Ludington City Council June 25, 2018: A Public Body Looking for a Head

[XLFD]

The agenda for the June 25, 2018 meeting of the Ludington City Council had a couple topics of interest that helped attract a larger than normal crowd, namely the possible appointment of an interim city manager (with hints that it would be LPD Chief Mark Barnett) and the closure of a downtown alley to vehicle traffic.  These topics turned out to be less controversial than others in this session held without the lame duck City Manager John Shay.

There would actually be no interim city manager chosen in any way, rather they would decide that the full city council would interview potential 'outside' candidates at a meeting to be held before the next regular meeting on July 9th.  It was just posted earlier this morning that this meeting would be held on Thursday at 1:30 PM at the City Hall.  

After amending the agenda to reflect that nobody would be considered this evening, the public spoke out.  Ryan Reed (4:40 into the meeting's video) spoke for the alley repaving and closure behind the 100 block of west Ludington Avenue (south side).  Reed is part of the FOTOF LLC that is controlled by his grandpa Milan (Budde) that owns 115 W. Ludington Avenue, the former Mattress Max, or the former Zig's, for those who remember that.  The alley looks like this in an artist rendering of what the alley closure would look like (see more in the council packet p. 42+):

He claims that much of the current motor traffic is superfluous and unsafe for those otherwise using the alley, and would talk for over four minutes (even discounting the technical difficulty with the microphone at first).  Melissa Reed, who currently runs the business "My Sister's Closet", the business currently at 115 W Ludington, and may or may not be related with Ryan, would also advocate for closure after Attorney Carlos Alvarado recommended that the council approve the adult daycare facility (ADF) at the old Lakeside Chapel for his clients.  Like last time, he failed to note to the crowd that he also served as the City's FOIA Coordinator.  

This presaged the next speaker, Fifth Ward Candidate Angela Serna (12:40), who indicated she liked the alley closure before wondering about the issue of registered sex offenders (RSO) being at the ADF as the location is within school zones and near her own home.  Then I got up and tried to educate the council on what a "vacancy" actually is at 15:00.  

June 25th, 2018 Ludington City Council meeting from Mason County District Library on Vimeo.

XLFD:  "According to Black's Law dictionary, the most used legal reference work, a vacancy is "An unoccupied office; a vacancy, properly speaking, does not occur until the officer is officially removed."
This definition was used by a couple of Supreme Courts in determining when a vacancy of office actually occurs. Just last year, Vermont's said in Turner v. Shumlin, that “a vacancy does not exist in a constitutional office so long as the office is supplied in a manner provided by the Constitution with an incumbent who is legally qualified to exercise the powers and perform the duties which pertain to it" in it's way to concluding that a vacancy does not exist if an office is occupied.
In North Dakota's Foughty v. Friedrich, the court also ruled that "No vacancy occurs while the office is being held by one occupying it". I mention these findings as the issue hasn't made it to the Michigan supremes to illustrate why this council erred at the last meeting by appointing a Fourth Ward Councilor after they took pains to explain that the office would not be vacant until four days later. This council does not have the expressed power to appoint an interim city councilor to fill a future vacancy, only to fill a vacancy that has already occurred. Used to its extremes, this could totally thwart the democratic process.
Former Councilor Krauch participated in two official votes and took part in a groundbreaking ceremony after this council voted to fill a vacancy that wasn't officially vacant until four days later. Carol Pomorski has already voted tonight to approve the last meeting's agenda, a task which she cannot legally perform because she has not been legally appointed to fill a vacancy. Regretfully, if she participates in any council discussion or votes I will have to raise a point of order to remind this council that she has never been properly appointed to her seat on the council.
You can remedy that issue by reenactment of the appointment at this meeting, or even at the next meeting if the falsely appointed councilor does not participate in deliberations and votes at this meeting.
Lastly, I hope officials can tell us who is scheduled to pay for the public reception for John Shay scheduled for the next meeting. Is it going to be the public once again footing the bill to celebrate the city manager who is running away from the massive debt and logistical mess he's left us here in Ludington? Just wondering."

Not too surprisingly, without John Shay around, neither of the two concerns I had were addressed.  So Pomorski voted without issue, and apparently, the taxpayers are paying for his send-off at the next meeting, as they have when Gary Castonia and others resigned.  I wasn't feeling dramatic this night, so I was determined not to call a 'point of order' unless Pomorski's vote mattered, or if she deliberated on a topic, which didn't happen.  It almost did, when the 'mermaid shoot' vote was passed 4-3, but her vote was in the minority.  Because they did not reenact her appointment, the vacancy still remains.

Tom Tyron finished the comments offering his opinion on the alley closure, by reminding the council about the historic use of alleys and asked them to think long and hard before closing it.  The Rhythm and Dunes concert series was approved, with West Shore Bank actually using less signs than usual, a topic that the mayor and Tyron have championed over the years.

The bills were paid, then the topic of interim city manager reared its head.  They planned on hiring the permanent city manager in January, and hoped to have any new official-elects involved in the process during the interregnum period.  I was surprised Chairman Cain knew that term.  He used the occasion to lobby for the city's charter proposal:

"I encourage all of the residents of Ludington to consider passing the charter amendment on the August ballot, which will allow us to offer the new incoming city manager a three year contract other than a one -year contract. This will put us in a better bargaining position when working on the details with this person. We are making a commitment with this new city manager, the new city manager is making a commitment to Ludington. Offering him a three year contract, is a lot better than a one year contract."

If John Shay and others who crafted the proposal actually thought about bettering bargaining positions, they would have offered one with more latitude for bargaining and for accountability.  Why not allow for an indefinite length contract, as most other city charters permit, and include an assessment every year, as the city currently allows, and our local college and many schools do with their chief executive, regardless of the length of their contract?  

Councilor Winczewski proposed using a committee of the whole for interviewing the interim, rather than just the Personnel Committee.  Councilor Henderson voiced support for the committee process, and noted the two meetings were effectively a waste of time due to nothing being accomplished, she would be the sole vote against the motion.  Chief Barnett expressed his belief that someone with city manager experience should be considered rather than him.

The next item was dealing with the sidewalk ordinance's applicability to new constructions and a rebuilder hoping to avoid the mandate of the city charter.  Sec 46-71 of the charter requires new buildings to have plans for sidewalks on all street abutments, but 209 S. Lakeshore, a corner lot, does not currently have one on Lakeshore, and a new building is being constructed there.  The highlight shows where the sidewalk should be. 

The proposal is to look into allowing a new construction property to avoid the mandate if they get approval of the City.  In the discussion that followed, it seemed to have a bit of support among councilors and they plan on having the city attorney rework the section to allow a process to avoid the mandate.  

Admittedly in this case, the plan was approved for this construction w/o a sidewalk in the plans, and it was only caught afterwards, so I would rather have this fall back on the negligent city officer who approved it and should have known better about the law, Carol Ann Foote.  If she wants a sidewalk now, she can provide half the funds for it.  

At 45:40, Heather Tykoski gave a long presentation on the alley closure, letting the citizens know that this wasn't originally a DDA idea (but they thoroughly embraced it).  A half hour later, it passed with only David Bourgette dissenting.  

Before they passed approval of the ADF unanimously, they briefly tried to address Serna's concern (rather incompletely).  There seems to be no consideration of the danger that a mentally-challenged adult who may be a RSO, or one with that propensity, to spend many hours in the school zone area.

The mermaid shoot turned out to be the most controversial topic, being approved by the two councilors on each end, and voted against by the three in the middle, after a brief discussion over the appropriateness of such activity on the beach for such things.  Effectively, a modeling agency will allow girls and women the ability to don fins and pose around large shells at Stearns Beach on July 28.  

Lastly, they approved making the three minute period at the beginning of the meeting to be on any item of the speaker's choice, rather than an agenda item.  I appreciate this renewal, and hope to use it when the agenda is light on topics and my agenda is heavy.  Then they moved to accept Spence Riggs resignation from the Planning Commission.  Had they accepted his resignation without making the usually unwarranted accolades, I would have left my second comment unsaid, but Councilor Winczewski talked him up:

 
"(Spence Riggs) is a young man who brought worldly views to Ludington. He was in the Peace Corps for many years, he went to college, he was in the Peace Corps, he was one of the most easy people to get along with, to discuss things with, he really listened and it's hard to sit in your shoes for a while and get your perspective; he will be greatly missed on the Planning Commission, and he is getting married, and he's moving to Grand Rapids, with a brand new job, and he'll excel at whatever he does, but just thanks to him for spending some time in Ludington."

So with that amount of bull excrement, I figured he should be appropriately assessed for his public actions, but Chuck Sobanski spoke before me stridently talking about blight in his neighborhood, and the City's inability to enforce their laws.  The latter infraction I mention will be further developed in the near future.

XLFD (1:31:45):  "I was pleased to hear that Spence Riggs resigned from his post on the Planning Commission, I believe he failed to meet the ethical standards of the agency. Last year, I came before this council on three separate occasions to explain how his actions on that commission was unethical considering he developed policy that allowed him to split his lot into three, did just that, and never once disclosed his conflict of interest at any of the planning and council meetings where the issue came up. His property increased dramatically in value, all because he worked on the Text subcommittee to get the zoning law to conform to his veiled goal.
But that wasn't Spence's lone transgression. He is an ex officio member of the DDA and has attended meetings where the DDA has discussed acquiring the lot at 106 E Filer to make into a parking lot. Before the DDA could acquire it, however, the Planning Commission was considering a proposal from an established local businessman to place a warehouse on that property. According to what I've read, and other planning commissioners I respect, there was nothing in zoning law to prevent a warehouse from being placed there, but Commissioner Riggs argued volubly against it without divulging the DDA's great interest in the property when it came before the commission in December, led the votes to deny it, then as the Planning Commission Liaison proudly reported the deed to the DDA at their January meeting.
The DDA is acquiring the unimproved lot at a cost just under $50,000 and will have the same cost in paving it. So instead of getting the additional tax revenue the warehouse would have generated each year, the DDA gets to spend $100,000 and maintain an out-of-the-way parking lot. This is progress?"

C. Dale Bannon then spoke about how valuable ADFs can be for older people who have moved in with their working kids, before Angela Serna got up once again at (1:35:00) and gave the council a good talk-to about why citizens avoid coming to meetings.  Much of the best stuff happened after she sat down, and city officials tried to defend their communication skills.  The best lines:

Mayor Holman:  "Have you considered running for office?"

Serna:  "I am running for office."

Mayor:  "Cool!"

And, of course, just before they adjourned, they announced the public reception for John Shay at the next meeting, with cake and other stuff-- without any effort to answer my earlier question about who was footing the bill.  It's part of their communication skills, they are trying so hard to improve. 

In conclusion, they never addressed the legal issue of vacancy, and why the Fourth Ward Councilor voted repeatedly without being 'official', they never denied the impressive-even-for-Ludington ethical lapses of the worldly Spence Riggs, they never relieved the concern candidate Angela Serna raised about the ADF, or even the blight concerns of Chuck Sobanski.  It's a public body that has lost their head, so how can they listen and how can they talk?

[John Doe Jr]

I don't actually own the alley but, I will tell you who can use it. By the way, I also watch birds....

[XLFD]

What is done with this alley is somewhat crucial as to what other Ludington citizens might be able to do with the alleys they abut in the future, so it's important to get it done right once something 'new' like this is proposed.  I think you may be making light of Tom Tyron's comments, but I appreciated that he brought up reasons why we have alleys in the first place and why it might be missed.  

It's a shame that the Planning Commission didn't look at the particulars, Commissioner Nick Krieger on the Concerned Locals of Facebook, who has a history of making legal interpretations in the Michigan appellant courts, made some interesting observations which take in consideration the particulars of this alley:  

"That alley has existed since the original plat of the city of Ludington. It is dedicated to the public on the plat, and that dedication was obviously accepted — either expressly or by user. In my opinion, therefore, it is legally identical to any other dedicated alley or street appearing on any other plat in the city. This means, for all practical purposes, that while the abutting lot owners hold BARE LEGAL TITLE to the center of the alley, they have no actual rights in the alley unless it is ultimately vacated because the entire alley is encumbered by a right-of-way in favor of the public. And it is Michigan black-letter law that the rights of the holders of the right-of-way are paramount to those of the owners of bare legal title to the underlying soil. For all practical purposes, unless and until it is abandoned or vacated, it is a public way. Again, this is just my opinion (but I’m pretty sure I’m right).

I (don't) mean to imply that the city never owns the soil underlying a street or alley (what we call the "fee") outright. In certain situations, it might. With regard to subdivided land (most of the land in the City of Ludington, for example, is platted), it all just depends on the language of conveyance or dedication in the plat. The block in question here (bound by Ludington Avenue, Rath, Loomis, and James) is block 34 of the Original Plat of the City of Ludington. I have examined the plat and can find no language actually conveying the fee to the city. At the same time, however, it is always good to remember that these old plats often used vague or incomplete language.

If the city actually vacates an alley, the ownership of the adjacent property normally vests in the abutting lot owners. I’m not sure about a pedestrian right-of-way. Assuming that the alley in question is not owned by the city but rather only encumbered by a public right-of-way, then it seems to me that the city could *potentially* alter the nature of its easement from vehicular access to pedestrian use because this would still be a right-of-way in the public.

I was just reviewing the land division act, and it occurred to me that there’s really no provision allowing for the “temporary” closure of a platted alley that is dedicated to the public. I think the city’s only option would be to vacate it and in the process reserve an easement for some other public purpose under MCL 560.257."

[John Doe Jr]

No, I was referring to Ryan who sits perched on his balcony watching cars below and birds above. "Those cars don't belong here..." Oops I forgot to use the Safety Trump...... "Those cars do not belong here and they go whizzing by at,,,,,well, I don't have the Chief's big tool in my hands but, they go by DANGEROUSLY FAST." I witness SEVERAL close calls every day... But, yeah... It's an alley not a road for cars' Cars go on streets and alleys are for "WALKERS"., but not the kind Mrs.R uses.... I feel everyone should walk and Ludington should be a walking city. Yeah Yeah... I am a world traveler and everything should be as I saw it somewhere, I think it was Finland, or, Iceland, well no not there they have Polar Bears in streets.... Thank you for making a Law for my back alley fantasy'

[XLFD]

Funny review, JD Jr., I had almost forgot about Ryan 'Robin' Reed's reverie about watching the cars from his perch and his youthful worldliness that rivals Spence Riggs' cosmopolitan career, LOL.  Would you be interested in going down to that alley for a few hours and checking up on his stats over the next week, before it gets closed?  If anybody else can spare the time, please do so and see whether you get the same results as Ryan.  

[John Doe Jr]

Some really juvenile mockery there in the second row. Gross.

[John Doe Jr]

City council should be disbanded. What a bunch of losers. Now that their supreme, hold the meat leader is gone they are on the verge of collapse. The trolls have come disguised as prominent spectators to babble and hiss.

[XLFD]

Anarchy doesn't work out too well in a town dedicated to tourism, but the question of legitimate representation is well taken.  If our Manistee/GR city attorney with full compliance of city hall actually allowed our charter to be followed in the way it was meant, 5/7 of our city council would have been properly elected by the people instead of by them.  

The fools fail to realize that respect for the citizens entails both listening to them and answering their questions, communications and accountability; the blame falls on the councilors rather than any of those citizens in the First, Fourth, Fifth and Sixth ward, 2/3 of Ludington, where no citizen at any time has cast a vote for the current councilor occupying their ward's seat (exception:  Pomorski received votes for 4th-- back in the last millennium).  This is true disenfranchisement, aptly named illegitimacy.  

[AQUAMAN]

Don't have time to watch entire mtg. now but: how come City Attorney doesn't even bow his head for the invocation at the beginning? Also, how come Ryan Reed get to comment in favor of an alley closure from 4:31-9:06, that's not 3 minutes, it's 5 min. 5 seconds, over 2 min. over the time limit, and Holman knew it and let it happen for a fixed agenda on the alley imho.

[John Doe Jr]

He is a world traveler who apparently walks. So, he may be a little slow.

[AQUAMAN]

And I like the 2nd comments by Angela Serna who put the arrogant council on notice about communicating with their ward members. And what about Holman, doesn't even know that Serna IS Running for 5th Ward seat. And she's our smart Mayor? She's a JOKE! Tried to undermine another taxpayer commenting lady, and she had to eat her words right away, and that again shows her disrespect and unintelligent ways of governing, what a laugh.

[XLFD]

I don't always agree with Angela's point of view, but I admire her community involvement and her ability to take a position and defend it, even when it ruffles the feathers of self-important people.  This is what we need on the council, and her opponent, Wally Cain, is almost a polar opposite. 

Her exchanges were a great part of the meeting, but the COLDNews Colton Mokofsky (recognize his name starts with COL) has established himself as a poor journalist in covering the council meetings.  He covers what the councilors say, but he never reports what the public says, he even avoided naming either of the Reeds or any of their statements in his two articles on this last meeting, relating only conversations regarding the city manager search.  

Colton, civics and journalism lesson:  people have no say in how the interim city manager is appointed, the ICM represents the council's wishes, not the people's.  People care more about issues that they are not totally shut out of, like, for instance, their 'leaders' not following the rules and courses of ethical conduct that they are mandated to live by.  The lack of communications is also an issue, which apparently, the COLDNews still suffers from too.  

[John Doe Jr]

If we could only get Mr.Clock on the Council. But, really has anyone considered an Adult Day Care applicant? I'm not sure if Pedophiles are allowed to run, but I hear when they do, they at least get caught. I'm looking forward to Council Comedy 2018-2019! Just being optimistic.