Lakewood Board of Supervisors Meeting

March 6, 2008

Special Meeting-recessed from 2-25-08

 

Call to Order:  Chair of the Board of Supervisors Tim Musick called the special meeting of the Board of Supervisors recessed from 2-25-08 to order at 7:02 p.m. on March 6, 2008 at the Lakewood Town Hall.

 

Present:  Supervisors Jerry Larson, Tim Musick, Shannon Ostazeski, Chuck Campbell, and Phil Halverson.  Also present:  Clerk Gene Bromenshenkel, Attorney Tim Strom for the Town of Lakewood, Attorney Shawn Reed for Lipe Bros. Construction Company, and general public (register attached).

 

Purpose of Meeting:  To continue the appeal made by Lipe Brothers Construction Co. on their revised conditional use permit recommended by the Lakewood Planning and Zoning Commission in December of 2007.

 

Minutes of Previous Meetings: 

- January 31, 2008 Special Board Meeting on Lipe Appeal---corrections noted:  on page 3---under Appeal Item # I---should state---Shawn Reed outline of items under #1.  Also on page 3---under Reed comments---Johnston Masonry and Great Lakes Stone are separate companies owned by a common owner.  On page 7---typo---should read “that” “The issue is not that big of a deal”.  Motion by Halverson to approve the minutes as amended.  Second by Campbell.  Motion Carried.

- February 4, 2008 Special Board Meeting---On page 3---typo--- word “about” year of “2007”.  Motion by Campbell to approve the minutes as amended.  Second by Halverson.  Motion Carried.

- February 25, 2008 Special Board Meeting---Motion by Ostazeski to approve the minutes as printed.  Second by Campbell.  Motion Carried.

 

Proceeding with Recessed Meeting:

1.      Look at revised proposal from Lipe Bros. Construction submitted by Attorney Shawn Reed.

2.      Supervisor Musick opened the discussion.  Based on his review of the proposal, the upper or back 10 acres on the Lipe property is proposed to be residential and the lower 10 acres, used for the construction business.  Suggests that the Board of Supervisors cannot act on some parts---they need to be handled by the Town’s Planning and Zoning Commission and/or Board of Adjustment.

Question to Board members: (Chair Musick to the Board members) Does the Board want to review and resolve the changes or refer it to a small group to review and bring back to the Board?

Shawn Reed:  Requested time to address after the Board concludes discussion on the above question.

Supervisor Halverson:  He received the Lipe proposal on Wednesday and feels he has not had time to digest the proposal adequately.

Supervisor Ostazeski:  Left last meeting with the intent to recess to review the proposal, but time since receiving it was short so is not prepared to make a decision on it at this time.  Recommends that the Board either accept or reject the proposal tonight.

Supervisor Campbell:  The proposal is interesting.  Had some time to review.   The proposal is asking for issues not addressed in the appeal.  Some things in the proposal don’t fit with the Zoning Ordinance.  Need to go through proper procedures of the appeal process.  Is concerned about the planned unit development section of the proposal.

Supervisor Musick:  To Campbell.  Does he (Campbell) feel that the Board of Supervisors should address sections other than the planned unit development or send it back to a small group or to the Planning and Zoning Commission?

Supervisor Musick to Bob Wolfe (Chair of Planning & Zoning Commission)---Does he see the Commission dealing with proposed changes or see a small group doing so?

Bob Wolfe:  Feels the planning and Zoning Commission may not have a successful review due to differences.  Feels a small group could probably do better on things which may not be worth pursuing.  Recommends a small group.

Supervisor Larson:  Had only a brief chance to look at proposal since he first received it last evening.  A review should be done separate of this appeal process.

Shawn Reed:  This is the revised proposal.  Reminds the Board that it was the Board’s suggestion for a small group to get together to bring a proposal.  Is ready again at this time, to describe the proposal and to decide the differences between the proposal and the Planning and Zoning Commission conditions.  Doesn’t see the differences as being that great.  He cited four differences.

Supervisor Halverson:  Did not get the revised proposal in the time indicated at the last meeting.

Supervisor Musick:  Asked again if the Board wants to hear the proposal from Mr. Reed.

Supervisor Ostazeski:  If Board is willing to negotiate, then we should send it to a small group.  The proposal doesn’t appear to pass the test for us (the Board) tonight.

Attorney Reed requests time for comment:  He did not promise to have the proposal to the Board by any early time.  Article Seven of the Ordinance does allow for planned developments.  Is more than happy to present the contents of the proposal.

Supervisor Musick:  His reading of the Board members is that they haven’t had time to adequately review the proposal prefers to send the proposal to a small group which would include township representatives, not parties from both sides.  The intent of the small group would be to review the proposal as received.

Attorney Reed:  Feels Jerry Lipe and self are being shut out of presenting the proposal.  We are not being given an opportunity to present and describe the proposal.

Supervisor Halverson:  Again suggests that the Board should proceed with the appeal process.  Motion by Halverson to proceed with continuing the appeal.  Second by Campbell.  Discussion on motion:  Campbell:  Offers motion of amendment to set aside the revised proposal until after the appeal has been completed.  Second by Halverson.  Discussion on amended motion:  Attorney Reed:  Not asking for that much (to present the proposal tonight).  Feels the intention was to stop the lengthy process and to reach a resolution.  Ostazeski:  Feels that it would be a waste of time to hear description of proposal.  Vote on amendment:  Motion Carried.  Vote on full motion:  Motion Carried.

 

Supervisor Musick:  We will proceed with the appeal items.  Have discussed items #2 and #4---to continue with these items.

Attorney Strom:  Feels #’s 2 & 4 are objection to the process of the Planning and Zoning Commission and not the content of the findings of fact.  Motion by Campbell to reject items #’s 2 and 4.  Motion failed for a lack of a second.  Motion by Campbell to reject items 2 and 4.  Second by Halverson.  Discussion:  Ostazeski:  Move to amend motion to read—“object items 2 and 4 expect for 2.5.  Second by Halverson.

Attorney Strom:  The role of the Board of Supervisors in an appeal is not to be concerned with each sub-item but to consider the overall content of the items.  Ostazeski withdrew motion of amendment, agreed by Halverson.  Vote on Motion:  Motion Carried.

 

Supervisor Musick:  Does the Board wish to “package” the remaining items of the appeal which essentially relate to process.  Motion by Ostazeski to review appeal items 3 and 5 through 13 together and to act on them jointly.  Second by Larson.  Motion Carried.

Attorney Reed:  Feels that addressing all of these items at once 93 & 5-13), his client’s rights to respond will be hampered.  Feels that taking all items as a “package” will be difficult.  Referred to the first meeting of the appeal, when Board agreed to review each item individually.  Dealing with items as a package would allow for a poor record.

 

Item #3:  Respondent took negative action without identifying any issues related to the public health, safety, and general welfare during the review hearing.

Attorney Reed:  Cited sub-sections of the appeal indicating that no public response of concern was aired at meeting of review.  Cited that the Planning and Zoning Commission did not follow the law and violated the standards of the Town’s Zoning Ordinance.  Therefore, the revised conditional use permit should be thrown out.  The Board must recognize the law.

 

Item #5:  The Township, through the Planning and Zoning Commission, violated the appellant’s due process and failed to comply with the provision of the Lakewood Zoning Ordinance.  Reed proceeded to review sub-item points 5.1 through 5.12 of the appeal document.  Reed stated that his client did not have an opportunity on August 15 and August 28 of 2007 to adequately present his case and therefore his rights were violated.  No testimony was ever presented on the salvage yard.  These items were not listed on the purpose of the public hearings.  The findings of the Planning and Zoning Commission are arbitrary and capricious.  The Planning and Zoning Commission can only make decisions based on testimony and evidence presented as cited in Ordinance Section 8.03(A)(3) (a-1).  Therefore the Township must reject the Planning and Zoning Commission findings on Item #5.  By trying to do Item #5 through the back door, his client’s rights have been violated and is thus a “taking” of property rights of his client.

 

Item #6:  The Township through the Planning and Zoning Commission exceeded it’s scope of authority by ignoring adopted and approved definitions by approving new definitions.  Reed read the definition of junkyard from the Town’s Zoning Ordinance.  The Planning and Zoning Commission cannot change definitions and limit the definition for one property owner.  The Planning and Zoning Commission exceeded authority to create a new definition of “construction contractor business” and “business activity area”.  Again, this affecting his client’s property rights.  The Planning and Zoning Commission cannot legislate definitions applicable to one property owner.  Again, there was no evidence or testimony presented on salvage yard at the 2007 hearings.  He referenced the scope of authority in determining conditions.  The Planning and Zoning Commission stepped out of the realm of reasonable conditions.

 

A brief recess was declared by the Chair at 9:00 p.m.  The meeting was reconvened at 9:15 p.m.

 

Item #7:  The Planning and Zoning Commission exceeded the scope of authority by arbitrarily and capriciously imposing new limitations and restrictions on the property without a rational basis. 

Attorney Reed:  Referenced page 22 of the Planning and Zoning Commission findings.  Again, no safety or health issues related to the conditional use permit were identified.  This restricted his client’s salvage yard rights to one-fourth acre.  There was no testimony or evidence taken in this regard.  The salvage yard was a grandfathered use.  Again, his client’s property rights on the grandfathered salvage yard were abused.  By limiting the use, this is a taking and thus state statutes require compensation.  Again, the Board must reject the findings of the Planning and Zoning Commission.

 

Item #8:  The respondent cited illegally, arbitrarily and capriciously by allowing members of the Town Board and others to influence the actions.  Attorney Reed cited that Supervisor Halverson and Chair of the Planning and Zoning Commission had conversations related to the matter.  He also cited that five of the eight Commission members had conversations, phone calls or e-mails from Supervisors Halverson and/or Musick.  Between August 15 and 28 of 2007, Great Lakes Stone was determined not to be a construction business.  Members of the Town Board had influence in the Commission members reaching this decision.  When the Planning and Zoning Commission reached it’s decision that Great Lakes Stone was not a contractor business, the Commission ignored the business activity of the surrounding area.  Reed referred to a November 13, 2007 meeting which was planned and supported by the Planning and Zoning Commission.  An e-mail message from Attorney Strom indicated the meeting was not necessary, contrary to the approved motion of the Planning and Zoning Commission.  His client’s due process rights wee impacted.  Reed made reference to Supervisor Halverson participating in a manner beyond an audience participant.  At the December 18, 2007 meeting, Supervisor Halverson was a part of the approval of the minutes.  The Board must reject the 2007 proceedings and findings due to public process not being followed.

 

Item #9:  The current time is 9:45 p.m.  Attorney Reed implores the Board to allow Attorney Strom and public comment to be provided as response time.  There was the discussion about providing response at the conclusion of all of the items versus allowing some response time tonight.  The Chair ruled that the Board will proceed with Item #9:  Throughout the Planning and Zoning Commission failed to follow it’s adopted procedures.  Attorney Reed:  Made reference to Zoning Ordinance Article VIII, 8.03, Section A-1.  The Planning and Zoning Commission violated the mandatory procedures outlined in the Ordinance.  The reason this is important---due process rights of this client were violated.  He cited section 8.03, A-2 (of Article VIII)---another section of hearing procedures outlined in the Zoning Ordinance.  The right to cross-examine individuals was not allowed by the Commission at the Hearings, thus the rules were violated and the process flawed.  (in reference to the August 15, 2007 Hearing).

 

Item #10:  Violation of Appellants due process by addressing new issues during staff decisions without providing a meaningful opportunity to participate or otherwise comment.  Essentially August 28, 2007 was the last date of public hearings; the remainder of the meetings were staff discussions.  The issue during staff discussions is that the appellant did not get a meaningful opportunity to speak to-construction contractor business and business activity area, also on salvage yard definition and rights. 

 

At this time in the meeting is 10:10 p.m.  Motion by Campbell to extend the meeting for another 30 minutes.  Second by Ostazeski.  Motion Carried.

 

Item #11:  Conclusions and order contains misleading, false, and scandalous statements regarding the appellant.  Attorney Reed:  The 32-page document of findings of fact contains statements which are not a part of essential findings of facts.  He cites various document statements that portray his client as being secretive and not up-front with activities.  Feels statements are not reflective of client’s testimony.  Reed cited statements that he believes to be false.  Reed and Lipe’s requested that a number of statements be taken out of the findings of fact.  It has not been done.  Many of the findings of facts have nothing to do with the issues of concern regarding the conditional use permit.  Reed:  On the issue of renting to others (subletting), it was supported as o.k. in 2002 by the Town Board. 

 

The Time is now 10:40 p.m.  Motion by Ostazeski to extend the meeting by 30 minutes.  Second by Halverson.  Motion Carried.

 

Again, Attorney reed implores the Board to take public comment at this time.  Chair Musick requested Reed to proceed with item #12 of the appeal. 

 

Item #12:  Respondent has violated applicable state law with respect to new definitions.

Attorney Reed:  A big non-conforming issue is the grandfathered rights of the salvage yard.  The definitions established by the planning and Zoning Commission and general conclusions that client has not been doing salvage yard activity for past six years, was an assumption that never had any testimony heard at the hearings.  Reed cited again the new definition of salvage yard which violates the state statutes and is a “taking” by law. 

 

Item #13:  Respondent violated the Open Meeting Law in the 2007 Review.

Attorney Reed:  Referenced the communication which took place between August 15 and August 28 of 2007 between Supervisors and Planning and Zoning Commission members.  There were hand written notes circulated between Commission members which violated the Open Meeting Law.

Supervisor Musick asked if there were concluding statements.  Attorney Reed reserved the issue until the Town Attorney and public have had an opportunity to present.

 

Motion by Halverson to recess the meeting at 11:10 p.m. to Monday, March 24, 2008 at 7:00 p.m. with Thurs., March 27, 2008 as a backup date if time is needed.  Second by Larson.  Motion Carried.

 

   

Respectfully Submitted;

Gene Bromenshenkel