Ludington City Council Meeting, September 10, 2018: So Disappointing

[XLFD]

Disappointment was the theme of the night at the September 10th meeting of the Ludington City Council even before I introduced it repeatedly in my comments, and other citizens hoisted the same torch.  But before that theme took hold there was a couple of brighter aspects.

 

A FOIA request for a police report dealing with the accident that claimed the life of the pedestrian Gail Brittain that was denied and appealed last Friday, was reevaluated by the interim city manager and released to me just before the meeting.  You will catch me glancing through it during the communications part of the agenda.  

Following that and the opening routines, the public comment period started with the Democratic candidate for the 101st House congressional district, Kathy Wiejaczka, introduced herself to the council.  Before the meeting I congratulated her on her primary showing, winning almost 90% of the vote versus Doug Hoogterp, and how it reflected that her ground game was strong-- which she'll need to beat Republican opponent Jack O'Malley in the fall in a district that normally goes red.

Following her was Fred Hackert, who notably spoke out at a special meeting three years ago on sidewalks, chiding the city for not broadcasting their intentions to change sidewalk policy and asking a few questions.  He was followed by his neighbor Jim Merchant who echoed that disappointment, had his own questions, and added other concerns about how sidewalks would take most of the front yard away from people's homes when curbs get added.  He then compared it obliquely to Obamacare.

Though I believe their assessments of the City's transparency are valid, and have been saying it myself for years, I honestly can't justify Merchant's characterization of a sidewalk, at least in his neighborhood, as seen above with some pink sidewalks thrown on.  As the City has made clear in the past few meetings: that's not your front yard, it's the City's property. 

The City is wrong, but you guys haven't griped until you feel your own front yard is under assault.  I was up next with my own disappointments.  I left off the third paragraph [which is in brackets] precisely because I received the FOIA request.

September 10th, 2018 Ludington City Council meeting from Mason County District Library on Vimeo.

XLFD:  "I'm quite disappointed with the way this City is being run, that may not come as a big shock to you. At the last meeting, the city attorney admitted that the $7500 you paid him in legal fees for the FASTLANE grant and Bowling Alley Block Developer was not coming from the entities benefitting from his services but from the city budget, before accepting his legal theory that over time the City may get that money back with future agreements yet to be made. You accepted that even after you agreed to pay now with our money. Disappointing.
 Councilor Winczewski talked about a survey of those who live on Ludington Avenue and presented it falsely, making 8 claims about it, 7 which were bogus. The majority of this council not on that committee could only accept her observations as factual as the survey was not in your packets, and thus a majority made decisions based on multiple false premises. Disappointing.
[I know of the survey's results and scope only because I made a request through the freedom of information act to the City for that material. I made another FOIA request for the police report of a car-pedestrian accident recently, and was informed nine days after that accident that they would be withholding the full report from me and the rest of the public since it was still an open case. Just last year I received the full report, pictures and a video from an unclosed car-bicycle accident nine days afterward. Disappointing.]
Then there's this Depot development on Madison Street. The developer has come before the Planning Commission twice and this council once before, where I noted that I appreciated the fact that they were not seeking millions of dollars in subsidization like Bob the Bowling Alley Block Developer was. Yet not until today do we learn that the project is going to be subsidized by the public via the same mechanisms. Why are we the public just learning now that the developer needs a lot of public money to line their pocket in order to construct this? It's a pity that we don't have more developers like local Mitch Bogner that build apartment complexes without handouts from the local, state and federal government. More than that, it's disappointing."

Up next was Dianne Seelhoff, who gave a briefing to the city council about a lawsuit against the City, partially dismissed without prejudice, regarding disabled access to Copeyon Park and the proposed splash pad.  The action was determined not to be ripe for adjudication yet, and as Seelhoff notes, the judge did assert a warning to the city through their lawyer that those claims may be ripe and valid at a later date.  For whatever reason, former manager John Shay misrepresented the disposition and the warning when he wrote his memo to the council.  She finished with the car-ped accident killing Gail Brittain, letting the council know of factors involving sidewalks that could have come into play.  I will soon have an enlightening update on this accident.

Fifth Ward Candidate Angela Serna was the fifth person in a row to be disappointed by the City, wondering aloud about the street construction being completed in her neighborhood at a standstill.  She was looking forward to an explanation, addressing her ward councilor first.  She was reprimanded for not addressing the chair in doing that.  Strange, when city officials have been repeatedly allowed at the end of the meeting the ability to address members of the public, often negatively and personally, without any similar reprimand from the chair.  

Following the approval of two LHS parades, the city manager and attorney addressed the payment in lieu of taxes (PILOT) and Municipal Services Agreement (MSA) for the Depot Development on South Madison Street.  More particulars can be found inside the council packet.  This project will depend on whether Low Income Housing Tax Credits (LIHTC) funds are available, the PILOT and MSA will recoup some of the taxes lost, but will likely be much smaller than normal taxes at the end of the term, which appears to be 48 years on the contract, despite the developer's spokesperson saying 30 years.

The Heritage Foundation recently published its analysis of the LIHTC, and scholars Adam Michel, Norbert Michel, and John Ligon come to similar conclusions.  They found:

“The LIHTC is a complex program that has spawned a cottage industry of lawyers and accountants.”
“The value of the LIHTC is largely captured by investors and intermediaries, not renters.”
“The LIHTC is a costly and inefficient corporate welfare program that has failed to boost the U.S. housing stock.”
“Since its inception as part of the 1986 tax reform, the LIHTC has proven ineffective and inefficient.”

The authors conclude that “it is time to repeal the LIHTC and focus on reducing artificial barriers to new housing supply.” 

If we ever get proper drainage to the swamp of our federal government, and below, we can solve housing issues with a market-based approach that is a lot more sustainable than this corporate welfare we are seeing now in Ludington. 

The City then approved the construction management agreement with Foth for the carferry dock, as noted before, the sizable contract with Foth was made contrary to city policy, without competitive bid.  Lake Michigan Carferry forced the City to take their services, the contract in the packet points out a potential shortfall of money (over $1 million) for doing the full maintenance envisioned.

City Manager Brock gave an impressive talk on sidewalk issues before the PS/PU committee chairman made a motion to send it back to a committee of the whole for additional study.  The primary issue seems to be that there is a lot of misunderstanding.  At 48:00 Councilor Winczewski says that selling a house triggers the addition of a sidewalk, but that is not the case.  The rest of the council and public would accept this fallacy, which showed further at the end of the meeting.

The City passed a couple of traffic control orders, one on Rath to discourage vehicle camping and one on Fourth Street to provide safe passage for school buses through the narrow street.  The first reading of the Tree Ordinance was done, where they didn't actually read it.  It's good they didn't because it has this passage, and I surely would have giggled like a 13 year old:

At the end of committee reports they approved the Mitt-critt road closures downtown, the Lakeshore Watersports contract for rentals at Cartier Park, and the rates for their campground.  At 1:14:15 the meeting opened once again for public comment.  

Fred Hackert began by repeating the fake thesis that there was a mandate for constructing sidewalks on sale of property. 

Chuck Sobanski suggested moving the splash pad and bogus wolf from Copeyon Park.  C. Dale Bannon opined on a sidewalk hypothetical situation.   I then followed at 1:18:15 with a real situation, referring to the Tree Ordinance, which is a real clunker of an ordinance once you read it. 

XLFD:  "A right of way is defined as an easement that allows others to travel or pass through your land. All easements only grant non-possessory rights to use others' lands; they don't grant any ownership rights to them. Most, if not all, of the properties abutting streets in Ludington have title deeds that say the owner's land extends to the middle of the street. The understood easements through that land are on the street and for a distance beyond it along that street, where sidewalks may be. Utility providers may also use these easements for their services.
Those who use the easements of the property owners have no ownership rights themselves of that property, they cannot establish barriers in the easement that would otherwise prevent the public from traveling through. Yet, the City of Ludington wishes to not only claim ownership of this land, as it regularly does, but, through the tree ordinance, establish within these right of way easements trees that will hinder the public and utility providers from using the easement in accordance with its functional purpose and without the property owner's consent.
Any responsible tree ordinance will recognize that any tree planted in the street right of way will affect the homeowner who owns that land. They need to have a say in what tree is allowed there, and what tree is not. They should not be fined or even jailed if they feel the need to trim trees on their property, nor should they not have a say if the tree becomes a nuisance to them or others to remove and/or replace trees in their own property's easement. Thank you."

Carolyn Cater, who ran against Jack O'Malley in the primaries and lives in Ludington, spoke next about sidewalk curbs near the Washington Street Bridge.  I concur that many of the sidewalks created in that area lacked necessary curb cuts, something I have learned previously from Dianne Seelhoff.  

The councilors finished the meeting talking about a sidewalk ordinance that didn't exist, which I could have easily relayed to them that fact had they allowed such participation.  The one who started the misinformation on sidewalks, Councilor Winczewski, then offered to send me the event sign survey she reviewed and commented on falsely.  I reminded her from my seat I already had that data.  Unlike her, I try my darndest to get all the facts and report them truthfully as I can.  I've sent her my own research in the article I wrote after receiving the data from the survey from the City through my old friend the FOIA.  Disappointing that she hasn't looked at that already.

[Du Wright]

Good synopsis of the disappointment, XLFD.  I'm afraid to listen to my comments before the city council as I felt like I was stumbling all over and again had too much information but I wanted to make the point about the need for sidewalks and show how cut-your-nose off to spite your face John Shay  was to elate with glee that the need for sidewalks into Copeyon Park was "dismissed"--was NOT.

I am still haunted by the newspaper pictures that showed shoes and clothing flung in the middle of Ludington Ave., she must have been hit hard.  Every time I drive through that intersection, I remember.   RIP and prepare for a better place, Gail Brittain, and I'm so sorry and hoping she didn't cross unlawfully because we, as a city, didn't provide proper sidewalk and ability to access the cross signal.

I instructed to nutty professors and Ph.Ds in grad level systems design and IT, English  and believe it or not Public Speaking in undergrad, have spoken in public bodies in five states and before international audiences,  but I find this city council the hardest to speak before.  The most intimidating.  The harshest, and I will say, the rudest, and I don't know why.  I admire your ability and tenacity to stand up week after week before this chamber, XLFD.

[Du Wright]

You were quite comprehensive in your coverage of the meeting, XLFD, are you going to reveal the disappointment voiced by one citizen involving the sidewalk ordinance in discussion with the city attorney after the meeting?  I found that a comment to remember-- a little counterweight to the disappointment.  And, I think we should thank Brock for bringing up the issue of revising the sidewalk ordinance.  I think he could be a good force for Ludington. 

[XLFD]

Brock impresses me with his ability to talk and negotiate like a city manager should, something I would hope the council would take to heart in their assessment of former manager John Shay, who had too many character flaws and professional weaknesses, in my honest opinion.

Dianne refers to a brief exchange between citizen/candidate Angela Serna and City Attorney Wilson at the end of the meeting, where she bluntly let him know that he was wrong on what the law says.  I appreciated her candor, but as I go through various legal exercises, I continue to see that the law is rarely immutable, meaning that almost any straightforward bit of legislation can be perverted by an attorney and/or judge to say what they want it to say, rather than what the legislative intent was. 

Wilson has done that perverting a lot in the past, yet I actually think he had a fairly good meeting-- he knew more about the city's sidewalk policy than anybody else on the panel.  But he approached and talked a little with me after the meeting about the easement/right-of-way issues I have been bringing up at these meetings, and expressing his understanding of things.  

He offered a statute that was ambiguous enough to help either of our legal points, and gave me a decision to look up, City of Kalkaska v Shell Oil.

The decision from the MI supreme court affirmed the rulings of two lower courts in concluding "a proprietary interest in oil and gas was not conveyed to the village or county when the plats were recorded, and that the village and county may not sell the oil and gas lying beneath the surface of the land."  The ruling seems to indicate towards my favor, that the City does not own nor have possessor's rights/powers.  

Looking further it indicates an older decision in support:  "in Detroit v Detroit City R Co, 76 Mich 421, 425; 43 NW 447 (1889), the Court said that the cities "have no proprietary interest in city streets as their private property...." 

And, emphasis added:  In Griswold v Bay City, 35 Mich 452, 455 (1877), the Court was satisfied that the soils disposed of by the city had no special value. The Court's analysis is inconsistent with Kalkaska's claims:  "If in grading this street it became necessary to remove any soil, the city would have had an undoubted right to use the same in grading that or any other street in the city. In case it did not desire it for such purpose, and the owner of the property from in front of which it was taken did not, then the city would have a clear right to remove it, and might, in so doing, sell or dispose of it in any way it considered proper."

This appears to give the 'owner of the property from in front which [soil] was taken' a healthy say in the disposition of excess soil if it was not needed for grading (a public purpose).  I can't find anyplace in this decision that gives the municipal plaintiff any sort of proprietary rights to a right-of-way easement.

[Du Wright]

Good argument, XLFD, I have read that case before and your argument is more clear again than Wilson. It seems Wilson gets away with impressing a mostly legally naive council.

Angela Serna is wise to his BS and has guts too. I think she would give the council much needed think-outside-the box attitude it needs and I think she would listen to the speakers. If you watch Cain in the video, he mostly has his head buried in his electronic device(?). I know a lot of people can read and listen at the same time, but we all know you can't thoroughly concentrate. At least he could afford a little common courtesy by looking up now and then to the speakers braving to get up there, but then again, maybe his head buried is better than scowling looks. I must say that Bourgette, Pomorski, Johnson, Wincewski and Barnett all seem to listen intently. Can't see Henderson or Lenich on most of the tape. Maybe Cain is just bidding his time hoping Serna wins this fall because he appears to not care or give the speakers any respect. Or maybe he just didn't have time to read his packet, but the other Councilors had time to listen to the public. Listening is a most important trait of a public servant.

[AQUAMAN]

Moonbeam Kathy is so sickening, it's just Funny! She continues to LIE and LIE, into infinity, and still doesn't care at ALL! What a Stupid Beech! How can ANY Idiot continue to exist? Guess if you have a teaching certificate you can do anything you want, and not give a shit? Is that it? Sad!!!!!!!!!!!!!!!!

[XLFD]

Aquaman, 

I sent Moonbeam a respectful E-mail with a link to the Overwhelmingly Whimsical Winczewski article and offered her a chance to admit her errors or validify why they were not outright prevarications.  Four days later, she plays the usual city councilor card of ignoring my missive, when she offered the invitation to clarify the record at the end of the meeting.  As we've seen many times in the past, the truth means little to her, that's why she's veep of AFFEW, a bunch of forever-loopy-liberals from the '60s who get together, pick up loose trash at the beach four times a year, quaff green beverages afterward, and offer battery recycling-- oops, that program was just phased out.   

Dianne, I appreciate Angela Serna a lot; we don't always agree, but she will let you know what she honestly thinks-- that's an important trait in an elected representative in my opinion.  Even better, I believe she has the ability to think outside the box, not engage in group-think like the current council, and possesses the capacity to listen and alter her opinion if a counter-argument is convincing.

[AQUAMAN]

Yes, and watching the video again I noticed Moonbeam give X several nasty looks when she commented in the end, like she was personally insulted with simply accurate observations and facts. Thanks to Angela, Dianne, Carolyn, Dale, Chuck, and of course X and others that have taken valuable time to explain factors that negatively affect the taxpayers here, and to inquire as to answers. It shouldn't surprise anyone that Moonbeam, Cain, Holman, & Linius, don't do their jobs correctly with transparency and honesty. I am however going to compliment the city mgr. with trying to do his pretty well so far, I'm surprised and impressed.