While Tony talked

Note:  After reviewing the video recording of the June 20, 2017 Council meeting, I verified that the council approved $200,000 for improvements to the dune walk. Council woman Ennis stated that it was a shame that the stairs had been allowed to deteriorate.  Someone stated that Tony Ashbaugh had only been with the city for 18 months and the deterioration stared long before that time. Ashbaugh had a list of local Foundations to approach but he, Mayor O’Donnell, nor Council member Bobby Spirito mentioned that they had been considered ineligible for a large DNR fund the previous year but had been invited to reapply in 2017.

images (4)Much of government activity would remain behind closed doors if it wasn’t for the Freedom of Information Act. Due to a lawsuit, we know the city council violated the FOIA by keeping the public surveillance videos of Tony Ashbaugh and Debra Lambrix out of the public domain but on more than one occasion the city clerk and city manager violated it by claiming public documents didn’t exist.  Appeals to the mayor were referred back to the city manager instead of investigated. If city employees are either destroying or hiding public information, the mayor and city council members have a responsibility to safeguard public records.

In the spring of 2016, the former parks supervisor began a grant application process with the Department of Natural Resources (DNR) through the Land and Water Conservation Fund for a new concession stand and dune walk.  It was confirmed that the city’s need fit the criteria for the grant and with that assurance the city council authorized $4,000 for a simple drawing of a new concession stand by a local architect.  Many grants awarded in 2016 were for over well over a hundred thousand dollars and there was a good chance that with two applications the fund would cover both a new concession stand and dune walk with the help of matching grants that could be both financial and in-kind. Grant awards for 2016

There were two prerequisites for consideration of a grant request.  The City had to have a five year parks and recreation plan and provide evidence of an advance notice for a public meeting held to discuss the grant application (a public hearing notice).  Although the city had the five year plan the city council didn’t require a public hearing process prior to moving the project forward. And although required by both state and local laws, since Rusty Geisler, the new city managers no longer require public hearings prior to beginning city projects.

Instead of completing the requirement for a public hearing last year to receive the grant funding, the city council earlier this year allocated funding for repairs to the dune walk.  Remembering that the DNR had rejected the grant request due to the omission of the public hearing and that the DNR had stated ineligibility one year would not reflect badly on resubmitting the following year, I filed a FOIA request for any communications between the DNR and the city concerning the grant.  Although the city clerk sent over 40 pages of an email stream between the DNR and former park supervisor, she did not include the communications documenting the rejection of the of the grant.  Through a FOIA request to the DNR, I was provided two  correspondences addressed to Tony Ashbaugh who had taken on the duties of park supervisor with a large increase in pay.

These were two correspondences from Christie Bayus of the DNR to Ashbaugh, one dated October 17, 2016 and the other dated October 18, 2017   The correspondences noted that the information was a high priority and she mentioned that in July, Ashbaugh had spoken to a DNR representative when he was told that he needed a copy of the advance notice of a public hearing.  Ashbaugh evidently never replied because there was no documentation from him to the DNR and so the city lost out on a new concession stand and dune walk.  While the city clerk and city manager might be trying to protect Ashbaugh by not providing the correspondences the DNR provided, they can’t destroy or deny public information, it is illegal. The main reasons for the Freedom of Information Act is to provide to the public an avenue for oversight of government officials. DNR FOIA Response DNR Communications

At Tuesday’s city council meeting, the city clerk accepted a check on behalf of the city for a William J Deputy Endowment Fund donation to help repair the dune walk.  It might not have been needed had Ashbaugh followed through with the requirements of the grant last year and requested the Planning Commission hold a public hearing.  Or if time became an issue, he could have completed a new application for 2017, ensuring that a public hearing process was completed.

Although Ashbaugh had time to sit around thinking of ways to get even with the police chief and bad mouth co-workers, he didn’t have time to bother with completion of a grant request that could have provided the city a new concession stand and board walk that would enhance the lakefront and protect the dune.  Instead of wasting funding to patch the deteriorating dune walk, it could have been used as leverage for the DNR funding for the completion of a new one along with a new concession stand.

The city council didn’t bother with a public hearing process prior to accepting a grant for new sidewalks, bypassing the opportunity for residents to voice their concerns about sidewalks they didn’t want or need. Yet the council members find fault with residents who complained that there was no official process for public input.  The council also didn’t bother with a public hearing process prior to beginning the downtown project bypassing the ability for state funding to help with the costs.  And just last night, a woman spoke to the council about their decision to allow a zoning variance that appeared to violate a number of zoning ordinances.  Had the Planning Commission held a public hearing process as required by both law and zoning, the Commissioners might not have recommended the variance to the council for approval.  Documented public input through a public hearing process can and should impact the decisions made by both volunteer commissioners and elected council members. We pay the bills, why not include us as required by law in the decision making?

The City Council felt it was appropriate to post on the city’s web-site a letter from a state agency to a private citizen as they did when they posted a letter from the Michigan Highway Administration addressed to me because I felt that fraud might have been committed in the Safe Route to School grant.  Since the DNR sent a letter to a city employee, Tony Ashbaugh, stating the city was no longer eligible for a concession stand and dune walk grant, why doesn’t the city council post it?  It seems much more appropriate to post a letter to a public employee than a private citizen.

21 thoughts on “While Tony talked

  1. Susan Gotfried Post author

    Today I got copies of the Ashbaugh’s videos from August 2016 through a FOIA request. They were redacted. Wnen Judge Wiley ordered the video public, asked the attorneys if there was anything on them that should be exempted – they said no. I guess the judge will have to sort this out.

  2. Cheryl Marie

    Correct, Susan. Your conclusive point “they just don’t care” is what I meant by ‘deliberate indifference’ to the deprivation of a protected right (even adherence to a local rule or its procedural application) and/or ‘reckless indifference’ to the resulting harm experienced by the one deprived of the right.

  3. Susan Gotfried Post author

    The three council members who voted for the bad recommendation from the planning commission and City Manager Richards that will lead to another lawsuit costing the landowner a great deal of money were Lou O’Donnell, Robert Spirito, and Liz Ennis. The idea of them being below average intelligence or else they do know what they are doing must fit – we just don’t know which fits. O’Donnell and Spirito were both part of the council when they sued the planning commission costing the city over a hundred thousand dollars in legal fees while forcing the drug store to equally spend a ton of money. Their refusal to learn from mistakes? Could be they are below average intelligence but it also could mean they just don’t care.

  4. Cheryl Marie

    Well Shannon, since Mr. Richards is not a policy-maker, it is only Council members who are responsible for your claim that they either made a new policy or were not adhering to a current City policy. It seems that the three Council members did not know what was involved in regard to the need for the site plan. The maxim about BEST PRACTICES goes something like this: When in doubt, chicken out.

    As for Susan’s comment, you are so right that elected officials should know the rules governing their government. As for written rules, they are by law needfully simple enough for people of average intelligence to comprehend, or else the rules would not be Fair Notice of what is expected and how the rules would be applied to everyone. So, public officials who cause harm are either persons of below average intelligence, or else they DO KNOW what they are doing.

  5. Susan Gotfried Post author

    Liz Ennis’ remark provides a good idea of how she views her job and the people who live here – just pass through issues to the legal system, the hell with how much money citizens will have to spend on legal fees just to prove the city wrong. Shannon, we want to believe our elected officials represent our best interests but in New Buffalo there appears to be a condescending attitude by the council toward the people who live here. It is like they don’t need us but just our tax dollars. When they allowed the roots of those beautiful trees to be butchered, they were angered for being called on it instead of apologizing. I agree, everyone who reads this should view the video to see Ennis making that remark – in front of you, almost a mocking tone.

  6. Susan Gotfried Post author

    The planning commission made the right decision concerning the drug store but were still taken to court by the city council. I have always thought that the city should have a part-time planning professional who really understands planning and zoning laws. But the city council also should be versed in planning and zoning so they understand when the city manager and planning commission are not making sound decisions. It isn’t that hard to understand.

  7. Shannon

    I would encourage people to watch the video from the City Council Special Meeting on 10/3. Mayor O’Donnell motioned to table the Parking Lot Site Plan and Liz Ennis seconded the motion. THEN, the attorney for the property owner, not the church, got up to speak, without signing up for public comment, and Mayor O’Donnell and Liz Ennis changed their vote. What the attorney did is called misrepresentation, he promised things the church would do, which the church never agreed to do. Both Mr. Richards and Ms. Ennis asked for the site plan to be approved and if they found out LATER there was something wrong with it, they would bring it back to the Planning Commission. “If a special use permit is required, which might be or might not be, that’s a separate issue and one that we would bring back to the Planning Commission and to the City Council if it’s required.” (19:02) “If it is illegal, I guess we will find that out.” (23:00) Therefore, the City Council approved something they did not know was legal, accurate or complete because the closing (for the parking lot parcel) was scheduled for the next day, 10/4.

  8. Cheryl Marie

    The primary problem of the City Council, or the New Buffalo Township Board, being the final arbiter over the respective Planning Commission’s recommendations is that the in depth investigation takes place by the body that does not make the final decision. The final decision-maker then does not responsibly conduct an investigative Public Hearing when an affected party points to a flaw (mistake, or wrongful call) in the lower body’s finding of a so-called fact or interpretation of a code provision that led to a wrong or inadequate conclusion. There could instead be that needful checking of fact or review of the language in the code to form certainty.

  9. Susan Gotfried Post author

    I don’t know about government, but with not for profit boards, if the members acted with good intentions, there was no personal liability but if negligence could be established, there was. While Council member Ennis likes to act that she is mortified by some of my posts, her indifference as to whether she was voting to violate the law was breathtaking. Evidently she is not there to support the residents but she is there to support the staff. She did it with her vote to allow the city to violate the FOIA and she did it to this homeowner. If Ennis had the same think happen to her, she would be crying foul.

  10. Cheryl Marie

    This comment pertains to the Church parking lot situation. The HC News coverage of the City Council’s special meeting caught my eye with respect to a particular claim, if it’s true (since it’s the reporter’s words). Here’s the statement: “But then, Ennis — who said she believes City Manager David Richards and the Planning Commission have looked into this matter “with due diligence” — motioned to approve the site plan. “If it’s illegal, we’ll find that out,” she remarked.”

    If that is what Liz Ennis said, I find it shocking that this public official would act from the standpoint of deliberate indifference, or deliberate recklessness, about deprivation of the rights of a party to this situation. Ennis voted to approve the site plan on nothing but her “belief” and not on her eye-witness of the fact that Richards and the PC had acted with due diligence with respect to the claims brought forth by the neighboring property owners during this special meeting. The fact that Ennis at first believed (assessed) that a time-out was in order supports my claim.

    The matter of an official’s conduct indicating deliberate indifference or deliberate recklessness in regard to deprivation of a property right or the right to procedural due process is a very serious matter pertaining to the City too. Such deprivation being approved per this decision of the Council supports that it is a City policy or practice to deprive people of rights — meaning, the City has a Policy of Inaction to prevent an unjustified deprivation. The City may have liability, unless there is a preventative policy and these officers themselves violated it.

    For more knowledge, I offer that people can look into the “Governmental Liability For Negligence Act”, being Section 691.1407 of the Michigan Compiled Laws. To my comprehension, tortious action or inaction being not a governmental function, means there is no immunity from liability.

  11. Susan Gotfried Post author

    It is a shame you have to continue correcting errors and that you had to spend your own money on attorney fees because the city council doesn’t follow the law. I know how that feels since because the city council voted to allow the city to violate the FOIA, Tony Ashbaugh moved forward with a lawsuit against me and others, I too had to hire an attorney just because the city council doesn’t understand laws. I heard that you hired Michael Homier, a very good attorney who has a positive history of winning suits brought against the city by citizens that the council mistreats. If they would just hire a city manager who understands state laws and local zoning plus require some type of planning and zoning competence in Planning Commissioners, they might not waste so much money on lawsuits they are destined to fail.

  12. Shannon

    Correction: There is no zoning variance, which is why the site plan approval for the parking lot is unlawful. You can’t put a parking lot in a R-1 zoned parcel without a zoning variance or special land use permit. Everything they did regarding this case was against the law. No public hearing.
    Neighbors weren’t notified. The owner of the lot mislead the Planning Commission by stating the property owner (of the house) didn’t object to the site plan. Not true, the owner didn’t even know about the site plan or Planning Commission meeting because she was never notified. The church promised to speak to the neighbors regarding a fence or natural buffer, never happened. The application had the wrong address and wrong tax ID number. The application stated the applicant was the property owner, not true. In addition, the site plan has several violations and most importantly doesn’t include direction of drainage flow, proposed grades, or points of discharge for all drains. Most likely because there are no storm sewers on Harrison St. and they didn’t want to spend the money to dig to Buffalo St. Since there is no drainage plan, except for a trench, they put the owner’s home at risk for flooding. Which is exactly what happened with the current parking lot across from the church. Because there wasn’t a proper drainage system, it caused many of the homes behind the parking lot on Willard St. to flood. Also, they are required to have a 10ft. setback from the neighbors property line, but they don’t. There’s only a 5 ft. setback on two sides. In fact, during the City Council Special Meeting on 10/3, the attorney for the owner of the lot claimed the church was going to remove some parking spaces and put in a 10ft. buffer, not true. After the meeting was over (and the City Council voted 3-2 to approve it) the church said “the plan was approved as-is, they’re not making any changes, and attorney Ben Schwartz never should have spoken on their behalf.” The church claims the parking lot is an “accessory use,” but according to Section 3-2 it can’t be considered an “accessory use” because it’s on a different parcel. It’s a shame that innocent citizens have to spend thousands in legal fees to protect their property from mistakes the City made because they didn’t follow their own city zoning ordinance laws.

  13. Susan Gotfried Post author

    It seems that not only the woman whose property will be impacted by this decision but so will the church. If a lawsuit finds that a church cannot put a parking lot in residential zoning, then they were misled by the zoning administrator, the Planning Commission and finally the City Council. They too could sue the City. My fear is that the City will try to change their ordinance so parking lots will be allowed in residential districts but of course it won’t help this case because they can’t retroact the ordinance. Why does the city continue to hire city manager’s who do not understand zoning? It is a shame that no other planning commissioner listened to Ralph, through his many hours of training, he knows what he is talking about. Had they scheduled a public hearing, the comments made by the surrounding neighbors would have had to be documented. This documentation can make the members of boards think twice before proceeding.

  14. Susan Gotfried Post author

    Donna, the people who are responsible for the whole project and the way it was handled are the city council members. They can say that they did not authorize the destruction of the roots of the large beautiful red oak trees but it was through the contractor they authorized to do the job. They should have consulted a tree expert before approving the location of the sidewalks.

  15. Susan Gotfried Post author

    If he requested 60 hours of video of the police department, it had to be for personal use. As CEO of the city, if he felt a need to view the video for work, he could have requested them through his authority. I would assume for that many hours there had to be a fee and since it was for personal use, he viewed them when he wasn’t on the city’s clock. The question is why would a city manager whant 60 hours of the police doing their work for his personal use? But yes, if my name is posted for FOIA applications, so should his.

  16. Ray

    One more thing:
    Funny how the city’s website doesn’t publish the FOIA submitted by City manager Richards for almost 60 hours of video from the police department requested on September 30th. Only common folks names get published. BTW do we pay him to view those 60 hours of video he requested?

  17. Ray

    The Council does not hold the power to make such decisions outside the ordinance. Either way NONE of this was done. As usual the city manager as zoning administrator, not only failed in his duties to follow the Zoning Ordinance as written, but also deceived the council that there were no errors in the application or the process; a flat out lie! As far as the Planning Commission, besides a single member, they are clueless. cont…

  18. Donna messinger

    I’m sorry George, get out of your hood and go look at the actual sidewalks where there hacked all the trees. The sidewalks look horrible, they will certainly bring down property value for anyone thinking about selling their property. The trees will die in 2 to 3 years, the kids will still not be walking to school and we will have ugly sidewalks that will buckle and bend and nobody will take care of them in the years to come. Just my opinion of a mother of two kids who live in walking distance to the school that I drive them to every day.

  19. george dobie

    ???tell us what is a ‘ large salary increase’
    also the new sidewalks are sure looking good. Keep up the good works.

  20. Julie

    Maybe they should start posting all of TA’s errors on the City’s website, so he can be shamed. They are so concerned about shaming city residents about wanting to know city business that they are allowed to have. They constantly cover TA’s mistakes and bad decisions. He is the little troll sleeping in city hall, making sure everyone loves him, so he can spread his BS through out New Buffalo. Such a sad time for our city.

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