October 12, 2020 City Council Meeting (held virtually)

Introduction by City Manager Smith. Smith noted that the Michigan Supreme Court ruled on 10/2/2020 that the Governor’s previous executive orders allowing online meetings were illegal. The Michigan Department of Health and Human Services issued an order on 10/9/2020 to reenact limitations on indoor meetings until October 30^th. This meeting will remain an online only meeting. Smith read through the general rules for participating in an open online meeting. (Video time mark 0:00:00)

Agenda item #1, Call to Order (Video time mark 0:01:51):

Meeting called to order by Haven.

Agenda item #2, Pledge of Allegiance (Video time mark 0:01:58):

Pledge of Allegiance said.

Agenda item #3, Roll Call (Video time mark 0:02:19):

Eric Haven, Al Avery, Ed Bonser, Gary Casey, Jason Kniesc, Joe Luginski, and Sue Wylie – all present.

Agenda item #4, Approval of Agenda (Video time mark 0:02:44):

There were some adjustments made to the agenda this afternoon.

Kniesc asked to change agenda item 11c (Halloween hours) from a discussion to a motion. He wanted to establish Halloween hours now rather than waiting until the last meeting of the month. Luginski disagreed and wanted to continue with Halloween hours from 6:00-7:00 as we always have. Kniesc suggested that since it’s a Saturday, he would propose that the hours be moved from 4:00-6:00 so that people have a larger timeframe from which to choose. Haven asked Kniesc to wait until the council reached agenda item 11c.

Agenda was approved unanimously.

Agenda item #5, Public Comments (Video time mark 0:06:46):

Haven noted that there were some comments received by email; he asked whether anyone was on the call and wanted to be heard.

Chet Pardee:

• • Noted that the cost for repairs to the road adjacent to 148 N. Main could be millions. The Oakland County Road Commission confirmed that the utilities need to be removed prior to road repairs.
  • Will the repairs address stormwater issues, the flow into the Mill Pond and Parke Lake, and resolve the drainage issues affecting the gasoline plume?
  • We were told on 9/25/18 that the plume was no longer moving south or west, but there was a presence at 148 N. Main. There are four excavation restricted MDOT markers installed there.
  • An April 2015 Clarkston News article discussed Tom Ryan’s recommendation to enter into a hold harmless agreement.
  • Local residents have been concerned about stormwater and pollution issues for many years.
  • In 2003, after MDOT proposed connecting Robertson Court to the Main Street stormwater system, the estimated costs for water and sewer work ranged from $2.9 million to over $4 million and releases were a major concern.

Haven thanked Pardee for putting his comments in writing for the council so they could follow along at the meeting.

Curt Catallo, Union Joints wanted to talk about the “Church Street activation.” He thanked council for bringing the idea to him in June, and thanked Wylie and Smith for looking ahead and understanding what the restaurant industry was facing. “Activating” Church Street allowed Catallo to continue to keep 100 Honcho employees on staff this summer, and he understands that this is planned to end at the end of October. Catallo is aware that the city council is considering social districts, including the areas beyond The Fed and alongside Rudy’s. He wanted to know if it was worth asking the city council and Planning Commission if they could extend the “activation” through the winter into the spring so they can maintain social distancing within their restaurants, keep the people of Union Joints employed, and allow people to eat in a socially distant way. Catallo wondered if it warranted putting a tent over the space to get through the winter, and he sent a rendering of what that would look like to Smith.

Haven said that the city intended to follow the current plan. He understands that the Planning Commission is considering social district ideas and holiday hours.

Wylie suggested that Catallo bring the idea forward at the Planning Commission meeting in the context of discussing a social district. The current recommendation does not include Church Street because if the social district is enacted, Catallo could not use that portion of Church Street for his operations since it would need to be open to everyone. Wylie understood that Catallo was going to ask for an extension, and anticipating that, they did not include that section of Church Street within the social district.

Kniesc agreed. At some point in the future, they want to make Church Street a permanent part of the social district. It is cleaner to leave it out now. That would leave it open for the Union Joints to present a different use if they want to extend the current arrangement. There wasn’t enough time to discuss this in July.

Haven believed that the Planning Commission was the appropriate place to discuss this.

Catallo said he understood. Knowing that the city had an “appetite” to extend some sort of “activation” on Church tells him that there is an opportunity to look at an interim usage. The igloos will help but the goal is to get to spring and “activate” this in a social district on an ongoing basis. It will benefit the community as a whole.

Haven said they had the best interest of all of the businesses at heart.

Smith read public comments from Cory Johnston since he wasn’t in attendance online. Johnston’s comments stated that the Michigan Supreme Court has denied the city’s motion for reconsideration in the Bisio lawsuit and the documents are public records. On behalf of the residents and taxpayers, Johnston asked that the city stop the ongoing legal battle, turn over the records, and settle the matter. If the city continues to act otherwise, it will potentially cost taxpayers even more in legal fees and further diminish public opinion of city government. Haven noted that this was on the agenda as item 10b.

Smith noted that Johnston also had comments concerning the city manager’s report and the consent agenda. Haven and Smith decided that those comments would be addressed during those parts of the agenda.

Public comments were closed.

Agenda Item #6, FYI (Video time mark 0:21:32):

Speagle placed information regarding the Taste of Clarkston restaurant week into the packet. It was moved back and will take place from 10/19/2020-10/25/2020. Additional information is available on the Chamber website. Menus and promotions can be viewed at Clarkston.org. Smith said this is a completely virtual event and discount coupons are available to purchase meals.

Agenda Item #7, Sheriff’s Report (Video time mark 0:24:02; page 3/28 of the council packet):

Kniesc asked if Lt. Hill had any information regarding the raid on M15. Lt. Hill said it was conducted by the State Police and they are handling all media requests.

Agenda Item #8, City Manager’s Report (Video time mark 0:25:23; page 4/28 of the council packet):

Avery asked for more information regarding the closed session that Smith requested. Smith said that he was asking for a closed session for an appraisal review; this is a legitimate use of a closed session.

Smith wanted to address additional items from Johnston’s public comments. The first issue was tree trimming. Smith noted that the trees are trimmed on both the roadway and the sidewalks to reduce the drooping branches, the risk of dead branches, and blocking street signs. They completed the high work that required the manlift, and Jimi [Turner] will go back on his own and do the ground work. This is ongoing, but the bulk of the work has been done. Haven and Wylie thanked Smith for working on this extra chore. Haven noted that this isn’t the first time that Smith has acted as a flag man or putting branches in trucks. Smith has also done work in Depot Park. It is above and beyond the call of duty, and it doesn’t go unnoticed.

Johnston also asked whether the radar signs would be portable as approved by the Planning Commission. Smith said that they have received general MDOT approval to place the signs – one on northbound Main Street near the spillway where there is already a speed sign and the other on the south side near the city limit close to Brioni and Miller Road. We need to install signposts following protocols. MDOT said we can’t use their signs, and Detroit Edison won’t let us use their poles. Johnston asked if this limits the moveability, and Smith said it does. If we moved the signs, we would have to install new posts. The cost of these signs is less than what we paid for the signs on Holcomb. Haven asked if we could get data from the signs once they are installed, and Smith said we could.

Smith said there has been a request to reinstate in-person meetings. Our IT provider has suggested a solution called an “owl” at a cost of $1,299 and some flat screen televisions. Smith estimated the total cost for this to be around $3,000, noting that he would need to get three quotes. He asked if the council wanted him to proceed. Smith thought it would make sense to wait until at least the 10/26/2020 meeting due to pending legislation regarding electronic meetings.

Ryan commented on the pending legislation but noted that nothing is final. The prevailing belief is that virtual meetings could be extended until December and limited after that. This could be changed by the House tomorrow.

Agenda Item #9, Acceptance of the Consent Agenda (Video time mark 0:35:51)

• • 9/14/2020 Minutes, page 5/28 of the council packet
  • 9/28/2020 Draft Minutes, page 7/28 of the council packet
  • Treasurer’s report, page 9/28 of the council packet
  • Check disbursement report, 9/1/2020-9/30/2020, page 10/28 of the council packet
  • Thomas J. Ryan, P.C. invoice dated 10/1/2020, page 21/28 of the council packet

 Haven noted that the acceptance of the agenda is a way to dispose of things quickly, but we can put things aside and not include them in the general motion if the council wishes to do so.

Wylie had a question about an entry on the legal services bill concerning a development project. Haven said that referred to a 52-page document and a contract from the DNR. They are still working on it.

Wylie asked about an additional legal services billing entry concerning medical marihuana. Ryan said that this charge related to zoning for medical marihuana caregivers. Caregivers can be licensed to give medical marihuana to no more than five patients, and each of them can possess no more than 12 plants each (for a total of 72 plants). This use has been regulated as a home occupation, industrial, commercial, or residential by various municipalities. A recent Michigan Supreme Court case allows this use to be regulated, and we are trying to decide where Clarkston should place this authorized use. We are an optout community for medical and recreational marihuana. Haven wanted to know if this was on the Planning Commission agenda; Ryan didn’t know.

Smith noted that there were additional Johnston comments to address here. The first related to the minutes of 9/14/2020; the original and revised entry must comply with the Open Meetings Act, MCL 15.269(1). Smith noted that the cited section pertains to closed session and there were no closed sessions on 9/14/2020 or 9/28/2020.

The next Johnston comment concerned the 9/14/2020 minutes. Item 9b noted that the matter of short-term rentals would be brought back and has not been. Smith said the Planning Commission is still evaluating this and is looking for some guidance regarding what they should be pursuing. Haven said he was unsure if the Planning Commission was going to come back to council or if they were waiting for council. Haven said he would check with Rich about next steps.

Smith said that the next issue raised by Johnston concerned the 9/28/2020 minutes. Item 8 doesn’t indicate the agreement for the city manager to review the unapproved charges from Hubble Roth and Clark. Smith said that there were a number of charges for a three-month period that were submitted all at once due to COVID. The lion’s share was $3,900, and that was approved by the council to survey the east alley for purposes of storm drain repair. All of the other charges are small, typically less than $1,000. Smith talked with Hubble Roth and Clark about the bills and believes that the amounts were all justified.

The next issue raised by Johnston concerned the consent agenda, item #8. Johnston noted that there was a change to the minutes but not to the resolution. Wylie suggested that the issue was that the original resolution used the wrong ordinance number; the minutes were changed but the original resolution was not. Smith will follow up with Ryan.

The last issue Johnston raised related to 9/28/2020, item 10c, regarding repaving of north Holcomb. Are funds available and what is the remaining balance? Smith said that the funds are available but he doesn’t have the exact amount to provide at the meeting.

Consent agenda approved unanimously.

Agenda Item #10, Old Business

Item 10a, Discussion: Election Update (Video time mark 0:47:27):

Speagle said that 12 absentee ballots were sent out without a secrecy sleeve. She is required to send secrecy sleeves, but voters aren’t required to use them. She called the 12 people and offered to mail them a sleeve if they wanted. Ballots are counted whether or not they are returned with a secrecy sleeve, and she doesn’t know who votes for whom.

There are 858 registered voters. 356 ballots were mailed; 2 of these were sent to Canada and one to Taiwan. 120 have been received back so far.

Speagle received two boxes of League of Women Voters newspapers if anyone wants one. They contain information regarding all of the candidates who participated.

There has been an advertisement suggesting that you can vote early in Michigan and put your ballot through the machine. That is not correct. You can come in, request an absentee ballot, go into a booth in another room, fill out the ballot, seal it, and return it to Speagle who will process it through the QVF and lock it in the lock box until election day.

Some people have received a political mailing advising them that their absentee ballot hasn’t been received – even though it was. If you have any questions about the election, please call her and she will answer and explain.

Write-in candidate forms are due on 10/23/2020 at 4:00 p.m. These forms have to be filled out completely, notarized, and turned in by the deadline. Speagle has added some hours and will be open on Friday (10/23/2020), Friday (10/30/2020), and Saturday (10/31/2020).

Haven asked if Speagle had enough help for the election. Speagle advised that the bulk of the absentee ballots have been sent. There are a lot of people offering help, and Oakland County is scheduling poll worker training virtually for everyone who hasn’t taken it. She doesn’t anticipate needing any additional help because a little less than half of the voters are expected to vote absentee.

Bonser asked about the political sign ordinance. He has seen up to 9 signs on a property even though the ordinance allows only 3 signs to be put up a month before and taken down a couple days after the election – is that being enforced? Smith said that the maximum size is 6 square feet, so a 2 x 3 sign is typical. Signs can be put up as early as 6 weeks before the election and be taken down 2 weeks after the election. Smith didn’t know how many signs were permitted. A few houses are adding more and more, so he will check to see if there is anything specific regarding the number of signs allowed. Bonser thanked Smith for looking into it.

Item 10b, Discussion: Bisio Lawsuit Status Update (Video time mark 0:56:34):

Haven said that the city was informed last week that the city’s motion for rehearing in the Michigan Supreme Court was denied. He asked Mr. Tamm for a status report.

Tamm said that the motion for amicus consideration was granted and the request for reconsideration was denied. It is essentially the end of the road for the city’s appellate review. Richard Bisio sent an email last week asking if the city would produce the documents, and two days later, he filed a motion to compel before Tamm had a chance to consult with the city.

Tamm’s view is we won in circuit court and the court of appeals but that position has been rejected. There are 18 documents out of the more than 800 that were produced, and he saw no benefit in not disclosing them at this point. An earlier comment that the city had requested these documents is untrue. Ms. Eberhardt testified that she had never requested the documents and to the best of Tamm’s knowledge, they were never requested or produced to the city. Tamm thought that the city ought to release the records to Mr. Bisio, who is Mrs. Bisio’s counsel, and we’ll go forward from that point.

Haven asked if it was just a question of fulfilling the FOIA request at this point and Tamm said that it was. Tamm noted that the motion to produce the records was not scheduled for hearing until 2/18/21. The city’s response is not due until 12/30/2020, but Tamm didn’t think that an argument should be advanced at this point to withhold the documents, and he believed they should be produced.

Haven asked if Tamm had possession of the documents. Tamm thought possession was an interesting term, but he does have electronic copies of the documents. He changed law firms on 4/1/2020 and the hard copies are in a box in storage somewhere. The records were all scanned into the system and he can provide them electronically or by facsimile to Mr. Bisio.

Haven wanted to know if Tamm needed anything further from city council, and Tamm said no. He believed that the documents ought to be released as long as the council doesn’t tell him not to do so.

Wylie wanted to vote tonight to release the documents so it’s clear that’s what they want to do. This will require amending the agenda. Ryan said that there had to be a unanimous vote to amend the agenda.

Bonser said that Tamm represented Ryan; Ryan corrected Bonser and said that Tamm represented the city. Bonser wanted to know what Ryan thought about releasing the records, and Ryan thought it was appropriate to do that at this point.

Ryan suggested that if the council wanted to amend the agenda, the Halloween hours issue should be included so there is only one motion.

The vote to amend the agenda to change items 10b and 11c from a discussion item to a motion passed unanimously.

Bonser wanted to know how long it would take to release the documents, and Tamm said he could do it tomorrow. Tamm said that they would be released as part of the litigation, in response to the litigation, and in response to Mr. Bisio’s request to release the records.

Bonser asked if the city could get a copy of the records as well, and Tamm said that he would be happy to send them to Smith and Haven.

The motion to release the records to Mr. Bisio with a copy to Smith was unanimous.

Chet Pardee wanted to understand where the funds are coming from and what the timeline was. Tamm advised that he had no response to the question because he’s just producing the documents. There has been no specific request for payment of fees, but he expects Mr. Bisio will demand attorneys’ fees. That’s something that the city need to deal with the insurance carrier on. Tamm’s job was to defend the city and make sure the city has coverage. He understands there was a reservation of rights but doesn’t know the current amount of fees that could be expected. He doesn’t know if Mr. Bisio would compromise on the amount of attorneys’ fees, but Mr. Bisio will probably be charging for the motion that he prepared that asked the city to release the records.

Haven said that the city will wait to hear from Mr. Bisio and Tamm concurred.

Tamm said that the fee issue was something different. Arguments could be made because Mr. Bisio rejected the argument that Ryan or his office constituted a public body, and that’s not what the supreme court decided on. His expectation is that Mr. Bisio will vigorously exercise whatever rights Mrs. Bisio has and will seek costs and attorneys’ fees.

Pardee asked if that would occur in the court of appeals, and Tamm said that it would happen in the circuit court and would go from that point forward.

Pardee wanted to know what the timeline for fees was and noted that Tamm said that it might be possible that the insurance carrier would pay fees. Tamm said he doesn’t know that. If there are damages, there would be a requirement for the insurer to pay, but Tamm doesn’t know what rights were reserved. It’s a common exclusion in municipal policies to not provide coverage for attorneys’ fees unless there are damages, but no damages have been requested.

Pardee wanted to know if Ryan’s professional liability coverage would come into play. In a few minutes, the city will be dealing with errors and omissions insurance premiums. Who represents the city’s interests as we try to figure out how to pay?

Haven thought that Pardee was digging a little too deep and going beyond the agenda. Those items can be addressed at a later date. We should move forward with the agenda.

Smith asked about the $1,100 in costs and noted that the supreme court said that the city must pay those. Does the city need to pay those now, separate from the attorneys’ fees? Tamm said that the quick answer is no. There’s been no requests for attorneys’ fees, a judgement, or an order requiring attorneys’ fees. Tamm explained that the city objected to the clerk administratively entering $1,100 in taxable costs. This is a small amount compared to what’s at stake. Smith said he was just asking about timing.

Smith also wanted to know if the taxable costs could be considered damages. Tamm said this was the first time that he’d had a lawsuit in the supreme court, these issues are usually handled by an appellate lawyer, and he would have to defer to them. Typically, there is an order that has to be executed and there is a 28- or 30-day period to satisfy a judgement or an order once it’s been entered.

Haven said a good summary statement is that we will just wait and see what we are directed to do, and we don’t know that yet.

Agenda Item #11, New Business

Item 11a, Resolution: Budget Amendment (Time mark 1:18:20; page 25/28 of the council packet):

Haven thought this related to the $1,955 increase in the errors and omissions insurance from the Michigan Municipal Property Pool. We need to make that budget amendment.

Smith said that the city assumed a 5% increase in the 2021 budget for insurance. There are five categories of insurance – property insurance, property insurance open spaces, equipment insurance, errors and omissions insurance, and general liability insurance. Errors and omissions insurance increased 27% increase over what was budgeted ($1,712). Equipment insurance increased $243.

Smith talked to the carrier about this at great length. This not a claims-based coverage like a homeowners policy where the cost can go down if you don’t make any claims. Our insurer is looking at a five-year trend that goes back to 2015. There were three legal cases at that time that are just catching up with us and driving the increase – CBC Joint Venture, Susan Bisio, and Richard Bisio. Smith said he told the carrier that this was an alarming and unacceptable increase. He was told it is what it is and can’t be changed. The city will get a rebate of $1,000 because actual claims from other municipalities were less than expected this year (the annual rebate ranges from $200 to $2,000). After adding the rebate, the increase is $191. There is no option but to pay the bill at this point.

Smith proposed that the increased insurance costs be taken from health insurance because Jimi’s insurance premiums are less than Mike Speagle’s insurance premiums were because he’s single with no children.

Pardee suggested that paying the increase was a violation of the Uniform Budget Act because the bill was paid in advance of council approval. Smith said that the errors and omissions insurance is in a line by itself, so this line item was immediately over $1,712. Smith noted that the purchasing process allows a bill to be paid if late fees would be incurred if the bill was not paid. Smith is now coming to the council with a budget amendment to address the shortfall.

Pardee said that the information in the last meeting through 8/31/2020 showed that the city spent more than budgeted. Michigan budget law requires that we have budgeted funds by department before a commitment is made. Pardee questioned if we are going to have a commitment to DNR for $127,000. We need a budget amendment ahead of making the commitment and signing the contract.

Haven asked if the increase in cost was municipal litigation generally or whether it was just related to the city’s litigation. Smith said it was specific to the city.

Pardee asked for a copy of the errors and omission coverage, and Haven asked Smith to provide it to him.

Smith has a report prepared by the Michigan Municipal League that establishes the trend line. He did not know what impact the current activities would have on next year’s budget.

Pardee wanted to know what the insurance was supposed to cover, and Smith said it covers FOIA certainly, errors that were made by staff or council, and things similar to that. The report lists dollar figures from the three lawsuits back in 2015 and that was the basis for the trend line. The insurer paid around $400,000 in 2015. Smith is willing to share the report.

Pardee wondered if the errors and omissions coverage would play a role in funding the Bisio costs. Haven thought this was premature but understands the question.

The vote on the resolution was unanimous.

Item 11b, Motion: Zoning Board of Appeals Appointment (Time mark 1:35:14; page 28/28 of the city council packet):

Kerry Marsh resigned, and Sharron Catallo is no longer part of the council. We need a council representative on the ZBA. Haven thanked Casey for his willingness to serve.

Wylie asked how many people are on the ZBA. Smith said that there are 5, and with Kerry’s resignation, it’s down to 4. Catallo is still on the ZBA but is not a council representative.

Wylie noted that the website shows some of the members have an expired term. Haven said that the terms need to be posted, but a replacement doesn’t need to be made until someone steps down or needs to be replaced because they are extended indefinitely.

Ryan believes that the council should review these yearly, bringing them current, and reappointing or appointing new people. They can’t serve until they are replaced. This is not a great policy.

Haven said that they need to address this, but he did confirm everyone’s willingness to continue to serve. Is that all he needs to do? Ryan said that if there’s a vacancy, we should ask for people who want to serve. The board should be constituted appropriately with the new term, which is normally three years.

Haven said he would check where we are in the cycle and get everyone updated. He asked when action on the 2020 expirations needs to be taken. Ryan advised that Casey’s appointment would end on October 2023. Smith said that he would adjust the language in the minutes to reflect that. He will reach out to the ZBA members and bring a motion to the next council meeting for reinstatement. In the event that there will not be a reinstatement, we will need a new name.

Casey abstained from voting on the motion. The rest of the council voted unanimously to appoint Casey to the ZBA.

Item 11c, Discussion: Halloween Hours (Time mark 1:44:28):

Kniesc made a motion to establish Halloween hours from 4:00-6:00 p.m. He suggested the change because this is an unusual year due to COVID, there are crowds within the 6:00-7:00 timeframe, and moving it from 4:00-6:00 would allow for more daylight hours. No one has to participate for the whole two hours; people can just turn a light on when they want to participate.

Luginski wanted the city to stay consistent with Independence Township. Their hours are 6:00-7:00 and have been for years; Casey agreed that we should be consistent.

Kniesc suggested changing the two-hour window from 5:00-7:00 because spreading things out will decrease congestion. Luginski preferred that time window because it was more consistent with Independence Township.

Bonser thought two hours is a lot of time. He was concerned about traffic on Main Street and our ability to enforce the crosswalk. He concurred with a 5:00-7:00 window because it’s consistent with Independence Township and gives people an early start in case they want to do other things.

Wylie also liked the 5:00-7:00 idea to reduce congestion and coordinate with Independence Township. We need to advertise the change. It’s not an attempt to get more candy; it’s just to keep things safe.

Kniesc thought it might also be a benefit for businesses, giving them a captive audience for a longer period of time.

Smith agreed and said he can work on advertising the change. The Clarkston News could publicize it in the sidebar.

Avery said that if we are going to advertise the change, we should also add that people need to social distance and wear masks.

The vote on the motion was unanimous.

Bonser asked to go back to the city manager’s report because he wanted more information regarding the closed session. Smith said that he will do that on 10/26/2020 and make it part of the packet. There will be two separate Go To Meeting sessions, one public and one closed. Ryan said that it was Smith’s right to request a closed session, but the request should be in writing and identify the proper section of the Open Meetings Act. Ryan offered to help Smith draft the request.

Agenda Item #12, Adjourn (Time mark 1:55:15)

Resources:

• • Link to video recording – http://216.11.46.126/VOD/3283-CityCOuncil-10-11-2020-v1/vod.mp4
  • 20121012 – City Council Packet (Final)