City attorney responds to column's accusations

On Sept. 15, I reported to the East Lansing City Council on a favorable outcome in the case of Phil Bellfy v. East Lansing Historic District Commission. I recently read a guest column published in The State News, City misrepresents outcome of lawsuit (SN 10/5), wherein Mr. Bellfy claims I misrepresented the outcome of this lawsuit in my report to council, misinterpreted the decision and simply lied to City Council in my report. That accusation is absolutely false and I would like to set the record straight.

Mr. Bellfy has demonstrated a lack of understanding of relatively simple legal principles throughout the course of this case and, given the untenable legal positions that he has taken, it does not surprise me that he did not understand the true extent and nature of the legal rulings made in this matter. I can assure council and the general public that I did not misrepresent the ruling or outcome.

This case began when the city applied to the Historic District Commission on July 21, 2008, for a certificate of appropriateness to allow the demolition of four houses on three parcels on Evergreen Avenue, in order to construct a municipal parking garage. This garage would provide additional parking for businesses in the west end of the East Lansing downtown area, including the City Center II project. At that time, the city had a written agreement to enter into good-faith negotiations with the owner on two of the parcels, and an option to purchase the third parcel. The city did not own any of the parcels at that time.

On Sept. 17, 2008, the Historic District Commission granted the certificate of appropriateness. On April 13, 2009, almost seven months later, Mr. Bellfy appealed that decision to the State Historic Preservation Review Board. The basis of Mr. Bellfy’s appeal, in fact what he described as the “heart of the matter” in his July 19, 2009, affidavit filed in the case, was an allegation that the city was not the owner of the properties and therefore could not be an “applicant” for a certificate of appropriateness.

The city filed a motion to dismiss the appeal based upon two grounds: Mr. Bellfy’s lack of standing to bring the action, and his lack of timeliness. A hearing was held before an administrative law judge June 30, 2009, to deal with these two issues. A Proposal for Decision was issued Aug. 26, 2009, by the administrative law judge and adopted by the State Historic Preservation Review Board Sept. 11, 2009. When I reported on this decision Sept. 15, I explained that the decision granted the city’s motion to dismiss the appeal on both counts, lack of standing and timeliness. I also advised that this opinion addressed the substantive issue of Mr. Bellfy’s appeal and that his claim was found to be without merit. This second statement is what Mr. Bellfy claims to be a misrepresentation, distortion or lie to council about the result. Mr. Bellfy’s allegation is absolutely false and clearly not supported by the written opinion issued in this case.

I referred the council to page four of the Judge’s Proposal for Decision, which was adopted by the State Historic Preservation Review Board, which has been provided to council. Under the Conclusions of Law, the first issue to be addressed was Issue 1 — Does Petitioner (Bellfy) have standing to appeal Respondent’s (Historic District Commission) decision? The first question to be answered in addressing this issue is the question of who may be an “applicant” under the relevant statute, MCL 399.205(2). The opinion concludes on page four as follows:

“While Petitioner (Bellfy) argues that the city does not own the houses and cannot be a true applicant, MCL 399.205(1) does not require a permit applicant to be an owner. This provision is much broader:

(1) … The person, individual, partnership, form, corporation, organization, institute, or agency of government proposing to do that work shall file an application for a permit with the … commission … .”

Thus, this opinion clearly addressed the core basis of Mr. Bellfy’s appeal, the “heart of the matter” as he described it, concluding that the statute, MCL 399.205(1) does not require a permit applicant (the city) to be an owner. Mr. Bellfy simply was wrong in stating that I misrepresented this ruling to the City Council and that the judge had not, in fact, made a ruling on the substantive issue of the case.

Dennis McGinty

East Lansing city attorney