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 23rd 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 23rd 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 23rd (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 1st. 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 23rd 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 16th 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 16th correspondence advised Speagle and Smith that everything was A-OK with the short-term rental ordinance. At the December 13th 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 23rd, 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 10th 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 23rd and allowed this problem to happen in the first place?
I’m guessing . . . no.
Yes, it is almost impossible to unincorporate a city once it is established. This is based on the requirements of Act 279 of 1909 in the State of Michigan. Even if a majority of the city voters wanted to, a majority of all surrounding Independence Township voters would have to vote to take the Village back. Getting a majority of ALL voters to vote is hard enough, getting them to all agree is all but impossible. Discussing good, bad, and inept government however is still legal and often required.
Short term rentals is an interesting subject as the city ordinances are against rentals in general, especially those for a short period of time. This is odd since the Clarkston area was once home to many short term rentals in the form of inns, motels, and hotels, many in the downtown area. Since the city likes to promote their historical roots, it is very odd that they want to ignore this and effectively ban it from ever existing again.
But you say there was a public hearing and both the Planning Commission and Council decided that this is what is best. Read the minutes for the July 19, 2021 Planning Commission public hearing on the issue of short term rentals. The hearing is over an hour long but not one comment from the public is recorded in the minutes. There were comments. The minutes for a public hearing on December 14, 2021 also have no comments from the public even though comments were made. The city government does not want to hear from the public and will do their best to hide any comment that goes against what 3 or 4 people want.
Back to the issue of short term rentals. Senator Rosemary Bayer is scheduled to speak at the January 10, 2022 city council meeting. Based on the information provided, she is against the short term rental legislation passed by the House and pending in the Senate. She says it takes away local control. Local control in the Village of Clarkston comes down to what 3 or 4, depending on what mood the council is in, want to happen. What the public wants is immaterial. What you can legally do with your home and property is immaterial. Charter provisions, ordinances, even state law are immaterial if it is not what 3 or 4 people want to happen.
Do you know that one of the current “short term” rentals in the city is owned by a prominent local judge? Another is owned by a career Army person and former council member. Another has existed for over 20 years by court order after the city opposed it and lost in the Court of Appeals. The city has been asked about this and not responded. There are no recorded problems with any of these but that doesn’t matter either. That is part of the public record, but none of that matters if a few people don’t want it to happen.
That is the current state of affairs in the City of the Village of Clarkston, a city that routinely ignores the public and charter. They cannot even get their name right as evidenced by the sign on the city garage and the logo on every single city council meeting agenda.
All very good points, and your comments touch upon something that I find very disturbing – that the city flatly refuses to require that every public meeting be recorded. Not everyone can show up in the middle of the day. Not everyone can show up in the evening. But that doesn’t mean that they aren’t entitled to know what their government is doing. I think that people should be able to hear what happens at the Planning Commission, which would include what their neighbors are saying during public comments.
Another prime example involves the Historic District Commission (HDC). Why aren’t the HDC meetings recorded? The HDC has been accused of treating people disrespectfully. The HDC members and the mayor say that’s simply not true. A recording that can be accessed by the public would resolve all doubts.
Another recent example, where recordings served a valuable purpose, was the unlawful closure of a city council meeting in November. The mayor simply announced that the city council was closing the meeting and ordered the public to leave. This happened without taking the required vote to go into closed session, yet the minutes reflected that a vote had been taken. If a vote was actually taken, it occurred in front of an empty room – because the public had already been kicked out. To make things worse, two of the city’s lawyers sat there watching the proceedings, intending to participate in the closed session, and they allowed the violation of the Open Meetings Act to happen right in front of their eyes. If it weren’t for the Independence Television recording, no one would have known what actually happened – because the minutes didn’t reveal any irregularity.
Any city official who really cares about transparency would make it a priority to ensure not only that every public meeting is recorded, but also that all recordings are made available to the public by posting them on the city’s website (with the exception of city council meetings for as long as they are recorded and posted online by Independence Television).
Digital recordings are easy to upload. I’m sure that the various recording secretaries are as capable of pressing “record” as they are of taking skeleton minutes (that are deliberately designed to meet only the barest requirements of the law). Government bodies that have nothing to hide don’t run from transparency. The only conclusion that can be drawn is that our city government doesn’t want the public to know is going on.