City attorney responds to column's accusations
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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
Commentary
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Jake
(10/14/09 9:19am)Report
Owned.
Sol Bilderberg
(10/15/09 6:32pm)Report
The key issue is whether or not the City Government, partnering with a Private Developer and threatening EMINENT DOMAIN, should be allowed to obtain a permit to DEMOLISH private homes that they DO NOT OWN.
They were NOT obtaining a permit to do work on properties in a historic district. There were obtaining permits to DEMOLISH homes that they did not own! That is the substantive issue!
Dr. Bellfy tried to stand up for the citizens property rights, and the judge ruled that Dr. Bellfy had no standing to fight it. The Judge never stated that Dr. Bellfys argument was not sound or suggest that Dr. Bellfy failed to comprehend basic legal principles.
The Judge made perfectly clear that the matter that was before him was not the fairness of the citys actions.
In the City Council meeting, Mayor Loomis and City Attorney McGinty suggested that their actions were judged to be fair.
That was not the issue before the judge.
We all know that when City Hall partners with an insolvent developer, to threaten EMINENT DOMAIN, and pressure elderly citizens to sell their homes, by obtaining permits to demolish their homes, that it is not the right way to do business.
Trampling on the rights of the citizens is the way Mayor Loomis, City Manager Staton, and City Attorney McGinty do business.
SB
Phil Bellfy
(10/15/09 6:34pm)Report
Well, Mr. McGinty is certainly entitled to his “opinion,” but when quoting the judge’s finding, I think he should be more honest. In that referenced Op-ed, I accused the City Attorney of being a liar, and I stand by that characterization, for one simple reason —he IS a liar, and in this case, he put it in writing for all to see.
Granted, the material quoted by Mr. McGinty, above, is accurate, but his “interpretation” of that paragraph is false.
First, Mr. McGinty makes reference to the Judge’s “Proposal for Decision” —you can read the entire document here: http://www.publicresponse.com/files/BellfyvsHistoric.PDF.
But what Mr. McGinty failed to do, and what leads to my charging him with being a liar, is that he fails to quote the last paragraph in that quoted “Conclusions of Law” section. So, for clarification, I’ll quote it here, in its entirety:
“Petioner’s [Mr. Bellfy’s] August 12, 2009 brief asserts that the city of East Lansing had no standing to file the request for demolition. But that is not an issue before me. Respondent [the Historic District Commission] accepted the city petition and decided in the city’s favor. The issue before me is whether the Petioner can appeal this decision NOT who can file a petition with respondent” (emphasis in original —“not” was underlined).
I also want to point out that the “Issues” under consideration were clearly stated by the judge. In this section of the “Conclusions of Law,” “Issue 1” states: “Does petitioner have standing to appeal Respondent’s decision.” This is the entire reason the judge pointed out the “applicant” section of the law that Mr. McGinty quoted above. What the judge REALLY said (not what Mr. McGinty would have you believe) was that only “applicants” can file an appeal, and reviewing the list of those entities that can file an application, under the “Conclusion of Law,” I was “none of the above,” and, therefore, as the judge stated on Page 6: “[Mr. Bellfy] does not have standing to file an appeal from Respondent’s decision since petitioner did not file a permit [an application] as provided in MCL 399.205(1) and is not an applicant as required by MCL 399.205 (2).”
There it is —read it for yourself on the Public Response website at the link provided above.
After reading this ruling —and I urge you to do so— I suspect that the only person who has “demonstrated a lack of understanding of relatively simple legal principles” is Mr. McGinty.
Jake
(10/19/09 10:33am)Report
I trust the two rambling, paranoid men more than someone who was actually in the courtroom and has actual experience with the law.
Sorry, Phil and Sol. You got lawyerized. In print.
Phil Bellfy
(10/19/09 11:32am)Report
Well, Jake, I was actually “in the courtroom” for the Hearing —Mr. McGinty WAS NOT (he sent his assistant, apparently “too busy” to argue the city’s case that he is now misrepresenting).