Why Does the City Keep Lying About the Short-Term Rental Ordinance?

On August 23, 2021, the city attempted to enact a short-term rental ordinance to eliminate short-term rentals (“Airbnbs”) in residential areas and to allow for regulation in commercial areas of the city. I say that the city “attempted” to enact this ordinance because the ordinance didn’t receive enough council votes to pass at the August 23, 2021 city council meeting. That means that we don’t have a short-term rental ordinance, so it’s bizarre – and irresponsible – for the city manager to claim that we do. Let me explain further why that is.

The City of the Village of Clarkston Charter is the equivalent of the Clarkston constitution. When the residents voted for the charter, they outlined what the city government could do (and not do) through the terms that are contained in the charter. Following the charter is not optional – it’s our local law.

Section 4.13 of the Charter (“Quorum and Vote Required”) requires a minimum of four votes for any action taken by the city council:

“Four (4) members of the Council shall be a quorum for the transaction of business. In the absence of a quorum, any number less than a quorum may adjourn a meeting to a later date. The 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.”

I underlined and bolded the important text. You can look this charter section up for yourself by going to the top of page 9 of the Charter (or the top of page 15 of the PDF file) that I’ve linked to below:

http://www.villageofclarkston.org/DocumentCenter/View/415/ClarkstonCharter

On August 23, 2021, when the vote to pass the short-term rental ordinance occurred, only five council members were present – Eric Haven, Ed Bonser, Gary Casey, Joe Luginski, and Sue Wylie. Bonser had a conflict because he owns a short-term rental, so he wasn’t allowed to vote one way or the other. That meant that all four of the remaining council members had to vote “yes” for the short-term rental ordinance to pass.

That didn’t happen. Only Haven, Luginski, and Wylie voted yes. Casey said that he reluctantly voted no because he thought that the ordinance was too restrictive. Therefore, there were only three “yes” votes, and the motion to pass the short-term rental ordinance failed.  Despite that, Haven announced that the motion to pass the ordinance had been approved.

You can see what transpired for yourself by going to the recording of the August 23, 2021 city council meeting that I’ve linked below. The discussion begins at video time mark 0:45:55, and the vote was taken at video time mark 0:59:58:

http://216.11.46.126/VOD/3538-CLarkstonCity-8-23-2021-v1/vod.mp4

The city’s published minutes correctly state how each council member voted, and they also correctly state that only three council members voted in favor of the short-term rental ordinance. The minutes incorrectly state that the motion passed. You can see the minutes for yourself by going here (Item 10b on page 2):

http://www.villageofclarkston.org/AgendaCenter/ViewFile/Minutes/_08232021-1025

Making things worse, the city attorney, who was being paid with taxpayer dollars to sit through that August 23^rd meeting, had supposedly looked up the minimum voting requirements in the charter in connection with another issue less than an hour before the vote on the short-term rental ordinance. Yet, the city attorney remained silent when Haven claimed that the short-term rental ordinance passed – when it clearly had not.

Despite this, on December 13, 2021, the city manager falsely stated to the city council and the public that:

• • The council voted to only allow short-term rentals in the commercial district but not the residential;
  • The city just needs to post the short-term rental ordinance in the paper for two weeks for it to become effective; and
  • Once the ordinance has been posted in the paper for two weeks, the existing short-term rentals will have to stop operating within twelve months

You can hear the city manager making these false statements by going to time mark 0:59:50 of the video recording for the December 13, 2021 city council meeting, linked here:

http://216.11.46.126/VOD/3632-CityCouncil-12-13-2021-v1/vod.mp4

The only saving grace for the city manager might be that he was relying on more bad legal advice from the city attorney, and the city attorney’s November legal services bills suggest that might be the case. There is a November 16, 2021 entry where the city attorney states: “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.” You can find that billing entry on page 25 of the December 13^th city council packet by going to this link:

http://www.villageofclarkston.org/AgendaCenter/ViewFile/Agenda/_12132021-1043?packet=true

You’ll note that the billing entry doesn’t say that the short-term rental ordinance passed, only that the residential planned development district ordinance (RPDD) had passed. The billing entry description also indicates that the correspondence from the city attorney addressed votes.

The RPDD ordinance was in fact passed on August 23, 2021 because it received a sufficient number of votes. This suggests that the city attorney may have told the city manager and city clerk that the short-term rental ordinance passed with only three votes when that is a legally incorrect conclusion. It’s impossible to know for sure, because the correspondence referenced in the bill would be protected by the attorney/client privilege. However, I assume that the city manager can read the charter as well as you can. He is at the same level as the city attorney in the city government hierarchy. He should be challenging the city attorney when the city attorney is clearly wrong.

So, is the city manager lying again, or is the city attorney trying to cover his own butt for not speaking up at the August 23, 2021 city council meeting? If the city attorney advised the city manager and clerk that the city council validly passed a short-term rental ordinance, that was clearly bad legal advice. And, if that’s the case, I hope that the city attorney has been keeping up with his malpractice insurance premium payments because the city may want to make another claim against him in the event of a lawsuit if the city attempts to enforce its non-existent short-term rental ordinance against anyone.

You may have noticed that the city has hired a code enforcement officer to nitpick the residents into following every jot and tittle of the zoning ordinance. On December 13^th, the city council discussed setting up a rental inspection ordinance to force landlords to punctiliously comply with whatever rules the city tells them they have to follow. The city studiously logs Main Street speeds and whines when someone goes 31 miles per hour in a 30 mile per hour zone. Given all that, one would think that the city would want to set a good example and follow city law, and residents should not be forced to file lawsuits to ensure that it does.

But then again, this is Clarkston, the city where it took five years and a trip to the Michigan Supreme Court to pry public records out of the city’s hands. I truly feel sorry for people who moved here without realizing just how awful our local government is. Clearly, they have no intention of being better.