Please note that I’ve referred to the Local Historic Districts Act (MCL 399.201, et seq) as the LHDA, the Clarkston ordinance (152.01, et seq of the Clarkston Code of Ordinances) as the Clarkston Ordinance, and the HDC charter proposal as the Charter Proposal.
Discussion:
LHDA, MCL 399.215(1), and Clarkston Ordinance 152.99(A), authorize the HDC to issue a “civil violation” and a fine up to $5,000 for violation of the LHDA or the Clarkston Ordinance, though neither the LHDA nor the Clarkston Ordinance establish the procedure required by state law before such fines can be issued. The HDC attempted to set up such a procedure by ordinance change in April 2024 without asking the city council for permission for the ordinance change or the legal costs to prepare it. This charter section sets up the procedure for the HDC to issue civil infractions and fines up to $5,000 provided certain conditions are met.
First, the fines cannot be arbitrary. The HDC must propose and receive approval from the city council for a schedule of fines that lists the specific violations that would merit a fine and the maximum fine for each. (This is no different than what the city council has requested for code enforcement violations.) Once the city council adopts the fine schedule, it must establish an effective date; this avoids retroactive fines. Second, before the HDC can issue a civil infraction citation, it must receive approval from at least five city council members. Third, only the city manager is authorized to issue a citation (a ticket), and s/he must comply with MCL 600.8707 of the Revised Judicature Act, which includes obtaining approval from the city attorney under MCL 600.8707(2) when the city manager did not personally witness the claimed violation. Civil infraction citations must contain notice of the maximum fine for the violation.
Notes:
This section of the charter proposal grants a new authority to the HDC that it doesn’t have now (since the city attorney withdrew the proposed April 2024 ordinance change authorizing fines). The reason the HDC needs to seek preapproval from the council before issuing a civil infraction with a fine is because residents have a right to fight the fine assessment in court and can appeal an unfavorable result to a higher court. (Wouldn’t you appeal a fine of thousands of dollars rather than just rolling over and paying it, especially since civil infraction fines can be added to your tax bill and result in a tax foreclosure of your home if you don’t pay them?)
The HDC is always represented by the city attorney in court, which means taxpayers will be required to foot the bill to defend the HDC’s decision to issue a civil infraction and a fine. Civil infractions and fines will likely be a rare occurrence. Even though we’ve had an HDC and a historic district for decades, the HDC hadn’t asked for the ability to issue civil infractions and fines until April of this year. But should a civil infraction and fine ever be appropriate, then council’s approval of the civil infraction and fine also means council support of the HDC’s decision and authorization to use taxpayer dollars for any legal expense that would be incurred to prosecute the civil infraction in court.
Paid for by Susan Bisio, P.O. Box 1303, Clarkston, MI 48347 with regulated funds.)