Category: Zoning

The city has sharpened its knives and is using its government machine to go after someone – again. This time, it’s the Millpond Inn Bed & Breakfast, located at 155 North Main Street. This is history repeating itself, because the Millpond Inn is no stranger to litigation with the city. Its mere existence was only possible because two people were willing to take on our biased city government apparatus and fight for their dream in court for years. Apparently, Clarkston government has endless taxpayer money to spend paying the code enforcement officer, city manager, and city attorney to go after this particular city business, while at the same time, they are also discussing taking another run at your wallet this November to ask you for a huge millage. Why? Because they claim they don’t have enough money. Gosh, I wonder why. 🤦‍♀️

Let me say at the outset that I don’t know the old or the new Millpond Inn owners, I’ve never stayed there, and I frankly don’t care whether they continue to exist or not. If they aren’t complying with local law, then they will have to deal with the consequences. What I do take issue with is the city’s desire to obsessively pursue this particular business in secret, based on city officials’ questionable beliefs and a complaint from a neighbor, potentially leading the city into another lawsuit that you and I will have to pay for.

I have some empathy for a fellow victim of a city attack campaign. That, and the fact that the city appears to be hiding its pursuit of the Millpond Inn from the public, are the reasons why I’ve been digging into this particular issue. Read on for the details, and if you see BLUE text anywhere as you’re reading, you can click on it to see the background material.

The history of 155 North Main (currently the Millpond Inn Bed and Breakfast) is described on the Clarkston Historic District website. The last entry under “significant history” notes that this single-family residence became the Sharpe, Goyette Funeral Home in 1956. Because this property was not being used as a single-family residential home at the time Clarkston’s zoning ordinance was adopted in the 1970s, the property owners enjoy what is referred to as a “nonconforming use.” This sounds exactly like what it is – a bed and breakfast and a funeral home do not “conform” to single-family residential zoning because they are not single-family residences. This is consistent with Michigan law as well as Clarkston’s zoning ordinance (to the extent that you can figure out what the zoning ordinance actually says since the version on the city’s website is not the current one).

A nonconforming use can’t be taken away unless the property owner does something that would allow the municipality to claim that the use has been “extinguished,” which would then require a reversion back to the city’s preferred zoning category. If this were to happen now, the Millpond Inn would be forced to become a single-family residence and cease to exist as a bed and breakfast. Municipalities tend to really dislike nonconforming uses, so they watch the property owners like hawks for opportunities to extinguish them, and that’s apparently what’s happening now.

Joan and Floyd Kopietz purchased what is now known as the Millpond Inn from the funeral home owners in 1991. Their purchase is described in a June 6, 1995, article written by the AP, “Plan to Turn Church into Bar Inspires Battle.” As the article notes, then-mayor Sharron Catallo’s son, Curt Catallo, easily received zoning approval to convert an old church (that just happened to be owned by his parents) into the restaurant now known as the Clarkston Union. In contrast, Joan and Floyd Kopietz, who’d invested more than $300,000 at that point, were denied a special use zoning permit to use their property as a bed and breakfast. (Other local business allegations about Catallo favoritism were also discussed in the article.) Unlike the smooth sailing enjoyed by Curt Catallo, Joan and Floyd Kopietz had to go to all the way to the Michigan Court of Appeals in 1995 – and again in 1997 – to fulfill their dream of a bed and breakfast.

In the 1995 case, the court of appeals slammed the Clarkston Zoning Board of Appeals’ (ZBA’s) proffered reasons for denying the Kopietzes’ request to use their property as a bed and breakfast. The court said the ZBA considered irrelevant factors and impermissibly “descend[ed] into a discriminatory exercise” rather than making an objective determination regarding whether the Kopietzes’ requested use was appropriate under the limited criteria in the zoning ordinance – as the ZBA was supposed to do. The court also noted that the ZBA “all but acknowledge[d]” that it didn’t even bother to properly analyze the Kopietzes’ proposed use, claiming that they had the power and discretion to discontinue a nonconformity simply because the ZBA wanted to, by using the “public policy” statements in the zoning ordinance. The city and ZBA lost, and the court of appeals sent the issue back to the ZBA to do what it was supposed to do.

The unrepentant ZBA continued its crusade against Joan and Floyd Kopietz, and in 1997, they were back in the court of appeals. This time, the case concerned the ZBA’s claim that the proposed changes to the building would result in an improper “structural alteration” of the property. The city and ZBA lost that argument too, and the court of appeals sent the issue back to the ZBA once again to do things correctly. Incredibly, the court noted that even though the ZBA was ordered to take action as a result of the 1995 case, the ZBA refused to act because the ZBA claimed it was awaiting the outcome of the 1997 case. This had the effect of making Joan and Floyd Kopietz sit on their hands for two additional years with zero return on their significant investment.

Guess who the 1995 court of appeals case lists as the attorney for Clarkston and the ZBA? If you guessed that it was Tom Ryan, who is still the city attorney today, you would be correct. Ryan also represented the city and the ZBA during that second trip to the court of appeals.

Carl Szasz, the managing partner for the Millpond Inn Bed & Breakfast, came to the January 9, 2023, city council meeting to speak to the council about the city’s recent attacks on the Millpond Inn. Szasz said that a group of eight investors bought the Inn from Joan and Floyd Kopietz in October 2020. They invested more than $250,000 and spent five months modernizing it. Szasz correctly noted that the negative attention from Clarkston government began during the time the city was considering a ban on short-term rentals in residential areas, even though the Millpond Inn has never been classified as a short-term rental. It has always been a bed and breakfast operating under a nonconforming use.

I reviewed informal meeting transcripts, online city documents, and records that I obtained through Freedom of Information Act (FOIA) requests to gather the background information for this post. Getting information from the city using the FOIA has been exceptionally difficult, and not surprisingly, it always requires additional effort to obtain records whenever Clarkston government wants to hide things from the public. I don’t fault our new clerk (who is also the FOIA Coordinator) for this, but I do blame the city manager and city attorney. They were copied on many of the emails that I exchanged with the clerk, they are aware of the information I am looking for, and it is obvious from the records that I was given that they possess responsive records that the city failed to turn over so far (mayor Eric Haven was also included on one of those emails). This resulted in a lot of back-and-forth delay to obtain records that clearly exist, and I believe this is deliberate. Apparently, I will have to sue the city again to get public records, and I’ve advised the city council that I’m finished asking nicely for records that I’m legally entitled to receive.

As I explain what this small business is going through using the information that I have so far, you’ll see that Eric Haven (mayor), Jonathan Smith (city manager), Jennifer Speagle (former clerk), Tom Ryan (city attorney), and Stacy Kingsbury (the city’s contract code enforcement officer from Carlisle/Wortman) play prominent roles in this current city issue. I believe that what I found objectively supports managing partner Szasz’s expressed fear that the city is literally going after the Millpond Inn’s right to continue to exist, and I’ve summarized this information that I’ve collected in chronological order below:

1. 1. June 14, 2021 – city council meeting. Former councilmember Al Avery questioned whether the Millpond Inn would be subject to the proposed short-term rental regulations, and former planning commission chair Rich Little told him it would not. Councilmember Sue Wylie said that innkeepers have to serve breakfast, while short-term rentals don’t have that requirement. Little said that the bed and breakfast operator must live on the premises, create the breakfast, and there is a separate ordinance for them. Avery asked whether someone was living at the Millpond Inn and serving breakfast. Wylie said she had many relatives stay there before COVID, someone was living there, and they served an excellent breakfast. Avery said he’d made a reservation for his daughter for that August, and he wasn’t sure what was going on there now.
   2. August 5, 2021 – Smith’s weekly email announced that Stacy Kingsbury of Carlisle/Wortman will be Clarkston’s new code enforcement officer.
   3. August 9, 2021 – City council meeting. A resident asked how the proposed Residential Planned Development District ordinance would affect the Millpond Inn. Little said that a separate ordinance applied to them, and Smith added as long as they continue to operate as a bed and breakfast. Little said that is a little bit of an issue too; that’s something for the ordinance person. Smith agreed.
   4. November 10, 2021 – Notice of Violation issued to the Millpond Inn alleging that renovations were done without a permit, something that was brought to Clarkston’s contract building inspector’s attention from a “concerned 3^rd party” who was not named. To date, the city has refused to provide any additional records concerning this violation notice or the ostensible “concerned 3^rd party” in response to my FOIA request.
   5. January 21, 2022 – Email from Eric Haven asking about the Millpond Inn reverting to residential status after six months if it’s not an active business.
   6. February 3, 2022 – In response to a multi-part inquiry from the Clarkston News, Smith email states that the Millpond Inn has “a separate agreement with the City.” To date, the city has refused to provide a copy of this “separate agreement” in response to my FOIA request.
   7. October 10, 2022:
      • City council meeting. One of the Millpond Inn’s next-door neighbors made several allegations about the Inn during public comments. She claimed that: she was afraid because of the comings and goings over there; on one occasion, someone knocked on her door and she didn’t answer; someone knocked on her door on another occasion, she did answer, and the person asked for salt; there have been parties and people coming onto her property; she’s afraid to live in her house; it’s an “Airbnb”; she’s complained before; and she said her biggest issue is that no one lives there. Haven said the city would check into it and she shouldn’t have to be afraid in her own home. Tom Ryan noted that the Millpond Inn was a court-approved nonconforming use, but they have to abide by the regulations. To date, the city has refused to provide any document that establishes the terms of this purported “court-approved nonconforming use” in response to my FOIA request.
      • Haven email (written at 11:45 p.m. following the city council meeting) referenced the neighbor’s claim that no one lives at the Millpond Inn. Haven asserted that this is a violation of the “provisions of this non-conforming use in residential zoning”; requested a council report if there is an ongoing violation over six months after which the property must return to single-family residential zoning, noting “this is a very important fact to establish!”; stated that the city must move to correct this situation immediately and inform the complaining neighbor; requested city attorney Ryan’s assistance if this is an ongoing violation beyond six months because the city needs “to take action to close down this business and return the property to residential status”; and asked about previous complaints the neighbor claimed she’d made. To date, the city has not provided any written complaints from the neighbor in response to my FOIA request.
   8. October 11, 2022:
      • Email from Jennifer Speagle states she’s been emailing back and forth with Stacey Kingsbury. Speagle apparently did some of her own “investigating.” This included locating business information on the Millpond Inn owners; confirming that Jack Yarosh (the innkeeper) is registered to vote at the Millpond Inn address; finding no permits for upgrades to the Millpond Inn but noting that the city sent the building inspector a year or so ago to “check it out”; and leaving a message at a Millpond Inn contact number. Speagle said “it sound[sic] to me like they had one of their staff (Jack Yarosh) change his driver’s license and voter registration to 155 N Main to make it seem like someone lives there full time.” Speagle said she would follow up regarding the building inspector’s previous visit the next day. To date, the city has refused to provide copies of the referenced “back and forth” emails between Kingsbury and Speagle or copies of any additional written communications concerning Speagle’s intended follow up with Carlisle/Wortman regarding the previous violation notice in response to my FOIA request.
        
      • Kingsbury billing entry: “Email received from Jennifer re: AirBnB – 155 N. Main Street.”
      • Ryan billing entry: “Review correspondence from Mayor Haven and City Clerk; Phone call to City Clerk re: 155 N. Main.”
   9. October 12, 2022:
      • Kingsbury billing entry: “Dealing with AirBnB – finding any info on it.”
      • Ryan billing entry: “Review correspondence from City Clerk re: follow up with Code Enforcement Officer re: 155 N. Main.”
   10. October 24, 2022:
       • City manager’s report: “[E]fforts are underway to research and address neighbor concerns with the Mill Pond Inn Bed & Breakfast.”
       • City council meeting Former councilmember Joe Luginski asked if the city manager was able to verify that no one lived at the Millpond Inn on a permanent basis. Luginski said that he’s driven or walked by the Millpond Inn over the last couple of weeks in an attempt to casually see activity but hasn’t seen any lights on or a car in the driveway. Smith said that they are trying to verify it and there is an individual who kind of lives there on and off, though Smith also understood that this individual said that they lived at the Millpond Inn. Councilmember Amanda (Wakefield) Forte (who was speaking from the audience before her unopposed November election) claimed that her family rented out the whole place for her wedding, it’s open everywhere, there are separate units, and you can see every room on Airbnb. Speagle said there are little kitchenettes in every room. Smith said that he thought the agreement the Millpond Inn is operating under required that a warm breakfast be prepared for patrons, and city attorney Ryan agreed. Smith agreed with Luginski that someone is supposed to be living there; we have to look at them further, no question, because of the previous little issue we had with them; the city has to proceed cautiously; and Ryan would no doubt be intimately involved. Speagle said she gave the information to Kingsbury, she was going to begin the process, and Speagle knew Kingsbury was working on it. To date, the city has refused to provide “the agreement the Millpond Inn is operating under” in response to my FOIA request.
   11. October 26, 2022:
       • Email from Kingsbury about her investigation involving Millpond Inn advertisements and enclosing a draft violation letter for review. To date, the city has refused to provide a copy of this draft violation letter in response to my FOIA request.
       • Email from Smith thanking Kingsbury for preparing the notice (with an exclamation point!), says it was reviewed with Ryan, notes that the dates were changed, that Ryan and Smith were added on copy, and he “removed a couple of the ordinances.” Smith approved the Notice of Violation. To date, the city has refused to provide a copy of the notice that Smith approved containing his edits in response to my FOIA request.
       • Kingsbury billing entry: “Emailed Jonathan – the letter for 155 Main St. Millpond Inn. Response from Jonathan and City Attorney re: edits.”
       • Ryan billing entry: “Review proposed Notice of Violation for 155 N. Main; Phone call to City Manager.”
   12. October 28, 2022 – Notice of Violation for 155 North Main issued by Kingsbury. The city attached two items from the zoning ordinance: a definition of a bed and breakfast and the special land use explanations for operating a bed and breakfast in Clarkston’s commercial district (note that the Millpond Inn is operating in a single-family residential district).
   13. November 9, 2022:
       • Email from Haven asking Smith when code enforcement officer Kingsbury will be providing a report on 159 N. Main “and other properties being reviewed.” [I’m pretty sure Haven meant to say 155 N. Main, since that’s the address of the Millpond Inn and I wasn’t able to locate a 159 N. Main address in Clarkston.]
       • Email from Smith telling Haven that a violation warning was issued to the Millpond Inn, approved by city attorney Ryan, “asking for them to explain their operations.”
   14. November 10, 2022:
       • Email from Speagle reporting on a conversation with a Millpond Inn visitor who was “raving about the Millpond Inn.” Speagle used that opportunity to “slip[ ] in a few investigative questions. LOL.” Speagle said that the caller claimed that “no one lives there full-time. . . . [t]hey do not serve breakfast using the pandemic as the reason why [but] the “’host’ left out some pastries and other snacks for them.”
       • Email from Kingsbury asks if anyone has been in contact with the city and whether they should send another letter.
       • Email from Speagle notes that no one has called the city “HOWEVER Jack Yarosh came in and voted on Tuesday in an attempt to document that he lives there.”
   15. November 16, 2022:
       • Email from Smith forwarding the response from the Millpond Inn owners to the violation notice. Smith asked Kingsbury for a copy of the final version of the violation letter with attachments so he can work with the city attorney to prepare a response. To date, the city has refused to provide a copy of the Millpond Inn’s response to the violation notice in response to my FOIA request.
       • Email from Kingsbury commenting, forwarding the Millpond Inn’s violation notice, and asking what the city attorney’s next steps are.
       • Email from Ryan stating that a civil infraction violation should be issued. To date, the city has not provided a copy of any civil infraction notice in response to my FOIA request.
       • Email from Speagle reporting that Jack Yarosh works for the company that owns the Millpond Inn, has been registered to vote at that address since 2020, and he voted on election day for the first time in Clarkston. Speagle confirmed that Yarosh’s driver’s license lists the Millpond Inn as his address “but he was very nervous that day when questioned about his residency status.” Speagle reiterated the results of her telephone interrogation of the Millpond Inn guest, stating that she was told “that no one lives or stays there and they do not serve breakfast.”
       • Kingsbury billing entry: “Code Enforcement. Talk w/Jonathan & City Attorney re: next steps for Millpond Inn.”
       • Ryan billing entry: “Review correspondence from Code Enforcement Officer Kingsbury and City Manager re: B & B response to Notice of Violation; Phone call to City Manager.”
   16. November 17, 2022 – Ryan billing entry: “Phone call from City Manager and Code Enforcement Officer re: B & B at 155 N. Main.
   17. November 21, 2022:
       • Email from Haven asking when they can expect a report in their council packets from Kingsbury regarding “non-conforming properties,” noting that “[w]e are especially concerned about 159 North Main [155 North Main] at this time”; Haven asked if the complaining neighbor had checked in lately.
       • Email from Smith advising Haven that he contacted the complaining neighbor to explain that the code enforcement officer has been working with the Millpond Inn owners, that a Notice of Violation has been issued, and “this correction will take some time, possibly a few months.”
   18. January 9, 2023 – Kingsbury billing entry: “Talked about Millpond . . .”
   19. February 3, 2023 – In response to my FOIA request for a copy of “the document (or documents) referred to in the January 9^th city council meeting as the ‘court-ordered special variance’ for the Millpond Inn Bed and Breakfast,” I was provided with a copy of the 1995 court of appeals opinion, which shows only that the court referred the zoning issue back to the ZBA to make a decision.

As I noted earlier, Carl Szasz, the Millpond Inn’s managing partner, came to the January 9, 2023, city council meeting to attempt a dialogue with the council. Szasz’s stated purpose for being there was to provide the city council with any information it wanted and to answer questions. Szasz brought innkeeper Jack Yarosh with him to the meeting. You’ll recall that Yarosh is the person who has been accused of not living at the Inn and part of former clerk Speagle’s “investigation” (that included interrogating him when he came to city hall to exercise his right to vote in an election).

When the meeting began, this discussion was listed as an agenda item. However, on the advice of the city attorney Ryan, the city council unanimously voted to remove the discussion from the agenda. Ryan said anyone who wanted to speak could speak during public comments. This was a figurative slap to Szasz because the speaking time during public comments is limited by city council rule to only three minutes and the council generally refuses to respond to the public comment speaker.

What reason was given for this? Because Ryan didn’t think they should be discussing something when they don’t have all the information, and this is something “under active pursuit and investigation by the city.” These were interesting statements, considering that the city council members reviewed and approved all the bills for the code enforcement officer and the city attorney that I’ve described above, and the mayor, city manager, city attorney, and former city clerk had been relentlessly pursuing and investigating the Millpond Inn for purported ordinance violations. Ryan suggested that the city council could “have a subcommittee or meet with these folks privately or something” rather than have a discussion at a city council meeting.

Ryan’s suggestion is yet another deliberate effort to hide information from the public, since subcommittees and private meetings are not open to the public, minutes aren’t taken, and the meetings are not recorded. Essentially, the city attorney and city council don’t want you to know any of the details involved in the city’s “active pursuit and investigation” of this small business that they seem to be trying to drive out of existence. (Shh. It’s another Clarkston secret!) Apparently, the city council thinks it’s appropriate to freely engage in endless discussions and entertain any and all allegations, rumors, and innuendo from all comers about the Millpond Inn in as many public meetings as they want, but the taxpayers – who are footing the bill for the city attorney’s, city manager’s, former city clerk’s, and code enforcement officer’s activity – shouldn’t be allowed to hear what the Millpond Inn owners have to say about the allegations. This makes perfect sense, I guess, if your goal is another lawsuit. 🙄

Though Mayor Haven ended up allowing Szasz more than three minutes to speak during public comments, he told also told Szasz that the city council would not be responding to anything he had to say, and – no surprise – they didn’t.

Despite being snubbed by the city attorney and city council, Szasz politely used his public comment time to discuss the changes that were made as part of the $250,000 investment in the Millpond Inn:

• • As a result of COVID and their market research, the Inn was redesigned so that guests could avoid exposing themselves to persons outside their travel group.
  • They modified the way that they serve breakfast and interact with their guests.
  • There are five separate suites, one of which is the innkeeper suite.
  • Guests can rent out the entire inn, minus a small section for the innkeeper.
  • They’ve implemented touch-free check-in and check-out.
  • They have an innkeeper who uses the Millpond Inn as his primary residence. He works two minutes from the Inn and can run home if there are any problems. He’s also available at night or after hours should any concerns arise.
  • They are considering modifications to some of their equipment, possibly to include decibel level monitoring, so they can ensure that the Inn’s neighbors aren’t disturbed by any guest activity.
  • They have complied with the special use variance.

Szasz also discussed the harassment they’ve been subjected to recently:

• • People have looked into their windows, which makes their guests uncomfortable; trespassed on the property; and made up rumors about them.
  • After upgrading several suites by installing electric, wall-mounted fireplaces and posting those pictures online, someone made a complaint to the building department, who in turn demanded to know why the Millpond Inn management had done construction without the appropriate permit. After inviting the building inspector to the Inn for a voluntary and cooperative visit, the building inspector agreed with the Millpond Inn owners that the electric fireplaces are cosmetic, don’t require venting, and no permit was required to install them.
  • The Inn received a letter from the city alleging that its use of the Airbnb website platform to advertise the Millpond Inn Bed & Breakfast was a violation of their special use variance.
  • Szasz acknowledged that he was aware that their next-door neighbor had made a complaint to city council and that she alleged someone had knocked on her door to ask for salt. After learning about her complaint indirectly, the Inn modified its guestbook to expressly instruct guests to contact the staff if they need anything rather than talking to the neighbors. Mr. Szasz expressed a wish that she’d simply come to them directly with any concerns.
  • Szasz was unaware of any other contact with that next-door neighbor and noted that anyone could have knocked on her door on the occasion when she didn’t answer.
  • Szasz acknowledged that he was aware that this same next-door neighbor also told the city council that no one is ever at the Millpond Inn and that she feels unsafe. He said that they wrote a letter to the neighbor, and she can call 24 hours a day, seven days a week with any concerns because they don’t want anyone to feel unsafe. However, contrary to the neighbor’s claims, there is an innkeeper who lives at the Millpond Inn.
  • The Millpond Inn has a good and collaborative relationship with all its other neighbors.

Councilmember Forte and city attorney Ryan completely ignored Szasz while he was speaking. Rather than listening to what he had to say, these two exchanged a note and engaged in a lengthy, rude, whispered conversation. I presume Forte was repeating her story about her family renting “all the rooms” at the Inn, even though the city attorney was there to hear Forte’s story the first time she told it. Perhaps if Forte had bothered to listen to Szasz’s comments and been allowed to ask questions, her concerns may have been addressed. And honestly, is it too much to ask our public officials to at least pretend to courteously listen to what the public has to say during public comments and save their “secret” conversations with the city attorney for a time before or after the city council meeting? We all know that if Curt Catallo was making more of his endless, whiny public comments about paid parking, everyone on city council would have given him the courtesy of their full attention. Our city council claims, to the point of nausea, that they really love Clarkston businesses and want to support them, but that’s obviously not true. To borrow a sentiment from George Orwell’s Animal Farm, all Clarkston businesses are equal, but some are more equal than others.

Frankly, I think Szasz sounded like a perfectly reasonable man. In contrast, our city government appears to be on a vindictive mission to eradicate the charming Millpond Inn from our downtown because they prefer to act on innuendo and rumor, likely hate that there is a nonconforming use that they haven’t been able to do anything about for years, and they employ a city attorney who would undoubtedly be delighted to have another chance to prevail in the case – or make that the two cases – that he lost years and years ago.

As for the text of the city’s most recent “violation” notice issued to the Millpond Inn, there are some glaring problems:

It has been brought to our attention that the property at 155 N. Main St. is not in compliance with our zoning ordinance. This property is being advertised as an Airbnb and not as a fully functional bed and breakfast for which it was originally permitted by the Michigan Court of Appeals. If you continue to use this property as an Airbnb, you will have to cease operations and the property will have to be converted back to a single-family residence. The zoning ordinance sections stated above for the violation of this property will be attached to this letter for your review.

So, there are three reasons for pursuing this small business: 1. the city apparently dislikes Airbnb advertising for some reason; 2. city officials, which would include the city attorney (whose billing entries indicate he reviewed the notice before it was sent), haven’t actually read the court of appeals decisions; and 3. the city is relying on only the two zoning ordinance sections that they attached to this purported “notice of violation,” one of which states that it pertains to the village commercial district (and you’ll recall that the Millpond Inn is a nonconforming use inside the single-family residential district). Let’s examine those reasons further.

The court of appeals decisions:

We can dispense with the city’s claim that either of the court of appeals Millpond Inn opinions “permitted” anything. As you can read for yourself in the 1995 and 1997 opinions linked earlier, the only thing that the court did on both occasions was to order the ZBA to objectively make a decision on the Kopietzes’ request to operate a bed and breakfast, something the ZBA hadn’t yet bothered to do at that point. If there are any operational parameters governing the conduct of the Millpond Inn, they would have been established by the ZBA after the 1997 court of appeals opinion was issued.

Don’t you think that the city would have attached any detailed, binding agreement to the violation notice if one existed? Of course, they would have! The fact that no such document was attached, and that the city has refused to provide any purported agreement to me in response to my FOIA requests, suggests that our city officials have been misleading us about its existence, or it was lost, tossed, or misplaced. But that’s apparently not going to stop them from barreling forward with their persecution, er, prosecution anyway.

Advertising “as an Airbnb”:

I’m not aware of any city ordinance that prohibits advertising in any particular place or on any particular platform, and I’m also pretty sure that any attempt to do so would violate the First Amendment. I think what our collective brain trust meant to say was that city officials believe that the Millpond Inn is operating as a short-term rental and not as a bed and breakfast.

You know, I can’t think of anything more Boomer-like than officially conflating a physical place to stay with a listing on an advertising platform. A bed and breakfast that advertises on Airbnb is no more “an Airbnb” than you are “a Facebook,” “a Twitter,” or “a Craigslist” when you post something on those platforms. Our city government officials seemed incapable of understanding this distinction during the discussions leading up to the recent adoption of the short-term rental ordinance and that ignorance apparently persists to this day. Though the word “Airbnb” is sometimes used colloquially by GenZ kids to mean getting a place to rent using the Airbnb app (as in “we can just get an Airbnb this weekend”), city officials should use appropriate terminology, particularly when they are threatening the very existence of a city business. It’s also quite odd that city officials seem to assume that bed and breakfast facilities don’t advertise on Airbnb, given the fact that the original website was called airbedandbreakfast.com before being shortened to airbnb.com. (More on Airbnb history here, if you’re interested.)

As Szasz told the city council, only four of the five suites within the Millpond Inn are advertised on the Airbnb platform (because the fifth suite belongs to the innkeeper). Despite the city’s claim that the Millpond Inn’s Airbnb advertisement doesn’t reflect that it is a “fully functional bed and breakfast,” the text of the Airbnb entries for these suites all state that they are part of a modernized bed and breakfast facility. You can find the links for the description of each suite with photos by going to these links: Parsonage Suite; Clark Suite; The 1842 Suite; and Main Street Suite.  The Parsonage and Main Street Suites can apparently be combined into one suite.

The zoning ordinance:

Let’s take a look at the zoning ordinance sections that the city attached to its notice of violation, starting with the “definition” section (and leave it to our cracker jack city attorney to try to convince a judge that an ordinance that expressly applies on its face to one zoning district [village commercial] can somehow be used to extinguish a nonconforming use in another zoning district [single-family residential]), if the city’s pursuit of this small business gets that far. Here is the definition that the city attached to its “notice of violation”:

BED AND BREAKFAST INN: Any dwelling in which overnight accommodations are provided or offered for transient guests for compensation, including provision for a morning meal only for the overnight guest. A bed and breakfast is distinguished from a motel in that a bed and breakfast establishment shall have only one set of kitchen facilities, employ only those living in the house or up to one additional employee, and have a façade style consistent with the surrounding homes.

The Millpond Inn is a dwelling that provides transient overnight guest accommodations for compensation, and it has a façade style consistent with the surrounding homes. I’ve seen no city claims to the contrary, so let’s set these things aside and move on to the things that the city appears to be taking issue with.

Providing a morning meal for the overnight guest:

The facts indicate that the Millpond Inn is providing a morning meal to its guests. The Airbnb advertisements linked above explain that a continental breakfast consisting of “pastries, fresh fruit, yogurt, oatmeal, breakfast bars, Keurig coffee, and tea” is provided in every suite. There is nothing in this definition section (or in the ordinance that applies to a bed and breakfast operating in the village commercial zone) that demands that a warm meal be prepared and served in the morning to Millpond Inn guests, individually or all at once, despite the city manager’s claim that the apparently nonexistent “agreement” requires it.

One set of kitchen facilities:

Frankly, this the only thing that I can see that might be a problem for the Millpond Inn. There was no information that I could find that referenced another, larger kitchen in the Millpond Inn (but there is also no proof that one doesn’t exist). The photos that the Millpond Inn posted of the Clark and Parsonage suites clearly show that each of those suites has a kitchen with a full-size stove, while the 1842 Suite and Main Street suites appear to have rudimentary kitchenettes.

Szasz said that they made these changes to the Millpond Inn to accommodate COVID-19 concerns. If I were defending the Millpond Inn operators in court, I would argue that this is a reasonable response to the pandemic and that the entire country has been operating under a continuing federal COVID-19 emergency disaster declaration since March 13, 2020. Szasz and his partners purchased the Millpond Inn in October 2020, right in the middle of the pandemic, so this modification was entirely reasonable under the circumstances, necessary for the business to survive, and responsive to the public’s desire not to mingle with non-family members. The national emergency declaration has been extended several times, and it’s not clear if it will be dissolved in a couple of months. Since the city is pursuing the Millpond Inn while the federal declaration is still in effect, COVID-19 cases are still significant, many medical and dental offices retain mask mandates, and some businesses still have signs posted encouraging mask-wearing, I think that the city would be hard-pressed to argue that a court should eliminate the right for this business to exist based on its objectively reasonable response during the pandemic. Unless the city wants to remove all doubt that that its pursuit of the Millpond Inn is nothing more than a vendetta because the city lost a legal argument years ago and hates nonconforming uses, the Millpond Inn owners should be allowed a reasonable time to make any necessary changes to the kitchen configurations once the national declaration (and any state or local health requirements) are dissolved.

Oh, and city officials will also have to explain why having kitchenettes is suddenly a problem, since its November 10, 2021 violation notice specifically mentioned “new kitchenettes.” Unless the city attorney’s November 10, 2021, billing entry to “[r]eview correspondence from Code Enforcement Officer re: Notice of Violation” pertained to some other notice of violation issued on that same date, the city attorney, who is an administrative officer of the city and currently involved in the “active pursuit and investigation” of this business, was obviously aware that the Millpond Inn owners were alleged to have installed kitchenettes. The building inspector came onsite to “check it out,” as described by Speagle, and the city apparently took no further action on the kitchenettes as a claimed violation of any city ordinance.

Employ only those living in the house or up to one additional employee:

There are two people who are associated with the Millpond Inn – Annie Novotney, who handles reservations and is listed in Millpond Inn advertisements as the host who lives nearby, and Jack Yarosh, the innkeeper who lists the Millpond Inn address as his residence on his driver’s license and voter registration. If the city really wants to argue that a zoning ordinance section that applies – on its face – to the village commercial section of the community is applicable to the Millpond Inn, then Mr. Yarosh need only list the Millpond Inn as his principal address and “live on the premises while the establishment is active.” So, if there are no guests, no innkeeper is required – and the complaining neighbor will just have to deal with the fact that the city’s ordinances don’t obligate someone to live on the property 100% of the time. There is also no requirement that the innkeeper interact with the guests in any particular way (or at all).

I really don’t think Clarkston city government wants to put itself in the position of arguing about whether Mr. Yarosh is a “resident” of the Inn, given the lax standard that they applied to Laura Rodgers when she was a city council candidate in 2021. Section 4.3 of the Clarkston Charter (which trumps any city ordinance) unequivocally demands that candidates for city office be a resident for one year immediately prior to the election. Notwithstanding that clear requirement, the city attorney opined that even though Rodgers hadn’t physically lived in her Clarkston home for well over a year before the November election due to extensive home renovations, she nonetheless was a “resident” of Clarkston and entitled to remain on the ballot. Why? Because she intended to return to her home at some point in the future and her driver’s license and voter registration reflected her Clarkston home address.

Using the city attorney’s definition of residence, even if the innkeeper is away from the Millpond Inn from time to time as the city manager has claimed – something the innkeeper is permitted to do under the zoning ordinance section that the city is relying on – as long as he intends to return at some point “while the [Millpond Inn] is active,” then he legally resides at the Millpond Inn because his driver’s license and voter registration say he does. That has to be the case, unless we have one standard for city council candidates recruited and favored by Mayor Haven and another standard for a small business operating under a despised nonconforming use that the city desperately wants to eliminate.

City emails reveal that the city attorney, having gotten nowhere with the “notice of violation,” apparently wants to pursue the Millpond Inn with a civil infraction. Of course he does! After all, you pay him for all the time he bills on this matter. I reviewed the ordinance code posted on the city’s website, and without knowing if it’s up to date (because the city doesn’t bother to make sure important things like the ordinance codes are current), and I found a couple references that might apply. A civil infraction for an alleged zoning violation must be issued by the city manager. (Section 10.11.) There is no express penalty for whatever the Millpond Inn is being accused of, so the default fine would be “up to a maximum of $500.” (Section 10.99(B).) Unless the Millpond Inn owners roll over and pay whatever fine the city asks (and why would they?), this will require that everyone go to court, and if the city wins, it gets no more than $500 (which is far less than the city attorney would charge the city for pursuing the purported violations). The city also can’t eliminate the nonconforming use by issuing a $500 civil infraction ticket. No, that would require a lawsuit, which would also financially benefit the city attorney. He could bill like crazy using his unusual practice of charging the city for a full half hour of time each time he performs any work (even if he only spends a minute or two actually doing the work), a billing practice that is definitely not the norm based on my experience as both a client and as a billing attorney. (Lawyers commonly bill in tenths of an hour.)

Speaking of going to court, how would the city be able to prove its case against the Millpond Inn? With regard to the kitchen issue, it could use the advertising photos voluntarily taken and uploaded by the owners, provided it followed the rules of evidence to get those photos admitted into the court record. But the city will also have to show that it’s reasonable to pursue the kitchen issue in light of the ongoing COVID-19 federal emergency declaration and state and local precautions. It would also be reasonable for the Millpond Inn attorneys to ask city officials why the city didn’t do anything about this issue in November of 2021 since it clearly was aware of the kitchenettes way back then.

What about the allegation that “no one lives at the inn”? The zoning ordinance (for the commercial district) only requires that the innkeeper live on the premises “while the establishment is active.” The city attorney told us that a driver’s license and voter registration using a Clarkston address, coupled with an intention to return to the Clarkston residence at some point, are all that are required to be a “resident” at a city address. Unless councilmember Forte and former clerk Speagle have first-hand information about Yarosh’s residency “while the establishment is active,” they can’t testify because they would be merely repeating what someone else told them to prove a fact in court – which would be classic, inadmissible hearsay. Councilmember Forte’s family members and the visitor who spoke to Speagle would have to be dragged to court to testify that breakfast isn’t served in any form whatsoever (even though it apparently is) and that no one resides at the Millpond Inn, even though the ordinance doesn’t require that the innkeeper stay at the inn when there are no guests or to interact with guests when they are there.

If I were cross-examining these people, I’d want to know if any of them trespassed into the nonpublic areas of the Inn, including the fifth suite that is reserved for the innkeeper, allowing them to confirm the city’s allegation that Mr. Yarosh doesn’t reside at the Millpond Inn when guests are staying there. The complaining neighbor will also need to keep her calendar open and be ready to be cross-examined, under oath, regarding her claim that no one ever lives there, since her complaint apparently added a lot of accelerant to the city’s pursuit of the Millpond Inn. I would force current and former city officials and employees to testify so that I could explore the city’s history of animus against the Millpond Inn, as well as asking them to explain the statements they made during public meetings and in city email. Believe me when I tell you that lawyers live for fun cross-examinations like these.

Frankly, if the violation the city issued was the best ammunition they’ve got against the Millpond Inn, those responsible need to crawl back under their respective rocks and leave the owners alone. When you read all the communications and public comments in context, city officials seem to be demanding that the Millpond Inn live up to the city’s fantasy of what a bed and breakfast ought to be. City officials apparently believe that there should be a Norman Rockwell version of a warm, daily, communal breakfast served to all guests, rather than a continental breakfast provided individually – but there’s no legal requirement that the breakfast take any particular form. City officials also seem to believe that the innkeeper must live at the Millpond Inn 100% of the time – and he may in fact live there every day – but that’s not what the zoning ordinance the city is relying on requires. The Millpond Inn’s nonconforming use is a thing of great value, and the city has produced nothing that would allow the city to legally enforce its fantasies.

As you know, my husband and I both sued the city in the past. Based on that experience, I don’t think that the city attorney can be objective about anything relating to the Millpond Inn. In both our cases, the city attorney was wrong on the law yet did everything possible to extend the litigation simply because he wanted to prove that he was right. He remained involved in both cases even though he had an unresolvable conflict that required recusal under the ethics rules that govern attorney conduct (and despite the fact that the city was represented by an outside law firm at no charge through its insurance coverage), and his inappropriate involvement caused extensive financial damage to city taxpayers (because the city had to contribute to the legal costs at the end of both cases and pay the city attorney for all his duplicative and unnecessary work on the files). In my husband’s case, the city received the added bonus of a letter from the Oakland County Prosecutor’s Office warning it not to commit future criminal violations of the open meetings act. In my case, the city attorney’s malpractice carrier had to chip in to help the city pay my legal fees and costs.

And now we have the same city attorney involved with Millpond Inn issues, decades after the city lost in the court of appeals – twice. The 1995 court of appeals panel said that the ZBA and city council had no principled, objective reason to deny Joan and Floyd Kopietz the right to refurbish the funeral home and create a bed and breakfast – were their actions based on the city attorney’s advice? Was it the city attorney’s idea to come up with the flimsy excuse that this particular bed and breakfast would create a “structural alteration” to the funeral home, resulting in the second court of appeals decision against the city and ZBA in 1997? Only the city attorney and the people on the ZBA and city council at the time know who was the behind all that stupidity. But one thing is for certain – if the city attorney was involved back then, the taxpayers paid for every hour he billed on that file. And now that same city attorney, with a track record of endlessly pursuing litigation that he instigates because he can’t stand to lose or be proven wrong, is now “pursuing,” “investigating,” and giving advice to the city government about the Millpond Inn and once again, the taxpayers are footing the bill for it.

I question the city attorney’s ability to objectively handle anything concerning the Millpond Inn Bed & Breakfast, after having personally experienced his tendency to pursue winning over everything else, costs to the taxpayers be damned. For once, it would be nice if the city council would put the interests of the taxpayers above the interests of the city attorney and get some objective advice from an outside and unbiased attorney on the Millpond Inn matter – before the city attorney manages to drag the city into yet another losing lawsuit.

(If you’re interested, I’ve attached the email that I sent to the city council advising them why I’m getting ready to file a lawsuit over the city’s inexcusable delay in responding to my FOIA requests here. I sincerely hope that the city makes a lawsuit unnecessary and responds to my requests as they are legally obligated to do.)