Category: Freedom of Information Act (FOIA) Lawsuit

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It Appears the City Will (Finally) Be Leaving the Millpond Inn Alone (Records from FOIA Lawsuit Included)

Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.

Justice Louis D. Brandeis, Other People’s Money (And How The Bankers Use It), Frederic A. Stokes Company, March 1914. 

 

Apparently, the city has given up its persecution of the Millpond Inn Bed & Breakfast, at least for now. (Or everyone except for the mayor has.) Unfortunately, it t

 

ook this website and a FOIA lawsuit to get to that point.

When we last left our heroes – remember that from Saturday cartoons? – a number of things had happened:

    • Beginning in June 2021, the Millpond Inn became the subject of several discussions at city council meetings. The Planning Commission chair told the council that bed and breakfast operators must live on the premises and create a breakfast for their patrons. Later, he said the Millpond Inn’s operations were “a little bit of an issue,” and the city manager agreed. A former mayor and then-current city council member spent time walking and driving by the Millpond Inn to “casually” look for activity at the Millpond Inn. A now-current city council member (while sitting in the audience at a city council meeting) claimed she was able to rent the entire Millpond Inn for her wedding, implying that no one lived there when the Inn was in use.

    • On November 10, 2021, the city issued a violation notice (this predated the violation notice they issued last October). Apparently, some “concerned 3rd party” alleged the owners were working without a permit. FYI, the “concerned 3rd party” nonsense phrase is how the city masks the genesis of complaints it supposedly receives, since this phrase is broad enough for any city official wanting to harass a resident or business owner to hide behind. You’ll be totally shocked to know that the Millpond Inn’s managing partner reported at a city council meeting that the building inspector found no violations during an on-site inspection relating to this purported violation notice , a claim the city has never disputed.

    • A neighbor made a number of complaints at a city council meeting, specifically, that no one lives at the Millpond Inn; it’s an “Airbnb”; someone knocked on her door from the Inn and asked for salt; and on another occasion, someone knocked on her door and she didn’t answer! 😱 City officials used the neighbor’s complaint as a catalyst to seriously pursue the Millpond Inn. On more than one occasion, mayor Haven asked in emails to be informed of the status of the investigation, and he wanted the neighbor to be advised as well. A reference to the neighbors’ complaint even made it into the October 24, 2022, city manager’s report.

    • In response to a very nice, published photo of what appeared to be the Millpond Inn’s managing partner standing on the porch of the Millpond Inn, Haven emailed the city manager in January 2022 to ask for the Millpond Inn’s status, reminding the city manager the Millpond Inn would revert back to a residential home after six months of bed and breakfast inactivity. Following the neighbor’s salt and Airbnb complaint in October 2022, Haven said the Millpond Inn would convert to residential zoning after six months due to owner non-occupancy, and if that is the case, he asked for the city attorney’s help “to take action to close this business down and return the property to residential status.” Haven asked for a status report on the Millpond Inn on November 9, 2022, and also on November 21, 2022.

    • The former city clerk took it upon herself to do her own “investigation.” This included searching for business information on the Millpond Inn and its owners; checking the permit and inspection history; interrogating a former Millpond Inn guest about whether anyone lived at the Inn and whether breakfast was served – after the woman called with great things to say about the Millpond Inn and simply wanted to know how to formally compliment a city employee who’d been nice to her during her stay; looking up the Millpond Inn’s innkeeper’s voter registration; advising that the innkeeper had voted at city hall on election day (something the former clerk claimed was the innkeeper’s attempt to document that he lived at the Millpond Inn); and she noted that the innkeeper was “very nervous” when she grilled him about his residency status when he came in to vote.
    • On multiple occasions, city officials alleged there is some sort of an “agreement” between the city and the Millpond Inn. The city attorney told the public there were regulations that applied to the Inn. At the October 24, 2022, city council meeting, the city manager claimed someone is supposed to be living at the Millpond Inn (while admitting he knew someone lived there “on and off”); said the city needs to look at them further, no question, because of the previous little issue the city had with them (because two trips to the court of appeals is a “little issue,” apparently); and the city needed to proceed cautiously. The city manager also claimed the breakfast had to be warm when served to patrons.
    • On November 16, 2022, with city officials unsatisfied with the Millpond Inn’s response to the October 26, 2022, violation notice, the city attorney suggested the city should issue a civil infraction citation to the Millpond Inn.

    • On January 9, 2023, the Millpond Inn’s managing partner and innkeeper came to a city council meeting to discuss the Inn’s operations, what the Inn did following the neighbor’s complaint (that they learned about from the city council meeting because no one bothered to talk to them directly), and to comment on the harassment the Inn had been receiving. The city attorney advised the city council not to engage with the Millpond Inn representatives in a public forum, and the city council agreed.

I ripped the city’s October 28, 2022, violation notice apart here. In sum:

    • The 1995 and 1997 court of appeals opinions involving a proposed change from a funeral home to what is now the Millpond Inn were not agreements in any way, shape, or form. Both opinions ordered the Clarkston Zoning Board of Appeals to objectively consider the Millpond Inn owner’s request to change the use from a funeral home to a bed and breakfast using the city’s own standards in its zoning ordinance. The city has claimed on multiple occasions that these decisions constitute an “agreement” or a “court-ordered variance.” They do not.
    • Advertising on the Airbnb platform is not an ordinance violation. The city doesn’t get to control a business’s commercial advertising.
    • The city attached an ordinance to its violation notice that applied to bed and breakfast facilities operating in a commercial zoning district, not to the Millpond Inn, which is a pre-existing nonconforming use operating in a residential zoning district since its existence predated the city’s original zoning ordinance.
    • The city also attached a section of the zoning ordinance that defines a bed and breakfast to the notice of violation. Among other things, this definition requires that a breakfast be served, but there is no requirement that it be hot (the city was undoubtedly aware the Millpond Inn serves a continental breakfast); limits the bed and breakfast to one kitchen; limits employees to those living in the house (plus one more); and requires that the innkeeper stay on the premises (but only when guests are present). Of these requirements, only the duplicate kitchen may have been a problem, but the pandemic was a mitigating factor that would cut against the city attacking the owners on that basis.

I sent a FOIA request for information about the city’s relentless pursuit of the Millpond Inn, and I published and discussed the partial information I received here. Thereafter, the city refused to provide any additional records for my FOIA request despite repeated follow-ups. After the city stopped responding entirely – apparently based on some very stupid advice from the city attorney – I filed a lawsuit. In its answer to my complaint, the city admitted it had violated the FOIA and had no legal defense for its actions. The city recently paid my attorney’s fees and costs.

Here is the additional information that it took a FOIA lawsuit to receive. I think it’s important to share, since prying this information out of the city’s hands cost taxpayers $8,974.25 in fees and costs, something I think should have been paid by the city attorney directly or through a claim to his malpractice insurer:

    • May 7, 1997, fax cover sheet from the city attorney to the city manager enclosing the 1997 court of appeals decision and a cover letter from the Michigan Court of Appeals.

    • June 25, 1998, Planning Commission and City Council joint meeting minutes regarding proposed changes to the zoning ordinance.
    • August 3, 1998, Planning Commission agenda and minutes. Proposed changes to the zoning ordinance discussed.
    • September 29, 1998, Planning Commission public hearing minutes on proposed changes to the zoning ordinance.
    • October 5, 1998, Planning Commission agenda and minutes on proposed changes to the zoning ordinance.
    • March 22, 1999, City Council meeting minutes. This was the second reading and adoption of the city’s proposed zoning ordinance.
    • October 5, 2011, project description from the previous Millpond Inn owner regarding removing a rail in front of the Millpond Inn. (It’s hard to take the city seriously, given the misspellings on the first page – To: All Recipiants of Histrorical District Commissioin Approvals (Certificate of Appropriateness.”)
    • January 10, 2019, “To Whom It May Concern” letter from the city manager regarding 155 North Main (the Millpond Inn) alleging that the use of the property as a bed and breakfast was “approved” by the Michigan Court of Appeals, and as long as the use remains the same and is not expanded beyond what the court of appeals “approved,” the use can continue.
    • August 25, 2020 – Email string between Susan Weaver and Craig Strong (from the city’s contracted code enforcement service) regarding the sale of the Millpond Inn to the new owners and concluding that the inn is treated as a single-family unit under Michigan’s construction code.
    • November 7, 2022, response to the city’s notice of violation from the Millpond Inn.

    • November 16, 2022, email from the city manager asking which aspects of the ordinance should be cited in the planned civil infraction notice.

    • June 14, 2023, email from the city manager to the mayor and city attorney regarding the city manager’s “investigation.” (Much more on this later.)
    • June 14, 2023, email from the mayor thanking the city manager for getting the “malingering” questions answered and wanting an update on the “rest of the troubled properties.” He asked if there is any requirement for an annual inspection in the “court order” for the property to be maintained as a bed and breakfast.

As an initial aside, I was surprised to see how detailed the city’s published minutes used to be. Back in the good old days, the city actually tried to capture what happened at the meeting to more fully inform the public and make its records historically useful. This is a far cry from what’s going on now, where the city publishes the bare legal minimum and uses the cost to publish minutes as the excuse. The city could meet its newspaper publication requirements with skeleton minutes and keep an official set of detailed minutes so people could learn what happens at public meetings. (It’s the city’s insistence on publishing minimal minutes that caused me to start the Clarkston Sunshine website.)

Now, for some more detailed comments after looking at all the records.

There is no “agreement” between the city and the previous owners of the Millpond Inn, and no “court-ordered variance,” and there never was. City officials’ continued claim that either of the two court of appeals opinions constitute some sort of agreement between the city and the Millpond Inn, that there was some kind of “court-ordered variance,” or that the judges sitting on the two court of appeals panels established criteria for operation of the Millpond Inn is a crock of you-know-what.

What happened was Clarkston officials were trying to screw with the previous Millpond Inn owners (déjà vu all over again?) because the city doesn’t want a bed and breakfast in a residential area. The Zoning Board of Appeals (ZBA) used subjective criteria to try to deny this use, and the city was sued because of it – twice. Both panels of the court of appeals told city officials they needed to act like grownups and apply the objective standards in the zoning ordinance and the law, something the city clearly hadn’t wanted to do before that point.

Both panels of the court of appeals sent the question back to the Zoning Board of Appeals, which apparently did nothing, and the city allowed the Millpond Inn to be established through nonaction. Anyone with half a brain can read the 1995 and 1997 court of appeals decisions for themselves and know what I’ve just said is true. One wonders why the city attorney hasn’t made a public correction about the claim that there is some sort of governing “agreement” or “court-ordered variance” pertaining to the Millpond Inn because one assumes he knows how to read a court opinion, especially since he was the city’s attorney in both cases.

The information the city provided regarding the changes to the zoning ordinance in response to my FOIA request have zero application to the Millpond Inn, and the city manager admitted this in his February 4, 2019, “To Whom It May Concern” letter. Specifically, he said “[f]urther, as long as the use remains the same and is not expanded from what the Michigan Court of Appeals approved, the City’s subsequent Bed and Breakfast Ordinance shall not apply. If, however, there is an expansion of the use, then the Bed & Breakfast regulation and the zoning ordinance would take effect.” (Italics are mine.)

Since the court of appeals didn’t approve any use, and the ZBA apparently didn’t do squat after the 1997 court of appeals opinion, there are no standards on which the city can claim there was an expansion. If there was an expansion of the use, the city could sue and force the Millpond Inn to revert to family residential. The February 4, 2019, letter is important because it is an admission by the city that the zoning ordinance doesn’t apply to the Millpond Inn. Yet, despite that obvious fact, the city’s code enforcement officer attached the definition of a bed and breakfast and the requirements of a bed and breakfast in the commercial district to her “violation notice” issued over three and a half years later. Both the city attorney and city manager approved this notice before it was issued (and they made changes to it before issuing it). Un-flipping-believable. Or maybe not – this is Clarkston government after all.

Since there was no basis for the violation to be issued, there was no basis for the city attorney’s November 16, 2022, suggestion that “a civil infraction violation should be issued for violating city ordinances” (though no civil infraction citation was ultimately issued). Wise choice, because I doubt that involving the courts in this baseless persecution would have ended well for the city.

There is so much to unpack in the city manager’s June 14, 2023, email to the mayor and city attorney that I’m going to take it piecemeal. Before I do that, I’m going to cut and paste the text of the city’s October 28, 2022, “notice of violation” to the Millpond Inn. These people were not playing games – they were threatening the Millpond Inn’s very existence:

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

(Bolding is mine.)

Now let’s look at the city manager’s June 14, 2023, email to the mayor and city attorney, written almost eight months later:

As you know, I was previously asked to investigate a complaint that the Millpond Inn Bed & Breakfast at 155 N. Main Street was instead being operated as an Airbnb, which would be a violation of the original Millpond Inn agreement.

The ”complaint” that the city manager is referring to was from the neighbor, who told the city council, among other things, that someone asked her for salt and the Millpond Inn was an “Airbnb.”

There is no such thing as an “Airbnb.” Airbnb is an internet platform for classified advertisements. It’s frequently used by people renting out their homes, or rooms within their homes, for short-term rental, but you can find lots of bed and breakfast establishments advertising on Airbnb.

There is also no “original Millpond Inn agreement.”

With the assistance of Code Enforcement Officer Stacy Kingsbury, we have concluded that the Inn is being properly operated as a Bed and Breakfast and no further action is justified.

Apparently, the city manager and code enforcement officer concluded there are no ordinance violations following their “investigation.” So why didn’t the city “investigate” before the code enforcement officer issued a notice of violation with the city manager’s and city attorney’s approval? Sounds like an abuse of process, doesn’t it? The only thing that changed was that the city was publicly called out for a baseless prosecution on this website – because the city’s initial action wasn’t “justified” either.

The key distinctions that a B&B has over an Airbnb are (1) an onsite manager and (2) breakfast served to the guests every morning.

Again, there no such thing as an “Airbnb.” I think the term everyone is searching for is “short-term rental.” Precision is important, especially if you are using the machinery of government to try to crush a local business and drive it out of existence. You’ll recall the mayor’s email correspondence within which he appeared to be hellbent on forcing the Millpond Inn to revert to residential status. He inquired about it on January 21, 2022, and he insisted that the city attorney help the city pursue this goal on October 10, 2022, when he stated that, if this was an ongoing violation beyond six months, the city needs “to take action to close down this business and return the property to residential status.”

After a recent tour of their entire facility, we have confirmed that both conditions are being met: Operations Manager Jack has a dedicated room and stays on-site whenever guests are present and a continental breakfast is served every morning. I was told by a previous City Manager that the Inn must serve a hot breakfast every morning, but I have searched the City Ordinance and all related approval documents and have been unable to confirm this requirement.

This is an admission that the city attacked the Millpond Inn first and asked questions later. Someone who used to work for the city imagined there was a “hot breakfast” requirement, and the city ran with this notion without any verification.

There are no “approval documents.” The city attorney assured my attorney that the city manager was using imprecise terms in his email and all the documents were provided to us relating to my FOIA lawsuit. In fact, the city formally certified there was no such document as a “court-ordered variance,” a term city officials used in city council meetings.

The definition section of the zoning ordinance – that the city manager admitted doesn’t apply to the Millpond Inn guests in his February 4, 2019, “To Whom It May Concern” letter – requires the innkeeper stay on the premises whenever there are guests. Before interrogating the innkeeper when he voted in the November 2022 election, the city clerk confirmed the innkeeper listed the Millpond Inn as his address on his voter registration. At the October 24, 2022, city council meeting, the city manager admitted he was aware that someone stayed there off and on, his city manager’s report to the city council advised he was “researching” the complaining neighbor’s concern, and the previous city clerk said she knew the code enforcement officer was “working on it.” All of this took place before the violation notice was issued. But I guess city officials got tired of all their “investigating” and just went ahead and issued a freaking notice of violation on October 28, 2022, accusing the Millpond Inn of violating an ordinance that doesn’t even apply to it, all with the code enforcement officer’s, city manager’s, and city attorney’s blessing. Who needs facts when you can harass?

After the notice of violation was issued, our former city clerk interrogated a Millpond Inn guest and confirmed that the host left out “pastries and snacks” for the guests. Gosh, this sounds like the continental breakfast that the Millpond Inn tells the world it serves to guests in its Airbnb advertisement, something the code enforcement officer supposedly reviewed before issuing the notice. The Millpond Inn’s response to the city’s B.S. violation notice advised they would make it clearer that the Millpond Inn is a bed and breakfast within the advertisements, but there was no reference to changing the wording regarding the continental breakfast they’d been serving (and the phrase “continental breakfast” wasn’t mentioned in the violation notice).

Compounding the jackassery, the city council – at the city attorney’s urging – declined to engage with the Millpond Inn’s managing partner and innkeeper when they came to the January 9, 2023, city council meeting. Why not? Because the city attorney said this was something “under active pursuit and investigation by the city.” It sure sounds like the goal was to not actually get information, doesn’t it?

I met with owner Carl Saasz [sic] and manager Annie Novotney, who have committed to me that they have been and will continue to operate the Inn under the B&B guidelines and ordinances. They acknowledged that they advertise on Airbnb in order to reach prospective customers, but maintain they are operating only as a B&B. The facility has been beautifully updated throughout the inside and freshly landscaped on the outside. Additionally, they have done their best to establish a positive rapport with each of their direct neighbors, even assisting them with failing fences and fallen trees.

Awesome! Maybe city officials should have reached out before they issued an ordinance violation notice? And, if city officials wanted to talk to Mr. Szasz, they could have done so at the January 9, 2023, city council meeting rather than waiting for six months to do it. And where exactly are the “B&B guidelines and ordinances” to be found? Inquiring minds want to know, since there are none in the court of appeals opinions, there is no “court-ordered variance,” and the city manager admitted the zoning ordinance doesn’t apply to the Millpond Inn in his February 4, 2019 “To Whom It May Concern” letter.

Regarding the speculation that they illegally installed kitchenettes in every room, this is absolutely untrue. There are only two kitchens in the house, the main kitchen and the rear apartment kitchen where Buck & Joan Kopietz lived. Craig Strong from Carlisle Wortman has reiterated to me that there were no building violations visible when he toured the facility last year.

Who alleged that the Millpond Inn “illegally installed kitchenettes” in every room? If the city manager is referring to my blog post, I linked to the Airbnb website entries that include photos provided by the Millpond Inn of kitchenettes and kitchens in their guest rooms. I highlighted the full kitchens because the ordinance sections the city manager, city attorney, and code enforcement officer claimed were applicable to the Millpond Inn (by attaching them to their notice of violation and stating “the zoning ordinance sections stated above for the violation of this property will be attached to this letter for your review”) state “a bed and breakfast establishment shall have only one set of kitchen facilities.”

I suggest the Millpond Inn owners download a copy of the city manager’s June 14, 2023, email and stick in a file, because it is an admission the city is going to ignore the two full kitchens in the Clark and Parsonage suites shown on the Airbnb advertising website. As they should, since the zoning ordinance sections attached to the notice of violation don’t apply to the Millpond Inn.

And regarding the complaint from ***** at *****, Carl and Annie have told me that they now specifically instruct all guests to not approach or otherwi[se] bother the neighbors. The guests are told how to reach Jack or Annie should they have any questions or other needs.

Huh. Sounds exactly like what Carl Szasz told the city council at the January 9, 2023, meeting.

In summary, it is my opinion that the Millpond Inn is truly operating within the guidelines of the originally approved Bed & Breakfast. Further, I feel the Inn is an asset to our community. It is therefore my recommendation to close this matter and so advise Council in their June 26th meeting.

There are no guidelines. There was no original approval. But now the Millpond Inn is an “asset” to the community. Yay! Glad the city is coming around to what everyone else sees (except the complaining neighbor). The June 14th email was nothing more than a bunch of face-saving nonsense.

Nothing changed between the October 28, 2022, violation notice and the June 14, 2023, city manager email – except that I shined a whole lot of sunlight on the city’s absolutely unsupportable pursuit of the Millpond Inn and the city had to pay attorney’s fees and costs for a FOIA lawsuit that I filed because the city decided to stop responding to my FOIA requests. I hope – but doubt – the city learned something from this, but at least the records I’ve published might help someone else if they are wrongfully pursued by the city.

In his reply to the city manager on June 14, 2023, it’s clear our mayor really wants to continue his vendetta against the Millpond Inn:

This is an excellent report, very detailed and thorough in it’s [sic] discovery.

Everything that was “discovered” by the city manager was already known to the city. Perhaps if the city council hadn’t been so rude to Mr. Szasz and the innkeeper at the January 9, 2023, city council meeting, this issue could have been put to bed a long time ago.

It’s so good to get these malingering questions answered. That’s why we have our code enforcement officer, to help you accomplish closure. I hope in the weeks to come she will be able to inform us of the “acceptable” status of the rest of the troubled properties on her list, at least with an ongoing plan for their timely resolution.

The code enforcement officer was part of the problem. She drafted the original, unsupported, ordinance violation and the city attorney and city manager ran with it.

In the case of the bed-and-breakfast, is there an annual inspection, or anything like that relative to the court order, for that property to be maintained as a bed-and­breakfast?

It sure seems as though our mayor can’t stand the Millpond Inn. Since our first attempt to force the property to return to residential zoning wasn’t successful, let’s see if we can annually harass them and threaten their right to exist!

And for the bazillionth time, there is no “court order” that would allow the city to do this.

Thanks for this excellent work!

Mmm-kay. 😂 No further comment on this.