Litigation against Hayes Township

Lawsuit filed October 20, 2022 to protect the shore, challenges ZBA decision on Ordinary High Water Mark.

Resident working to protect Lake Charlevoix from boathouse/dining/event facility and excavation of shoreland sues Hayes Township  for erroneous ZBA decision on Ordinary High Water Mark. See Claim of Appeal filed in Charlevoix County Circuit Court. (Right)—>
Read the press release here


Scott and Debra Law also sued Hayes Township ZBA, claiming to appeal the decision that upheld the Zoning Ordinance’s protection of the Shoreland Protection Strip prohibiting excavation for a boat basin or channel. They stated publicly they would abide by all laws. Now they’re suing because they think the ordinance doesn’t protect the shoreland. They also are appealing the Ordinary High Water Mark decision…. that went in their favor! See the Laws’ claim of appeal of the ZBA decisions here. The Laws’ filed an answer to the Township’s motion to dismiss the case, and the Township withdrew its motion. The Laws’ lawsuit is still in play.

UPDATE Nov 23, 2022: Kozma filed a motion (and brief) to consolidate her case with the Laws’ case, and moved to dismiss their case on the grounds that they filed incorrectly and also, are not aggrieved and therefore lack standing to sue. The Laws’ lawsuit is appended to the motion. 

UPDATE Dec 9, 2022: A hearing on the motion to consolidate, intervene in, and dismiss the Laws’ case will take place on February 3, 2023 at Charlevoix County Circuit Court at 2:15 pm.

Previous litigation

The two ZBA cases  challenging the township zoning administrator’s determinations and requesting interpretation of the ordinance have been obstructed and delayed ever since the ZBA applications were filed last September and December. With the Township violating the Michigan Zoning Enabling Act, lawsuits were filed against the Township to compel the local government to follow the state law and Hayes Township zoning ordinance.

The First Case

The first case filed on October 8, 2021 sought to compel Zoning Administrator Ron Van Zee to simply give the ZBA application to the ZBA, a ministerial task he had the clear legal duty to do, but refused to do. After he was sued, Van Zee transferred the papers, so the plaintiffs dismissed the case.

See: Kozma v Hayes Township and Zoning Administrator

The Second Case

The second case was filed on Oct 29, 2021 against the Township, ZBA Chair Tom Darnton and ZBA secretary Kristin Baranski (who is also the elected Township Clerk) for failing to hold ZBA hearings as required by the ZBA’s Rules of Procedure which required a hearing within 45 days of the application date. Darnton also decided some of the merits of the case himself, rather than with the ZBA as required by state law. During of the case, the Township capitulated on a major point of the lawsuit: they backed down from claims made in public meetings in September.  They admitted that the approval of the Laws’ project by the Planning Commission in 2019 and the zoning permit issued by Van Zee in 2020 for the “boathouse” had expired,, leaving the Laws with no valid township approvals. This mooted the two appeals of September, leaving just the four interpretation requests. The Township agreed to hold a ZBA public hearing, and the case was dismissed.

See: Kozma v Hayes Township, Darnton, Baranski

ZBA Malfeasance and Violation of State Law

During the second case, Van Zee filed a sworn affidavit and brief with new determinations that there is “nothing” in the zoning ordinance that “regulates a boat basin or canal,” that the proposed boathouse “would meet” the zoning ordinance requirements and he would “likely” approve it again. This led to Kozma’s second ZBA appeal case, filed Dec 20, 2021, challenging those determinations. 

ZBA public hearings were scheduled for the two ZBA cases for Jan 26 and Feb 2, 2022. The first one was partially held with 3 ZBA members and 1 alternate. However, at the end of the meeting, ZBA member Roy Griffitts was recorded making statements that he believed the applicants were only “speculating” and that the Laws, because they were “freaking multi-millionaires,” “could do anything they damn well want. . . .It’s private property.” In addition to this exposure of bias for the Laws and his contempt for the zoning ordinance, Griffitts was not statutorily permitted to hear the case since he also had voted on “the same matter” when he voted as a planning commissioner to approve the project in 2019. 

Between the two hearings, the applicants learned that the Township violated state law, in that Griffitts was a paid township employee as Deputy Supervisor to Ron Van Zee and it was illegal for him to serve on the ZBA.  This nullified the Jan 26 hearing. The February 2 hearing opened, and ZBA Chair Darnton announced they could conduct no business or hearing because they had no quorum.  (There had been none the week before either.). The Township would have to repopulate the ZBA with other members. Griffitts’ position on the Planning Commission (as chair, no less) was prohibited by the Michigan Planning Enabling Act, and his position on the ZBA was prohibited by the Michigan Zoning Enabling Act. As a result, he resigned as paid Deputy Supervisor, and stayed for a time on the ZBA, but without being reappointed. 

Ellis Boal requested the Township Board of Trustees hold a public hearing on various ZBA members’ mis/malfeasance, upon written charges he submitted. The Board refused. Despite residents’ protests, it reappointed Griffitts to the Planning Commission, while he remained on ZBA.

The Third Case

Kozma filed the third case on March 29, 2022. The case sought an order to make the Township populate a full 5-member ZBA and a declaration that Roy Griffitts’s position ended when he took the Deputy Supervisor job in February 2021. See press release LINKED HERE.

The Township then told Kozma the ZBA would “start the process . . . all over again,” though it would be “frustrating.”  The Township set new hearings in April.

Then it did something really wrong: At the 15-day time deadline before the first hearing would begin on April 20, it failed to issue a public notice in the newspapers or anywhere. Kozma moved to order the Township to issue proper public notices. The Township posted a single notice tacked to the door of the Township Hall. The notice had multiple errors, one being it had the wrong dates (February 20 and 27, not April 20 and 27). It then published the erroneous notice in the Petoskey News-Review. Realizing the date error, the Township republished it with fixed dates, but the numerous other errors remained, and all the notices were untimely. Rather than face the Judge at a court mandamus hearing, the Township cancelled the April hearings.

Kozma offered a settlement offer, after Griffitts resigned from ZBA and was replaced. The terms were for the Township to treat each ZBA case separately with separate public notices published properly, and recognize that, with no quorum on January 26, the first hearing had to start all over again from the beginning with a newly-seated ZBA using the newly appointed members. She also insisted that ZBA member Doug Kuebler recuse from the cases, as he had already voted on ‘the same matter’ in 2019, in approving the Laws’ boat basin application while he was a Planning Commissioner. The township refused to settle. Instead it moved for monetary sanctions claiming res juducata (that the Court had supposedly already ruled on her claims), a SLAPP response to intimidate Kozma and other residents challenging the zoning administrator’s decisionmaking on the Laws’ projects.

Read Kozma’s settlement offer HERESeveral parts of Kozma’s third suit were resolved after it was filed in March.  The ZBA is now properly re-populated and trained, and Griffitts is out.  After resisting at first (until the Court ordered a mandamus hearing), the Township canceled ZBA hearings which had been set for April without proper public notices.  Finally, to facilitate speedy ZBA action Kozma withdrew a request that the Court order the Board of Trustees to hold a separate hearing to consider removal of certain ZBA members due to malfeasance.

What was left in the third suit were just two requests, that the Court (a) order publication of 15-day notices prior to ZBA hearings this summer, and (b) declare Griffitts went automatically off the ZBA as of February 2021, when he started work as a Township employee.

On June 27 the Township filed reply papers asserting Kozma lacks standing, a claim it did not make when it initially resisted the mandamus order about publicly noticeing the hearings before it capitulated.

A court hearing was held July 1.  The Court rejected the defense of res judicata, and refused monetary sanctions saying although Kozma should not have brought the case, it did not rise to the high bar of being “frivolous.”  He asked that if the Township wanted to pursue an evidentiary hearing, they could do so. During argument the Township finally agreed to schedule ZBA hearings with proper public notice, one of Kozma’s primary goals.  We hope the Township will follow through. At an early morning special board meeting, the Township decided not to pursue sanctions or try to prove the case was frivolous.

DOCUMENT LINKS AND UPLOADS:

Kozma v Hayes Township Board of Trustees, Charlevoix County Circuit Court, Case No. 22-0728-27CZ

PLAINTIFF’S FILINGS:

March 29, 2022 – Verified Complaint for Declaratory Judgment, Injunctive Relief and Mandamus (SEE BELOW)

April 5, 2022 – Motion and Brief for Partial Summary Disposition declaring and ordering that (1) Roy Griffitts is no longer on the ZBA or PC (2) the ZBA must be fully populated including one PC member, and (3) all ZBA members must be properly trained before ZBA can conduct hearings on Kozma’s matters scheduled to begin April 10

April 11, 2022 – Amended and Supplemented Verified Complaint and Ex Parte Motion for Mandamus and Order to Show Cause (SEE BELOW):

June 9, 2022 – Withdrawal of Complaint Paragraph 51(d) and Motion to Allow Supplemental Brief in Opposition to Summary Disposition and Sanctions (See below)

Settlement Offer Refused by Hayes Township (LINKED HERE)

When it appeared the Township had missed the deadline for publicly noticing the April 20 and 27 ZBA hearings, Kozma filed the Motion, and Amended and Supplemented Verified Complaint, below:

PLAINTIFF'S FILINGS
Verified Complaint
March 29, 2022
Amended and Supplemented Verified Complaint
April 11, 2022
Withdrawal of paragraph 51d and Motion to allow supplemental brief to oppose summary disposition and sanctions June 9, 2022
DEFENDANT HAYES TOWNSHIP’S FILINGS:
Objection to hearing date
Township response
Affirmative defenses
Supplemental response
Answer to amended complaint
Motion for summary disposition
Objection to withdrawal of paragraph 51(d)