Approval of Agenda

Council Member Scheid made a motion to approve the agenda as presented, supported by Council Member Lallo.

Council Member Cooper asked to remove Item C and move it to New Business A.

Council Member Cooper asked to add New Business B – ZBA members.

Council Member Scheid made a motion to approve the agenda, as amended, supported by Council Member Lallo.

The question on the motion was called and the result of the voting is as follows:

            Ayes:               Council Members Cooper, Scheid, Lallo, Jones and Gunderson.

            Nays:               None.

Public Comments

Craig Crebessa, 8079 Storey Rd., stated he would urge council to change council comments until after the consent agenda items so there can be a true and open dialogue from the community.  He would urge council to vote no on the resolution for the manager and mayor to contact the attorney at any time.  They can call special meetings for an emergency. There is already over $80,000 in attorney fees alone this year.  As an example, $675 was paid for a one page document. To put that in perspective, 15% of the $80,000 could have been used for downtown landscaping repairs and 5% for Demorest Field.  They are told there is not any money, but it is because there are poor decisions being made and there is a constant unaccountable revolving door of attorney services being used. He stated do not vote yes on the resolution, but pursue the charter that is already in place to prevent waste.

Ralph Brecken, Cedar Springs, stated in seeing the resolution, he would remind council that they have to follow the city charter.  No one supersedes this and this is the documents the citizens voted in.  The law states if they want to amend the document, they must go to a vote of the people.  Section 7.7 says that council may request the city attorney, not individual people.  In an emergency, they can bring in the attorney.  Even the State of Michigan, under the Open Meetings Act, allows them to call a special meeting at a very short time frame and then they may call in the assistance of an attorney if they feel they need to.  It would appear with everything that has gone on, a few select individuals would like to bring in the attorney to possibly stop some other council members from voicing their concerns.  They don’t circumvent a document because it is not convenient to follow it at that particular time.  There are laws and rules they abide by, because of the society they live in. 

Mike Henry, 806 Wildlife Trail, stated he agreed with the previous two speakers, that there are means in the charter for the council to get together for special meetings.  He feels the mayor and manager are trying to usurp the power of the council for their convenience.  The council cannot amend the charter by resolution and the Michigan Constitution, Section 22, says the electors have the authority to amend the charter, not the council.  It has been said that they want transparency, but this just gives the image that something shady is going on.  There is no need for this resolution to pass.

Katherine Henry, 806 Wildlife Trail, stated she agreed with the statements made thus far.  Section 5.5 of the Belding City Charter states the council has the right to tell the city attorney to be here or not.  It must be done by a majority vote.  No one person is more important than any other in that regard.  Ralph Brecken said the Belding City Charter is their constitution.  That is the binding authority beyond local laws or resolutions that can be passed.  MCL Section 15.265 allows for special meetings with an 18 hour notice, but if there is an emergency, this section allows for an emergency meeting with no notice, provided certain provisions are met.  They can have regular, special or emergency meetings.  Our constitution specifically talks about, in Section 22, that the electors of each city that can amend the constitution.  The law is what it is, it is the constitution.  The only way they can change, amend, adopt, do anything with the city charter at all, is to go to the provision Ralph talked about.  It would be absolutely illegal to change it in any way.  With a closed session, they should pay attention to Section 15.268, Section 8.h.  The only thing the OMA and FOIA allow to not be disclosed are certain materials, certain discussion that has to be made.  The topic has to be disclosed, anything that is not particularly excluded by that statute has to be included with notice given to the public.  They cannot keep the entire topic secret.  Discussion about that topic can be kept secret in a closed session.  There is no way for effective citizen communication to happen if they don’t even know what the topic is.  They have a right to address council on certain matters and have them take that into account.  Take a look at that and relevant case law.  The Belding City Charter is the constitution of the city and must be followed whether they like it or not.

Joe Feuerstein, 901 W. State, ex council member, stated he had one point, that the charter has been changed 25 times, not by the voters of this city, but by the State of Michigan. 

Shelley Gladding, 1021 Pleasant St., stated when the ZBA was disbanded, the members were not notified.  There was nothing to this point from city council on an explanation.  She had to read it in the Daily News with everyone else.  The state has made changes 25 times, but city council is not the state.

Consent Agenda

Reports by Council Liaisons

Council Member Scheid stated that the Housing Commission meeting is Thursday night and he will be out of town. 

Council Member Lallo stated there have been no meetings.

Council Member Jones stated the Planning Commission meeting is Thursday night here.  Everyone is welcome.  The Zoning Committee of the Planning Commission discussed park properties and whether they should be rezoned.  Currently they are zoned R-2 and they may change that.

Council Member Cooper stated there was no Rec Board meeting.  The next one is January 12.

Mayor Gunderson stated the DDA met and they are trying to resolve the negative capture in the DDA area and are looking at options.  There may be a possible meeting with the land bank to talk about properties in the DDA.  The library is working on the personnel handbook.  They may extend the hours on Tuesday or Thursday.

Unfinished Business

There was no unfinished business.

New Business

A.    Resolution for mayor and/or city manager to request the presence of the city attorney at city council meetings

B.     Appointment of ZBA.

Council Member Scheid made a motion to bring the appointment of the ZBA to the floor, supported by Council Member Cooper. 

City Manager Mullendore stated when the city council dissolved the existing ZBA and city council took it over, all members were removed.  There would be no reappointment, it would be a re-application process.  The Zoning Enabling Act specifically states that members would be selected on qualifications.  When you are dealing with ZBA, the issues are black and white.  You can’t use common sense, you have to look at the zoning law and ask if it meets it or not.  ZBA is unique in that it is one board outside of city council that can actually be sued for decisions that they make. They need to verify that the members on the board are qualified and they understand the ramifications and zoning.  There are zoning seminars and training available.  There have been some discussions on training for the Planning Commission, regarding site plan training, planning and zoning training, and other training so they are better equipped to make their decisions based on the regulatory documents that they have to utilize in making their decision.  Board of Zoning Appeals should have that training.  It should be done by an objective party out of the city so there is no appearance of impropriety or bias.  When the applications are evaluated, they should know if the applicant would be willing go to the training.  If not, ask are they a valuable asset if they don’t have the skill set?  On the job training is not appropriate as there could be potential ramifications.  They should establish a manner in which that can occur. Traditionally, in the other board appointments that occur, a recommendation comes from the board to the city council, with the board evaluating their qualifications, and sometimes they are interviewed relative to why they want to sit on the board and volunteer their time.  The ZBA is appointed directly by the city council and one seat is from the Planning Commission.  The city council should have the recommendation of the Planning Commission for that appointment.  City council should establish a process on how the appointments will be made, for potential interviews and establishment of the qualifications and determining their level of commitment to training, which would be paid for by the city.  They would have the appropriate skills in their toolbox.

Council Member Lallo stated he agreed with the city manager.  He looks forward to the candidates.  If they are qualified and get training, he would have no problem.

Council Member Jones stated there are some applications out there for the ZBA.  What is the status of those?  Would a third party or council review the applications?

City Manage Mullendore stated council would establish protocol.  There would be interviews in the public forum to determine qualifications.  They would find out if they would be able to look at the regulatory documents, as there is no gray area.  They must follow within the parameters.  If an unfavorable decision is made, they can challenge it in court, overturn it and seek monetary damages.  The board has the responsibility to make decisions based on the regulatory document in front of them.  City council can determine how they want to do this.

Council Member Jones asked what they had to do to proceed?  Have they talked to the previous members on the ZBA to see if they would like to reapply? 

City Manager Mullendore stated the ones that were directly on there, no, they have not been contacted.  The protocol utilized in the past is when a member’s term is getting ready to expire, the city clerk contacts them to see if they are interested in a reappointment so that can be made available to that board  who is making the recommendation to city council.  Her suggestion is for them to establish how to do this, determine the process utilized relative to how they will make the determination to put someone in there that has the qualifications necessary.  An interview process is good to find out what they know about the ZBA, their knowledge base, other activities they have done that are similar to this.  Determine the process.  There are four applications, and according to the zoning ordinance, one member shall be a member of the Planning Commission and that recommendation would come from the Planning Commission.  One member can be a member of the city council, but shall not serve as the chairperson of the ZBA.  Traditionally one member has been from the city council.  Other applicants should have a process to determine who is best suited to sit on the board.  A timeline can be done on the process.  Commissioner Knowlton may be able to help with a list of questions for council to ask.  He has been on the Planning Commission combined well over a decade so he has a lot of knowledge.    

Council Member Cooper stated why have the interview and application process?  Those three former members want to be on the board.  No, they were not contacted.  Three business members want to be on the board.  It is really pretty simple.  Council can appoint them and be done.  He said those interested were Shelley Cooper, Shelley Gladding, Bob Benson as an alternate or board member, Dan Blunt Sr., Mike Henry and Bonita Steele.  All they have to do is appoint them. 

John LaClear also submitted an application.    

Mayor Gunderson stated there are several projects in progress in the community.  WESCO is wrapping up with a meeting tonight and one Thursday night.  The bank is moving forward.  The Commons has their project going.  His concern is if they follow through with what Mr. Cooper wants to do, then by putting these people in place, how will they be educated on the situation at hand?  The council will be the fall guy here.  The new ZBA members will not be up to speed, which in turn will be holding back business.  He would make a motion to turn this into a work session, preferably the second meeting in January, so everyone can take a breather here.    

Council Member Scheid stated based on what was said, how are council qualified?  The ZBA was qualified and it was yanked out from underneath them.   They are not qualified to do it, just because they are city council members.   

Mayor Gunderson stated it was voted on at the last council meeting or the one before about qualified candidates, and it was voted 5-0 to bring that forward for qualified candidates.  That is the direction they are going.  The reason the ZBA was absorbed among them was because they did have projects going on.  WESCO was coming, Independent Bank was coming, they were down to four members and if one of those were sick or on vacation they would be the fall guys in not being able to keep business moving forward.  The handbook was handed out to them prior to the meeting. 

City Manager Mullendore stated the enabling legislation allows the governing body to also act as the Board of Zoning Appeals.  They were not getting the quorum that was needed for meetings, so some things were being pushed out.    

Council Member Scheid stated hybrid this thing, have council finish this out, what is here, and the people that are appointed could come in and sit in on it and get their feet wet with what council is doing and then eventually turn it over.      

Mayor Gunderson stated there is training in March by the Planning Association.  That is why he wanted to work through this as a work session in January.  It will take time to finish up with WESCO and get these projects to a point where they are not holding them up.   

Council Member Jones stated the three previous ZBA members could be contacted to fill out an application if they are willing.  At the first meeting on January 6, they could plan to review the applications, and if a third party will be involved, they can pick them out.  When the applications have been reviewed, they can make a determination.  They should find out when the next classes are and work with both those schedules.  That way they would be in the process of reforming the ZBA and will know the first meeting in January who the council feels is qualified.  They may not appoint at that meeting, but can see who they have and if they need other candidates.  He would like a work session on January 6.

Mayor Gunderson stated they would schedule a work session for January 6 to review the applications. 

Council Member Lallo stated council will need the questions the city manager and Gary put together.  They can add any other questions.  They can review the applications before they come into the meeting. 

Council Member Jones stated Gary could ask at the Planning Commission meeting Thursday who would like to participate on the ZBA.  They need as many applications as possible to review at that meeting, the prior three members, the ones Dennis brought up, and anyone else that wants to apply, so they have a pool to pick from.   

Mayor Gunderson stated they can figure out the direction at the work session.  He rescinded his motion to hold a work session on January 20.  

Council Member Jones made a motion that council have a work session on January 6, 2015 to review the ZBA applications and get the process started, supported by Council Member Scheid.

Ayes:               Council Members Scheid, Lallo, Jones and Gunderson

Nays:               Council Member Cooper

Public Comments

Katherine Henry, 806 Wildlife Trail, stated there was quite a bit going on that is quite concerning.  There was a comment by the city manager that the ZBA should be trained and they should be concerned with the potential of being sued for acting illegally.  However, they voted on a motion to augment or amend the charter through a resolution which is completely illegal and they have no concern for the potential of being sued for acting illegally.  It was also mentioned about past precedent that has been used to get the city attorney to be here, and she would like to reiterate what she said at a prior meeting that past illegal actions don’t allow for future illegal actions.  Augmenting has no legal difference than amending the city charter.  Calling it by a different word makes it no more legal.  For council to act in any way, it has to do so by a majority vote and sometimes they need an increased amount of votes.  They have to do it in an open session of council and must do it by at least a majority vote.  She would ask council to rescind the resolution and follow the city charter as it is written.  Council is no more qualified than those already serving.  The mayor wanted council to have control over the WESCO, Independent Bank and the Commons projects.  He wanted to wait until January until those projects were done to retain control of the three projects.  The Independent Bank project is proceeding illegally because the city manager was not following the ordinances.  The Planning Commission can serve as the ZBA, as stated in the charter.  State law allows the council to serve as ZBA.  Why is the Planning Commission not acting as the ZBA, if they don’t want the ZBA to act as the ZBA?   If they want to provide training to ZBA members, they can require it.  They have no more training than the past ZBA members did on the issues.  She would ask that they reconsider that before they close the meeting. She appreciates the detail Ron provides in his council liaison report.  She values and appreciates that.  She appreciates getting more eye contact, getting that respect and not a glare.  They have hammered on moving forward and being positive.  They are pointing out that she or other members of the community are dragging things down and being negative.  In August, she filed a lawsuit against the city manager for violating her constitutional rights and other state provisions.  The attorney made a threat of sanctions.  Is that positive and moving forward in the right direction?  In October, there were threats of reporting her to the Attorney Grievance Commission.  Two weeks ago she was reported to the Ionia County Sheriff’s Office for allegedly bribing city council members because of provisions in the proposed settlement agreement.  They cannot throw out baseless, unfounded accusations that she was involved in a crime, let alone bribery.  There were only three people that knew what was in the agreement, the mayor, city manager and attorney.  One of those three members made a baseless allegation to the Ionia County Sheriff’s Department.  On October 11, she was reported to the Attorney Grievance Commission for following up on her constitutional right to petition her local government for a redress of grievances.  Even though she is an attorney, the US Constitution allows her to talk to them at any time to petition to redress any grievances that she has, and she has done that in a respectful fashion and she outlined the facts, it was not personal in nature.  When their representative reported her to the Attorney Grievance Commission, was that positive and moving our community forward when she is just trying to hang on to her constitutional rights?

Please keep that in mind.

Henry Kunfeldt, 410 S. Bridge St., stated he has been listening about the ZBA.  He has the privilege of serving on the Library Board.   If that was dissolved tomorrow without notifying him and was reconstituted, he would be a little upset.  If their term has not expired, they should reinstate them and place council as alternates.  Zoning is a very sensitive issue and can cause problems down the road, but if they were not doing a bad job, put them back. 

Jeff Hunter, 6002 Zahm Rd., stated they never cease to amaze him on the entertainment value they provide.  This town is the laughingstock of the State of Michigan.  Jerry Lallo said if they had concerns with the city to contact him.  Then why do citizens keep receiving emails from him that says don’t contact him again.  Mr. Lallo can explain that to people with the camera back there.  Either contact him with their concerns or don’t contact him.  Was the park zoned residential, the 4 ½ acres of wasteland they created?  That is not the consent judgment that the property has to be rezoned to anything to get them to turn it into a new park.  That fence should be down now and they should have their 4 ½ acres of wasteland to walk all over, as they can’t plant trees or nothing on it. Congratulations and thanks for the laughs tonight.

Ralph Brecken stated Section 2.9 of the charter states the charter can be amended at any time as provided by law.  MCL 117.21 references a vote of the people.  It says under Section 5.4 – Powers, duties, and functions of the city council, that they are to perform all acts as required by the charter.  He would remind council that their job is to represent the citizens.  They passed a resolution that took away citizen’s rights.  Every one of them is there to represent the citizens and if one or two people act as representation, they take away the power of the rest of the council members to represent the citizens of this city. That is not how government was based.  State law and federal law supersede the city charter.  Every city in this state is only in existence because the State of Michigan allows it.  The charter was developed in accordance and allowance of the State of Michigan, so the state has the right to it.  They do not have the right to supersede the charter because they do not have the right to supersede the opinions and vote of the people.         

Robert Brown, 759 Jay Street, commended Council Member Jones for his due diligence to the ZBA in taking the applications to a work session in public forum, rather than having appointments just by an application.  The work session is very transparent, they are using due diligence and he is looking forward to it. 

Sam Mason, 516 W. May, thanked Mr. Ron Gunderson for stopping up regarding the equipment purchases.  He explained a lot to him.  There was transparency.  He thanked him. 

Shelley Gladding, 1021 Pleasant St., stated she wanted to commend Dennis and Mike for recognizing that not all members of council were trained for ZBA.  They had the opportunity with the WESCO fence to put in a stipulation for a higher fence than what was required.  She was told it was not the place for it, it was for the Planning Commission, which is completely not accurate.  When they were walking out, the gentleman from WESCO told her she was correct on that.  In her training on ZBA, she was told 9 out of every 10 appeals cases should be denied.  It should not be such a recurrent situation where they would come back for the same situation.  The property at WESCO has had three cases for ZBA now.  That seems to be recurrent.  That is a stipulation that should be looked at with the same property coming back.  Maybe the ordinance is incorrect.  There is the same situation with the Candlestone, as it is zoned residential and every time they need to do something with that property it always comes to the ZBA, because it is a business property zoned residential.  It needs to be changed.  She is aware of these situations.  Another issue she is having, she was very well trained and when they were making their vote, a yes or no vote, they are not giving any explanation.  She was trained to give an explanation with a yes or no vote.  They are not giving a basis for their answer in case it would be taken to court.  They need to cover themselves with their explanation.  She was trained, and there were three of them that were trained.  The rest could be done by city council and alternates to finish out. 

Craig Crebessa, 8079 Storey Rd., stated he thinks it is an insult to say the existing ZBA board members are not qualified to be put back on the board, it is ludicrous.  To say that applicants who are local business owners are not qualified is a big insult.  They are residents of this community, they have worked here and have invested in it.  They can get the additional training.  They have a great community of business owners that can handle this.  There should be more training on how to respond to the citizens.  He has high hopes this can be improved, because it does fuel the fire and makes people upset.  Provide the transparency and conversation.  He hopes they can get the ZBA back into place.

City Manager’s Comments

City Manager Mullendore wished everyone a Merry Christmas and safe and Happy New Year.

Council Comments

Council Member Lallo stated when someone is asking him to investigate misdemeanors and felonies by the city manager, he cannot do that properly.  He is not the State Police and they may contact them if they wish.  He will not answer those emails regarding felonies and misdemeanors, as he cannot investigate that and will not answer those emails.  He has received phone calls and he has talked to them.  It would be an injustice to answer those emails, when he cannot do an investigation.  Regarding his education, he has a two year Associates Degree in Law Enforcement.  He has a Catholic education, he has a grade school education, a high school and college education.    

Council Member Jones stated there were questions on the emails about who is supposed to be the city attorney.  He made a motion for a resolution at the next meeting to name Varnum, Riddering, Schmidt as the primary city attorney, but they may go to other attorneys for specialty cases, supported by Council Member Scheid. 

Council Member Cooper asked if it should go out to bid?

City Manager Mullendore stated it would not, as it is a professional service.  At the last council meeting, because there were some questions relative to not having a contract, Attorney Kraker suggested a resolution to give that authorization.  They have been acting in this capacity since the 70’s.  The law firm doesn’t enter into a contract, as their services can be terminated at any time, and the city can step outside their firm for a specialty.  The impetus to that was from some FOIA’s relative to documentation showing who our city attorney is. 

Council Member Scheid, Lallo and Jones had no comments.

Ayes:               Council Members Cooper, Scheid, Lallo, Jones and Gunderson. 

Nays:               None.

Council Member Jones thanked everyone that was here tonight and for their input.  They will proceed with the ZBA and keep the town moving forward and get things done. 

Council Member Cooper stated a lot of them understand the things that are going on and he hears what they are saying.  He is trying to move the city forward in a positive direction and honest direction and do things correctly, but right now he will need some help.

Council Member Scheid thanked everyone for showing up tonight and thanked the audience for the comments.  There are things to work on and get accomplished.  He wished everyone a happy holiday and asked them to be careful leaving town.  He wished everyone a Merry Christmas. 

Mayor Gunderson stated the issue of the ZBA situation is being turned around.  Instead of the council trying to protect the city, it is being turned around as a power grab by city council.  He resents that, as they are trying to move the city forward.  He explained to Mrs. Gladding why they did what they did.  It was an oversight by the city on the notifications and he apologized for that, and he apologized to Mrs. Gladding over that, and explained the situation.  At the time she seemed amenable to it.  Everything is about moving forward and continuing to grow and not having a business come after them and say they are not being cooperative.  He is shocked that the community is turning this around on them, just because of what has happened here.  Electrolux property - he has been in contact with the DEQ since day one on this.  This past Friday, after several unanswered calls to Paul Knorr from the DEQ, he contacted Dave O’Donald, who told him they had a no further action on the property.  It ends tomorrow.  The city was not notified, however the library got a report.  When he found out it was there, he went down and started reading it.  He does not agree with what is going on and he does not agree that no further action is needed.  The city has responded with a letter to the DEQ.  They have 180 days before they need to close this out.  They are asking that after two years, no further tests be done on the property.  Because it falls within the parameters does not mean it is acceptable and it should not be acceptable to this community.  This has not gone by the wayside.  It has been a continuous battle, on his end anyway, and it will always be.  He thanked everyone for coming and wished them safe travel.

Closed Session A – PA 267 15.268 Sec. 8(h) to consider material exempt from discussion or disclosure by state or federal statute

Council Member Scheid made a motion to enter closed session at 8:42 p.m. to consider material exempt from discussion or disclosure by state or federal statute, per PA 267 15.268 Sec. 8(h), supported by Council Member Lallo.

            Ayes:               Council Members Cooper, Scheid, Lallo, Jones and Gunderson.

            Nays:               None.

Council Member Scheid made a motion to enter regular session at 9:12 p.m., supported by Council Member Cooper. 

            Ayes:               Council Members Cooper, Scheid, Lallo, Jones and Gunderson.

            Nays:               None.

Adjournment

Council Member Scheid moved to adjourn the meeting, supported by Council Member Lallo.

Ayes:               Council Members Cooper, Scheid, Lallo, Jones and Gunderson.

            Nays:               None.

The Mayor adjourned the meeting at 9:13 p.m.