, the mayor suggested forming a parking advisory committee to make recommendations to the city manager (yup, that would be the same city manager who blamed the mayor for the favorable city council vote for paid parking in the Depot Road parking lot and threw a temper tantrum at the council meeting following the vote because he apparently was not a fan of Depot Road parking and didn’t want to deal with the issues involved, even though that’s his freaking job).

As longer-term residents already know, parking committees aren’t new. We’ve had them before, and they’ve disappeared after the city council rejected or ignored their recommendations. In my opinion, the council’s rejection has always coincidentally mirrored Curt Catallo’s rejection. Catallo, and his family, hold great sway with the city council and the rest of city government (some long-time locals in and outside the city pejoratively refer to us as “Catalloville”). Catallo’s mother was a former long-time mayor and city council member. She refused to recuse herself when the city council considered parking issues that had the potential of helping her son, even though she was an officer on the corporate boards that owned a couple of her son’s restaurants at the same time as some of those votes. I wrote about that here and here. Most of the city council members at the time allowed Catallo’s mother to vote on parking issues despite the obvious conflict. Catallo’s sister, former Historic District Commission Chair and current Main Street Clarkston member, is a regular at city council meetings, constantly arguing for things that would benefit her brother’s businesses. These days, Catallo sends his partner, Erich Lines, to city council meetings to ensure that his restaurant business interests are considered in any city council decision.

The city council has also ignored a parking study we paid for. This study was interesting, because it confirmed something everyone knows – that parking spots have significant value ($9,000 each, excluding the cost of buying the property the space sits on, discussed on page 33). This is consistent with the city’s zoning ordinance, which requires any business with insufficient parking to pay a fee into a “Special Parking Fund” for each space they are short of the ordinance’s requirements ($10,000 per space is the number that city officials use, so I assume there’s a resolution somewhere that established that number).

To the best of my knowledge, the city council hasn’t ever enforced that ordinance. Apparently, they think it’s better to allow endless new restaurants to build here and let the residents bear the burden of “free” (to the patrons) parking in front of their homes. Based on some of the discussion at city council meetings, the only action the city council will ever take regarding the parking requirements in the zoning ordinance is to repeal them, just so they don’t have to deal with people bringing it up to them anymore. (There is a separate parking deferment provision in § 20.02.M of the zoning ordinance that allows an owner to provide less than the required amount of parking but keep open space for the full amount, post a bond for construction of the full amount, and then wait and see how it turns out after two years. The requirement I’m talking about here is “Payment in Lieu of Parking Spaces, § 20.02.V. Many call it the parking deferment requirement, but it doesn’t defer anything and there is a different, separate deferment provision.)

The latest parking committee is heavily weighted in favor of business owners, and of those business members, there are more restaurant than non-restaurant owners. The owner of 2 South Brunch House, the aforementioned Esshaki (owner of two new restaurants, yet to open) and Lines (representing Union Woodshop, Honcho, the Clarkston Union, and Union General), and the owners of HealthQuest and KH Homes are all members. The city classified two of these business owners as “residents” because they own homes in Clarkston (one of whom is Lines), but if anyone thinks that these two are there to represent the residents’ interests, I have a bridge to sell you. There are only two people (homeowners) who don’t have a conflicting business interest, one who lives on Main Street and one who lives on the no-parking side of Buffalo Street. They’re clearly outnumbered, but that’s usually how it is. City council claims to care about everyone, but if you judge this claim by the amount of favor they’ve shown, it’s obvious they care most about the Catallo-owned restaurants and not very much about the residents or the smaller businesses (and for a while, they seemed to want to make the Millpond Inn Bed & Breakfast disappear from the face of the earth).

Now that you’re all caught up on the background, let’s look at the committee’s initial report delivered at the May 22, 2023, city council meeting. Two of the recommendations are benign, but the third is extremely troubling (and I believe unlawful).

The Main Street homeowner/committee member was the primary spokesperson at the May 22^nd meeting (with Lines at her side). She has a belief, as do many others, that the presence of all these restaurants increases our home values. I take exception to that. We’ve owned our home for over 20 years, and its value has gone up and down in lockstep with the overall national and state market no matter how many (or few) businesses are open downtown. During the housing crash at the start of the Great Recession, our home’s value decreased by more than a third of what we paid for it. And Clarkston is definitely not a hotspot for increased home values; we don’t even rank in the top ten Michigan municipalities that have seen large home value increases as of May 2023. I realize the restaurant owners like to claim they’ve improved things, but if any prospective home buyer has the chance to observe restaurant traffic on any residential side street the restaurants have negatively impacted on a Saturday night, I think that would hurt the chances of a sale, not help it. Residents aren’t the only ones hurt by the restaurants – there are a lot of nice little businesses on Main Street that are harmed as much as the residents if their business hours happen to overlap with dinnertime because restaurant patrons take up all the available parking spaces.

The parking committee told the city council it plans to make three recommendations in its final report. The first is to provide better signage. (This would be paid for by you, of course, presumably with money from paid parking that would have otherwise gone to pay for road and sidewalk repair.) The second recommendation is that businesses that own their own property should allow their employees to park there. Let’s be real – they are mostly talking about Curt Catallo, who owns available parking behind the Union Woodshop, Honcho, the Clarkston Union, and Union General. His Union Adworks building sits in the old Independence Township Hall at 90 North Main and has a ton of parking spaces available. (You can see that for yourself with Google Earth – using my mouse scroll button to zoom in, I counted 72 marked spaces whenever the satellite photo was taken with room for a whole lot more if Catallo wanted to add them.) Apparently, there are 60 employee cars that have been parking around the city, making the overall parking problem worse during peak hours, since most of those cars obviously belong to restaurant employees. One wonders why the restaurants didn’t take this action on their own, and it’s just more proof that they don’t give an eff about Clarkston residents.

As I’ve mentioned already, the third recommendation is the one that is most concerning from a taxpayer perspective (but completely unsurprising considering the number of restaurants represented on the parking advisory committee). The proposal described on May 22nd is that the city (i.e., the taxpayers) and businesses who decide to participate would enter into a “co-share” or “cost sharing” lease to provide “free” employee parking in private parking lots. The focus – as it always is – is on restaurant employees because it’s not “fair” to ask them to pay for parking. It’s also apparently not “fair” to expect the restaurant owners to reimburse their employees for parking, though it might help with their claimed employee shortage if they did. Instead, it’s more “fair” to ask taxpayers to fix a problem the restaurants created for themselves, their employees, and every other business in Clarkston by not paying the $10,000 per space parking charge that would have funded the creation of more parking within the city. Clearly, restaurants are “making bank” in Clarkston and can afford to take care of their employees. If that weren’t the case, they wouldn’t be here (and Esshaki wouldn’t be pushing to open two more restaurants).

The committee spokesperson described our parking situation as a “virtuous cycle” 😂, a corporate-y sounding phrase intended to refer to the fact that we receive revenue from paid parking to use for roads and sidewalks that wouldn’t be available if we didn’t have a bazillion restaurants shoehorned onto Main Street with patrons who pay for parking. That’s a claim Catallo frequently makes, but I honestly doubt we ever would have started paid parking if it weren’t for all the restaurants. A lot of parking revenue goes toward the wear and tear to our roads and sidewalks from restaurant patrons as well as every other expense they bring with it (more frequent road and parking lot striping and repair; staff time to restock the paper in the paid parking kiosks; the cost of parking attendants who write tickets and have to deal with people who don’t like paying for parking (or getting tickets); the cost to use the parking app and to pay for the kiosks and their supplies; city hall staff time dealing with people complaining about why they have to pay for parking or because they received a parking ticket, as well as any appeals; and city attorney time if court enforcement is necessary). It’s a cycle, all right, but I wouldn’t call it virtuous. 🙄

Councilmember Laura Rodgers pointed out that Clarkston United Methodist Church (CUMC), on Church Street, will allow anyone to park in its large lot, which you can see here on Google Earth. It’s only fair to mention that Curt Catallo “trades” the ability for his patrons and employees to use the CUMC parking lot by supplying coffee to the coffee bar inside the church at his expense, but the CUMC lot sits empty most of the time when there aren’t services or activities and CUMC has never objected to people parking there (whether they are paying for the privilege with coffee bar coffee or not). At the May 22, 2023, city council meeting, Lines said the available parking behind 90 North Main and the CUMC could handle his employee parking needs.

Councilmember Sue Wylie, who’s normally fairly rational, made an irrational suggestion that the available “free” parking at 90 North Main and in the CUMC parking lot is just too far away from downtown. (Seriously?) Wylie thought that might be a problem for employees who would prefer to pull into a parking space one minute before their shift starts, and something closer (and taxpayer funded?) would be more helpful to them. I shared councilmember Wylie’s comment with my GenZ kid to see what she thought of it, and giving me hope for this next generation, she suggested that anyone who shows up for work one minute before they are supposed to start and blames their tardiness on the distance they know in advance they must walk to get to work should get up earlier and stop whining. Well said (and I agree). (She also said if you happen to get to work early, that just means you get extra scrolling time [on Instagram].)

The city council is treading on dangerous ground whenever it converts taxpayer property for private use, whether it’s waiving Depot Park user fees for some but not everyone, blocking off public streets for restaurant use for free (as they did for Catallo’s Honcho restaurant for months), allowing the exclusive use of city property for outdoor restaurant dining (as they did for the Olde Village Cafe and continue to do for 2 South Brunch House), or if they vote to allow taxpayer dollars to be used for joint agreements with businesses to provide “free” employee parking in private lots for businesses who skated out of the $10,000 per space parking requirement the zoning ordinance requires.

I’ve honestly had enough of the endless non-government-related freebies handed out by the city council and paid for by Clarkston taxpayers. I don’t think the city council has any authority to give away Depot Park user fees, allow the exclusive use of city property for the use of any private business, and the pending request for taxpayer-funded “free” parking is much, much worse than those things. 

Taxpayers are forced to pay the city attorney to attend every city council meeting. He hears the same discussions I do. Why hasn’t he explained to the city council that it’s not allowed to give away taxpayer money to private groups and people?

Since our city government seems to be enamored with the Michigan Municipal League (MML) I’m going to copy and paste some excerpts from publications available to everyone on the MML’s website. The publications are:

1. 1. Fact Sheet, Municipal Expenditures, October 2016 (which includes information from the Michigan Department of Treasury)
      
      
   2. Determining Lawful Expenditures, January 7, 2002
      
      
   3. Municipal Expenditures, undated (last visited 6/30/2023) 

Here are some quotes from these publications that are exactly on point:

• • “Municipalities are frequently requested to make donations to various worthy private organizations. Such organizations include chambers of commerce . . . community funds . . . and other educational, promotional, or benevolent associations. . . . [I]t appears clear from Michigan law that such donations are questionable expenditures of public funds.” [From publication #1, page 1.]
    
    
  • “May a Michigan city/village make a charitable donation, gift or contribution to service clubs, charities or public or private social service agencies? Generally, no. Such expenditures have been held not to be used for a public purpose. . . .” [From publication #1, page 1.]
    
    
  • “Local units of government in Michigan are only allowed to incur expenditures for a valid public purpose. The local unit is the steward of public resources, and they may not be used for a private purpose.” [From publication #1, page 2.]
    
    
  • “Charitable Donations to Non-Profit Organizations: Unless the payment is in exchange for the provision of a governmental service that the local unit could have provided itself, this is not a valid public purpose. . . . This prohibition includes churches, veterans’ organizations, community organizations, Little League, Boy Scouts, Big brothers/Big Sisters, etc.” [From publication #1, page 2.]
    
    
  • “Except as otherwise provided in this constitution, no city or village shall have the power to loan its credit for any private purpose or, except as provided by law, for any public purpose.” [From publication #2, page 1, citing the Michigan Constitution.]
    
    
  • “UNLAWFUL EXPENDITURES BY A GOVERNMENTAL UNIT: Contributions or appropriations which are not specifically authorized by the Constitution or State Statute cannot be authorized regardless of the worthiness of the cause. Examples [include] [c]ontributions to churches, veterans, non-profit organizations. . . . Donations, including use of property or equipment to Little League, Scouts, Big Brothers/Sisters. Donations to community organizations. [This is] not intended to be an exhaustive list of legal or illegal expenditures . . . ” [From publication #2, pages 8-9.]
    
    
  • “On many occasions municipalities are requested to make contributions or donations to various worthy private organizations. Such organizations include chambers of commerce . . . community funds . . . and other educational, promotional or benevolent associations . . . it appears clear from various court decisions and legal opinions that such donations are illegal expenditures of public funds.” [From publication #3, page 1.]
    
    
  • “[I]t it is generally agreed that municipalities have the power to expend funds only for a ‘public purpose.’” [From publication #3, page 1.]
    
    
  • Factors to consider when deciding whether something is a public purpose: “Whether the benefit is available on equal terms to the entire public in the locality affected; whether the service or commodity supplied is one needed by all or by a large number of the public; whether the enterprise bears directly and immediately, or only remotely and circumstantially, upon the public welfare; whether the need to be met in its nature requires united effort under unified control, or can be served as well by separate individual competition; whether private enterprise has in the past failed or succeeded in supplying the want or in eradicating the evil; whether, insofar as benefits accrue to individuals, the whole of society has an interest in having those individuals benefited; whether a proposed extension of governmental activity is in line with the historical development of the Commonwealth and with the general purpose of its founders; whether it will be necessary to use public ways or to invoke the power of eminent domain; whether a special emergency exists, such as may be brought about by war or public calamity.” (This language comes from a Massachusetts case and was quoted by the Michigan Supreme Court; citation omitted; bolding in original.) [From publication #3, page 1-2.]
    
    
  • “Generally a public purpose has for its objective the promotion of the public health, safety, morals, general welfare, security, prosperity, and contentment of all the inhabitants or residents within the municipal corporation, the sovereign powers of which are used to promote such public purpose. . . The right of the public to receive and enjoy the benefit of the use determines whether the use is public or private. (Court citation omitted; ellipses in original.) [From publication #3, page 2.]
    
    
  • Questions to consider when determining a public purpose:
    
    
    • “Is the purpose specifically granted by the Constitution, by statute or by court decision? Absent a specific grant of authority by law, the expenditure should be analyzed under the remaining questions.
      
      
    • Is the expenditure for a public purpose? When analyzing this question try and identify who will be the primary beneficiary. Is the benefactor a private organization or a public organization? Is the expenditure for the public’s benefit and welfare? If the primary benefit is to the public, then the courts have generally held that the expenditure is legal.
      
      
    • Is the city or village contracting for services for which the city is legally authorized to provide? [If the answer is yes, then is] the operation or service under the direct control of the city? If the city does not directly control, or have an oversight provision governing the expenditure, it will likely be deemed illegal.” [From publication #3, pages 2-3.]
      
      
  • “The Michigan Supreme Court has ruled that a city cannot give away funds or other property even for a public purpose, without express statutory authority.” (Court citation omitted.) [From publication #3, page 3.]
    
    
  • “If the purpose for which the funds are expended is public in nature, but the operation is not under the control of the city or village which is making the contribution, it may nonetheless still be an illegal expenditure.” [From publication #3, page 4.]
    
    
  • “There has been no relaxation in the rule that municipalities are forbidden to expend funds for the purpose of making a donation to any private purpose. This remains true regardless of whether that purpose will incidentally benefit some or all of its citizens. All charitable donations, gifts and contributions to service clubs and agencies . . . are specifically forbidden.” [From publication #3, page 5.]

Given all that, perhaps the city council should explain to us why it feels entitled to hand out Depot Park user fee waivers like candy to every nonprofit and charity that asks, most recently to include a group that uses all of Depot Park for an entire weekend to hold its annual giant fundraiser? (Looking at you, Clarkston Community Historical Society.) And then we have our city manager personally gifting numerous Depot Park fee waivers without council authorization, including granting fee waivers to a private business.

There is zero authority to give away taxpayer resources to any private business without a Michigan statute authorizing it. And, if the city council wants to give away taxpayer resources to charitable organizations, they have to ask us to authorize those freebies through a change to the Clarkston charter. MCL 117.4k of the home rule city act states: “Each city in its charter may provide for the appropriation and allocation of public funds to a public or private nonprofit institution engaged within the city in the provision of civic, artistic, and cultural activities, including but not limited to music, theater, dance, visual arts, literature and letters, architecture, architectural landscaping, and allied arts and crafts, to the general public.” Since Clarkston voters have never authorized giving taxpayer resources to charities, these giveaways are all unlawful under Michigan’s general law (discussed in the MML publications quoted and linked above).

In the past, the city council considered creating an ordinance that would allow them to give away our tax dollars to organizations they like, but that is insufficient – there must be a change to the charter, and Clarkston voters have to approve all changes to the charter.  And if they can’t give away taxpayer dollars by creating an ordinance, then a simple resolution at a city council meeting – which is how these giveaways have been happening – is also insufficient.

We’ve reached the point of “enough already.”

Perhaps the city can just consider this a preview of the next lawsuit it might find itself involved in if the city manager and city council don’t stop giving away our taxpayer dollars to organizations they like, or if city council gives any serious consideration to forcing taxpayers to pay for shared co-leases in private parking lots to give “free” parking to employees of Clarkston businesses, even to support a so-called “virtuous cycle.” I’m going to just go out on a limb here and suggest that such a lawsuit wouldn’t be covered by the city’s insurance policy. 

Clarkston city council needs to ask itself – is being allowed to give away taxpayer-funded freebies to organizations councilmembers like important enough to defend the practice in a lawsuit, perhaps all the way to the Michigan Supreme Court, at taxpayer expense? If any city council member thinks any of these organizations should get a park fee waiver, then they should make a personal charitable donation to cover the $200 (or $250). And if the restaurants and businesses want to provide “free” parking for their employees, then they can either reimburse their employees for the cost or negotiate a reduced fee with the private parking lot owners – but the city council lacks the authority to get involved with this in any financial way.

I honestly thought Clarkston was tired of lawsuits, but it is inviting another one if it doesn’t stop treating the city treasury like a personal piggy bank to grant favors to private businesses, organizations, and individuals. It should go without saying that public money is to be used only for public purposes – but apparently it needs to be explicitly said. It’s quite bizarre that the city council doesn’t seem to understand that the exorbitant amount of property taxes we pay isn’t to be used to bestow favors on private individuals, businesses, and organizations just because city council members like them.

I strongly suggest the city council ask for an opinion from a competent municipal attorney about fee waivers, allowing a restaurant to block off public parking spaces for its outdoor dining, and the “co-lease” proposal to benefit private Clarkston business employees. I’m sure the MML can suggest someone.

If the parking issue is of interest to you, keep an eye on the city council agendas to watch for when the parking advisory committee is scheduled to deliver its final recommendations. Since the city council hasn’t yet approved any “cost share leases,” there’s time for you to object to taxpayer-funded parking for private business employees. We were told at the July 10, 2023, city council meeting that the committee hasn’t backed off of this idea, and city council members have seemed quite receptive to it. 

Make your feelings known if you don’t agree. If the city council members don’t hear from you, they assume you don’t care one way or the other. You can email them at the following addresses:

Eric Haven HavenE@VillageofClarkston.org
Sue Wylie WylieS@VillageofClarkston.org
Gary Casey CaseyG@VillageofClarkston.org
Amanda Forte ForteA@VillageofClarkston.org
Bruce Fuller FullerB@VillageofClarkston.org
Mark Lamphier Lamphierm@VillageofClarkston.org
Laura Rodgers RodgersL@VillageofClarkston.org

You can also dial in to city council meetings or show up personally. You should – because the people who want to take your money are always there.