In addition to spreading boatloads of huge lies about what the proposed Historic District Commission (HDC) charter proposal would do, like the outrageous claim the charter proposal would lead to the widening of M15 (when it absolutely would not!) or telling people to vote “no” if they don’t like a photo of a building that was published on Facebook (even though the charter proposal has absolutely nothing to do with the proposed building and wouldn’t prevent the HDC from being involved in any new construction anywhere in the historic district, including any new construction at the Waldon and Main lot), the opponents of the charter proposal have angrily claimed the HDC is being singled out and hogtied for unfair treatment. Why not address the Zoning Board of Appeals or the Planning Commission, they say? The biggest reason is that neither of those groups have unfairly used their authority, caused as much harm to people, and incurred as much legal expense for Clarkston taxpayers as the HDC has.
I’m not trying to paint with a broad brush here. Not everyone has had an issue with the HDC. And of course, not all HDC Commissioners have acted badly, but enough have, and we don’t think whether people should be treated well or poorly should depend on the luck of the draw for city council appointments of people whose qualifications need only consist of liking the historic district or previous experience with their own home remodel projects.
So, let’s compare the state law, our local ordinance, and the proposed HDC charter amendment and discuss the why’s behind things. Once you clear the disinformation smoke, it’s pretty clear the HDC charter proposal is far less constricting than the “Charming” group and their public supporters have made it out to be. Claiming the charter proposal “guts” the historic district ordinance is simply another lie, and like all the others, the “Charming” group and its supporters fail to provide any detailed support for the baseless claims. In fact, the charter proposal expands what the HDC can do by allowing it to issue civil infractions with fines for violations, something it cannot do now.
I’ll refer 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. The section headings below match the Charter Proposal. I’m going to skip the general policy section of 16.1 because it contains general statements. I’ll also skip the definition section of 16.2 unless the definitions are relevant to a particular section and because most of the definitions originate in the LHDA and are adopted by the Clarkston Ordinance and the Charter Proposal.
Since there is so much to digest in this lengthy analysis, I’ve broken this post up into sections and put it on the far right of the page in a green drop-down menu. That way, you can read only the sections that interest you. I’ve also prepared a comparison in chart form here.
One housekeeping note before I get started about the terms “onerous” and “reasonable” (or “unreasonable”) because members of the city council and the public have asked about these terms, and some have suggested the use of these words make the Charter Proposal unworkable.
The word “onerous” is defined by looking at the entire proposed HDC charter amendment. The boundaries of HDC action are not onerous if they are consistent with the requirements of the Charter Proposal.
The words “reasonable” and “unreasonable” are terms of general understanding and usually come into play during a lawsuit. It allows a judge to look at everything and decide if the HDC’s (or a property owner’s) actions fall within the realm of what is acceptable. A judge would do this by looking at the language of the Charter Proposal and all the facts and circumstances that prompted the lawsuit, something most people would want a judge to do in the interest of fairness. After all, there might be reasons for a delay, or perhaps an action ought to be considered in the whole scheme of things rather than using some black and white test with no consideration for extenuating circumstances. The opponents of the charter proposal completely ignore the fact that the LHDA and the Clarkston Ordinance also use the word “reasonable” without defining it and no one thinks that’s problematic. (MCL 399.205(11) and (12), and Clarkston Ordinance 152.07(L)(2) and (M), allow the HDC to obtain a court order in connection with a finding of “Demolition by Neglect” or for “Restoration or Modification” if the owner doesn’t comply within a “reasonable” period of time after the HDC orders the owner to do so.)
The proposed HDC charter amendment doesn’t do anything to encourage lawsuits; property owners and the HDC (with council approval since it’s a budgetary issue) will decide whether that’s appropriate. The Charter Proposal’s preference for the HDC to work things out with property owners will go a long way toward reducing lawsuits. Legal expenses for lawsuits brought by the HDC, and to defend against lawsuits against the HDC that don’t ask for damages, are not covered by the city’s insurance policy, so anything that acts to reduce lawsuits means less legal expense for Clarkston taxpayers.
SECTION 16.3 – AUTHORITY FOR CHAPTER XVI (the HDC charter amendment)
LHDA, MCL 399.213 – Allows the city council to prescribe the powers and duties of the HDC in addition to the those prescribed in the LHDA that foster historic preservation activities, projects, and programs in the city.
Clarkston Ordinance, 152.01 – Enacted under the authority of the LHDA.
Charter Proposal – Enacted under the authority of the LHDA; Article 7, Section 22 of the Michigan Constitution (city authority to adopt and amend charter and ordinances); and Chapter 117 of Michigan’s Compiled Laws (the Home Rule City Act).
SECTION 16.4 – APPOINTMENT OF COMMISSION MEMBERS
LHDA, MCL 399.204 – Not less than five or more than seven HDC commissioners, all commissioners must reside in the city, the majority of commissioners must have a clearly demonstrated interest in or knowledge of historic preservation, all commissioners are appointed by the mayor unless another method is provided in the ordinance, commissioners serve for three-year terms and are eligible for reappointment, vacancies must be filled within 60 days, the city’s ordinance can allow for removal of members, and the LHDA prefers that one commissioner be a graduate of an accredited school of architecture with 2 years of experience or who is a registered architect in the state, but only if such a person available.
Clarkston Ordinance, 152.06 – Same as the LHDA except the number of commissioners is limited to five. Our ordinance was changed to allow for appointments by the city council rather than the mayor (though this change hasn’t been added to the city’s website).
Charter Proposal – Same as the Clarkston Ordinance. Adds that vacancies must be publicized at least 35 days before the appointment is scheduled to be made. At least three of the five members must show a clearly demonstrated interest in or knowledge of historic preservation in writing (which must be more than a general interest in historic preservation or that they’ve had work done on their own property), though two of the five can have the more general interest background. If the HDC has fewer than three commissioners who can demonstrate in writing that they have more than a generalized interest in historic preservation at the time of the vacancy, then the search for commission candidates must continue, even if it takes more than 60 days.
Notes:
Given the power HDC commissioners have over property owners in the historic district, it is reasonable to require at least three of the five commissioners satisfy the LHDA and Clarkston Ordinance requirements by having qualifications beyond “I like the historic district,” or “I made an application to the HDC for work on my own home,” which is the criteria the city council is using for appointing HDC commissioners today. The city could meet its 35-day posting obligation under the charter requirement by continuous requests for applicants.
SECTION 16.5 – COMMISSION POLICIES AND PROCEDURES
LHDA, MCL 399.205(9) – The HDC must adopt its own rules of procedure and design standards and guidelines for resource treatment.
Clarkston Ordinance, 152.07(J) – Permissibly allows the HDC to adopt its own rules of procedure but requires the HDC to adopt design review standards and guidelines for resource treatment.
(The LHDA, 399.201a(s), Clarkston Ordinance 152.04, and Charter Proposal 16.2(b) define a “resource” as one or more publicly or privately owned historic or nonhistoric buildings, structures, sites, objects, features, or open spaces located within a historic district.)
Charter Proposal – Requires the HDC to work with the city council to adopt policies and procedures that must be submitted within 30 days after the Charter Proposal is adopted, and the HDC may not act on pending matters before approved policies and procedures are in place. The same process must be followed for policy and procedure revisions. Policies and procedures must be posted in an accessible place on the city’s website and made available in paper form to anyone who wants them.
Notes:
This is separate from the design review standards and guidelines for resource treatment compelled by the LHDA and the Clarkston Ordinance. Requiring approved policies and procedures would not be reinventing the wheel. HDC commissioner Lisa Patercsak publicly stated the HDC has policies and procedures in place (though they are not on the city’s website as she claimed they were). At least one HDC commissioner would presumably be present at a city council meeting to answer questions about any proposed policies and procedures and would undoubtedly receive quick approval from the city council. Policies and procedures are important because they provide clear guidance for everyone about the way the HDC will conduct itself, how it makes decisions, how those decisions can be appealed, etc.
SECTION 16.6 – COMMISSION MEETINGS
LHDA, MCL 399.205(7) – Requires compliance with Michigan’s Open Meetings Act (OMA). All business must be conducted at an open meeting and there must be public notice of the time, date, place, and an agenda that includes a listing of each permit application to be reviewed and considered.
Clarkston Ordinance, 152.07(H) – Same as the LHDA.
Charter Proposal – Same as the LHDA and the Clarkston Ordinance. Affirms that commissioners may not do things to evade the OMA. For example, Memoranda of Administrative Approval are prohibited because they are not authorized by the LHDA or the Clarkston Ordinance and were specifically created to avoid additional public meetings because the Memoranda of Administrative Approval allows deliberations and decisions to occur outside of a public meeting in violation of the OMA. Requires that meetings be recorded and uploaded to the city’s website the next day. Minutes must include the speaker, the substance, the decisions, and the reasons for the decisions. The HDC may not discourage anyone from attending its meetings.
Notes:
The HDC has regularly been violating the OMA, which subjects the individual commissioners to civil and criminal liability and the city to civil liability and litigation expense. Though it’s been discussed many times, the HDC inexplicably refuses to record and post recordings of its meetings on the city’s website. At one point, our city manager was told he was unwelcome to attend HDC meetings. The Charter Proposal language clarifies that is unacceptable, since everyone is welcome at a public meeting.
SECTION 16.7 – COMMISSION RECORDS
LHDA, MCL 399.205(8) – The HDC is required to keep copies of its resolutions, proceedings, and actions, and HDC records are subject to the Freedom of Information Act.
Clarkston Ordinance, 152.07(I) – Same as the LHDA.
Charter Proposal – This section adds to the requirements of the LHDA and the Clarkston Ordinance. It defines what HDC records must be preserved as all records of HDC business, including Certificates of Appropriateness, Notices to Proceed, Denials, minutes, draft minutes, notices of meetings, written communications to and from the commission or its members and agents regarding commission business (including electronic communications and social media postings), reports and proposals to the city council, records of commission action, papers filed by any person in an action in the State Historic Preservation Office (SHPO) and/or in court, and personal notes (but only if the notes concern commission matters and are taken in the performance of the commissioner’s official duties). Commission records must be provided to the city clerk who will maintain them at the city’s offices.
Notes:
Section 399.811 of the Michigan History Center Act and MCL 750.491 of the Michigan Penal Code govern record retention. This section was added to the Charter Proposal because Michael Moon (HDC Commissioner and Secretary) advised the city council that commissioners regularly destroy records after a decision. He also refused to provide copies of HDC records to the city, telling the city council if the city wants copies of final decisions for its files, it should contact the Clarkston Independence District Library (CIDL) because the HDC prefers to send our city records there. The CIDL is an independent government entity with no legal responsibility for storing or retaining city records under Michigan law.
SECTION 16.8 – COMMISSION AUTHORITY
There’s a lot in the section, so I’m going to break it up into pieces.
Actions Prohibited When the Commission Has No Authority to Regulate, Section 16.8(a):
If the Charter Proposal states the HDC has no authority to regulate something, it means it can’t ask a property owner to apply for a permit from the HDC before doing work, it prohibits the HDC from taking regulatory or enforcement action regarding that work, and it prevents the HDC from asking the individual owner to justify the work. If the HDC disagrees with a property owner and believes that a matter is within its authority, it can ask the city council for assistance.
Notes:
This section expressly states what should be obvious from the legal limits of the HDC’s authority: If it doesn’t have legal authority to regulate something, then it can’t require property owners to apply for a permit for that and can’t take enforcement action. It is necessary to expressly say this because the HDC has taken the position that it can regulate anything, require owners to apply for permits even for something outside its authority, and post stop work orders when owners don’t do so.
Some critics suggest that deferring to an owner’s determination that their work is outside the HDC’s authority and letting the city council resolve such disputes leaves the HDC toothless because it involves the city council if there’s a dispute, but that’s no different than it is now. The HDC has no authorization under any city ordinance to obtain a stop work order and it can’t incur spending obligations without budgeted and approved funds. Our city manager is authorized to spend up to $500 without council approval but that’s only because there’s a specific ordinance allowing him to do that. The HDC has no independent authority to incur litigation or any other expenses (aside from its budget for a historic preservation architect). The LHDA, Clarkston Ordinance, and the Charter Proposal establish the actions the HDC can take if it believes there is a violation. This section has no effect on any other city permit requirements, all of which still apply.
Ordinary Maintenance, Section 16.8(b):
LHDA, 399.201a(p), Clarkston Ordinance 152.04, and Charter Proposal 16.2(b) – “Ordinary maintenance” means keeping a resource unimpaired and in good condition through ongoing minor intervention, undertaken from time to time, in its exterior condition. Ordinary maintenance does not change the external appearance of the resource except through the elimination of the usual and expected effects of weathering. Ordinary maintenance does not constitute “work” (as defined below).
LHDA, 399.201a(s), Clarkston Ordinance 152.04, and Charter Proposal 16.2(b) – “Resource” means one or more publicly or privately owned historic or nonhistoric buildings, structures, sites, objects, features, or open spaces located within a historic district.
LHDA, 399.201a(v), Clarkston Ordinance 152.04, and Charter Proposal 16.2(b): “Work” means construction, addition, alteration, repair, moving, excavation, or demolition.
LHDA, MCL 399.210 – Nothing in the LHDA should be construed to prevent ordinary maintenance or repair of a resource within a historic district, or to prevent work on any resource under a permit issued by the inspector of buildings . . .
Consistent with the definitions of “work” and “ordinary maintenance,” Section 16.8(b) of the charter proposal prohibits the HDC from becoming involved with or attempting to regulate ordinary maintenance that doesn’t affect the external appearance of a resource. The HDC can require application for a permit only for “work.” LHDA, MCL 399.205(1), Clarkston Ordinance 152.07(A). If “ordinary maintenance” is not “work,” then the HDC cannot regulate it or require an order to apply for a permit to perform ordinary maintenance.
Notes:
The HDC has inappropriately asked residents to approach it for every ordinary maintenance-type project – whether it affects the exterior of the resource or not – so it can review and approve it, even though the HDC has never had the authority to do this. The HDC does this because it wants to “catch” people doing things they shouldn’t, such as adding aluminum siding, even though adding aluminum siding would change the exterior appearance of a resource, would always require HDC permission (that would never be granted), and the HDC could seek an order forcing the property owner to remove the aluminum siding if it was installed without HDC permission.
Repairs, Section 16.8(c):
LHDA, 399.201a(r), Clarkston Ordinance 152.04, and Charter Proposal 16.2(b) – “Repair” means to restore a decayed or damaged resource to a good or sound condition by any process. A repair that changes the external appearance of a resource constitutes work for purposes of this act.
LHDA, 399.201a(s), Clarkston Ordinance 152.04, and Charter Proposal 16.2(b) – “Resource” means one or more publicly or privately owned historic or non-historic buildings, structures, sites, objects, features, or open spaces located within a historic district.
LHDA, 399.201a(v), Clarkston Ordinance 152.04, and Charter Proposal 16.2(b): “Work” means construction, addition, alteration, repair, moving, excavation, or demolition.
LHDA, MCL 399.210 and Clarkston Ordinance 152.12 – Nothing should be construed to prevent ordinary maintenance or repair of a resource within a historic district, or to prevent work on any resource under a permit issued by the inspector of buildings . . .
Consistent with the definitions of “work” and “repair” under the LHDA, the Clarkston Ordinance, and the Charter Proposal, Section 16.8(c) of the charter proposal prohibits the HDC from regulating repairs that do not affect the external appearance of a resource.
Notes:
The HDC has inappropriately asked residents to approach them for repairs that don’t change the appearance of the resource so they can be reviewed and approved. The HDC has never had the authority to do this. It does this because it wants to “catch” people doing things they shouldn’t.
HDC Commissioner Melissa Luginski publicly stated that she thinks the charter proposal means the HDC is “basically being called names.” That’s untrue, because not every HDC commissioner has behaved unreasonably, though we can attest to a personal experience with Luginski and former HDC chair Jim Meloche several years ago when we identically replaced our decayed and damaged modest pillars and porch railing spindles as part of a painting project, which fell squarely within the definition of repair and ordinary maintenance that didn’t change the exterior of a resource. Luginski visited our home (and likely trespassed on our property) to inspect what was going on, and without speaking to us or our workers, she decided we weren’t doing a “like-for-like” replacement, the HDC got an unauthorized stop work order and required us to apply for a permit from the HDC to do the work. By the time we were able to work through Luginski’s and Meloche’s unnecessary process to show it was in fact a like-for-like repair and outside of the HDC’s authority to regulate, it was too late in the season to finish the project and some of our new wood replacement was exposed to the elements throughout the winter. That is an example of unreasonable conduct in connection with repair and ordinary maintenance that we were allowed to do under the LHDA and the Clarkston Ordinance – by Melissa Luginski. Calling out inappropriate conduct is not the same as calling someone names.
Limited Authority Over the Exterior of Resources, Section 16.8(d):
LHDA, MCL 399.205(4), and Clarkston Ordinance 152.07(D) limit the HDC’s authority to reviewing and acting on exterior features of a resource. They expressly prohibit the HDC from being involved in changes to interior arrangements of a resource (unless the interior work causes a visible change to the exterior of the resource) or any consideration that is not described in MCL 399.205(3) (referring to the United States secretary of the interior’s standards for rehabilitating historic buildings as set for in the Code of Federal Register, 36 CFR 67, discussed further under the heading “Standards and Guidelines,” Section 16.9(a) below).
The Charter Proposal limits the authority of the HDC to reviewing work that would cause a visible change to the exterior of a resource that can be seen by a person of ordinary height from the public road or public sidewalk without the use of visual aids.
Notes:
This is consistent with the way the HDC’s authority has been traditionally defined within the historic district. It is also consistent HDC chair Rob Hauxwell’s recent emails to a resident affirming that work done in the backyard that is not visible from the street is not within the HDC’s purview.
Limitation of Authority Over Open Spaces, Section 16.8(e):
LHDA, MCL 399.201a(o), and Clarkston Ordinance 152.04, define an “open space” as undeveloped land, a naturally landscaped area, or a formal or man-made landscaped area that provides a connective link or a buffer between other resources. LHDA, MCL 399.201a(l), and Clarkston ordinance 152.04, define a “historic resource” as a publicly or privately owned building, structure, site, object, feature, or open space that is significant in the history, architecture, archaeology, engineering, or culture of this state or a community within this state, or of the United States.
This section of the Charter Proposal declares there are no open spaces left in the historic district for the HDC to regulate, other than Depot Park, because there are no open spaces that are significant in the history, architecture, archaeology, engineering, or culture of this state or a community within this state or of the United States except for Depot Park.
Notes:
Our city has almost completely been built up, so there are very few vacant areas in the city outside of Depot Park beyond a handful of privately owned, currently vacant lots. One of those lots is located at Waldon and Main. After a concept photo was published by a social media user (who was not the property owner), HDC commissioner Lisa Paterscak publicly (and falsely) stated that Section 16.8(e) would allow a developer to construct the building depicted in the photograph at Waldon and Main. Paterscak, HDC commissioner Melissa Luginski, and other “Charming” group supporters commented on the photo and suggested if people didn’t like the photo, then they should vote “no” on the Charter Proposal so the HDC can “protect” them from the building depicted in the photo being built. The comments were disturbing because they suggest that at least two commissioners are potentially giving a higher priority to their own personal tastes when they are acting in their official roles, rather than on applying the legal standards as objectively as is humanly possible.
Claiming that the Charter Proposal would allow any developer to build on the Waldon and Main lot without HDC review and approval is simply false. Placing a building on an empty lot means the lot is no longer empty and all city requirements must be met, including HDC approval of the construction if the building is within the historic district.
The “open spaces” section offers no benefits to developers. It was added to address the misconduct of former HDC chair Cara Catallo, coincidentally involving the Waldon and Main lot. After being ordered by the city to clean and clear the lot because people had been throwing trash there, Catallo obtained a stop work order to prevent the owners from complying with the city’s order to clean up the property. She had no authority to obtain a stop work order, and her actions resulted in significant legal expense to both the city and the property owner.
This section of the Charter Proposal would also protect the city and the taxpayers from the expense of “takings” lawsuits that could occur should the HDC simply declare that someone’s private, vacant lot must remain vacant because the commissioners have decided it makes the historic district look nicer, again based on their personal preferences.
Limitation of Authority Over Plants, Trees, Landscaping, and Fences, Section 16.8(f):
Neither the LHDA nor the Clarkston Ordinance specifically mention landscaping outside of the context of open spaces, nor do they mention fencing.
The Charter Proposal notes the city’s historic district status stems from its establishment in the nineteenth century and the structures that existed at that time. This section declares that the current configuration of plants, trees, landscaping, and fences are not significant in the history, architecture, archaeology, engineering, or culture of this state or a community within this state or of the United States and should not be regulated.
Notes:
This is a statement of the obvious. Clarkston taxpayers and its residents have spent thousands of dollars in legal fees arguing over fences and shrubbery placement. Residents should be able to decide which bushes, flowers, trees, and backyard fences are appropriate for their own properties. And, as HDC chairman Hauxwell stated in his recent emails to a resident, the HDC has no specific ordinance that allows it to be involved in landscaping.
Limitation of Authority Over Painting, Section 16.8(g):
Neither the LHDA nor the Clarkston Ordinance mention painting. This charter section affirms the current practice of the HDC’s non-involvement in painting issues.
No Authority to Issue a Memorandum of Administrative Approval, Section 16.8(h):
LHDA, MCL 399.201a(b) and Clarkston Ordinance 152.04 define a “Certificate of Appropriateness” as the written approval of a permit application for work that is appropriate and that does not adversely affect a resource.
LHDA, MCL 399.201a(n) and Clarkston Ordinance 152.04 define a “Notice to Proceed” as “the written permission to issue a permit for work that is inappropriate and that adversely affects a resource, pursuant to a finding under [MCL 399.205(6)]” (or Clarkston Ordinance 152.07(F); the ordinance has an incorrect cross-reference to 152.07(E)). In order to obtain a “Notice to Proceed, the LHDA, MCL 399.205(6), and Clarkston Ordinance, 152.07(F), require an HDC finding that the inappropriate work is necessary to substantially improve or correct safety hazards; the work would benefit the community (and all other city approvals have been received); retaining the resource would create an undue financial hardship when events are beyond the owner’s control and all feasible alternatives have been considered; or retaining the resource isn’t in the interest of the majority of the community.
LHDA, MCL 399.205(1), and Clarkston Ordinance 152.07(A), both require that applicants receive a Certificate of Appropriateness or a Notice to Proceed before work that affects the exterior appearance, or certain interior arrangements of a resource, is undertaken. There is no authorization to issue Memoranda of Administrative Approval (or a Memorandum of Approval, as it’s sometimes referred to) in the LHDA or the Clarkston Ordinance.
Notes:
Nothing in the LHDA, Clarkston Ordinance, and Charter Proposal affect any other city permitting requirements that might be necessary before work is done in the historic district (or anywhere else in the city).
The Memorandum of Administrative Approval is a made-up, local form of approval that is intended to allow the HDC to evade the requirements of the Open Meetings Act (OMA) and to provide a way to respond to a problem the HDC created by improperly demanding to be involved in ordinary maintenance and repair that does not affect the exterior of the resource, contrary to the LHDA and the Clarkston Ordinance.
The way the Memorandum of Administrative Approval works is that a quorum (three or more HDC commissioners) or a sub-quorum (one or two HDC commissioners) go to a site to look at something the homeowner is doing. They deliberate and decide whether the work should be approved, and if approved, they issue a Memorandum of Administrative Approval. They claim this procedure is intended to help the homeowner, but it’s really a way to avoid HDC commissioners being bothered with more than one meeting a month or having to call a special meeting to address a problem they’ve created for property owners and themselves by demanding that property owners seek HDC approval for all repair and ordinary maintenance work, whether or not the exterior of a resource is affected.
The OMA requires that a meeting of a quorum of commissioners must be properly noticed so the public can attend, and the OMA prohibits deliberation and decision-making outside of a public meeting. Violations of the OMA expose the individual commissioners to civil and criminal liability and the city to the expense of a lawsuit.
The LHDA, MCL 399.205(10), Clarkston Ordinance 152.07(K), and the Charter Proposal allow the HDC to create specific written standards and to delegate authority to issue Certificates of Appropriateness for specified minor classes of work that would be reviewed on a quarterly basis, and this would likely address the bulk of the Memoranda of Administrative Approval issues. Delegation under the Charter Proposal is contained in Section 16.9(d) (Commission Conduct, Orders, and Enforcement) and will be discussed below under that section. The HDC has refused to delegate any authority, preferring instead to violate the OMA and issue fictitious approvals that are not authorized by the LHDA or the Clarkston Ordinance.
SECTION 16.9 – COMMISSION CONDUCT, ORDERS, AND ENFORCEMENT
Standards and Guidelines, Section 16.9(a):
The LHDA, MCL 399.205(3), and Clarkston Ordinance 152.07(C)(1)-(2), require the HDC to follow the United States secretary of the interior’s standards for rehabilitating historic buildings as set forth in the Code of Federal Regulations, 36 CFR 67. The specific ten standards themselves are in § 67.7(b). Design review standards and guidelines that address special design characteristics of historic districts may be followed if they are equivalent in guidance to the secretary of interior’s standards and guidelines and are established and approved by Michigan’s State Housing Development Authority. The HDC must also consider the historic or architectural value and significance of the resource and its relationship to the historic value of the surrounding area; the relationship of any architectural features of the resource to the rest of the resource and to the surrounding area; the general compatibility of the design, arrangement, texture, and materials proposed to be used; other factors, such as aesthetic value, that the commission finds relevant; and whether the applicant has certified there will be an adequate fire or smoke alarm system.
The Charter Proposal requires the HDC to follow the LHDA and the Clarkston Ordinance and prohibits the HDC from “borrowing” standards and guidelines that apply to other activities that don’t involve rehabilitating historic buildings.
Notes:
The opponents of the Charter Proposal object to the HDC being limited to what the state law allows, even though the state law and incorporated federal standards are quite expansive. These critics apparently prefer to give the HDC the unlimited ability to use publications and opinions involving something other than historic buildings that are outside what is allowed by the LHDA and the Clarkston Ordinance.
Entry Onto Private Property, Section 16.9(b):
The LHDA and the Clarkston Ordinance are silent on the trespass issue, presumably because it’s illegal under Michigan law. MCL 750.552 makes entry onto private property after being forbidden to do so a misdemeanor offense carrying the possibility of 30 days in jail and a $250 file. This Charter Proposal section expressly states that HDC commissioners and their agents may not enter onto private property unless the owner invites them each time – without requiring the property owner to first catch an HDC trespasser and then forbid them from entering onto the property.
Notes:
HDC commissioners and agents have no greater authority than the city’s code enforcement officer who is limited to regulating what s/he can see from the street or from a neighboring backyard if that neighbor allows it. If HDC commissioners want permission to enter a property, they need to ask for it. This section was added in response to resident concerns that HDC commissioners may have been unlawfully entering private property to catch residents doing something the HDC commissioner(s) thought might be inappropriate.
Limits On Enforcement Action, Section 16.9(c):
This section is not prohibited by either the LHDA or the Clarkston Ordinance. It’s consistent with the spirt of the LHDA, MCL 399.205(5), and Clarkston Ordinance 152.07(E), which encourages the HDC to work with owners when an owner’s proposed work would affect the exterior of a resource and the HDC believes the alternation or loss of the resource would adversely affect the purpose of our historic district, the state, or the nation. In that case, the LHDA instructs the HDC to work out an economically feasible plan to preserve the resource.
The Charter Proposal requires that, should the HDC determine that enforcement action is appropriate, it must send a written notice to the property owner or occupant. The notice must advise the property owner or occupant what the legal basis is for the action the HDC is contemplating, what the HDC wants the property owner or occupant to do and provide the property owner with a sufficient time to start and complete the requested action, considering the breadth and nature of the HDC request. The Charter Proposal requires that the property owner be given no less than 35 days from start to completion to comply.
The Charter Proposal also requires the HDC and the property owner to engage in a good faith negotiation (discussion) regarding what’s required and how long it should take. In the unlikely event they can’t agree, then mediation is required at the city’s expense.
In fairness to the property owner, this section prohibits the HDC from taking enforcement action during the time the property owner has been given to start and finish repairs, while the HDC and the property owner are discussing the issue, or during the mediation period.
Notes:
This charter section is not contrary to the LHDA or the Clarkston Ordinance because it does not prohibit the HDC from engaging in enforcement actions. It simply requires the HDC to work with the property owner before formal enforcement actions that could generate administrative appeals and/or involve the court system are taken. This is in the interest of fairness to the property owner or occupant and to avoid unnecessary taxpayer expense for city attorney fees.
Other than the added mediation step, the city has similar requirements for its code enforcement officers – a written notice with a time for compliance that can be adjusted after a discussion/negotiation with the code enforcement officer. The added step of mediation at the city’s expense recognizes that while code enforcement usually pertains to things such as lawn cutting or removing an unlicensed car from the yard, HDC enforcement requests can be quite significant, costly, and burdensome for the homeowner or occupant to comply with, even when the HDC’s position on the matter is correct.
Formal enforcement actions should be rare and arise only when a property owner either allows the property to fall into disrepair or does work that alters the exterior of a building without seeking HDC approval first. HDC orders pertaining to “Demolition by Neglect” and “Restoration and Repair” are addressed in separate sections and discussed below.
Most of the actions taken by the HDC involve applications the HDC approves, disapproves, or asks for more information about before approval or disapproval, and the Charter Proposal doesn’t affect that activity at all.
Delegation of Authority, Section 16.9(d):
The LHDA, MCL 399.205(10), Clarkston Ordinance 152.07(K), and Section 16.9(d) of the Charter Proposal allow the HDC to create specific written standards and delegate the authority to issue Certificates of Appropriateness for specified minor classes of work that the full HDC would review quarterly. This allows the HDC to address minor changes that affect the exterior of a resource without having to formally meet, provided the minor changes fall within the written standards. Approvals must take the form of a Certificate of Appropriateness rather than the made-up Memorandum of Administrative Approval (sometimes referred to as a Memorandum of Approval), which is an unauthorized form of approval under the LHDA and the Clarkston Ordinance and intended to avoid the requirements of Michigan’s Open Meeting Act.
The Charter Proposal limits the people to whom the HDC can delegate authority to the HDC chair, HDC secretary, and the city manager. Similar to the Charter Proposal’s Section 16.5 (Commission Policies and Procedures), this section requires the HDC to submit proposed (or revised) standards for delegation of authority to the city council until they are approved.
Notes:
This would not be reinventing the wheel. HDC commissioner Lisa Patercsack publicly stated the HDC has procedures (though they are not on the city’s website as she claimed they were). An HDC representative would presumably be present at a city council meeting to answer questions and would undoubtedly receive quick approval from the council.
Civil Infractions, Section 16.9(e):
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.
Demolition by Neglect, Section 16.9(f):
LHDA, MCL 399.201a(f), and Clarkston Ordinance 152.04, define “Demolition by Neglect” as neglect in maintaining, repairing, or securing a resource that results in deterioration of an exterior feature of the resource or the loss of structural integrity of the resource.
LHDA, MCL 399.205(11), and Clarkston Ordinance 152.07(L), state if the HDC determines that a historic resource is threatened with “demolition by neglect,” then the HDC can order the property owner to repair it. If the property owner doesn’t make repairs within a “reasonable” time, then the HDC or its agents can obtain a court order allowing the HDC or its agents (the contractors the HDC would hire) to enter onto private property to make necessary repairs. All costs for the ordered repairs are charged to the owner and may also be levied as a special assessment against the property.
The Charter Proposal recognizes that a “Demolition by Neglect” order is discretionary. It adds the extra step of involving the city council before the HDC enters an order against a property owner for “Demolition by Neglect” and before seeking a court order to hire people to enter onto private property and forcibly conduct HDC-ordered repairs against the property owner’s will.
This means the HDC must explain to the council why such an order is necessary. And, if the property owner doesn’t comply with an approved order within a “reasonable” period of time, then the HDC must present its case to the city council before seeking a court order to compel repair in the case of claimed “Demolition by Neglect,” including a proposed plan for entry and repair and a proposed court order that it wants a judge to approve.
At both points, the city council can ask questions and approve, reject, send the HDC’s request back for revision, or take any other appropriate action. Approvals involving an HDC “Demolition by Neglect” order, or an HDC request to obtain a court order, require a vote of five council members.
Notes:
Requiring council approval before an order involving “Demolition by Neglect” is entered against a property owner in the historic district recognizes that HDC commissioners are merely historic preservation hobbyists and aren’t required to have any special credentials to serve on the HDC. City council approval is appropriate because the city council is accountable to Clarkston voters, controls the purse strings, allocates money toward the legal services budget, and has the city attorney present at every council meeting to advise them (as well as the HDC commissioners seeking approval of such an order). The HDC shouldn’t fear council questions. It’s better to address the holes in their logic before an order is issued, because a judge will certainly ask questions.
The HDC hasn’t entered any “Demolition by Neglect” orders that I’m aware of, even when it was arguably appropriate for a couple of homes on Main Street. An HDC order demanding repair for “Demolition by Neglect” can prompt an expensive court proceeding. City council involvement is appropriate because taxpayers will be forced to foot the bill for the city attorney to defend the HDC’s actions.
Even if the property owner appeals from the HDC’s “Demolition by Neglect” order, one doesn’t just go “get a court order” if the property owner doesn’t comply. Court orders are issued only if there’s an active lawsuit, which means the HDC would need the assistance of the city attorney to draft a lawsuit complaint and a motion requesting the court order. The property owner would be served with both the complaint and the motion. It’s extremely likely the property owner would hire his or her own lawyers and force the HDC into proving its case in a lawsuit. This means the property owner gets to answer the complaint, perhaps file a countercomplaint against the HDC, oppose the motion for a court order allowing the HDC to force a repair, and could also ask for extensive discovery involving lay witnesses, expert witnesses, deposition testimony, and document exchanges, for example. Taxpayers may have to pay for the city to hire an expert witness because HDC members have no particular education and experience that would make them court-qualified experts.
Remember how the city acted during my five-year Freedom of Information Act (FOIA) lawsuit? That case involved a simple legal question, yet the city managed to drive up costs for both sides to somewhere in the $700,000 range because the city’s many attorneys claimed they needed to do boatloads of unnecessary discovery and then never used any of that discovery in their arguments in circuit court, the court of appeals, or the supreme court. There is nothing to stop a resident from responding to an HDC order in a similar way. The HDC and city council should never assume a lawsuit will be a slam dunk win, no matter how “right” the HDC thinks it is. Once the lawsuit starts, the costs can rapidly climb to levels that no one feels comfortable with.
The Charter Proposal very rationally requires the HDC involve the city council before the HDC embarks on what could be very extensive (and expensive) proceedings and/or litigation. The city received “free” attorneys through its insurance policy in my FOIA case, but lawsuits started by the HDC are not covered by insurance and must be fully funded by Clarkston taxpayers. We think our elected officials should be on board before that happens.
Please note that a “Demolition by Neglect” order is unique and entirely different than the standard application process that occurs at the HDC’s regular meetings when the HDC approves, disapproves, or asks for more information about an application before approval or disapproval. The Charter Proposal doesn’t affect that process at all.
Restoration or Modification, Section 16.9(g):
LHDA, MCL 399.205(12), and Clarkston Ordinance 152.07(M), concern work that affects the exterior of a resource that a property owner has done without first receiving permission from the HDC through a “Certificate of Appropriateness.” This section of the LHDA and the Clarkston Ordinance allows the HDC to order a property owner to restore the property to the condition it was before the unapproved work was done or to modify the work that was done so that it qualifies for a Certificate of Appropriateness. If the owner doesn’t comply with the HDC’s order to restore or modify the work within a “reasonable” period of time, then the HDC can seek a court order compelling the owner to do so. If the owner can’t or won’t comply with the court order, then the HDC or its agents can enter onto private property and forcibly perform the work against the property owner’s will until the property can qualify for a Certificate of Appropriateness. All costs of repairs are charged to the owner and may also be levied as a special assessment against the property.
Similar to “Demolition by Neglect” orders, the Charter Proposal recognizes that “Restoration and Modification” orders are discretionary. It adds the extra step of involving the city council before the HDC enters an order against a property owner for “Restoration and Repair” and before seeking a court order to hire people to enter onto private property and forcibly start HDC-ordered repairs against the property owner’s will.
This means the HDC must explain to the council why such an order is required, including a detailed description of the restoration and modification work the HDC thinks is necessary, the time period during which the property owner must start and complete the work, a cost estimate for the restoration and modification work, and the basis for the HDC’s claim that the original work required a Certificate of Appropriateness in the first place. And, if the property owner doesn’t comply with an approved order within a reasonable period of time, then the HDC must present its case to the city council before seeking a court order to compel repair for the claimed “Restoration and Modification,” including a proposed plan for entry and repair, a proposed court order that it wants a judge to approve, and a detailed statement of the HDC’s efforts to obtain compliance and the reasons why compliance wasn’t achieved.
At both points, the city council can ask questions and approve, reject, send the HDC’s request back for revision, or take any other appropriate action. Approvals involving an HDC “Restoration and Modification” order, or an HDC request to obtain a court order, require a vote of five council members.
Notes:
The reasons for requiring council approval before an order involving “Restoration and Modification” is entered against a property owner in the historic district are similar to the reasons why the council should be involved in “Demolition by Neglect” orders. HDC commissioners are merely historic preservation hobbyists and aren’t required to have any special credentials to serve on the HDC. City council approval is appropriate because the city council is accountable to Clarkston voters, controls the purse strings, allocates money toward the legal services budget, and has the city attorney present at every council meeting to advise them (as well as the HDC commissioners seeking approval of such an order). The HDC shouldn’t fear council questions for “Restoration and Modification” orders. As with “Demolition by Neglect” orders, it’s better to address any holes in the HDC commissioners’ logic before an order is issued, because a judge will certainly ask questions.
The HDC hasn’t entered any “Restoration and Modification” orders that I’m aware of, though they’ve suggested they might do so in connection with a window replacement that occurred at a home on Miller Road and when they threatened to bulldoze a resident’s fence. I suspect the Miller Road homeowner had the misfortune of hiring a contractor that unbeknownst to her didn’t apply for a permit, since that seems to be the usual reason why a homeowner manages to attract negative attention from the HDC. (Permit requests for work to be done within the historic district are automatically forwarded to the HDC for review, but if a contractor doesn’t request a permit, then no one at the city will be aware the work is being done until after the fact.)
It’s easy to see why a homeowner might want to hire a lawyer in the window replacement cases because the HDC has indicated its preferred way of approaching the problem is to have the homeowner rip out the new windows and replace them with significantly more expensive windows that “look more historic,” which has the effect of making the homeowner to pay twice for windows. As with “Demolition by Neglect” orders, an HDC “Restoration and Modification” order can prompt an expensive lawsuit. City council involvement is appropriate because taxpayers will be forced to foot the bill for the city attorney to defend the HDC’s actions.
As explained in the “Demolition by Neglect” notes above, if the property owner doesn’t appeal but also doesn’t comply with the HDC’s “Restoration and Modification” order, it’s not a simple thing to “get a court order” because the city attorney will need to draft and serve a lawsuit complaint and motion asking for a court order on the property owner at taxpayer expense. Property owners would be foolish not to hire their own lawyers and force the HDC to prove its case in court, which can become extremely expensive for both sides if extensive discovery is involved. Taxpayers will have to pay for the city to hire an expert witness if that type of testimony is needed in the case because HDC commissioners have no particular qualifications that make them court-qualified experts.
The Charter Proposal very rationally requires the HDC involve the city council before the HDC embarks on what could be very extensive (and expensive) proceedings and/or litigation the taxpayers will have to pay for. We think our elected officials should be on board before that happens.
Please note that a “Restoration and Modification” order is unique and entirely different than the standard application process that occurs at the HDC’s regular meetings when the HDC approves, disapproves, or asks for more information about an application before approval or disapproval. The Charter Proposal doesn’t affect that process at all.
Stop Work Orders, Section 16.9(h):
There is no authorization for the HDC to obtain a stop work order for any reason in the LHDA, in the Clarkston Ordinance pertaining to the HDC, or in any other Clarkston ordinance. This section of the Charter Proposal expressly forbids the HDC from obtaining a stop work order, posting a stop work order, or convincing a third party to post a stop work order for HDC-related enforcement.
Notes:
The HDC has improperly and abusively used stop work orders on several occasions that I’m aware of. The example that should be most familiar to Clarkton residents (because it was the subject of multiple Clarkston News stories) was the stop work order issued against the property owners at Waldon and Main. This was former HDC chair Cara Catallo’s attempt to stop the property owners from complying with an earlier order from Clarkston’s ordinance enforcement officer demanding the property owners clean up the lot. Catallo’s misconduct resulted in significant expense for the property owners and Clarkston taxpayers.
If the HDC believes someone has undertaken work that affects the exterior of a resource without receiving a “Certificate of Appropriateness,” then MCL 399.205(12) of the LHDA, Section 152.07(M) of the Clarkston Ordinance, and Section 16.9(g) of the Charter Proposal allows the HDC to secure a “Restoration and Modification” order.
Consultation with City Attorney and City Contractors, Section 16.9(i):
The LHDA and the Clarkston Ordinance do not address this issue.
This section of the Charter Proposal concerns unauthorized and unapproved costs incurred by HDC commissioners. It prohibits the HDC commissioners from consulting with the city attorney; the city’s contract planning firm, building department, engineering firm, or assessor; or any other professional that would cause Clarkston taxpayers to be charged for the consultation unless the HDC has received approval from the city council for the charge. City council authorizations for such professional consultations must include a maximum allowable fee, and all costs must be charged to the HDC’s general appropriation budget.
Notes:
No city official or appointee is authorized to incur unapproved and unbudgeted expenses, and that includes HDC commissioners. Unexpected and unauthorized charges require that money be moved from other parts of the city budget to accommodate the unauthorized expense, leaving less money for things the city council and city manager have deemed necessary at budget time.
Recording with the Register of Deeds, Section 16.9(j):
The LHDA and the Clarkston Ordinance do not address this issue.
The Charter Proposal prohibits the HDC from affecting owners’ property title by recording documents with the register of deeds. This section of the Charter Proposal addresses the HDC’s research into the possibility of adding a deed restriction to all the properties within the historic district – at taxpayer expense.
Notes:
The point of the HDC’s expensive exercise to investigate adding deed restrictions to all properties in the historic district, which would have required paying the legal and filing fees for each property in the district, was to put people on notice that they live in the historic district. There are many less expensive and intrusive ways to do this, including providing material to real estate agents and new residents.
Commission Brochure, Section 16.9(k):
The LHDA and the Clarkston Ordinance do not address this issue.
This section of the Charter Proposal would require removal of the existing brochure from the city’s website because it’s inconsistent with the Charter Proposal. Any new brochure would need to be consistent with the requirements of the Charter Proposal and approved by the city council.
Notes:
The current brochure, titled “Clarkston’s Historic District – What Does This Mean For Me?” was written as expansively as possible. While there is nothing wrong with having an explanatory brochure for residents and potential home buyers in the historic district, the current brochure would need to be modified.
SECTION 16.10 – COMMISSION EXPENDITURES
There is nothing in the LHDA or the Clarkston Ordinance that addresses HDC expenditures.
This section of the Charter Proposal adds two new terms:
“Commission Proceedings” – This includes anticipated, potential and actual proceedings before the State Historic Preservation Review Board, all proceedings at any level in state and federal court, and any other proceeding involving any other tribunal. (Required mediation before enforcement action is taken under Section 16.9(c)(3), Limits on Enforcement Action, is not considered a “Commission Proceeding.”)
“Cost of Commission Proceedings” – this includes the cost of legal advice, legal services, expert or consultant advice, expert services, expert testimony, filing fees, fees for service of process or other papers, fees awarded by a court or the State Historic Preservation Review Board, and any other litigation expenses that arise from “Commission Proceedings.”
This section of the Charter Proposal prohibits the HDC from spending money on administrative, state court, federal court, or other tribunal proceedings without approval. At least five members of the city council must approve all costs for any Commission Proceedings in specific dollar amounts before the city is obligated to pay, or actually pays, any of these described HDC expenses. Should the HDC attempt to commit taxpayer money to unapproved expenses, the city’s treasurer has no obligation to pay the bills.
Notes:
In the past, the city council was an unwitting observer to an HDC that acted without any council authority regarding legal and other expenses incurred as the result of the HDC taking legal action against property owners over things like the direction of front porch spindles or unobtrusive yard fences. This section of the Charter Proposal would require city council approval for these expenses before they are incurred. If the city manager isn’t allowed to spend more than $500 without specific authorization, it follows that the HDC shouldn’t be allowed to commit Clarkston taxpayers to spend thousands and thousands of dollars without asking for approval from the city council first.
SECTION 16.11 – COMPLAINT PROCEDURES; REMOVAL OF COMMISSION MEMBERS
LHDA, MCL 399.204, allows for termination of an HDC commissioner’s appointment “due to acts or omissions of the member.” (An HDC member is the same as an HDC commissioner.) The Clarkston Ordinance makes no mention of removing an HDC commissioner for misconduct.
The Charter Proposal establishes a procedure for property owners to have their complaints against HDC commissioners heard by the city council, for accused HDC commissioners to receive notice of the complaint and a fair opportunity to respond in writing and in a public hearing, and for the city council to remove a commission member for misconduct for violating provisions of the Charter Proposal, if necessary.
The complaint procedure allows a person to file a written complaint with the city clerk setting out the facts of his or her complaint against an HDC commissioner. The clerk must send a copy of the written complaint to the city council members and to the HDC commissioner about whom the complaint is made. The HDC commissioner has seven days to file a response to the complaint with the clerk, and a copy of the response must be sent to the city council members. The city council must schedule a public hearing within 14 days after the commissioner’s response is filed or within 14 days after the response time expires if the commissioner chooses not to file a response to the complaint. The council must follow its usual procedures for holding public hearings. At the end of the public hearing (or no later than seven days), the city council must take any appropriate action on the complaint, which could include initiating proceedings under the city charter to remove the HDC commissioner from office for misconduct, suspending the HDC commissioner for a specific period of time, disqualifying the HDC commissioner from participating in a specific commission matter, or directing the member or commission to take a specific action or refrain from taking a specific action in connection with the complaint. “Appropriate action” can also include dismissing the complaint as unmeritorious.
There is a separate proceeding for removing an HDC commissioner for misconduct in office for violating the provisions of the Charter Proposal. Section 4.21 of the city’s charter establishes the procedure for removal for misconduct in office (see page 11). An HDC commissioner who receives notice of removal proceedings is suspended from exercising authority as a commission member pending the decision of the city council on the removal. This section of the Charter Proposal doesn’t prevent discipline or removal of an HDC commissioner for violating any other provision of the charter or Michigan law.
Notes:
Many city council members have been dismissive of HDC abuse complaints from property owners, even when the property owner takes the time to come to a council meeting to talk about the abuse. One resident complained that a former HDC chair, accompanied by a former planning commission chair, former mayor, and the current city manager, came to his home and threatened to bulldoze his newly installed pool fence, even though he had obtained all necessary permits for the work. Not only did the resident’s complaints fall on deaf ears, the HDC chair who’d threatened the resident was reappointed shortly after that. A more recent example of council dismissiveness was council member Ted Quisenberry’s claim that any complaints relayed by a fellow council member about her discussions with residents about HDC abuse were simply “hearsay” to be ignored.
This provision would allow a property owner in the historic district to receive a fair hearing on a complaint against an HDC commissioner. And, hopefully, the possibility of removal for misconduct is enough for current and future HDC commissioners to avoid mistreating residents.
SECTION 16.12 – PRECEDENCE OF THIS CHAPTER AND CITY CHARTER
There is no reference to this section in the LHDA or the Clarkston Ordinance (nor should there be). This section of the Charter Proposal simply instructs a court that if there is a conflict between the Charter Proposal and the Clarkston Ordinance, or other existing provisions of the Clarkston charter, then then the language of the Charter Proposal should prevail.
Notes:
This is standard language, but the “Charming” group and their supporters have given it a bizarre reading to suggest that the Charter Proposal entirely replaces the Clarkston Ordinance even though the language that anyone can read for themselves limits it to only rare cases where there is a conflict between the Clarkston Ordinance and the Charter Proposal. I’ve gone through every section of the Charter Proposal so you can see what the different provisions of the LHDA and the Clarkston Ordinance require, and it’s obvious that this is another false claim. The only time this issue would come up is if there were a lawsuit that involved an interpretation of the Charter Proposal’s language, something that is highly unlikely.
SECTION 16.13 – SEVERABILITY
There is no reference to this section in the LHDA or the Clarkston Ordinance (nor should there be). This section of the Charter Proposal simply instructs a court that if that court decides some part of the Charter Proposal is legally invalid, then only that part of the Charter Proposal language would be struck from the charter, and the rest of the Charter Proposal language would remain in full force and effect.
Notes:
This is also standard language. The only time the issue of severability (striking some language and leaving the rest) would come up is if someone filed a lawsuit against the city challenging all or part of the Charter Proposal language. This is highly unlikely, but if it did occur, my husband (who drafted the language) has offered to support the city’s defense at no charge.
Final Notes:
Critics of the Charter Proposal claim the Charter Proposal language affects appeals from decisions and orders of the HDC, even though the Charter Proposal doesn’t contain the word “appeal” and doesn’t affect appeals. LHDA, MCL 399.211 and MCL 399.205(2), and Clarkston Ordinance 152.07(B) and 152.13, govern appeals to the State Historic Preservation Review Board and/or the circuit court. The Charter Proposal doesn’t change that.
Do you prefer to see things in chart form? Then click here.
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.)