March 8, 2021, City Council Meeting (held virtually)

Note: links to the video recording and the council packet can be found at the bottom of this post. Please note any errors or omissions in the comments. Anything noted between brackets was inserted by Clarkston Sunshine.

Meeting:

City Manager Jonathan Smith welcomed everyone to the meeting and reviewed the rules for virtual meetings as they were presented on screen.

Agenda item #1, Call to Order (Video time mark 0:01:35):

Sue Wylie called the meeting to order. She said she is chairing the meeting because Eric Haven is absent.

Agenda item #2, Pledge of Allegiance (Video time mark 0:01:42):

Pledge said.

Agenda item #3, Roll Call (Video time mark 0:02:06):

Al Avery, Ed Bonser, Gary Casey, Jason Kniesc, Joe Luginski, and Sue Wylie were present, and all were in Clarkston. Eric Haven was absent.

Agenda item #4, Motion: Approval of Agenda (Video time mark 0:02:55):

The agenda was last updated in the early afternoon.

Motion to approve the agenda passed unanimously.

Agenda Item #5, Public Comments (Video time mark 0:03:59):

Chet Pardee:

• • Pardee thanked Smith, Clerk Jennifer Speagle, and Treasurer Greg Coté for updating the format of the month-end financial report included in the council packet. It’s been rotated and the typeface is easier to read. This will make it easier for the council and the public to understand the city’s fragile financial condition.
  • Pardee asked if a budget amendment would be required for paying attorney Mark Peyser [the lawyer the city hired to represent the city at facilitation in the Bisio v Clarkston matter due to City Attorney Tom Ryan’s conflict of interest]. The $35,000 paid by the city in the Bisio v Clarkston matter appears to be a proposal, not a settlement. Smith said that attorney James Tamm [the attorney hired through the Michigan Municipal League Liability and Property Pool to represent the city in the Bisio v Clarkston lawsuit] advised that the damages could be $350,000 following the Michigan Supreme Court decision. The damages increase as the settlement process continues.
  • Pardee suggested that the RAMP [Road Asset Management Plan] report be presented to the council by the city’s engineer who completed the report in September 2018. A formal presentation would refresh and educate council members regarding the repair and maintenance costs facing the city based on the road conditions in 2018. The road conditions haven’t improved, and the financial challenge has grown.
  • Pardee suggested that information regarding the financing of the City Hall/DPW improvements be summarized, reviewed by council, and added to the city’s website. The city borrowed the money and is paying it back over time. The city budget is presented in one format (summarized by department) and the monthly financial performance is communicated in another (by account number). Pardee was unable to locate the resolution approving the borrowing, and the payback activity is not highlighted in the monthly financial reports. The month-end financial report from 9/30/19 shows a $300,000 transfer from the general fund and $137,628 expenditure in a building renovation & improvements account that has no budget. Citizens will be paying back the borrowed funds over several years. Summarizing the borrowing and expenditure process and accounting for the payback in the monthly financial report increases the transparency of the obligation.

Wylie reminded everyone that the city council isn’t required to comment, but she asked if anyone had comments on Pardee’s comments. There were none.

Smith said that he received comments from Cory Johnston and assumed that the rest of the council did as well. Since Johnston wasn’t on the line, Smith said he would read the comments and noted that there are different categories.

• • City manager’s report – the report states that there is a hearing to review a motion to enforce the settlement agreement that was filed on 2/22/21 with regard to the Bisio v Clarkston lawsuit. Has the council read that circuit court filing and agree with what has been filed? The public has no knowledge of what the council thinks the settlement is other than a payment of $35,000 to effectuate the settlement as stated in the 12/20/21 approved minutes (Smith thought Johnston meant to say 2020). [The $35,0000 was approved at the 2/12/21 city council meeting.] There is no information regarding what the settlement is or how the $35,000 in public funds will be used. Since this is a court filing and a public document, Johnston assumes that it is what the council agreed to in closed session. Why didn’t the council reveal it in open session as part of their decision? The ongoing vagueness and secrecy is not how the city should be dealing with the Freedom of Information Act and a ruling against the city’s actions by the Michigan Supreme Court.
  • Short-term rentals – There is no mention of the Millpond Bed and Breakfast at 155 N. Main in the information provided. This is by definition a short-term rental, and it has existed for close to 30 years. It was approved by court order, is in a residential zoning district, and Johnston saw no detailed review of the city’s zoning ordinance regarding this. Section 5 of the zoning ordinance for R1 and R2 districts does not allow this use – even though it exists. Section 11.02C and 18.10 for special land uses does allow it in the Village Commercial (VC) zoning district where it does not exist. Carlisle-Wortman zoning option #2 is what is in the zoning ordinance but lacking in enforcement of the ordinance provisions. There was an informal discussion of this use regarding 21 N. Main which is in the VC zoning district (see 12/2018 Planning Commission minutes), but the applicant withdrew the request when the city appeared to be against any such activity and was arbitrarily making up rules while at the same time ignoring what already existed. Johnston agrees with the assessment of Carlisle-Wortman that banning or highly restrictive requirements are subject to possible prolonged and expensive litigation given the city’s past actions, existing conditions, and considering there are no documented problems with this use.
  • In-person meetings – there was no information provided for this agenda item. Will meetings continue to be broadcast after the restrictions are lifted? The city’s meeting room will make it difficult to attend in person and maintain social distancing, given that there were logistical problems before the pandemic happened. It’s unknown whether the ventilation meets any standard for mitigating the spread of the virus for those who have not been vaccinated for whatever reason and may be reluctant to attend a meeting in a small room with limited ability to stay distant from others. As such, public participation may be restricted unless some form of the current alternative measures are maintained.
  • Only recordings of the city council meetings are available on Independence Television, contrary to the resolution passed by the council that they would be provided for all meetings. The availability of meeting minutes and recordings remains highly inconsistent. Keeping with the intention of FOIA [Freedom of Information act] and OMA [Open Meetings Act], the city should determine how they are going to inform the public and allow public participation.

Wylie once again reminded everyone that the city council is not required to comment but asked if anyone would like to make comments about Johnston’s comments. There were none.

Wylie wanted to make a comment of her own thanking Speagle for changing the format of the minutes for the past month or so. She’s extended the minutes, including details on public comments and a lot more details regarding the discussion.

Wylie appreciated the extra effort. Wylie also wanted to thank Smith for changing the format of the financial statements that are included in the agenda. Pardee brought this up before, and Wylie thought things were OK before. Now that they have the new method, Wylie thought everything was much easier to read. Smith noted that it’s a combination of Coté and Evelyn [Biehl].

No other public comments.

Agenda Item #6, FYI (Video time mark 0:13:46):

No items.

Agenda Item #7, Sheriff Report for February 2021 (Video time mark 0:13:56; page 3/38 of the council packet):

The Sheriff’s report was added later today. Lieutenant Hill was on the line for questions.

Bonser asked what Lieutenant Hill’s thoughts were regarding enforcing the noise ordinances, specifically the traffic coming through the village and people who have been identified as having loud vehicles and who purposefully go around making noise. There was some discussion about calling 911 on a particular individual. It is worse in the summer. There is a constant noise coming down Main Street, and there are motorcycles that are obviously and purposefully being loud and blaring their radios. Bonser wanted to know what Lieutenant Hill’s approach to that is.

Lieutenant Hill said that it’s helpful if you know who the person is. It’s hard to respond to a specific area unless it’s the same time every day or day of the week when they’re coming through. The nonemergency number for the Sheriff’s office is 248/858-0951 and 0950. Extension #8 will get you straight through to the dispatcher. It’s the same operator that handles 911 calls. A noise violation is not an emergency. We would send a car to investigate. If you can forward a place and time, they can send a patrol car to specifically address that. The Sheriff spends a good amount of time policing what sounds like drag racing and modified vehicles making an extreme amount of noise in Clarkston and Independence Township. They handle this with a citation which is often not met with very pleasantly because it costs money to make the vehicles sound this way. It does violate the noise standard, or there is an equipment issue that really shouldn’t be there to prevent that type of noise.

Agenda Item #8, City Manager Report (Video time mark 0:18:33):

• • City Manager’s Report, March 8, 2021 (page 4/38 of the council packet)
  • City Manager’s Annual Report for the 2020 CY (page 5/38 of the council packet)

Smith had no additional comments to make about the report. Everything is pretty straightforward. Wylie noted that this report also includes the annual report so it’s lengthier this time.

Kniesc thanked Smith for looking into the guardrail [on White Lake Road where it becomes S. Holcomb Road] after the accident where the vehicle ran into the house. Our residents use it even though we don’t own it. Smith said that our residents are at risk, but they [the Oakland County Road Commission] own it and would be the ones to install the guardrail. We could move a guardrail to our side of the easement but that won’t be as effective. Smith is contemplating moving the Your Speed sign from where it is to just past the curve if you are coming into town from Dixie Highway on White Lake Road. You don’t see the Your Speed sign flashing until you come around the curve, and it was placed there for a reason because that was the location for the lower speed limit down from 35 to 25. We can move the sign before the curve so it can be seen all the way from Deer Lake Beach and beyond. Smith doesn’t know if everyone would respond to it, but it would give people a little bit of warning that they are speeding and are not going to slow down enough to make the curve. It would be a more effective location for the speed sign, and barring any objection from city council, Smith would like to move the sign as soon as the spring weather allows us to pour concrete. Casey thought that was a good idea and it’s also a better location for the solar panel to work. Smith agreed.

Wylie wanted to know if Smith was looking for feedback, and Smith said they could vote on it, but he believed it was within his authority to move the sign. Wylie thought it was a good idea and agreed with Casey’s additional point about the solar panel.

Bonser wanted to say thank you to Smith. After reading Smith’s report, Bonser said that he hoped that Smith found gratification in what he does because we don’t pay him as much as he deserves.

No additional comments.

Agenda Item #9, Motion: Acceptance of the Consent Agenda As Presented (Video time mark 0:23:44)

• • 02/08/2021 Final Minutes (page 9/38 of the council packet)
  • 02/12/2021 Final Minutes (page 12/38 of the council packet)
  • 02/22/2021 Draft Minutes (page 14/38 of the council packet)
  • Treasurer’s Report Dated 03/08/2021 (page 16/38 of the council packet)
  • Check Disbursement Report, 02/01/2021-02/28/2021 (page 17/38 of the council packet)
  • Thomas J. Ryan, P.C., Invoices for February 2021 (page 20/38 of the council packet)
  • Water Resources Commissioner, Oakland County, Soil Erosion Invoice (page 24/38 of the council packet)
  • Road Commission, Oakland County, Invoice (page 25/38 of the council packet)
  • Resolution – Repaving of N. Holcomb Road (page 26/38 of the council packet)
  • Howard & Howard, Invoice (page 27/38 of the council packet)

Avery questioned the bill for $1800 for soil erosion related to construction of the city office building. The city manager’s report said that we’re done with that, so why do we still have soil erosion barriers up and how long will they be there? Smith said that the Water Resources Commissioner (WRC) bill was for $1,885. The WRC charges quite a bit for inspection of soil erosion. The closer you are to open water, the higher your quarterly inspection will be. This was attributable to the location of the rain garden that we are redoing and how close that is to the mill race. This started with the initial construction in 2020 and we have four payments that haven’t been paid because Smith has been investigating with the WRC to make sure this is right. Smith agrees that this is excessive. Even though the work was done, we can’t stop until there is some sort of permanent vegetation there to ensure that the soil is not eroding and making its way into the mill race. In the spring, Smith wants to hydroseed, which is the fastest and most efficient way to get the soil erosion maintained. Sodding is faster but more expensive. As soon as the growth starts, he can call the soil erosion people from the WRC to come out and permanently close this once and for all.

Wyle had the same question, but she also asked about a 2/11 item on Ryan’s bill with a notation of reviewing a final decision and order regarding Line and the HDC (Historic District Commission). Ryan said that was the final decision of the ALJ (Administrative Law Judge) affirming the HDC’s decision on the Line’s matter.

Wylie also noted that her name was on Ryan’s bill on 2/15 in connection with correspondence from Wylie and Haven but she didn’t recall any correspondence with Ryan. Ryan said that Wylie’s correspondence was forwarded to him and the bill notation was Ryan trying to be complete.

Casey wanted to know what McLean v Clarkston, 177 N. Main, pertains to. Ryan said that they went through the HDC process and were approved for a picket fence but installed a horizontal or rural fence. After a few meetings with the HDC, they insisted on keeping their fence even though it wasn’t approved in their certificate of appropriateness. They appealed to the ALJ under SHPO (State Historic Preservation Office) to overturn the HDC decision. This is the same pattern as the Line case. It’s an administrative law process in Lansing. We have a 4/5 hearing in the McLean matter with the ALJ.

Casey wanted to know what Clarkston v Thrift was about, and Ryan said that it was an assault case.

Pardee asked about the Holcomb paving and wondered if we got our money’s worth. The resolution discusses having three feet on either side of the roadway, but Smith’s report references two feet on either side. Smith said that we were billed for the standard machine width plus the three foot shoulder, which is what we asked for. There was a budget for $84,551 approved. The total came in at $85,262, so it was approximately $700 over budget which is less than 1%. The increased cost was due to the number of sewer grates that had to be lifted to do things the right way. We had to pay $75 for each sewer grate that had to be raised. Pardee endorsed the $75 per unit expenditure.

Pardee asked about attorney Peyser’s bill. It appears that the hours were put in in January and we were billed for $11,000. We are now through the month of February and partially into March – do we need to amend what was authorized for Peyser? Smith said that Pardee was correct. We approved $14,000 and spent $11,400 of it already. A disproportionate amount of the work was done in January to catch Peyser up on what had happened. There were 300 pages of documents to go through so that he was properly prepared. The trajectory that we are on will easily exceed $14,000. Though Smith couldn’t comment on the lawsuit that is still pending, there is back and forth communication between both sides. There is also a 4/21 hearing scheduled with Judge Bowman and we don’t know if something will happen before that that will cut things short. There have been some challenges made on some of the points of the settlement and we are working through those. Smith needs to talk with Peyser and estimate how much additional funding is needed and then he will bring an additional resolution to council for approval. Pardee said that if we haven’t limited Peyser to $14,000 then he’s on a free rein and we are violating the Michigan budget law because we are authorizing him to continue potentially at a level that exceeds what has been budgeted.

The consent agenda was approved unanimously.

Agenda Item #10, Old Business

Item 10a, Motion: Short-Term Rentals (Video time mark 0:38:19)

• • 03/02/2021 Memorandum from Richard and Ben Carlisle, Carlisle/Wortman (page 31/38 of the council packet)

Ben Carlisle was on the call. Carlisle said that he’d prepared the memorandum that was on the screen after receiving direction from the council and in collaboration with the attorney. The idea of short-term rentals has been going back and forth for awhile and we are seeking some direction to give to the Planning Commission. We need to get on the same page and understand what a short-term rental is. The definition varies, but it usually means any rental of a house or an apartment that is fully furnished for less than thirty days, though that window is sometimes reduced to a week or less. There are three general categories:

1. 1. A primary residence or homestead where the owner stays in the residence and rents out a room or a section. This is rare.
   2. A primary residence/full house. Someone owns the house as a primary residence for the majority of the year but may rent it out for certain periods of the year. For example, in college towns, they may rent out a house for graduation weekends or during football season.
   3. Non-owner occupied. The owner buys the property but doesn’t live there and may rent it out on a short-term basis throughout the year.

Carlisle-Wortman was asked to look at short-term rentals. As of February of this year, there were four of them listed in Clarkston on BRBO [Beach Rentals by Owner] and Airbnb. Of the four, three of them are non-owner occupied because the owner doesn’t live there and it’s not their primary residence. One of them is an accessory dwelling unit and the two others are full house rentals. The fourth one is in village commercial (VC) and Carlisle didn’t have any information on it.

There are a lot of different ways to regulate these, but usually they fall into three categories:

Option #1: Ban short-term rentals from any zoning district. That’s been done, it’s been challenged, and the cases are won and lost. Carlisle discussed this with Ryan and they feel that they would have to present some pretty strong evidence why the city would outright ban them from any district in the city. They think that there would be some significant legal challenges and the better way to regulate this would be in the second category.

Option #2: Ban short-term rentals in R1 and R2 single family districts. Courts have found that to be a valid exercise of police power. If the council wants to ban short-term rentals and avoid exclusionary zoning requirements, they could potentially be allowed in VC districts.

Option #3: Allow them in VC and/or in R1 and R2 single family districts but regulate them. Regulation can range from very light to very strict. At a minimum, registration and licensing would allow the village to establish a local point of contact if there’s an issue, a process to deal with violators, allow the city to collect fees, and the city could require that the hosting sites file monthly reports.

When Carlisle offers regulations, he wants them to be enforceable with current staffing. He didn’t think that this would require a lot of lifting in the village because there are a limited number of short-term rentals that can exist. Other types of regulation could be to not allow advertisement on the premises; require that short-term rentals go through an inspection to ensure that safety, building, and fire codes are met; limit the number of days the houses could be rented out; and regulate the short-term rentals based on type, for example, allowing occupied owner rentals a few times a year but banning the non-occupied owner rentals (which is the 3-4 potential short-term rentals that we have now). The city could also regulate based on geography (by zoning district). Those are the general ways to regulate.

Whatever the city decides regarding short-term rentals could create nonconformities for existing short-term rentals. They could be grandfathered in while requiring new short-term rentals to comply with the new regulations, or the existing short-term rentals could exist for a short period of time and then their use would sunset.

Ryan thought that Carlisle did an excellent job. He wanted to remind the city council that we are a creature of the state and the legislature can preempt our local laws and charter if the legislature deems it to be a public purpose. This happened in the 1980s when the legislature and the governor believed that it was in the best interest of the public to allow independent living or adult foster care homes of six persons or less in single family use areas despite zoning ordinances. Short-term rentals have been discussed in Lansing but there is no traction yet. Most of the desire to include short-term rentals comes from legislators on the other side of the state who want to enhance the tourist industry which brings a lot of money into the state. We have to do what’s best for Clarkston, but Ryan wanted the council to know that the state could regulate these uses if it wants and there’s nothing we can do about it.

Avery wanted to know why this was put on the agenda as a motion when there wasn’t a motion. What is the council voting on? His recollection was that when this was discussed the last time, they were going to wait until they had a full council. What are we trying to do tonight? Ryan said that this was provided as a resource to council to decide on a strategy – does the council want to regulate, ban, or do something else with short-term rentals. After that, it would go back to the Planning Commission to work things out relative to that direction.

Avery said that it was pretty clear from the comments of council that we weren’t in favor of this, so if we are putting it in writing that we want an ordinance that bans this use, he would like to see the ordinance. Ryan said that if that’s the direction they want to go, he would caution that when we say that we are going to ban short-term rentals, the recommendation is they would be banned in R1 and R2 zones but allowed in VC so that there are no exclusionary zoning issues. Avery asked Ryan if Ryan was comfortable banning them in residential areas, and Ryan said he was. Avery asked if Ryan was saying he wasn’t comfortable with a blanket ban because it might invite litigation if someone decided to open up a hotel or an Airbnb in a VC zone. Ryan said that we have a bed and breakfast ordinance on the books, this is a recognized use, and we should accommodate it in the VC – that’s the recommendation.

Avery wanted to know what motion Ryan was looking for. Ryan said that if the majority wanted to ban the use in R1 and R2 but allow it in the VC then that would be the direction for the Planning Commission and they would prepare an ordinance to bring back to council for their review and comment or adoption.

Casey believes that the Airbnbs are a positive thing in the city, have been here a long time, he doesn’t see any issues with them, and they bring diversity and outside money to the city. He would vote to allow short-term rentals in the city with some regulations but not to restrict them geographically.

Wylie outlined the three regulatory options and wanted a motion. Avery said that he would make a motion for Option #2 to ban short-term rentals in residential areas but allow them in VC and ask the Planning Commission to draft an ordinance consistent with that direction.

Wylie asked if Bonser needed to be recused again, and Ryan said no. He can comment as a member of the public.

Luginski recalled discussing the possibility of potentially limiting the number of short-term rentals in a town of our size instead of by R1 and R2 zoning districts. For example, maybe there could be no more than 10 and identify how many in each zone or that number in total no matter where they are. Carlisle said that’s option #3. It’s tricky because you would have to make a bid process and he would have to lean on Ryan for this, but the city would evaluate that number. It’s more difficult than saying that we will allow them in some districts but not others. Wylie thought that Luginski might be remembering some of the options discussed in the Planning Commission. One of the rules they discussed was the number of feet between short-term rentals but she didn’t remember how long ago that was.

Luginski wanted to know what would happen to the three short-term rentals that are in R1 and R2 districts. Wylie questioned whether there are actually four of them, and Speagle said that the 4^th short-term rental was on Deer Lake in Independence Township, not Clarkston. It’s a private house. The map incorrectly shows that it’s at Depot and Main Street. Wylie said that the carriage house is on Main Street, there is one at Main and Waldon that is one house but not owner occupied, and there is one on Overlook that is one house not owner occupied.

So there is no confusion, Avery said he would amend his motion to note that in his opinion, the existing short-term rentals were never allowed to begin with. We didn’t put a big sign up and it’s through no fault of the users, but the fact is that they have never been allowed so he would say that they need to cease existence. Luginski wanted to understand grandfathering and what would happen to those three short-term rentals. Avery said that as a lawyer, if he had a client who wants a short-term rental and isn’t allowed to do it, he would point to the other short-term rentals and ask why there can’t be more. We need to be consistent.

Wylie wanted to know if this could be sent to the Planning Commission to fill things in a little bit more. Maybe they could come up with some rules that would allow continued operation for six months to a year before they would close because she assumed they would have some bookings. That could be in the motion.

Casey said it would be extraordinarily unfair to close them down, regardless of any transition period. He was totally opposed to this motion.

Kniesc is in favor of option #3 but didn’t understand the difference between Option #1 and Option #2 and thought that they opened up potential legal issues. Option #3 seems to be the best option that fits. He agreed with Casey; Option #3 is better.

Avery wanted to know if we are sending something to the Planning Commission tonight, because they keep going back and forth. Kniesc said he wasn’t talking about the exact regulations that would come back. Avery said that if they voted not to allow them, then the regulations would be limited. If they vote to allow them, then they would have to come back with some specifications. Kniesc said that Option #2 and Option #3 would require regulations.

Casey said that the task is to give the Planning Commission some direction so they can come back with some direction. He agrees with Kniesc, Option #3 is the way to go. It gives the Planning Commission a lot of flexibility and some direction. We will see what they come up with.

Luginski said that he has a problem with Option #2 and Option #3 because he doesn’t feel comfortable opening things up to an unlimited number of Airbnbs or short-term rentals. He didn’t like the possibility of opening it up to dozens or more. A limited number makes sense. Casey said that we are going to have the opportunity to review what the Planning Commission comes up with regard to Option #3. If we don’t like it, we will have another chance.

Wylie said that if Option #3 passes and that’s what the council wants, then the Planning Commission will come up with some recommendations and council will vote on it once again. Rich Little [Planning Commission Chair] confirmed that the Planning Commission sent recommendations several months ago, and then there was a recommendation to ban them, and then things got held up because of the supreme court decision. They want direction from the council regarding whether they want short-term rentals banned or regulated. Then they will go off and do their best based on the discussion tonight.

Kniesc agreed that there should be some cap and thinks that people in the village would want a cap, including Airbnb owners. No one should be against a cap, and he wouldn’t vote for anything that didn’t have a cap.

Pardee wants to be sure that the Millpond is in the listing as something that is existing. Ryan said that it exists under a separate bed and breakfast ordinance under a court decision.

Pardee said his next point related to the cost to the city from an administration and regulation perspective. This isn’t a job that the city is currently doing and would require additional personnel hours and likely different skill sets if we are going to register and inspect. This is like the restaurants that don’t bring direct revenue to the city; the revenue goes to the owners. Parking revenue goes to the city. Residents may benefit in terms of property values. Pardee thought that we should consider a fee collection for registration and inspection and also consider requiring that a percentage of the revenues be paid to the city, just like the hotel taxes we pay when we travel.

Public comments:

Theresa – she has spoken about short-term rentals in the past. They have had a number of people leave reviews on the downtown restaurants. Most of the people who come through are people who have family here and are visiting for holidays, weddings, or funerals. Their biggest clients are people who are relocating to the area and need a place to stay for two, three, or four months. They don’t even see many short-term rentals anymore. In the last year, they have only had two tenants that stayed for less than a month. When a former board member who was against short-term rentals sold his home, the person buying his house needed an Airbnb and called her. As soon as it’s a necessary thing, then everyone is for it. What problem are we trying to solve? Clarkston isn’t a vacation destination, and we aren’t getting the partiers because they don’t do single night stays. There is a hotel that’s coming next to Pine Knob that will handle that situation. They haven’t had complaints or issues and are more accountable than a long-term rental for keeping the home up inside because they are reviewed constantly. Her current tenant plans to stay for four months because she’s relocating from California. Now she wants to relocate to Clarkston. This has been a pretty nice thing for Clarkston, more of a benefit than a detriment. It would be a mistake to completely ban them. They’ve had families with young kids and dogs, and they’ve gotten to know a number of people. These aren’t gypsies hanging out and it’s not a menace that some people think it’s going to be. People come here because they are moving here, have family here, or are renovating their houses. She agrees with Kniesc and Luginski. She lives here too, right next door. She has four children and would never want to do anything in the city that would detract from what we have. This is a benefit.

Bonser wanted to comment and said his wife wanted to comment as well. He noted that the Carlisle report said that the city has had no complaints or police calls regarding the existing short-term rentals. If they are saying that there really isn’t an issue, why would we want a complete ban? He also wanted clarification from the Planning Commission regarding the timeframe for a short-term rental – is it a week or a month? Avery asked Smith about complaints, and Smith said that he’d received a general email from someone expressing concern about transient people not taking care of the home or being respectful. It was not a complaint about a general house.

Sharon Bonser – Their carriage house was a rental before they purchased it in 2000. They have customized the rental duration to meet the needs of the clients. They are providing a service to a lot of families coming in because there aren’t a lot of options for them. It’s an accessory building on their property and they are onsite to manage it. They physically meet and greet the guests, set expectations, and explain that it’s a historical home. People walk downtown to eat, shop at the grocery store, and ask questions about the village. They think it’s lovely. The people staying there now live three miles away and are having renovations done to their home. They’ve rented to people from Oregon who stayed for a month and relocated to Lake Orion. Their experiences have always been positive with no issues. They screen their clients and have invited some to eat with them. These are good, common folk who live in the village for a short period of time. Their home is unique because it’s historical and provides a lot of education about what home preservation is and what a historical village is. They are proud of that.

Wylie said that there is a motion and a second to consider Option #2 [banning in R1 and R2 and allowing in VC]. Wylie said that as she’d mentioned a couple of meetings ago, she would be unhappy with a short-term rental next to her. She would also be concerned about her property value if there were a short-term rental next door to her or across the street.

Theresa said that the house across from their short-term rental sold within days, so she didn’t think it affects property values. They bought a house that was a rental for 20 years and have done nothing but fix it up. Homes can fall into disrepair when there is no oversight, and that’s how it was when they bought it. If you have a short-term rental, people will slam you in reviews if your home doesn’t look good, and that provides more accountability than what there is in a traditional rental.

Avery asked Ryan how many votes it would take to move the issue one way or another since Bonser can’t vote? Ryan said that it would take three votes to move it forward because it’s a majority of who is here tonight because Bonser is recused, unless they want to wait until Haven is here.

Wylie asked if Avery wanted to table the motion. Avery wasn’t sure if it should be put over until everyone is here. Luginski thought that it’s a big decision and it would be nice to have everyone here to weigh in if possible, to let the mayor have his say, too. Wylie said that this was already delayed from several weeks ago because Casey was absent. Avery said that there’s no harm in keeping the status quo for a couple of weeks.

Kniesc referenced the photos relating to Madison Court, which is the next agenda topic. Looking at what’s going on there, Theresa makes a good point. Kniesc would rather have an Airbnb behind him than those apartments. Theresa said that she could send photos of what the home next door looked like; Wylie said there is a time limit to comments.

Wylie said if they want to table it, the vote would be the same. It would be nice to have another voice because it’s an important decision.

Motion to table passed unanimously.

Item 10b, Motion: In Person Meetings (Video time mark 1:30:21)

Smith said that there is no motion because there are a lot of moving parts regarding the status of in-person meetings right now. Public Act 254 extends the ability to have virtual meetings until 3/31.  Smith was on a call earlier today with the Michigan Municipal League (MML) where they shared everything they know at the moment. There is a real possibility that there may be a last-minute extension but an equal possibility that there won’t be. There are many factors coming into play, including how the vaccine is rolled out. There are 7 council members and 16 people attending the meeting now, down from 21 earlier, and there is also Smith and Ryan. The 6-foot social distancing rule hasn’t been relaxed, so we would almost have to have a hybrid meeting to allow people to call in because they have a right to speak their mind. Smith thought this issue should be tabled until the next meeting and that’s why he didn’t include a prewritten motion in the packet.

Ryan said that PA 254 allows no question [no reason required] virtual meetings until 3/31 this year. After 3/31, a person can only appear virtually if they are an active veteran in the military or the local unit declares a disaster because of the pandemic. The public must understand how to get in touch with them before a vote occurs. A week and a half ago, the Michigan Department of Health and Human Services (MDHHS) changed the rules under their order to allow indoor gatherings of no more than 25 persons, but social distancing and masking is still required. We won’t know until later this month if no question [no reason required] virtual meetings will be allowed after 3/31. We don’t want to turn people away and would need a hybrid situation to accommodate council and staff and any professionals involved. We should have more information toward the end of the month. We will have to decide if all council members can appear, and we have to count heads to make sure that everyone is spaced properly. We have to allow the public in and don’t want to jeopardize anyone’s health.

Wylie was on the call with the MML longer than Smith was. It looks like the only bill that might move forward is SB 207, and the MML suggested that if you would like to see this move forward, then you should contact your local senator and representative which is probably Senator Bayer and Representative Schroeder. Wylie said that a republican is sponsoring this bill and maybe that’s why it has a better chance. They also talked about the possibility of a county emergency. Wylie didn’t know if Oakland County would declare a county emergency but we could also declare a local community emergency which is another way to continue virtual meetings.

Luginski asked if the six-foot social distancing is a law or a guideline/suggestion and has heard conflicting opinions about that. Ryan said that it is required by the MDHHS order. After the Michigan Supreme Court struck down Whitmer’s executive orders after 4/30 because she didn’t have the concurrence of the legislature, the court acknowledged that there were other mechanisms in place. This is not an order from the governor; it’s an MDHHS order, and it has the force of law.

Luginski said he doesn’t know about a state of emergency for Oakland County, but he does know that Oakland County is meeting in person. His wife is the chair of the historic committee and they had their first in-person meeting last week. They were encouraged by the County to meet face to face, and they met at the County building. They had all of their commissioners plus a few people there.

Wylie said they didn’t list any counties. SB 207 takes the original rule and changes the date to extend from 3/31 to 6/30.

Agenda Item #11, New Business

Item 11a, Discussion: 35 Madison Ct.; Complaints regarding the Apartments at 35 Madison Ct. (Video time mark 1:41:26)

• • 03/08/21 Presentation to the Council, Complaints Regarding the Apartments at 35 Madison Court, Clarkston (page 36/38 of the council packet)

Smith said that there have been a number of complaints over the last four weeks from the residents of this building. The building has twelve residents in ten units. Many of them are seniors and some are disabled, and they account for 60% of the residents.

Smith read from a list of complaints provided by the residents.

• • There is a problem with a lack of snow shoveling. The significant snowfall in February hasn’t been cleaned up. Sometimes, they will come out several days afterward and do one straight plow down the parking lot, not including the spaces themselves or the sidewalks.
  • There are insufficient trash receptacles, and this results in trash on the ground and complaints of rodents.
  • There was mold in some of the bathrooms, utility closets, and on some of the windows.
  • There were broken tiles in the bathroom shower units
  • The water quality was scary to look at
  • They can’t reach the landlord. Smith has had the same problem. He called three times and has received no response.

Last Tuesday, on 3/2, Smith and Craig Strong walked around the building perimeter and made notes of violations, including lack of snow shoveling. They went into two of the units and physically saw some of the issues inside the building. These aren’t just people complaining about their rent. The units are in bad shape. They are residents of the city and we need to take some action.

Strong wrote a letter today to the building owner citing several violations of the international maintenance code. The renters were advised to familiarize themselves with the Michigan landlord and tenants rights law. They can’t be intimidated, threatened with increased rent, or threatened with eviction because they are making complaints. Smith showed some of the photos that had been taken because they give a sense of what is going on.

There was some evidence of shoveling, but it wasn’t from a snowplow. One of the 80-year-old residents is concerned about his wife getting an ambulance if she needed one. You can see an ambulance stuck in the snow in one of the photos. The ambulance driver had no indication where the road started and stopped because none of it had been plowed and a tow truck had to be called. This could be a life and death issue. There were snow issues on the steps, walkways, and you couldn’t get into the trash receptacle area.

There are only three trash cans for twelve residents. Smith and his wife fill up one can per week and he doesn’t see how three cans would be sufficient for a dozen people. That leaves them with no choice but to put their bags on the ground, and racoons, opossums, and rats get into them.

You can see mold on the walls and cracked paint. Strong said that this is lead-based paint. Even if there are no small children there, it’s still a concern for all ages. There is mold on the ceiling. Bathroom tiles have fallen off the wall into the tub, and the wall behind the tiles is black with mold. More tiles will soon come off.

There is a photo of a clean glass of water versus murky water. The water that comes out of the faucet is not suitable for drinking. It’s not city water, so it must be coming from a well of some sort.

Strong is using the photos and has advised that these things must be rectified. The letter discusses some of the issues in the units. There were also holes in the siding and multiple birds were seen flying in and out of the building.

Strong is asking that the violations be addressed immediately, before 3/24. They aren’t saying that everything needs to be fixed by 3/24, but the owner at least has to call with a plan to get some of the things corrected or we will consider legal action. We don’t want to do that and would prefer that the landlord step up and do the right thing. He’s not returning calls so that’s not a good start.

Smith wanted to bring this to council’s attention and to get their input. Smith thinks that the residents just want some action started and bringing it to the council’s attention is the first start. Smith is open to any suggestions to help these people out.

Avery asked Ryan what options the city has. The city can take them to court to enforce the building code ordinance violations, but beyond that, most of it falls on the residents, doesn’t it? Ryan said Smith made the right call to bring out the building official who has authority under the maintenance code. We are doing what we can do to address the issues. Building officials can go into a rental situation to view a tenant’s property and that’s an appropriate entry. Hopefully, the property owner will respond positively. Avery said he was disgusted by this too and it shouldn’t be happening. He was trying to get a sense regarding whether the building code was the strongest suit to try to prompt action, and Ryan agreed.

Smith sent the letter via certified mail today, so the owner will have to sign for it. Strong provided him with his phone number and email address and asked for a response by 3/24. They have a maintenance man, but he’s 80 years old and there are limits on what he can do. Smith knows that it will take time, but he wants a plan from the owner and will keep the council apprised. Some of the residents are on the call tonight and wanted to let the council know what was going on.

Avery said it’s a tough situation and we need to keep pressure on this guy. It took a lot of time for the property get in this condition, so he’s obviously not going to act quickly to remedy things and will need a fire lit under him. The residents may need to put their rent into escrow and stop paying. Avery isn’t giving legal advice, but that’s something tenants can do. They can’t stop paying their rent and have to follow certain laws, but he recalls that it has to be an escrow account, so it shows that you are paying the rent.

Smith said that if there is something that is in dire need of repair that is affecting your life, you can go ahead and bring in a contractor do the work, pay for it, and deduct that, but he thought you needed to put that money into escrow. They need to educate themselves and, in the meantime, we need to do what we can to put the pressure on. He’s the kind of guy who comes to collect the rent, leaves, and then you don’t see him until the next month’s rent is due. The only reason the building looks as good as it does is because it’s made from brick. If the siding was made of wood, it would look horrible. He’s not putting enough money into maintenance.

Smith asked if Paul or Ashley [apartment building tenants] want to speak.

Paul said that the biggest problem is that the landlord has refused to communicate, but he does intimidate some of the tenants and their guardians. He was there last night, and he wouldn’t agree to let improvements be made and be deducted from the rent. He doesn’t listen to very many people.

Ashley said he had an impromptu visit yesterday afternoon and she was told if she was unhappy, he would break her lease and she would have to move. He said she’s a troublemaker who is causing trouble in the complex. She said her goal is to help the current residents, herself, and future residents. She grew up here and has never seen anything like this in Clarkston. You can’t get in touch with the landlord, he won’t return phone calls, and the intimidation that he’s using now is very inappropriate.

Ryan suggested that Ashley and any witnesses make a contemporaneous note or memo about the contacts so that they will have dates, times and observations in case they need to use them. Paul said he has a Ring camera, and the landlord was complaining about being recorded. He has all six minutes of it.

Ashley appreciated the council’s time. She just wants to better the community. This is not what the village stands for. When she goes, she doesn’t want the tenants to live there with mold, snow, and ice. It’s very dangerous and unhealthy.

Wylie assumed that this was the same complex that David Delasco spoke about a couple of meetings ago and said that there is no snow removal.

Pardee suggested that the city accept responsibility for snow removal for the safety of the residents. The city could bill the owner for the cost. Smith said that it’s private property and he didn’t know if we can do it and bill them. Wylie said it would help them a lot, but she was concerned about the precedent that it would set with other property owners in the city. Avery said that it opens the city up to liability if we go in and plow. He could allege that we damaged something and that’s another can of worms. Ryan said he was also thinking about the liability, but if we get involved in conversation with him [the landlord], hopefully he will take care of things if it snows again.

Smith said he will keep the council posted but wanted to provide an update.

Agenda Item #12, Adjourn (Video time mark 2:03:18)

Motion to adjourn was approved unanimously.

Resources:

• • Link to video recording – http://216.11.46.126/VOD/3391-CityCouncil-3-8-2021-v1/vod.mp4
  • 20210308 – City Council packet