I realize that the events of the 9 Nov 2010 would seem to make this series moot, but it is useful in highlighting violations left unaddressed and the inaction on the part of Hayes Township with regard to the violations committed by Doug Longenecker.
There is very little in the Hayes Township Zoning Ordinance that addresses violations and penalties and consequences of violating the Ordinance and stays imposed by the Ordinance, and what there is consists of a lot of legalese and doublespeak. But I will try to muddle through this.
Today I will look at Pages 79-80, Article XVI Administration and Enforcement, Sections 1609-1612.
Page 79, Section 1609 Violations and Penalty, Paragraph 1. Violations: Use of land, buildings, structures and recreational vehicles in violation of any provision of this Ordinance are hereby declared to be a nuisance per se.
Doug Longenecker's violations of the Ordinance cited in the first two parts of this series of posts are, each individual occurrence, a nuisance per se. The ongoing development of the Gamble-Longenecker property on Mostetler Road was an ongoing nuisance per se by virtue of the fact that it violated the stay on the property that was put in place when the first appeal was filed to the Zoning Board of Appeals. The violation of the stay was a violation of a provision of the Ordinance. In addition to those violations, the Polaris WOTT event that was held on 30 Aug 2010 was a violation of the stay on the property and was declared so by Judge Mienk at the 20 Oct 2010 court date. The Polaris Event was a nuisance per se.
Page 79, Section 1609, Violations and Penalty, Paragraph 2. Penalties: "Any person, corporation or firm who violates, disobeys, omits, neglects or refuses to comply with any provisions of this Ordinance or any permit, license or exception granted hereunder, or any lawful order of the Township Zoning Administrator, Zoning Board of Appeals, Planning Commission or the Township Board issued in pursuance of this Ordinance shall be guilty of a misdemeanor."
Doug Longenecker has violated, disobeyed or refused to comply with the restrictions placed upon him by the Special Use granted to him by the Planning Commission by deviating from his site plan (setting aside and working on a BMX area) without prior approval of the Hayes Township Zoning Administrator (then Jim VanWormer). He is guilty of a misdemeanor.
Any person who worked on the BMX area on the Gamble-Longenecker property on Mostetler Road is also guilty of a misdemeanor under this section of the Hayes Township Zoning Ordinance.
Doug Longenecker has violated a provision of the Ordinance in that he violated the stay that went on the Gamble-Longenecker property when the first appeal was filed with the Zoning Board of Appeals. He continued to develop the Gamble-Longenecker property on Mostetler Road after the stay went on the property. He is guilty of a misdemeanor.
Any person who helped with the development of Michigan Moto Mania on the Gamble-Longenecker property on Mostetler Road (picking up sticks and rocks, running bulldozers and other such equipment, etc.) while the stay was in force is also guilty of a misdemeanor.
Doug Longenecker has violated the stay that was in force on the Gamble-Longenecker property when he scheduled and allowed the Polaris WOTT event on the property on 30 Aug 2010. He is guilty of a misdemeanor.
Polaris is a corporation that violated the stay that was in force on the Gamble-Longenecker property on Mostetler Road when they sponsored the Polaris WOTT event on the property on 30 Aug 2010. Polaris is guilty of a misdemeanor.
Planning Commission members Ron Malone and Don Atkinson have violated the stay that was in force on the Gamble-Longenecker property on Mostetler Road when they participated in the Polaris WOTT event on the property. They are guilty of a misdemeanor. (In my opinion, that is grounds for their removal from the Planning Commission as well. The violation was willful.)
Any individual who participated in the Polaris WOTT event violated the stay that was in force on the Gamble-Longenecker property on Mostetler Road when they participated in the event. They are guilty of a misdemeanor.
"Upon conviction thereof, before any court having jurisdiction , he or she shall be punishable by a fine not to exceed five hundred (500) dollars or by imprisonment not to exceed ninety (90) days, or both, at the discretion of the court."
Judge Mienk has already determined that the Polaris WOTT event was a violation of the stay that was in force on the Gamble-Longenecker property on Mostetler Road. It is fortunate for Doug, Polaris, Don Atkinson, Ron Malone and everyone else who participated that none of them were on trial for the misdemeanor they all committed. The Hayes Township coffers would be about $15,000. richer from that day alone.
As for the other violations, they could have been expensive for everyone who violated the stay as well. I guess it's a good thing that Hayes Township does not enforce violations of the Zoning Odinance, or everyone's wallet would be a whole lot lighter.
"Each day during which a violation continues shall be deemed a separate offense."
Wow! Wouldn't that be a hefty payday for Hayes Township at Doug's expense!
$500. for the deviation of the site plan.
$500. X (let's be stingy and say only a week of violations working on the BMX area.) 7 = $3500.
$500. X a single week of continued development during the stay = $3500.
$500. for Polaris WOTT event
That's just a drop in the bucket of what it could potentially be $8000. and probably more like $7500./week - and that's just Doug alone.
Shall I figure out the potential jail time? That's
90 days + 490 days +490 days +90 days = 1160 days, or just short of 3 years and 2 months.
It's a good thing Hayes Township is so forgiving.
"The imposition of any sentence shall not exempt and offender for noncompliance with the provisions of this Ordinance. The foregoing penalties shall (will) not prohibit the Township from seeking injunctive relief against a violator or such other appropriate relief as may be provided by law."
Pages 79-80, Section 1610 Public Nuisance Per Se: "Any material violation of this Ordinance is considered a public nuisance per se. Any building or structure which is erected, altered, or converted, or any use of premises or land which is begun or changed subsequent to the time of passage of this chapter and in violation of any of the provisions of this chapter, is hereby declared to be a public nuisance per se, and may be abated by order of any court of competent jurisdiction."
Doug Longenecker's violations of the Ordinance cited in the first two parts of this series of posts are, each invidual occurrence, a nuisance per se. The ongoing development of the Gamble-Longenecker property on Mostetler Road was an ongoing nuisance per se by virtue of the fact that it violated the stay on the property that was put in place when the first appeal was filed to the Zoning Board of Appeals. The violation of the stay was a violation of a provision of the Ordinance. In addition to those violations, the Polaris event that was held on 30 Aug 2010 was a violation of the stay on the property and was declared so by Judge Mienk at the 20 Oct 2010 court date. The Polaris Event was a nuisance per se.
If the Township fails to take measures to deal with these nuisances per se, they can be dealt with in court. If I am not mistaken, Judge Mienk indicated that there were supposed to be consequences of the nuisances per se that have already taken place.
The Zoning Board Of Appeals has overturned the Special Use, but that is separate from the consequences attached to the nuisance per se infractions. Those have yet to be dealt with by the Township. There should be no chance of any resurrection of Michigan Moto Mania. If the Township does not take care of it, perhaps Judge Mienk will.
Section 1611 Fines and Imprisonment, Paragraph 1: "The owner of any building, structure or premises, or part thereof, where any condition in violation of this chapter shall exist or shall be created and who has assisted knowingly in the commission of such violation shall be guilty of a separate offense and, upon conviction, shall be liable to the fines and imprisonment as established by this Township Ordinance and enforced by the courts of law."
Don Atkinson and Ron Malone knowingly assisted Doug Longenecker in the commission of the violation of the stay on the Gamble-Longenecker property when they participated in the Polaris WOTT event. As a minimum, they are both guilty of misconduct while in office, and they deserve to be fired from the Planning Commission, but if this case is ultimately heard by Judge Mienk, they could be held liable to the fines and imprisonment as established by the Hayes Township Zoning Ordinance. That could potentially be either $500. or 90 days each.
Paragraph 2: "A separate offense shall be deemed committed upon each day during or when a violation occurs or continues."
The Polaris trucks were at the Gamble-Longenecker property on Mostetler Road for 2 days.
Section 1612 Rights and Remedies are Cumulative: "The rights and remedies provided in this article are cumulative and in addition to any other remedies provided by law."
I have no comment to add to this point.
Summary:
No one reading this seriously expects that Hayes Township will, all of a sudden, start enforcing their own ordinance for all of the violations committed by Doug Longenecker, the Moto Mania supporters who have participated in the violations or the various members of boards named or unnamed who have committed single or ongoing violations of the Zoning Ordinance. They have not done so up to this point, I have no reason to believe that they will start any time soon. For that, all of the offenders should be thankful. They are all in contempt of the Ordinance, and some of the violations have been blatant.
There are no real consequences for violating a stay in Hayes Township, and the Zoning Ordinance unenforced is not worth the paper it is printed on.
Showing posts with label violations of stay. Show all posts
Showing posts with label violations of stay. Show all posts
Saturday, November 13, 2010
Sunday, November 7, 2010
The Consequences (Or Lack Thereof) of Violating a Stay, Part 1
There is very little in the Hayes Township Zoning Ordinance that addresses violations and penalties and consequences of violating the Ordinance and stays imposed by the Ordinance, and what there is consists of a lot of legalese and doublespeak. But I will try to muddle through this.
Page 75 - Section 1603 Site Plan Review, Paragraph 5 Revocation: "If the Zoning Administrator shall find that the conditions and stipulations of an approved site plan are not being adhered to, the Planning Commission shall give notice to the applicant of its intent to revoke the prior approval given to the site plan. Intent to revoke shall be made known to the applicant by a registered letter sent to the applicant and signed by the Chairman of the Planning Commission. Said letter shall be received by the applicant fourteen (14) days prior to the stated date of revocation and shall contain the reasons for revoking the site plan approval.
If the applicant notifies the Planning Commission within fourteen (14) days of the receipt of the letter of his/her intent to rectify the violation, the Planning Commission , through official act, may defer the revocation."
One of the restrictions of the Special Use granted by the Planning Commission was: "There will be no substitutions or alterations to any of the conditions set before this board (the Hayes Township Planning Commission) without prior approval of the Township Zoning Administrator." - Page 4 of the minutes of the 17 May 2010 Planning Commission Special Meeting.
The BMX area set aside over the summer was a violation of restrictions of the Special Use (It was an alteration to the site plan approved by the Planning Commission at the 17 May 2010 meeting) and also a violation of the stay that was on the property because of the appeal to the Zoning Board of Appeals.
At the time, Zoning Administrator Jim VanWormer apparently did not find that the conditions and stipulations of the approved site plan were not being adhered to, for whatever reason. (Maybe he was worried about losing his job if he made a finding that was not in keeping with what the Planning Commission and the Township Board of Trustees wanted - which makes me wonder if our new Zoning Administrator will be able to stand up to the people who have the power to fire her in order to do what is right.) But he had sufficient grounds.
He should have notified Lyle Criscuolo, Chairman of the Planning Commission who should have sent a registered letter to Doug Longenecker of his intent to revoke the prior approval of the Special Use on the Gamble-Longenecker property on Mostetler Road. Then Doug should have had fourteen (14) days to stop work on the BMX area.
As far as anyone knows, Jim VanWormer never made the finding, and Lyle never wrote such a letter to Doug Longenecker. It is well known among the neighbors that Lyle and the rest of the "Powers that Be" at the Township are not interested in enforcing the Zoning Ordinance when it conflicts with what they want to do.
Here's how it should have worked:
1. As soon as Jim VanWormer found out that Doug had set aside an area for BMX (when they crowed about it in the Cleaver or when a neighbor complained), he checks the restrictions on the Special Use and determines that Doug deviated from the approved site plan. And also notes that Doug has violated the stay on the property - in fact, all work and development that went on after the appeal was filed was a violation of the stay.
2. Jim VanWormer tells Lyle about the deviation and about the violation of the stay.
3. Lyle writes a letter of intent to revoke the Special Use for an unapproved deviation from the approved site plan, and also a violation of the stay. He also sets a date of revocation for 14 days after Doug's receipt of the letter.
4. Lyle then sends the letter to Doug via registered mail (which provides proof and date of receipt by Doug.)
5. Doug has 14 days from receipt of Lyle's letter to answer Lyle and state his intent to rectify the situation.
a. If it were only the deviation from the approved site plan, Doug begins the process of gaining approval for the deviation of the site plan.
Then goes through that entire process.
b. Since there was also a stay on the property, Doug should have ceased and desisted from further development of everything on the property, not just the BMX area until the Zoning Board of Appeals takes a decision about the special use.
6. The Planning Commission meets and through official act, defers the revocation.
7. So Doug is in a waiting position until he gets the go ahead (if that's what the ZBA decides.)
8. If the ZBA decides to uphold the special use, then Doug does step 5a, and can continue to develop other areas of the property according to the restrictions of the special use.
9. Once step 5a is complete, if the deviation is approved, he continues work on the BMX area. If the deviation is disapproved, he stops work on the BMX area, but can continue development on the rest of the property according to the restrictions of the special use.
OR
8. If the ZBA does not uphold the special use, he ceases to develop the property.
The consequence in this case is and should have been Revocation of the Special Use.
It should also be made clear that this paragraph addresses site plans specifically and not Special Uses and not stays.
There is another place in the Hayes Township Zoning Ordinance where this is addressed, so I will write about that in another post.
Page 75 - Section 1603 Site Plan Review, Paragraph 5 Revocation: "If the Zoning Administrator shall find that the conditions and stipulations of an approved site plan are not being adhered to, the Planning Commission shall give notice to the applicant of its intent to revoke the prior approval given to the site plan. Intent to revoke shall be made known to the applicant by a registered letter sent to the applicant and signed by the Chairman of the Planning Commission. Said letter shall be received by the applicant fourteen (14) days prior to the stated date of revocation and shall contain the reasons for revoking the site plan approval.
If the applicant notifies the Planning Commission within fourteen (14) days of the receipt of the letter of his/her intent to rectify the violation, the Planning Commission , through official act, may defer the revocation."
One of the restrictions of the Special Use granted by the Planning Commission was: "There will be no substitutions or alterations to any of the conditions set before this board (the Hayes Township Planning Commission) without prior approval of the Township Zoning Administrator." - Page 4 of the minutes of the 17 May 2010 Planning Commission Special Meeting.
The BMX area set aside over the summer was a violation of restrictions of the Special Use (It was an alteration to the site plan approved by the Planning Commission at the 17 May 2010 meeting) and also a violation of the stay that was on the property because of the appeal to the Zoning Board of Appeals.
At the time, Zoning Administrator Jim VanWormer apparently did not find that the conditions and stipulations of the approved site plan were not being adhered to, for whatever reason. (Maybe he was worried about losing his job if he made a finding that was not in keeping with what the Planning Commission and the Township Board of Trustees wanted - which makes me wonder if our new Zoning Administrator will be able to stand up to the people who have the power to fire her in order to do what is right.) But he had sufficient grounds.
He should have notified Lyle Criscuolo, Chairman of the Planning Commission who should have sent a registered letter to Doug Longenecker of his intent to revoke the prior approval of the Special Use on the Gamble-Longenecker property on Mostetler Road. Then Doug should have had fourteen (14) days to stop work on the BMX area.
As far as anyone knows, Jim VanWormer never made the finding, and Lyle never wrote such a letter to Doug Longenecker. It is well known among the neighbors that Lyle and the rest of the "Powers that Be" at the Township are not interested in enforcing the Zoning Ordinance when it conflicts with what they want to do.
Here's how it should have worked:
1. As soon as Jim VanWormer found out that Doug had set aside an area for BMX (when they crowed about it in the Cleaver or when a neighbor complained), he checks the restrictions on the Special Use and determines that Doug deviated from the approved site plan. And also notes that Doug has violated the stay on the property - in fact, all work and development that went on after the appeal was filed was a violation of the stay.
2. Jim VanWormer tells Lyle about the deviation and about the violation of the stay.
3. Lyle writes a letter of intent to revoke the Special Use for an unapproved deviation from the approved site plan, and also a violation of the stay. He also sets a date of revocation for 14 days after Doug's receipt of the letter.
4. Lyle then sends the letter to Doug via registered mail (which provides proof and date of receipt by Doug.)
5. Doug has 14 days from receipt of Lyle's letter to answer Lyle and state his intent to rectify the situation.
a. If it were only the deviation from the approved site plan, Doug begins the process of gaining approval for the deviation of the site plan.
Then goes through that entire process.
b. Since there was also a stay on the property, Doug should have ceased and desisted from further development of everything on the property, not just the BMX area until the Zoning Board of Appeals takes a decision about the special use.
6. The Planning Commission meets and through official act, defers the revocation.
7. So Doug is in a waiting position until he gets the go ahead (if that's what the ZBA decides.)
8. If the ZBA decides to uphold the special use, then Doug does step 5a, and can continue to develop other areas of the property according to the restrictions of the special use.
9. Once step 5a is complete, if the deviation is approved, he continues work on the BMX area. If the deviation is disapproved, he stops work on the BMX area, but can continue development on the rest of the property according to the restrictions of the special use.
OR
8. If the ZBA does not uphold the special use, he ceases to develop the property.
The consequence in this case is and should have been Revocation of the Special Use.
It should also be made clear that this paragraph addresses site plans specifically and not Special Uses and not stays.
There is another place in the Hayes Township Zoning Ordinance where this is addressed, so I will write about that in another post.
Thursday, November 4, 2010
Bait Updated
Here is an update of yesterday's post:
In a conciliatory effort to give Robin the benefit of the doubt, I will quote her new caption from what I called the "Bait" photo. It is a retraction of sorts.
"Sorry... Accidently posted this picture. This is actually from an apple orchard. We took this picture for planning purposes. We hope to have play areas for the kids similiar to this. Simply a posting mistake. This is not at MMM. Thanks for notifying us Klasko...keep checking next we will be playing" Wheres Klasko" for a fun prize ;),"
Sure Robin. You're quite welcome. You can count on me keep you guys honest. Keep looking for Klasko. You never know where she'll turn up! ;-)
Yesterday's Post:
There are some new photos on the Michigan Moto Mania facebook page entitled Summer 2010.
In that pile of photos that are a photographic chronicle of the violations of the stay that have occurred all summer long is at least one piece of bait.
No doubt Robin was hoping the neighbors would go to their lawyers with the new photos, and use that particular photo as proof of the violation of the stay. She'd like that.
Then Doug and Robin can accuse the neighbors of "fabricating" evidence that they had violated the stay, hoping to cast doubt on anything brought forward by the neighbors. They'd love to catch the neighbors in a "gotcha." And then that photo will disappear from the Moto Mania facebook page.
What other motive could Doug and Robin possibly have? Are they advertising (falsely) facilities for their fans that really don't exist at Moto Mania?
I don't know where the facility in the bait photo is, but I can assure you that it is not on the Gamble-Longenecker property on Mostetler Road. Among the many other problems with the photo is this: Mostetler Road is a dirt road. The road in the foreground is paved. I guess they think we are that stupid. But maybe the fans are dumb enough to believe it.
But the real Moto Mania photos are just more evidence that Doug has no respect for the Hayes Township Zoning Ordinance.
Why publish them now, before the Zoning Board of Appeals meets to vote? Does Doug already know that the Zoning Board of Appeals is going to uphold the Special Use? Or is it just plain hubris?
In a conciliatory effort to give Robin the benefit of the doubt, I will quote her new caption from what I called the "Bait" photo. It is a retraction of sorts.
"Sorry... Accidently posted this picture. This is actually from an apple orchard. We took this picture for planning purposes. We hope to have play areas for the kids similiar to this. Simply a posting mistake. This is not at MMM. Thanks for notifying us Klasko...keep checking next we will be playing" Wheres Klasko" for a fun prize ;),"
Sure Robin. You're quite welcome. You can count on me keep you guys honest. Keep looking for Klasko. You never know where she'll turn up! ;-)
Yesterday's Post:
There are some new photos on the Michigan Moto Mania facebook page entitled Summer 2010.
In that pile of photos that are a photographic chronicle of the violations of the stay that have occurred all summer long is at least one piece of bait.
No doubt Robin was hoping the neighbors would go to their lawyers with the new photos, and use that particular photo as proof of the violation of the stay. She'd like that.
Then Doug and Robin can accuse the neighbors of "fabricating" evidence that they had violated the stay, hoping to cast doubt on anything brought forward by the neighbors. They'd love to catch the neighbors in a "gotcha." And then that photo will disappear from the Moto Mania facebook page.
What other motive could Doug and Robin possibly have? Are they advertising (falsely) facilities for their fans that really don't exist at Moto Mania?
I don't know where the facility in the bait photo is, but I can assure you that it is not on the Gamble-Longenecker property on Mostetler Road. Among the many other problems with the photo is this: Mostetler Road is a dirt road. The road in the foreground is paved. I guess they think we are that stupid. But maybe the fans are dumb enough to believe it.
But the real Moto Mania photos are just more evidence that Doug has no respect for the Hayes Township Zoning Ordinance.
Why publish them now, before the Zoning Board of Appeals meets to vote? Does Doug already know that the Zoning Board of Appeals is going to uphold the Special Use? Or is it just plain hubris?
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