Let’s look at two false claims at once – that the proposed charter amendment alters the appeals process from Historic District Commission (HDC) decisions and that the charter amendment could (or would) interfere with someone’s ability to get a tax credit for qualified work done on a historic property.
During her public comment at the September 9, 2024, city council meeting, former city council member and former city manager Carol Eberhardt falsely claimed the HDC charter proposal would give people the right to come to city council to appeal an HDC ruling, making the commission essentially an advisory committee. The short version of a letter from “four former mayors” published in the Clarkston News said the charter proposal would override “fair appeals,” and a lengthier letter from the same four published on the “Charming” group’s website claims the HDC charter proposal “may eliminate our community’s opportunities for tax credits and grants, as well as a legitimate educated appeals process.” None of those claims is true.
Eberhardt and the “four former mayors” are entitled to make false public statements and have their character and motivation be judged by others for making them. However, when false advocacy statements are made by government officials in their official capacity and then published through formal government channels, it raises an issue under Michigan’s Campaign Finance Act. Nancy Moon made such a false advocacy statement at the August 13, 2024, HDC meeting. The false advocacy statement was dutifully recorded by her husband, HDC commissioner (and secretary) Michael Moon, and these draft minutes were formally approved on September 10, 2024, by Robert Hauxwell, Michael Moon, Lisa Patercsak, and Jennifer Radcliff. (Commissioner Melissa Luginski was absent from both meetings.) The approved minutes containing the false advocacy statement are posted on the city’s website.
Here is a cut and paste from the problematic section of the HDC minutes in italics, and I’ve bolded the false advocacy statement:
Nancy Moon presented House Bill 5430 will be before the State Legislators this fall to increase the usefulness of the Michigan 25% Tax Credit cap from $5 million to $100 million. In asking details about this house bill with the State Historic Preservation Office I received the following quote:
“Changing the appeals process in Clarkston’s historic district ordinance would not be with consequence. Preservation programs such as Michigan’s State preservation tax credit and the Certified Local Government program require that a community have a historic ordinance in place that complies with Public Act 169 of 1970, as amended. If Clarkston’s historic district ordinance no longer complies with state law (PA 169), locally designated properties would no longer be eligible for these programs.”
The Historic District Study Survey should be completed and in Lansing by the end of September 2024.
Let’s break this purported quote down into pieces that I’ve included in bold italics followed by my commentary below.
Changing the appeals process in Clarkston’s historic district ordinance would not be with consequence.
Based on a partial FOIA response I received, I know the original quote that Moon claimed came from the State Historic Preservation Office (SHPO) used the phrase “without consequence” rather than “with consequence.” It makes a difference because the “Charming” group’s website uses the phrase “without consequence,” suggesting that Moon is using her city appointment as Historic District Study Committee chair to obtain and forward advocacy statements against the charter proposal to that group.
This part of the purported SHPO statement is false for three reasons. First, we are not proposing changes to Clarkston’s historic district ordinance. Our HDC charter proposal affects the charter, not any city ordinance.
Second, the proposed HDC charter amendment is focused on the conduct of the Historic District Commission and has nothing to do with the historic district. Moon’s statement echoes the false claim city manager Jonathan Smith made in an August 23, 2024, email he sent to Clarkston residents (and included in his city manager report), claiming that a scheduled August 27, 2024, Clarkston Independence District Library presentation – that Nancy Moon was involved with as a presenter in her official capacity as the chair of Clarkston’s Historic District Study Committee – would “inform residents on the role of Clarkston’s Historical District and how this would change under a petition on the November election ballot,” even though none of the published presentation materials made such a claim. (FYI, Smith is president and treasurer of the Clarkston Community Historical Society, who also advertised the library event on its website.) After we sent a letter to the city attorney about the false statement, the city attorney forced Smith to issue a correction.
But Smith’s corrected statement was inaccurate as well. His revised statement said the purpose of the library discussion was to inform residents on the role of Clarkston’s Historic District Commission and how this would change under a petition on the November election ballot. That was news to library director Julie Meredith, who assured us the presentation had nothing to do with the charter proposal and she didn’t plan to have any discussion of the proposal. (Good idea, since the library, just like the city, is supposed to be neutral under the Michigan Campaign Finance Act and should she step into local political disputes, it might not bode well for her periodically requested millage renewals or increases.)
The third reason why Moon’s purported SHPO quote is false is because the proposed HDC charter amendment does not change the appeals process. An appeal is something that is taken from a final HDC order or decision. The proposal would do nothing to change that.
The charter proposal would allow the city council to review proposed actions before the HDC issues an exceptional order or decision in only three specific circumstances. The first is when a property has fallen into disrepair, the second is where the property owner has done work that affects the exterior of a resource property without permission from the HDC, and the third involves civil infraction fines up to $5,000 for purported rule violations.
The first two are special orders that would allow the HDC (or their contractors) to forcibly enter onto private property and make changes against the property owner’s will, something that would undoubtedly result in a boatload of legal expenses to Clarkston taxpayers to effectuate. These two orders may have been threatened in the past, but to the best of my knowledge, the HDC has never tried to do this. The third city council review would occur before the HDC asks that a civil infraction ticket with a fine be issued to a property owner, something the HDC currently doesn’t have the power to do but that could also result in legal expenses for Clarkston taxpayers (as well as the possible loss of the property owner’s home though a tax foreclosure if the fine is unpaid).
City council review of these three proposed actions (before they take place) is a way for the council to consider whether the HDC’s view that the city should incur significant previously unbudgeted legal and other expenses in such extraordinary cases is really in the taxpayers’ best interest. It is a reasonable preliminary step before taking enforcement action that may result in significant expenses. However, any appeal from one of these three exceptional HDC orders or decisions once made would take place in the normal way. The proposed HDC charter amendment wouldn’t affect those (or any other) appeals.
The HDC considers work applications at its monthly meetings. People who are dissatisfied with the HDC’s application decisions are free to appeal through the normal SHPO administrative process. The HDC charter proposal doesn’t change any of that. The two exceptional orders and any proposed civil infractions with fines are entirely separate from work application decisions. Anyone who says otherwise is lying to you.
Don’t believe me? Try searching the proposed HDC charter amendment for the word “appeal.” You’ll get zero results. Yet the purported statement from SHPO, repeated by Nancy Moon and endorsed by four HDC commissioners, falsely states the HDC charter proposal changes the appeals process. Either they didn’t read the proposal, aren’t capable of understanding it, or are deliberately lying about it. Even though some of these people have never struck me as the brightest bulbs in the box, I think they are deliberately lying and really hope you don’t read the HDC charter proposal for yourself.
Remember, the overarching purpose of the proposed HDC charter amendment is to protect residents from Historic District Commission abuse and to put control for expenditures and litigation costs firmly in the hands of the elected city council. The HDC is not separate from the city and is accountable to the city council for all expenditures. When it comes to spending money, the HDC needs to make its case to the council – just like the city manager does. The city attorney reports to the city council, serves at its pleasure, and does not take marching orders from the HDC about filing lawsuits – unless he wants to be fired or not paid for his services, in which case I suppose he can do what he wants.
Preservation programs such as Michigan’s State preservation tax credit and the Certified Local Government program require that a community have a historic ordinance in place that complies with Public Act 169 of 1970, as amended.
That’s just fine and dandy. We’re not suggesting a change to the historic district ordinance. We are proposing a change to the Clarkston charter to limit bad conduct from HDC commissioners and make sure the council approves all expenditures. The reason the HDC is upset about the charter proposal is because it limits it to Public Act 169 of 1970, as amended. In everyday person terms, that’s the Local Historic Districts Act. People who aren’t trying to baffle you with bullsh*t will use the title of the act, or at least give you the statute number so you can more easily look it up. (The first section number is MCL 399.201, and you can find read the entire Local Historic Districts Act by clicking here.)
We don’t have a Certified Local Government program that would allow the city to have more grant opportunities. Nancy Moon has complained we don’t have one. If Moon or anyone in the city wants to go through the work to certify the city, then they can have at it. Their efforts will not be affected in any way if the HDC charter proposal is adopted – because it doesn’t change the appeals process, which was the false premise used to secure the SHPO quote.
But what about those tax credits, you might ask? They’re not going anywhere either. The proposed HDC charter amendment has zero effect on your ability to get a tax credit. Suggesting that tax credits could be affected if the proposed HDC charter amendment passes is a huge lie, but it also gives you insight into what kind of people Nancy Moon and the HDC commissioners who approved such a statement in the minutes are – and the lengths they will go to retain their unfettered control over Clarkston historic district residents and the unchecked spending that affects all Clarkston taxpayers. Even worse, I know Moon was told by SHPO the charter amendment wouldn’t affect tax credits in a September 6 email from SHPO – and she never corrected the false claim.
If they’ll lie to you about tax credits, they’ll lie to you about everything.
MCL 206.266a, part of the state Income Tax Act, is the Michigan statute section that concerns state preservation tax credits. If you read the statute, you’ll see that to obtain a tax credit, you have to:
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- Timely submit an application and a rehabilitation plan to SHPO. MCL 206.266a(3). It’s first come, first serve once the window opens.
- If you receive a preapproval letter, you can start your rehabilitation project within one year (if you haven’t already started) and you must complete the rehabilitation within eight years. MCL 206.266a(3).
- Once you complete your rehabilitation project, you have to document that it’s complete and also demonstrate your residence is eligible for the credit. For Clarkston residents, the easiest way to do that is to provide proof their home is considered a “contributing resource” within the Clarkston historic district; that their personal work plan has complied with the federal secretary of the interior’s standards for rehabilitating historic buildings as stated in 36 CFR part 67 (which is the same federal register citation that’s included in the Local Historic Districts Act and the Clarkston historic district ordinance); and the work that has been done was “to or within the walls, boundaries, or structures of the historic resource or to historic resources located within the property boundaries of the resource.” MCL 206.266a(3) and (6).
Perhaps Nancy Moon and/or the HDC commissioners who approved publishing Moon’s false and misleading quote in their minutes can provide us with a formal opinion regarding: 1. Why the proposed HDC charter amendment does not comply with the Local Historic Districts Act, 2. How the proposed charter amendment would affect a tax credit someone would otherwise be eligible to receive in any way (after SHPO said it wouldn’t); and 3. How the HDC charter proposal affects the appeals process.
I’ll wait. But I won’t hold my breath because I don’t want to suffocate waiting for Moon or her HDC friends to provide such an opinion – because they can’t, and they know it. Moon and her four friends on the HDC (including her husband) believe it’s sufficient to lie about the proposal, get a purported quote based on the lie that also unlawfully advocates against a ballot proposal, put that ostensible quote in the HDC minutes, and then have four HDC commissioners (including Moon’s husband Michael) endorse it.
If Clarkston’s historic district ordinance no longer complies with state law (PA 169), locally designated properties would no longer be eligible for these programs.”
Notice the “if.” IF the Clarkston historic district ordinance no longer complies with the Local Historic Districts Act . . . The proposed HDC charter amendment concerns the historic district commission, not the historic district; it adds to the charter; and it does not change the historic district ordinance.
And can we talk about some basic civics here? The preemption doctrine means that states can’t regulate in areas that are entirely occupied by the federal government, and local governments can’t regulate in areas that are entirely occupied by the state. If Clarkston’s historic district ordinance or the proposed HDC charter amendment didn’t comply with state law, or if they conflicted with state law, then they are voidable to the extent of the conflict. Perhaps Moon, her friends on the HDC (including her husband), and SHPO might want to ask a middle schooler how government works. But in any event, the HDC charter proposal will not change the historic district ordinance. People who are making these sky-is-falling type claims are no different than the people who accuse candidates they don’t like of wanting to dissolve the city at election time, something that’s equally improbable.
I’ve gotten part of the backstory about how this purported quote was obtained through a FOIA request the city has partially responded to with some of Nancy Moon’s emails. Moon’s emails used the damning subject line “Promotional Material to Stop the Petition,” leaving no doubt what Moon’s intentions were. These emails contained improper redactions that I’m assuming were Moon’s, not the city’s, and I’m hopeful the city will tell her to cough up unredacted material without the need for a FOIA lawsuit forcing her to do so. (These emails are how I know SHPO told Moon it wasn’t accurate to say that anyone’s tax credit could be affected – despite Moon’s false representation to SHPO that the HDC charter proposal changed the appeals process.)
Moon and her husband were both present at the August 26, 2024, city council meeting where the city attorney warned everyone, orally and in writing, “[t]he City cannot take a position on this proposal” and “cannot spend any money other than to inform people about the language, but a position either way is not allowed.” Since the city’s response to my FOIA is still incomplete, it’s unclear how far back Moon’s communications with SHPO began before the August 13, 2024, HDC meeting or how many people were involved, but she continued to communicate with SHPO through September 6, 2024, about the statement that was included in the HDC’s final minutes.
Though I’m still awaiting a complete FOIA response from the city containing all Moon’s emails with SHPO on the proposed HDC charter amendment, I think that based on what I have seen so far, it’s fair to infer that Moon misrepresented the contents of the proposed HDC charter amendment to whomever she talked to at SHPO. The HDC charter proposal does not alter the HDC appeals process, so any SHPO quote based on that premise is necessarily false. Moon repeated the false advocacy statement while in her official government role as the chair of the Historic District Study Committee in her report to the HDC, her husband Michael Moon (the HDC’s secretary) included the false advocacy statement in the draft minutes, and the minutes were adopted and amplified by four of the five HDC commissioners (including Moon’s husband) by publishing it as part of an official government record. The regurgitated false statement was clearly intended to advocate against the charter proposal – something the HDC and Clarkston are not allowed to do under the campaign finance act.
As the city attorney advised Nancy and Michael Moon on August 26, 2024, it’s unlawful for the government to engage in advocacy for or against a ballot question under the Michigan Campaign Finance Act. MCL 169.257(1) of the campaign finance act states: “A public body or a person acting for a public body shall not use or authorize the use of funds, personnel, office space, computer hardware or software, property, stationery, postage, vehicles, equipment, supplies, or other public resources to make a contribution or expenditure or provide volunteer personal services that are excluded from the definition of contribution under section 4(3)(a).” I’ve linked to this section here so you can read it in context.
Pushing out advocacy materials that take a position against the charter proposal in official minutes, or as attachments to agenda materials, etc. acts as a contribution to an opposition campaign to the HDC ballot proposal. It’s especially egregious (and no less illegal) for city officials to make false statements to advocate for or against a ballot proposal on behalf of the government. The penalties are found in MCL 169.257(3): “A person that knowingly violates this section is guilty of a misdemeanor punishable, if the person is an individual, by imprisonment for not more than 1 year or a fine of not more than $1,000.00, or both, or if the person is not an individual, by 1 of the following, whichever is greater: (a) A fine of not more than $20,000.00; (b) A fine equal to the amount of the improper contribution or expenditure.” And word to the wise – no city official or employee should count on the city to provide legal representation for an intentional criminal act.
As for the potential penalties assessed against the city itself, does Clarkston really have up to $20,000 lying around to pay a campaign finance act fine, since Moon is a Clarkston appointee and acted on the city’s behalf when she was consulting with SHPO and reporting at an HDC meeting? Both Moons were warned against illegal conduct on August 26, 2024, and neither took any action to have the false advocacy statement removed from the minutes before they were finalized on September 10, 2024. Is it worth risking a fine and/or a year in jail? The three other HDC commissioners who voted to approve the final minutes aren’t in the clear either – because they authorized final minutes containing an advocacy statement, whether or not they knew it was also false.
Nancy Moon, HDC commissioners, city officials, and city employees are entitled to express their own opinions – just as you and I are – but they can’t speak for the city or the HDC when they’re doing it. They also can’t publish false information or advocacy materials from anyone else since that serves as a government endorsement of the position being advocated.
But we all know the whole point of getting advocacy information out to the public using city resources is exactly what Moon and her friends are trying to do. Because no one really cares about their individual opinions. We all have one, and we’ve all heard the old expression about opinions . . .
There are people in Clarkston who are really interested in feeding you misinformation, and they’re also apparently soliciting commentary that is nothing more than advocacy wrapped in baloney from historic preservation organizations. They are short on facts and long on fear (as in there are no facts provided to support their claims). One of them is someone who reminds me of the stereotype of an older woman who keeps only cats for company. (I honestly have no way of knowing if it’s true or not, but now that my mind has made that association, I can’t “unsee” it.) Whenever this person speaks or writes, she spends most of her time telling you wonderful she is, how important she once was, and how nice the historic district is. Then she uses the remainder of her time making flowery, non-substantive, overly broad statements alleging that bad things will happen if you don’t listen to her (and that the proposed HDC charter amendment is totally bad).
This form of persuasion trick is known as an appeal to authority, and the point is to keep you from doing any critical thinking (because people in authority obviously know what’s best for you, right?). They want to scare you into voting no on the charter proposal using a persuasion campaign that borrows from the Chicago mobs – hey, you sure have a wonderful historic district there; it’d be a shame if something were to happen to it. Their whole schtick would blow up if people read the charter proposal for themselves. (FYI, I’ve prepared a chart comparing the local historic districts act, the Clarkston historic district ordinance, and the charter proposal that you can see by clicking here. If you would like to review any individual section, you can click the links in the green boxes on the top right-hand side of this page.)
The “Charming” group are also trying to use the conformity persuasion trick. They apparently have received a lot of money from as-of-yet undisclosed sources, and they’ve used it to purchase and concentrate the placement of “vote no” signs in a couple places. I guess they think if you see a large volume of signs grouped together, then you might come to believe you are the one who’s out of step with the majority if you have a different opinion and you’ll therefore vote “no” based on those signs (rather than what’s actually in the HDC charter proposal). The “Charming” group also has obviously coordinated a “letter to the editor” campaign in the Clarkston News using their associates, and you should expect to see at least one letter per week. I guess they think you are silly enough to believe these letters are some sort of an organic response to the charter proposal from your neighbors as opposed to hearing from the “Charming” group using a different method. (I’m sure it’s no coincidence that one of the more vocal opponents of the proposal just so happens to have a brother who owns an advertising business on Main Street who undoubtedly can provide them with advice on how to make slick presentations and use persuasive techniques.)
Don’t fall for their well-funded persuasion tricks. Read the proposal and decide for yourself.
People have reached out to me and apologized for not signing the petition to put the proposal on the ballot or for being afraid to put out a sign. Yet these same people aren’t shy about telling me that not only will they be happily voting “yes” on the proposal, but they’re going out of their way to talk to everyone they know about why they also should vote “yes.” Thank you!
Why are people afraid to be publicly identified with an opinion on a ballot proposal? Because the “Charming” group isn’t charming at all. They’re a bunch of nasty people who make life miserable for people who disagree with them. That’s not a persuasion trick; that’s bullying.
I find it amusing that the “Charming” group has been referred to the Oakland County Prosecutor and the Michigan Attorney General after failing to respond to a warning letter about problems with their ballot committee filing documents. Could it be that it’s because the guy behind the “Charming” group’s campaign has his principal residence in Independence Township, is registered to vote in Independence Township, and isn’t checking any mail delivered to Clarkston because he actually lives in his Independence Township home?
Inquiring minds want to know.
We love questions! Unlike our opponents, we’ll give you honest answers with lots of evidence to back up what we say. Feel free to send questions to: ClarkstonCharterProposal@gmail.com.
(And if you’re tired of HDC abuse and favoritism, then please consider voting yes on the proposed HDC charter amendment on November 5! And because I’ve just said that and even though I haven’t spent any money, I’m going to add the following text though I’m not sure I have to:
Paid for by Susan Bisio, P.O. Box 1303, Clarkston, MI 48347 with regulated funds.)