The theme around the July 12, 2021 Ludington City Council may have surprised you if you had only read the agenda packet; it turned out to be attorneys. No fewer than five local attorneys, none from the same law firm, weighed in heavily on the night's discussions, not to mention a citizen journalist who has prosecuted enough lawsuits against public entities to qualify as an honorary pseudo-attorney.
The promenade of attorneys provoked a couple of interesting debates during times in the meeting where you wouldn't generally have a lot of legal controversy: the public comment period, and during a vote to go into closed session.
The real controversy at this meeting should have been the city marina using grant money to renovate the charter boat dock, effectively subsidizing the businesses that have made the city marina their home-- contrary to what public marinas are supposed to be doing. Other than a scathing paragraph at the end of my first public comment, the council voted unanimously and without discussion to spend public money on what was effectively private business facades.
The silence of Fourth Ward Councilor Cheri Stibitz on the subject should indicate that she is not willing to stand up for her ward's interests, since her ward is where these businesses profligate. It's too bad that the private marinas cannot exert as much political pressure as they once had, since spending all of their extra money can't keep them even close behind the two public marinas who are immune from taxes and effectively having infinitely deep pockets when it comes to maintenance and upgrades. If the state doesn't grant the two public marinas the money outright, they will find a way to get them the money.
Let's take a look at the two debates and decide which side had the better case and the better lawyer(s). The first concerned the MOMstergate scandal, where WMOM broadcasted from the beach on July 4th, amplifying their broadcasts over Stearn's Park sound system and speakers. The issue was that they didn't have a permit, nor did the approved Jaycee's permit allow it.
Gene Kyle quietly led off public comment and corrected some dimensions and numbers as regards the Senior Center in the Recreation Plan. At 3:40 in it got interesting with local attorney Cory Rickett, President of the Jaycees and Chairman of the Ludington Planning Commission getting up and thanking the City for their help with the Freedom Festival, making it a success, adding:
"We had the rare opportunity to bring back music during the fireworks and I appreciate the city manager and the police department and the DPW with their conversations allowing us to add that to the event planning, it was a small addition to the special event; I think it went quite well. I also appreciate WMOM FM stepping up when we asked them to broadcast. They used to do it in year's past and we thought we would take the opportunity this time to ask them to partner with us with the parade, why not broadcast some music down there (at the beach)."
Immediately succeeding Rickett was WMOM attorney Mark Otto (at 5:23 in):
"I'm speaking on behalf of WMOM in connection with comments. WMOM has asked me to just make a few comments about the music at the Fourth of July celebration at the park which was under a special permit. First of all, they were asked by the Jaycees, and not vice versa, to broadcast that night with special patriotic music during the fireworks and that was done for a period of 20-25 minutes during the entire fireworks.
There's been a request to the city manager for information on whether we were given specific advance permission to broadcast-- that is not required under their license, they're a public media, they're a member of the broadcast media here in the community well known to everyone. Their speech is protected speech under the First Amendment, and they are allowed to broadcast at any time in accordance with the FCC rules. The music they played was popular music, top 40 it's commonly known as. They broadcast before the fireworks started, starting at 7 PM until the fireworks. The Jaycees provided the speakers and special permit to have speakers in the park during the fireworks, which they indicated they used and are happy with the outcome there.
During the fireworks that broadcast at a lower level as requested, and they were responsible to accommodate a lower level of volume than the sound of the fireworks, and likewise they felt that was fair and reasonable and accommodated that request. They did not supply the equipment for this broadcast, the Jaycees did, it was not WMOM's broadcast PA system or speakers, they did provide the sound they put over the airwaves to their broadcast that evening.
In particular, and WMOM wants it known, that they were not asked to get a special permit, nor did they feel one was necessary. The Jaycees asked them to provide music, they did so as part of their normal programming. They found sponsors, there was no cost to the Jaycees for the programming, and the conversations they had with the Jaycees began approximately on June 26th, they texted: "so we're good on everything with the speakers, yes, we've checked with the City... so there was advance confirmation that the speakers would be provided by the Jaycees and they were approved under the special permit.
Again WMOM was glad to have participated, the past owner of the station did offer to coordinate firework music on simulcast where it would be coordinating with each shell-- that could be considered in the future, but that was not done, and that's something that could be considered in the future, again its very common to be done in other communities [the mayor told him was time was about up at the 9:13 mark, he had already allowed Otto to speak 50 seconds over the time I'm always cut off at, he took a little over 20 seconds more to conclude]
In closing, it's our position that we did not need any special permit to broadcast, we provided our broadcast to the Jaycees, they provided the speakers and broadcasted to the community. We thank the City for allowing us to participate, thank you."
These two comments actually worked its way perfectly into the wheelhouse of my prepared comment on the subject. I didn't feel the need to add or subtract from the comment, because it addressed the real issues other than the ones the attorneys wanted to focus their energy on:
XLFD: "Activity permits matter. The city council approved the activity permit for the Freedom Festival parade and fireworks in May, continuing a tradition that was only interrupted last year. It was a standard permit allowing the Jaycees to do everything they have done so well in the past, it went without amendment at the two June council meetings, the last one just six days before the fireworks. At the last minute, the Jaycees received oral consent to adjust the permit from the city manager, adding a feature which amounted to projecting amplified sounds over the beach during the afternoon and evening of the Fourth.
While some may have enjoyed the addition of having a local radio station broadcast live and amplified at the beach, there were plenty of people who were not expecting to have their peaceful enjoyment of the beach violated by this assault on their earholes. Complicating the issue, these broadcasters had sought permission from the parks committee to regularly broadcast from the beach, an action the committee did not recommend to the council for approval, nor did the council consider the issue. We need to understand that many people come to Ludington for the beach and they enjoy the quietude, the squawking of seagulls, or the sound of the waves lapping onshore; they can listen to a radio station anywhere.
The city code says that music at the beach should not be heard more than 10 feet away from the source, multiple signs at the beach say that loud music is not allowed, the law is clear on protecting the quiet enjoyment rights of our neighbors. Going outside of the due processes provided to ignore those rights just isn't fair to our community or our guests.
Otherwise, charter boat captains that shouldn't be at a public marina in the first place must be jumping for joy at the new floating dock the City of Ludington and the State DNR is furnishing for them with the latest Waterways Grant. These two public entities will supply half a million dollars to build these eight or so private businessmen a shiny new dock for their private business. Why is a city marina built for the purpose of housing transient recreational watercraft prioritizing dock replacement for private entities that should not even be berthed there in accordance with the agreement? You might as well ask why this city council will vote for this patently unfair corporate welfare unanimously."
Surprisingly, Councilors Stibitz and Kathy Winczewski, the two committee members that nixed recommending WMOM regularly broadcasting from the beach, never weighed into the controversy, even after Attorney Otto remarked during the second public comment period that WMOM should be able to broadcast at a parking spot in their van, if their broadcasts cannot be heard more than 10 feet from their broadcaster. To be sure, that point is 100% valid; I regretted not getting up and agreeing with him on that issue.
To close or not to close?
After all the public comment periods, and after they approved the three marina-specific votes without significant problems, and after they approved bankrolling (about $2000) Mitch Foster's trip to Portland, Oregon in October for the year's city manager conference (yes, the Portland whose murder rate increased 800% in one year), they came to the point where they were to vote to go into closed session under section 8e of the Open Meetings Act.
Summarizing, 8e allows a closed session to discuss trial and settlement strategies of pending litigation with their attorneys, provided that the City can show a detrimental financial impact on the litigating or settlement position of the city if they were to discuss it in open session. The mayor began the discussions 46:00 into the meeting, and rather than go through the usual motions of hurtling into a closed session without argument, the new councilor, Jack Bulger questioned the use of section 8e on this occasion. The next 20 minutes had a debate between primarily Bulger and City Attorney Ross Hammersley about whether it was appropriate.
Councilor Bulger (above) would vote no to enter into the closed session, then voted no to add other non-councilors into the session with them. They would enter closed session anyway, and when they came out about 50 minutes later, they voted to carry on a course of action with their litigation against the Kolfages over a porch's appropriateness on being closed rather than open. If the City's Motion for Reconsideration was not successful, they would appeal the ruling, and on the slight chance the judge reconsiders otherwise, they would continue harassing the business owners.
Frankly, the City should be embarrassed about carrying this petty vendetta against the Kolfages and their porch for ten years. Five years ago we looked at what was going on, and why then it looked like a pissing match between the contestants, where then-City Manager John Shay wouldn't give an inch (he didn't have an inch to give, I hear). The poison remains within the city council, exacerbated by their advantage of having an unlimited amount of resources to use in order to not only win, but humiliate those who dared question their arbitrary zoning laws.
Beyond that, I respect Bulger's observations, and though I am not privy to the information he has, one has to wonder that in this instance, there doesn't appear to have been a settlement offered, for the motion of reconsideration had not been adjudicated yet. There also was no guaranteed trial in the future because of that motion. Lacking a trial or settlement offer, how could section 8e apply at this point? And how would that present a detrimental financial impact to the City if neither exists to discuss?
Councilors and Hammersley indicated through the discussion that the city's attorney from Carlos Alvarado's law firm was there primarily to update them on what was happening in the case, which would not be a part of trial and settlement strategy. On the available data, it looks like they went into the closed session illegally, like Bulger opined.
You be the judge
You can watch the video for the ten minutes of the WMOM debate, watch the 20 minutes of the closed session debate. Weigh in. Was it proper for WMOM to broadcast over amplified speakers at the beach on July 4th? Did the City have a valid reason to enter closed session? You can make the call for one or both in the comments below.
Regarding city dock F, again we have an overwhelming bias against private enterprise in this city for private marinas, and breaking all the DNR rules established against not having any charters or commercial vessels within. The COL keeps on with their unethical treatments towards taxpayers, and also the OMA acts, which say that they can continue to make their own rules here, and ignore State Law as it pleases them, without any ramifications to answer to. Attrny. and councilor Bulger needs praise for his standings on these matters.
The City is obviously aware that they have limited political fallout when they screw over the private marinas. Consider all of those Fourth Ward Councilors, other councilors, and mayors that stood up for free enterprise when the City marina(s) takes unfair competitive advantage over the private marinas. To my knowledge, this has never happened, at best they have gotten empty promises.
It won't get any better when private marina owners remain home rather than go to these types of meetings. Yes, a private marina owner in the middle of July is very busy, but they need to take a couple of hours off to stand up when these sorts of opportunities come up.
You have caused quite a stir X, when you pointed out that the music was being played without the required permit. You awakened a small colony of attorneys who scurried out of their burrows to raise a stink. It appears that you really got under their skins. I would have to agree with Mr. Otto but only if WMOM broadcast the signal to the Jaycees radio receiver which then was turned up loudly when played. In other words WMOM sent their legal signal to the Jaycees who cranked up the music they received, just like any other radio on the beach. The problem is that the Jaycees had no permit and were in violation of the noise ordinance just as if a private person was blasting their radio anywhere else in town. I agree with you, everyone must follow the law even if you think you are a big shot Jaycee member or a big shot attorney. On the Dock situation. This is plainly outrageous. Using public funds to bolster a group of businesses so they can have an advantage over others who are playing by the rules. That's been going on for years in Ludington. As far as the porch is concerned. That is why there is an appeal process and a system to grant variances. Which should have been given to Summer's Inn a long time ago. It seems that some people in the City have a vindictive attitude toward Summer's Inn. Another provocative topic X.