Historic District Commission Wins Again!

I have no idea why anyone would choose to live in our historic district. I urge anyone considering it to seriously think again. Over the years, our Historic District Commission (HDC) has morphed from being welcoming and helpful into a group of self-anointed do-gooders who prowl the streets to look for purported violations; celebrate when they catch someone “breaking the rules”; force delays for needed repairs so they can weigh in with their two cents; spend tons of taxpayer dollars to litigate over fences, trees, and windows; and are now trying to force someone to keep a deteriorating pile of nondescript concrete block intact rather than tearing it down. Are they qualified? Well, they must be, since they’ve gone to seminars, constantly ask for help from the state, and use an architect at Clarkston taxpayers’ expense to assist them in their watchful mission.

Where is this nondescript deteriorating pile of concrete block I mentioned? I’m referring to 42 West Washington, an empty home owned by Lehman Investment Company. (I’ll just call them “Lehman” from now on.) This group is associated with Ed Adler and Robert Roth. Their biggest shortcoming seems to be that their last name isn’t “Catallo.” Curt Catallo always gets what he wants; Adler and Roth never do.

I could be wrong, but I’m pretty sure Lehman is viewed as a villain by the mayor and many that we call the “old guard” here in Clarkston. The old guard is a pejorative term used by locals to refer to a large group of people who’ve been here for decades and who worked to establish a historic district to prevent the widening of M15, a laudable goal. Unfortunately, they believe they should be able to parlay their past efforts into demands to always get their way on all city issues, and they despise anyone who disagrees. They portray themselves as some sort of modern-day Paul Revere with a constant cry of “the city is falling, the city is falling!” whenever someone who is not a Catallo or a potential new restaurant owner proposes any new development in the city. It has always seemed pretty obvious to me that these people, including people working within our government, hold a special animus toward Lehman, and more specifically to Bob Roth, a Clarkston resident, and Ed Adler, a local area resident, both of whom have invested heavily in Clarkston, a place they love.

I’m going to guess the mayor is referring to Lehman when he makes public comments that disparage developers. For example, in his essay titled “Two I Admire,” sent during the mayor’s short stint of improperly using the city’s manager’s email list to engage in what appeared to be soft campaigning, he said: “We have a new generation moving into the village. They love what they see, but many don’t know the people who labored to preserve what we have, nor do they know the existing pressures to take our hometown and turn it to someone else’s benefit. I admire those who remain vigilant to protect and maintain Clarkston.” Gosh, who was he talking about? The only entity I’m aware of proposing new development that is not a restaurant or named Catallo is Lehman. Because it’s OK to turn Clarkston into a food court with a street down the middle, but Lord forbid anyone proposing anything else. (After all, nothing screams northern Oakland County historic 1830s mill town more than a Latin street food restaurant smack dab in the middle of Main Street, right?) 

Bill Basinger, one of the “two” the mayor said he admired in his essay blasted out to unsuspecting Clarkston residents was even more specific. In a November 1, 2017, election-oriented letter he sent to most residents (but not me), Basinger expressly referred to Adler, Roth, and their plans for the 42 West Washington property. He claimed Clarkston’s successful commercial district “has given rise to a threat from those seeking to ‘cash in’ on this success,” suggesting their plans would “irrevocably alter the Village’s character.” (I was also attacked in the letter for having the audacity to continue my later successful FOIA lawsuit, which is probably why he didn’t send the letter to me so I could respond – a classic old guard move.)

At one time, Lehman wanted to invest millions to develop the property at and behind 42 West Washington. Unlike Catallo, who takes advantage of the taxpayer-funded, residential “free”-to-his-patrons parking in front of our homes, Lehman had sufficient available parking to support its plan, and the increased taxes it would have paid for the development would have brought sorely needed revenue to the city. But the city didn’t want any development there and denied Lehman’s request for rezoning 42 West Washington. (Not a restaurant? Not a Catallo? Duh. The answer is clearly a big fat “no.”) Now, Lehman wants to demolish the home because it’s unsafe and it would cost more to fix it than it’s worth, yet the HDC (and city) have spent a ton of taxpayer dollars to fight against that.

I wrote about 42 West Washington in January last year, and you can find that post here. To recap, 42 West Washington is a 1950s home the city didn’t consider a “contributing” structure in the historic district when the city established the district. That means the city didn’t conclude it had any historical significance then, but never fear, the city is working overtime to try to get a “contributing” designation for more homes in the district so this home – and yours – might be next. Our mayor is very supportive of this project, but that support is a bit disingenuous. After all, he joins two other city council members who don’t live within the historic district and aren’t forced to deal with the HDC when they want to repair or renovate their homes. It’s easy to support something when it’s not your problem. Rules for thee, not for me.

Lehman wants to tear down the home because it has serious structural problems. After the administrative portion of the proceedings relating to its request for demolition had concluded and its appeal to the circuit court had begun, Lehman discovered the city paid $80,000 to settle a lawsuit brought by the previous owners of 42 West Washington. This rather large settlement pertained to damage caused by the city to this property when the city’s storm drain collapsed, and that damage is significantly contributing to the problems with the home that continue today and that make it uninhabitable.

Lehman had to send a Freedom of Information Act request to get the information. The city kept these facts hidden during the administrative proceedings while it was opposing the demolition at the same time. Lehman’s 2021 inspection report, prepared by someone Lehman advised is a dangerous building official for the Township of Waterford, concluded the house should be condemned because it is “a danger to itself, to anyone who enters it, and to the general public.” Lehman filed a motion to ask the court to consider the materials it had recently discovered and the 2021 inspection report. The city attorney – on behalf of the HDC – opposed Lehman’s motion and asserted not only did the city not have an obligation to provide this historical property information to Lehman, but he also argued the court should not be allowed to learn any of these facts while it was deciding whether it was appropriate to tear down this safety risk pit. I discussed these filings here.

One has to ask – if the city really believed this dilapidated house was worth saving and Lehman was wrong to want to tear it down, then why was it so afraid to let a court hear all the facts? I think we know why. Clarkston government has a track record of concealing things, and this was no different. A win is a win, and hiding information is what they do best.

The HDC is no better than the rest of Clarkston government. The HDC forced taxpayers to spend thousands in legal fees because the HDC members didn’t like a porch railing and a fence (located at 10 Miller and 177 North Main, respectively). Another resident accused the mayor, city manager, planning commission chair, and HDC chair of coming to his home and threatening to force him to tear down a very tasteful fence – just because they didn’t like it. 

This B.S. isn’t limited to railings and fences. The HDC also obsessively monitors window replacements. At the January 23, 2023, city council meeting, the HDC chair told a story of a homeowner who wanted to replace his windows before winter came. The HDC became aware of repair request when they received an application from Renewal by Anderson. The homeowner’s name wasn’t mentioned on the application, but the HDC “ferreted that out” and put the request on their September agenda. The HDC chair proudly described how he managed to delay the window replacement for months and forced Clarkston taxpayers to pay for an opinion from its “architect consultant” concerning these very important windows. By the time November came, the browbeaten homeowner agreed to use a “rehabilitation glazier,” likely at an astronomically higher price than the windows he originally wanted.

Most recently, the HDC chair described a homeowner who he claimed “destroyed historic materials,” i.e., she had her windows replaced without permission, something he noticed on one of his many neighborhood patrols. No worries, though; you can be rest assured there will be severe punishment for this transgression – the HDC plans to force the homeowner to remove all her new windows and replace them with “more appropriate windows” from a company that makes “historic wooden windows.” This punishment will be effectuated with the involvement of the city manager, city attorney, and the code enforcement officer. More wasted tax dollars.

Do I think the company replacing the windows should have asked for a building permit (that would have made its way to the HDC)? Yes. I don’t know anything about the woman who owns the home the HDC is currently targeting for restorative vengeance, but it’s entirely possible she’s a retiree with limited savings who thought the window company received the necessary permissions before going ahead with the work, something contractors regularly do. Even if this is the case, I doubt they care. Rules are rules, damnit, and you will comply! If you don’t, we will publicly shame you and punish you financially.

We’ve had our own experiences with the HDC. Several years ago, our roof developed a leak that dripped into our dining room every time it rained. We were forced to live with our roof leak while the HDC pondered whether our new shingles were acceptable (even though they looked exactly like the old shingles except they were a lighter shade of gray). We were unaware the HDC was the cause of the delay until our roofer told us that was the case.

We had an even more “fun” experience with the HDC the last time we painted our house. At the time, we had a lot of rotting wood under the paint on the wooden siding, porch railing, and the bottom of the porch pillars. We told the painter to bring in a carpenter to install (or fabricate) exact duplicates where appropriate. It wasn’t a big deal because our house isn’t a big deal. It’s old and not special in any way.

I was able to piece together the story of what happened from documents I received through a FOIA request, and I’d like to share with you exactly how ridiculous these people are. I have no doubt this kind of behind-the-scenes nonsense goes on every time the HDC gets involved in anything. 

• • Apparently, our prowling HDC chair noticed our work and contacted the city manager and mayor for “help.” The mayor lacks the authority under the city’s charter to even ask for a different kind of toilet paper in the city hall bathroom, so I’m not sure why he was brought into our painting project.
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  • The HDC chair apparently also involved another “expert” HDC member in our house painting project through a text message exchange. She visited “the site,” stated she doubted what we were doing was a “like for like” repair, and it needed to be “addressed.” (How did she make this determination? If she was trespassing, it’s a good thing I wasn’t there to see it because I would have taken some action of my own – and it would have involved the sheriff.) As an aside, the HDC chair did not provide this text message to me in response to my FOIA request, even though he had it available to describe when he wrote his final report.
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  • The mayor forwarded the HDC chair’s email to the Department of Public Works (DPW) as well as the city clerk for some reason. The city has only six employees, and at this point, 50% of them were involved in our house painting project. The city clerk advised she would send her husband over to look at our house (he was the DPW supervisor at the time). Why? Who knows.
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  • The city clerk emailed back and told everyone her husband had driven by our house and “there is definitely work being done to the front porch.” (Oooo, you think?) She said we had “no approval to make such changes” (that were noticeable on a drive-by?) and the HDC chair should be able to “shut [us] down.” She added that given who we were, she could understand the hesitation. (Isn’t she a peach? Apparently, she was referring to our then-pending FOIA lawsuit that eventually ended up in the Michigan Supreme Court and forced the city to stop hiding public records in offsite files and to pay litigation costs and legal fees.) The clerk helpfully volunteered to call the city’s contract building department to address this very important problem that was now consuming everyone’s time.
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  • The city clerk emailed again and said the contract building department would send someone out to our house that very day. The HDC chair profusely thanked our busybody clerk and said the city was very lucky to have her; the city manager thanked her as well. (Our former clerk really enjoyed pursuing “investigations” rather than doing clerk work. I discussed another example of this here. Fortunately, she and her husband are both working for Independence Township now.)
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  • A “legal notice” was attached to our front window demanding we stop work. This “notice” threatened us with arrest if we removed it without the permission of some (unnamed) township. (Um, we don’t live in a township.) The signature was illegible, and there was no contact information. Our incompetent Clarkston government strikes again!

• • The city pulled this cr*p on a Friday when their offices were closed, even though our house painting job had been going on for weeks. Apparently, our employees and officials enjoy doing detective work on one of their many days off and threatening legal action while not telling the targets of their ire exactly what they wanted done.

• • At that point, we were finally made aware that something was happening because the carpenter called my husband at work and said he couldn’t finish the job because of the anonymously signed “stop work” window sticker originating from some “township” we don’t live in. We called a friend who used to be on the HDC and asked what the eff was going on, since we weren’t given any official name or contact number. He reached out to the HDC chair and gave us suggestions regarding next steps. 

• • My husband submitted a request for approval from the HDC at the HDC chair’s demand, which was approved. The HDC chair then offered his “help” with our project. I mean, after all, we’re all friends now, right? (We declined.)

• • The HDC chair later admitted in his closing summary that our “contractor had located exact duplicates of the rotted balusters.” Shocking right? But I’m not sure how he was able to make that detailed determination without trespassing on our property. And gee whiz, I guess it actually was a “like for like” repair after all, despite his HDC colleague’s “learned” assertion that it wasn’t (and there was no need to involve a bazillion people in our house painting project).
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  • By the time we received approval, the weather prevented us from finishing the project until the following spring.

As annoying as our HDC experiences have been, they are nothing like what Lehman has gone through. Lehman has not only had the aggravation and legal expenses required to deal with the HDC, but also the State Historic Preservation Office. And after that, they had to go to circuit court. And after that, they had to go to the court of appeals. I’ve attached the briefs filed by Lehman in the court of appeals here and here and the brief filed by the city here.

Lehman just lost its case in the court of appeals this week, and the HDC got its way. This means Lehman won’t be able to tear down a dangerous structure. At the July 24, 2023, city council meeting, a woman working on the project to stuff more homes into a “contributing” designation within the historic district alleged it’s the only house of that style, and the HDC chair said it’s worth trying to get a tour of that house. (I guess if you’re not worried about the risk of a structurally unsound house collapsing on your head, it might be fun.) One of the kids who grew up in the home apparently testified against the demolition at some point, but I doubt that person stepped up and wanted to buy it in its current condition – because no one wants it. And isn’t that always the case? There are always people who want something “saved,” but only if someone else pays for it.

Curious what the totally historic house looks like? Here are photos:

If your reaction is this house looks like a bazillion other unremarkable 1950s homes in the local area, I’d say you called it correctly. Historic zealots argue all the time that a particular property they happen to like (but are unwilling to repair themselves) is worth keeping, sort of like this piece of garbage that was just torn down in the City of Detroit:

(Story and photo linked here.)

Same issue, larger building. There, as here, city officials tried to get a historic designation to block demolition of a dangerous mess. Fortunately, public safety concerns prevailed, and the building was razed. I love history, but I also believe that economics and safety are important too.

I don’t know what Lehman will do at this point. Appealing to the Michigan Supreme Court is an unlikely gamble, because the court takes very few cases (and I was very fortunate they took my FOIA case). The city refused to rezone the property so something better could be put in its place. They’ve now managed to block Lehman from tearing this dangerous structure down, but they can’t sell it either – because no one in their right mind would buy such a dangerous structure since the cost of repair exceeds the worth of the home. In essence, the city’s actions have left Lehman with property that has no value.

I have no doubt the city probably believes this is the end of the matter. I’d also wager there have been a lot of congratulatory “high five” texts exchanged between city government employees and officials in the last few days about how they stuck it to Lehman (no doubt using their private cellphones because they incorrectly believe this keeps the texts out of the reach of FOIA).

So, here are a few thoughts about a fair response to the city’s insane position regarding this property, and I trust that Lehman not only can afford to do it, but they’re also p*ssed off enough to do it. I’m not giving anyone legal advice; that’s for Lehman’s attorneys to do. I’m just thinking out loud because whether the city’s recent “victory” is the final word is up to Lehman and its attorneys (though I must confess to privately wishing the city’s and the HDC’s victory last week will turn out to be merely pyrrhic).

Restart the process with the HDC and ask for approval to tear the property down again under a different statute section.

It’s possible that a court will conclude Lehman should have brought all its statutory claims in the current lawsuit, and there’s a legal doctrine that supports that conclusion. But Lehman can always argue they were prohibited from raising all their arguments in the current case, or they may have some newly discovered evidence that makes a new request different than the current one.

Appeal the next tax assessment.

The value of the property as it sits is zero dollars, because it will cost more to repair what the city did to create this problem than this dangerous structure is worth. Clarkston shouldn’t be able to capitalize on its own bad conduct by collecting taxes on a property it has made worthless through its own actions.

File a lawsuit against the city on the grounds that the city’s conduct constitutes a regulatory taking.

It’s pretty clear the city has left Lehman with property that cannot be used. It won’t be developed commercially because the city denied the rezoning request. The house is not usable as a residence unless Lehman invests more than the house is worth to repair all the damage the city caused from the storm drain collapse. Lehman can’t sell the home to someone else because no one would buy a home in this condition under these circumstances. And the city has just won the right to refuse demolition, likely in part because the city successfully managed to hide relevant facts regarding the extent of the structural damage from the courts. Does anyone doubt the next step for the city will be to force Lehman to make repairs, with the HDC sitting in judgment on every excruciating detail?

Clarkston government and the HDC have deprived Lehman of all value at 42 West Washington as a result of the city’s regulatory processes. Whenever this happens, the property owner can file an inverse condemnation lawsuit to recover whatever the fair market value of the property was before the government’s actions made the property worthless.

Stop paying property taxes for 42 West Washington.

The first three options presume Lehman wants to keep the home, but should the company decide it wants to simply walk away, it could do what any of us can do – stop paying property taxes.

Whenever someone doesn’t pay house taxes, their home will eventually be foreclosed and sold at a sheriff’s auction so the back taxes can be recovered. Even though the home is structurally unsafe, the HDC can now waive its judicial determination that it can’t be torn down in everyone’s face. Because of that, I doubt anyone would buy this home at a sheriff’s sale because no one wants to own a pile of garbage that will cost more than it’s worth to repair or a property the city won’t allow to be developed.

The 2021 inspection report concluded that necessary repairs to 42 West Washington would require driving pilings 18-29.5 feet into the ground, generating vibrations that would further damage the home. Since the HDC (and the city) think this house is so awesome, they should be willing to step up and deal with this “wonderful” piece of history at a sheriff’s sale, right? In addition to the onerous cost of repairs, there will also likely be claims from nearby neighbors suffering home damage because of the vibrations generated from driving pilings so deep into the ground.

Or maybe Clarkston government could just let things play out and absorb the cost of maintaining and repairing this property when no one buys it after the sheriff attempts to sell it for back taxes. And when the taxpayers get the bills for dealing with a property that no one wants thanks to the city and the HDC, then we can all show up at city council and HDC meetings with our (figurative) pitchforks and demand to know why we are forced to waste our money to keep a dangerous structure standing as a result of the city’s attempts to punish Lehman.

Because honestly, don’t we all know that if someone other than Lehman, Adler, and Roth owned this building, the results would be different?