The Short-Term Rental Ordinance (Just Another Cluster You-Know-What)

The city is going to (re)consider passing its short-term rental ordinance, which was supposedly adopted last August. The long trail to this end exposes a lot about how the people running our city government do things (or don’t do the things they should do).

I think that there are two primary reasons for the occasional discussions about dissolving the city. The first is the incompetence of our city government. The second is because the city spends our tax dollars like drunken sailors on things such as a $400,000 city hall, an amount that represents approximately half of all of the money in the city’s annual budget and required “borrowing” from taxpayer funds that had been specifically set aside for water and sewer repair – with no vote from the taxpayers regarding whether or not we wanted to be burdened by such a huge expenditure.

I’m sorry to inform the dreamers that there will never be a dissolution because the logistics of accomplishing it are nearly impossible to overcome. When you hear about unidentified people who supposedly want to “destroy” the city by dissolving it, please know that not only is this claim nothing more than the usual election time claptrap, the only reason anyone would say it is to scare you into voting for whomever is trying to convince you that it’s true. Our city officials frequently point to Cory Johnston’s petition from many years ago regarding dissolution as “proof” that what they’re saying is true. Mr. Johnston is a smart man and he never believed that his petition would actually accomplish a dissolution. As he’s repeatedly stated, the purpose of the petition was simply to start a discussion about the huge problems we have in Clarkston government and how to fix them. (Someday, I might write a post on everything that would be involved in a dissolution, not only so you will know that it’s just not going to happen but also so you can see the city officials warning you about it as the lying liars that they are.)

For better or worse, our city is here to stay. So, stop looking enviously at the better-run cities and townships around you as you step over the cracks in the bad sidewalks and pay those super high taxes – your elders have pretty much boxed you into financially supporting a city that can’t even run without a legion of volunteers. Hey, have you noticed that the people who locked us into this mess are the same people who are now selling their homes, leaving everyone else stuck with the bill for all of their bad decisions? While I really can’t blame them for wanting to get out of Dodge, the irony shouldn’t be lost on anyone.

Moving on.

So, what is going on with our city government’s latest competency challenge, otherwise known as the short-term rental ordinance? Let’s begin at the beginning.

From the city manager’s August 19, 2021 weekly email:

August 23^rd Council Meeting

In addition to nominating a replacement for Jason, the City Council will conduct the second (final) reading of proposed ordinances on Short-Term Rentals and Residential Planned Development Districts (RPDD).  Council will also consider proposals to paint the Depot Park gazebo and make improvements to the Depot Park pathways.  This will be an in-person meeting in the City Hall conference room, but connecting virtually to the meeting will be possible for non-councilmembers (link). (The highlighting is mine.)

Just so you know, the last part of the process involved in adopting ordinances in Clarkston is the “second reading.” They don’t literally read the entire ordinance; it’s just a chance to have some final discussion before the council takes a vote regarding whether or not the ordinance should be adopted. If there aren’t enough votes, then we don’t have a new ordinance. If there are, then we do. The charter requires this when it says: “… no ordinance shall be finally passed by the Council at the same meeting at which it is introduced.”

There were only five council members present at the August 23^rd city council meeting – Eric Haven, Ed Bonser, Gary Casey, Joe Luginski, and Sue Wylie. One council member had resigned (Jason Kniesc) and one council member was absent (Al Avery). Bonser couldn’t vote on the short-term rental ordinance because he owned a short-term rental that could have been affected by the vote, creating a conflict requiring his recusal. That left four council members voting on the short-term rental issue.

For reasons that have never been disclosed to the public, we are forced to pay our city attorney to sit through every single city council meeting. Before Haven became mayor, the city attorney came to every other meeting. For each meeting that he attends, the city attorney bills us for prep time, travel time (if he’s not attending virtually), and for however long the meeting lasts (and sometimes, he bills for a fixed number of hours even if he doesn’t spend that much time at the meeting). The city attorney bills in half-hour increments, rather than the tenth of an hour increment that is generally customary in our area. I presume that the city attorney is asked to attend every meeting because he’s supposed to be helping the city avoid litigation by giving sound advice. Unfortunately, that doesn’t always happen.

Earlier in the evening on August 23^rd (when the council was considering Kniesc’s replacement) the city attorney told the council that the city couldn’t be bound if there were less than four votes. Yet, when it came time to vote on the short-term rental ordinance, only Haven, Luginski, and Wylie voted yes (Casey voted no). Based on the city attorney’s earlier, unequivocal, and correct advice about the need for four votes to bind the city, the short-term rental ordinance did not pass because it only received three votes. In spite of that, Haven simply announced that the ordinance had passed – and the city attorney remained silent. The minutes accurately reflected the 3-1 vote as well as Haven’s pronouncement.

The city manager’s August 26, 2021 weekly email also claimed that we had a new short-term rental ordinance:

New City Ordinances

In this week’s Council meeting two new ordinances received final approval.  The first one will prohibit Short-Term Rentals (less than 28 days) in residential districts starting 12 months from the effective date of the new ordinance, estimated to be October 1^st.  The second one creates a Residential Planned Development District for sites larger than one acre, providing some flexibility in the regulation of the land development when Public Benefit features are offered. (The highlighting is mine.)

On November 10, 2021, I questioned the city council’s actions: https://www.clarkstonsecrets.com/despite-what-youve-been-told-we-do-not-have-a-short-term-rental-ordinance-with-bonus-slimy-mayor-tricks/ (you can find links to the background material within the post).

On November 16, 2021, a few days after my post was published, there was an interesting entry on the city attorney’s legal services bill: “Correspondence to Jonathan Smith and Jennifer Speagle re: vote for residential plan development district ordinance and short term rental ordinance votes. Review correspondence from Jennifer re: votes for residential plan development passed and short term rentals.”

Let me guess what the city attorney probably told them.

The advice that the city attorney gave in the earlier part of the August 23^rd city council meeting – that four votes were required to bind the city – comes from Section 4.13 of the Clarkston City Charter, which is the equivalent of our city constitution. The charter states that “[t]he vote of at least four (4) members shall be required for official action by the Council, unless a larger majority is required by statute or this Charter.” It could not be clearer from the text that I bolded – there must be at least four votes for any official council action.

But the city attorney said nothing when only three members voted for the short-term rental ordinance, even though he’d just told them that four votes were required to bind the city. So now what?

I’m going to suggest that it’s probably a safe bet that the city attorney’s November 16^th correspondence to Speagle and Smith relied on Section 6.3(d) of the Charter, which states: “An ordinance is an official Council action by a majority vote of the council members present in the nature of a legislative act establishing a more permanent influence on the City than a resolution and requiring greater formalities in its adoption.”

Ordinances are local laws that have the potential to affect every single Clarkston resident, business owner, and visitor. So, we have one charter section mandating a minimum of four votes for any and all official action (which respects the voters’ choices for the seven city council members and rejects the possibility that decisions could made by only a minority), and another charter section suggesting that only three votes could be allowed to adopt something as significant an ordinance. When voting to adopt the charter, does anyone really believe that any voter would have thought it was more important to require more votes to replace a council member for a few weeks until the November election than to pass a law potentially affecting them forever? Hardly. And the only people who win when there is a lawsuit over a conflict in terms like this are the lawyers.

Wait a minute. Didn’t we just go through a charter review where this kind of language conflict should have been addressed?

Why yes . . . yes, we did. The city council authorized the creation of a “Charter Review Committee” on December 10, 2018. Haven admitted that the reason for this committee was to consider the appropriateness of someone stepping down from an existing office to have to run for another. Let me be more blunt – the reason that Haven thought the charter should be reviewed was because I filed an election complaint exposing Haven’s secret 2018 mayoral campaign, conducted in violation of the charter (something that I wrote about here: https://www.clarkstonsecrets.com/november-2018-election/), and he wanted that little problem “fixed” for the future. Haven also said that some people thought the charter needed other changes because it was somewhat antiquated.

Steve Arkwright, Bill Basinger, Rich Little, David Marsh, Jim Meloche, Scott Meyland, and Jonathan Smith were all members of the Charter Review Committee. (You’ll note that many of these names are also very connected to the “old guard” of Clarkston.) After this group supposedly reviewed the charter with a fine-tooth comb, the only “fixes” they thought needed to be made were to allow secret campaigns (like the one that Haven ran for his first term as mayor), to allow city council members to nominate Zoning Board of Appeals and Board of Review members rather than the mayor only (since council members like to fight about nominations), and to double the time that our independent auditor has to complete our annual audit from 90 days to six months from the end of our fiscal year (because who needs a timely financial audit anyway). They apparently read right over the fact that one charter section forbids anything less than four votes and another charter section suggests that a majority present (which could mean only three) could authorize a freaking ordinance – something that is very important to Clarkston residents because passage of an ordinance can have a negative effect on them.

Priorities. 🙄

Based on what the city manager did next, I think that it’s safe to infer that the city attorney’s November 16^th correspondence advised Speagle and Smith that everything was A-OK with the short-term rental ordinance. At the December 13^th city council meeting, the city manager confidently told the city council that they’d voted to allow short-term rentals in the commercial district but not the residential district; the only thing left to do for the ordinance to be effective is to publish it for two weeks in the paper; and once publication occurs, then all existing short-term rentals will have to stop operating with twelve months.

On December 19th, I wrote a post questioning the city manager’s claim: https://www.clarkstonsecrets.com/why-does-the-city-keep-lying-about-the-short-term-rental-ordinance/ (you can find links to the background material within the post). Out of the blue, three days later (and as further proof that the city reads everything I write), the city manager’s December 22, 2021 weekly email stated the following:

Short Term Rental Properties

After holding a Public Hearing this summer to discuss the pros and cons of Short-Term Rental (STR) properties in the city and document any public comments, the Planning Commission recommended to City Council the passing of a new ordinance that would prohibit STRs in the city’s residential districts.  On August 23^rd, Council voted in favor of the ordinance.

Take that, Clarkston Secrets. We’re right, you’re wrong. Damn the torpedoes, full speed ahead. Lawsuits, schmawsuits, we don’t care about no stinkin’ potential lawsuits. We’d rather spend your tax dollars paying lawyers than fixing your sidewalks anyway.

(Now imagine the sound of a needle scratching a vinyl record – or go here to actually hear it: https://www.youtube.com/watch?v=CPGcpIXeA-4)

For reasons that will undoubtedly never be shared, the city manager sent the following email on January 6, 2022:

January 10^th City Council Meeting

In Monday’s City Council meeting, Council will consider approval of two resolutions pertaining to Short-Term Rentals – one to approve the second reading of an ordinance to prohibit STRs in our residential districts and one to express the City’s overall opposition to Michigan legislative actions to remove the ability for local municipalities in Michigan to regulate STRs (the latter will be forwarded to the Michigan Legislature and the Governor).  Please note that Senator Rosemary Bayer will be calling in to this meeting to discuss her position on STRs.  Lastly, our Clerk will provide an update on the four 2022 elections and a proposal for a Depot Park Winter Fun Day will be discussed.  While this will be an in-person meeting, the public is welcome to connect virtually using this link. (My emphasis is highlighted; the bolding was in the original.)

So, they are apparently finally trying to fix the problem, despite the procedural objections that could be made at this point. Now that wasn’t so hard, was it? I think that’s the responsible course of action, even if they had to have their arms twisted to take it. And by revisiting the vote for a second time, the city is impliedly admitting that there was a problem with the first vote on the short-term rental ordinance.

Does anyone care to make a wager that no one on city council will ever ask why the city attorney sat there like a bump on a log on August 23^rd and allowed this problem to happen in the first place?

I’m guessing . . . no.