Ludington City Council March 7, 2016: Developing Discontent

[XLFD]

The first meeting since the Ludington City Council adopted a new, more restrictive, public comment policy saw the city trying to accomplish twenty tasks, possibly a record amount.  The next meeting may have more, so not only does the public have 40% less time to address the council before they do their business, but the business of the council goes up.  Coincidence?  Not with this group.

The two main items had to do with 1) a developer interested in the bowling alley block (BAB) and 2) a public hearing for the contentious West End Project. 

Knocking the Pinheads Down

Seven of the agenda items had to do with the developer:  The first readings of 1) Ordinance 328-16 the Purchase and Sales Agreement for the BAB, 2) Payment in Lieu of Taxes (PILOT) for BAB Ludington Ave. portion and 3) PILOT for BAB Loomis St. (fire station) portion.  They also approved Municipal Services Agreements for both PILOTs and a development agreement for the project.  Lastly they adopted a 'resolution of concurrence for the Brownfield work plan dealing with the BAB.

Bob Jacobson, the main developer agent was at the meeting and spoke at 42:30 into the meeting.  We learn the project is to increase 'density' in the downtown and the availability of retail space.  He states he was sought by Pennies from Heaven chairman John Wilson looking for affordable housing.  The Loomis Building would accommodate older residents, the Ludington Avenue side would be available to affordable family housing.  He also went over a packet that was handed out only to the council showing some details. 

Councilor Winczewski (aka Moonbeam) asked about whether there would be any green spaces.  Councilor Krauch asked about the amount of bedrooms in each unit.  In the ten minutes they spoke of these things they failed to touch on what the various impacts it would have on the rest of the city that wouldn't be positive, or the prior work record of Mr. Jacobson.  Fortunately, one of the public commenters was able to get in three minutes on it earlier at 11:00 into the meeting:

March 7, 2016 Ludington City Council from Mason County District Library on Vimeo.

 

"Tonight you will consider a number of resolutions and first presentations of ordinances concerning the bowling alley block in preparation of that block's development by a company run by the Jacobson family, LC Development, LLC.  In three minutes, one cannot fully cover their genesis of companies over the years and the construction they have done, or not done, in the past, so tonight I will focus on only one from Ann Arbor, back before they created several other limited liability companies and were known as HDC LLC. 

Fearful of losing 100 units of affordable housing in 2003 the City of Ann Arbor purchased the old YMCA Building, and chose in 2005 the Jacobson family's company HDC LLC to develop the property.  In November the Jacobson's trotted out big plans to construct two towers 13 and 14 stories high, and the City relocated the displaced tenants at a tremendous cost to them and the city's taxpayers over the next two years.   In February of 2006, the city approved the site plan and development agreement. 

Over the next two years, Jacobson's company missed several deadlines, and allegedly reneged on several promises they made to the city.  By October 2007, council members of Ann Arbor, said various things about the lackluster efforts by the Jacobson company:  One said:  "At some point, we have to think about cutting bait."  Another couple of them said they were tired of delays, and yet another said both parties are "holding guns to each other's heads".

It's hard to imagine why the developers were moving so slowly; for this nearly$100 million project they had secured $32.5 million from the city, about $18 million from the state coffers and dedications of tax captures for over $3 million, so why did the Jacobson company not meet the deadlines they agreed to in order to preserve this project?  The frustrated council cut them after they missed more deadlines.  The city was left saddled with a host of costs after this bad romance with our prospective developers including well over a million dollars in housing the displaced victims of the Jacobson's.

But that's not the end of the story; the Jacobson's took the city to federal court asking for $30 million in damages in a totally frivolous lawsuit.  They claimed:  The City’s intentional delay, arbitrary refusals, and other machinations leading to the termination of the Final Option Agreement were motivated by (a) the City’s desire to destroy the affordable housing project in downtown Ann
Arbor in order to prevent recovering alcoholics/drug addicts and the mentally handicapped from residing at that location, (b) the City’s desire to reallocate the Tax Credits to a different project/developer, and (c) the City’s desire to sell the Property to another person or entity for an amount greater than that reflected in the Development Agreement."

None of these claims were deemed close to being valid by the court in its judgment.  [The speaker was cut off here, it would have continued] Yet the Jacobson's pursued the issue in federal appeals court in 2012, losing resoundingly once again on all counts.  The cost of this project that never happened cost the City of Ann Arbor an amount exceeding the City of Ludington's annual budget.  You now want to bring these incompetent and litigation-happy developers to downtown Ludington to soak up local and state dollars.  That is a mistake."

West End Project Panned Once Again

Dianne Neil Engblade (2:30 in) led off the public commenters against the West End Project.  See made a very personal and effective appeal about her history with that area and her resistance to having it changed into a meticulously landscaped place like other cities have done.  She also evoked memories of Mt. Baldy, the big sand dune that was taken down by Sargent Sands just past the First Curve.

Jim Evans offered his own ideas of progress to this area which differed from the city's blueprints.  He would like to make a new "dummy train" (which used to ride out to Epworth) running the length of Ludington Avenue and a sail sculpture at the end of Ludington Avenue.  These two ideas were dismissed later by Councilor Castonia and John Shay, as they pushed their modifications as being superior.

Deb Del Zoppo offered her own plea to not change what is there, and wondered why the city doesn't devote the money saved in not doing it to make the sidewalks better.  She was followed by Jan Fallis, who gave an inspired comment dealing with putting so much public money into this while there is so much public debt.  She also pled for better infrastructure and noted that this sand dune is the only one close to the city, and altering it would be bad.

The city was scheduled not to do anything concerning the project at this meeting, just have a hearing, but the only one who actually spoke during the public hearing was yours truly at 15:30 in:

"First off, I would remind this city council that all of the city's polling places will be open tomorrow for presidential primaries and some local millage issues.  Our city charter, section 14.3, says that "The Council shall not  divert to other public use any public park grounds without first securing the approval of a majority of the electors of the City voting thereon in any election."  

The proposed modifications indicate that this phase of the west end project will divert the use of the area from parking and it's natural setting to nuisance landscaping and commerce.  As such, our city management team is mandated into putting this on a ballot to make it a legitimate action on part of the city.  Has it ever done this in the ten years that they've had the basic template.  No.

One has to believe that the state DNR would look kindly on this application if the citizens voted roundly to approve what is being proposed, perhaps overlooking the multitude of people that have come before you to plead with you not to do this in the past and the present.  So why, if the charter mandates this popular vote and the application would be so enhanced by the citizens' approval does this never reach the ballot in the ten years it has been drawn up?

Because you know it would lose miserably under close scrutiny by the public.  The people do not want this.  The people who want this are members of the city that will get plenty of administrative fees and the contractors who will be hired without competitive bidding being employed, if the city management stays true to its history with cronyism. 

The history of this is important.  After being received tepidly in 2007 by a small contingent of the public, the West End project application was first submitted to the DNR in 2012 for consideration.  Like every year since, they have held the two public hearings in February and/or March.  There was little explained to the public about this project that I could find, the only thing released to the newspaper was after the public hearings of 2012, so I sent a FOIA request to the city to inspect the application. 

To inspect a copy of this application, John Shay wanted $63.25, an amount I still haven't been able to figure out.  I then sent a FOIA to the DNR for the same application and they gave me that info in electronic files for free.  In looking over the application, I saw very clearly why John Shay did not want to make this application public.  He had lied repeatedly on it over substantive issues, much like he had lied on a sworn court affidavit over substantive issues in that same year in my first FOIA lawsuit with the city that the public eventually prevailed in.

He said Stearn's Park currently had handicap accessible bathrooms, they did not at that time.  He stated there were dedicated bike paths between Stearn's Park and Ludington State Park, there is not.  [At this point my prepared five minute speech was interrupted.  You will note that at the beginning of my speech I balked at the mayor restricting my hearing comment to three minutes, this was contrary to Ludington policy.  Here's the rest of my speech]  He stated the project would connect to the existing walkway loop, and it did not and would not.  I informed you at the last meeting that John Shay lied about the lead levels in our tested water to TV 9 &10 News.  Are you seeing a pattern yet?  The public surely is.

Furthermore, he amended without approval of this council, the proposal he sent that year to the state, upping the city's commitment to the trail project from $62,000 to $180,000.  Effectively $118,000 in city commitments were added without council approval, at least in a meeting open to the public.  So either this council unlawfully gave approval outside of an open meeting or he did so without proper authorization.

So, it is not surprising that this year in his memo to this council he is playing loose with the truth once again, a topic I will cover in more detail at the next hearing.  Until then, you will notice the application is not provided to you, nor has the information been available to the public.  You are provided a map made a dozen years ago that has none of the landscaping or water trail amendments detailed.  Fix our water and sewer systems, don't fix what isn't broken."

After my speech, City Manager John Shay went over some things dealing with the application.  As one should suspect, some of it was true but most of it was misleading or false.  He asserted there would be nothing nearly as tall as he is to block the view of the water, but the small portion of the application he has shown details the purchase of a canoe/kayak stand to be placed at the end of the avenue.  His statement is a lie, because that stand, signs, and undoubtedly the tents and pavilions they have already declared they will be putting up regularly will block the end of the avenue as noted in Tracking the Proposed Ludington Water Trails

The Rest of the Meeting

With all this going on, the rest of the meeting slipped by unnoticed, which is unfortunate, because there are some odd things (as you may review in the council packet) that passed mostly unnoticed amongst the tumult of the main topics. 

Three sunset bonfires on the beach were passed.  These are three times when the city bypasses their own beach rules to create a bonfire made out of questionable pallet wood in a burning barrel.  They then have a live musical performer blare out some tunes, also against park rules against amplified music.  Word is they are going to use some of the leftover timber of the old Castonia Chateau that didn't ignite when the rest of the house caught fire.

They approved budget amendments without Councilor Holman decrying all the money they lose in hiring a lawyer to be their FOIA Coordinator, or the citizens who want more information from a secretive city.  They approved the contracted city assessor maintaining his duties and the hiring of a contracted building inspector and clerical help for them. 

They approved the bids for stump removal and alley paving.  They offered four other first presentations: 

1)  a potentially controversial 'conditional zoning' stipulation where the Planning Commission and others can now discretionarily go around zoning laws (then why have zoning laws one may ask).

2)  a mild amendment to the sidewalk ordinance, much less controversial than the one from last summer that would put extra charges to buyers of properties that had no sidewalks.

3)  an amended engineering agreement for water & sewer projects 

4)  a legal services agreement entered into with our city attorney lawfirm dealing with the same projects.  I hope to get more on this in the future.

The End of Meeting Comments

The first batch of folks to get up at the end of the meeting were the same people who got up earlier.  Three who did (Fallis, Del Zoppo and Evans) reacted to the council's and Shay's comments about the West End.  But then the other person who had gotten up twice before got up once again and offered an extra agenda item.

"Those were great questions you had for the developer (*sarcasm*).

First off, the new public comment rules limiting the topics of what is discussed at this meeting is unconstitutional on its face and goes against the Michigan attorney general's opinion on the topic made by Frank Kelley in the 1970s and undisputed since:  "The [Michigan Open Meetings Act] does not contain a provision regulating the subject matter which may be covered by the speaker, a logical assumption may be made that the subject must relate to business that is within the public body's jurisdiction."  Concluding:  "It is, therefore, my opinion that a [public body] may not limit the subject and issues that certain persons may cover in the course of addressing the meeting". 

I am consulting with legal scholars to look at possibilities for remedying the situation foisted upon the Ludington public that interferes with their free speech in addressing local concerns.  In the meantime, my challenge to this public body made in part before I was interrupted at the last meeting, made in full on my website ten days ago was to reverse a previous FOIA administrative appeal I made in October. 

This body has chose not to reverse their coordinator's arbitrary and capricious decision, and so there is no other choice than to take it to court to have that choice overturned, and seek full punitive damages.   As you officials make your bed, so you must lie in it.  Or as Gandhi would say:  "The best way to find yourself is to lose yourself in the service of others."  Others, serve this city council."

And my partner promptly served the mayor with another very strong FOIA lawsuit, which you can thank your unreasonable city councilors for.

[Willy]

Wonderful article X. What I truly dislike is the fact that when Shay gave his speech that no member of the public was permitted to ask questions. How and where are people supposed to get answers regarding the west end project. Or for that matter any concerns the public might have about City business. One question that should be asked is why the necessity for a paved walkway from the parking area to the breakwater? What is the point. He's lying about the dune alteration. The only way for people to see the water from a sidewalk is to have the walkway on top of the dune and because of  that the dune must be altered then reinforced to prevent erosion. If the walkway is installed east of the dune top then the lake would no longer be visible from the sidewalk. So what's the point of the walkway. The walkway cannot be installed between the dune and water because of wave and wind erosion. Anyway you look at it the dune must be extensively altered to accommodate the sidewalk. Installing the "plaza" will eliminate many parking spaces when parking is at a premium especially when the south lot is full of boat trailers and other vehicles. Someone in the City or close to a city officials will be profiting from this because there is no common sense reason for this to be constructed. The only thing I can agree with is the idea of a portable walkway from the parking area to the waters edge so people with mobile issues can access the water, other than that, just leave it alone.

[Willy]

The method of governing at City Council meetings is becoming increasingly anti citizens. When people stand up and address the Council they might as well be talking to the toilet wall above the urinal. You get the same results, a blank look. At least there is a little bit of relief and satisfaction at the urinal as compared to the Council chambers where all you get from them is a pissy attitude. Why even have the public attend these meetings if they are just going to be regarded as an annoyance. Shortening the public comment time is not a step forward in opening up the process. The citizens who are providing the damn buildings and the electricity and the salaries that these Stalin throwbacks are getting, are being treated as if they are nothing more than a nuisance.

[AQUAMAN]

Yes, quite right Willy, you have again hit the nail on the head. I have, as of Thurs. 10th, taken some time to investigate the Lud. West End Project. The Company named the site plan engineer, for about $65K, Progressive Corp. of GR, has taken a stance which I find curious. The project engineer, Mr. Craig Hondorp, originally of Detroit, asserts that the dimensions of the plaza at the westerly portion of Lud. Ave. is not permitted without the express permission of City Mgr. John Shay III, another former Detroit/Grand Isle resident. Any questions answered will result in another additional fee per hour for him to disseminate that info. to the public, the ones paying for this Damn thing to begin with. Does that in itself say anything about the project, and it's dreamers? I want to applaud Diann and Deb and others whom commented about the West End for opposition. It's not a good project, and never has been since Shyster Shay thought it up some 10 years ago now. Call them to confirm my statements.