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Welcome to The Asylum. Just as before, Josh is always right.

Wednesday, May 27, 2015

When City Attorneys Smell Blood

There's quite a bit that's been going on both in and outside the City of Hillsdale that I've been meaning to get to but just haven't had the time.  We can thank the multiple farces taking place at City Hall for that.
That being the case, and for the sake of organization, this is article one of two this week, and it focuses on a local issue.  The other article, covering three other topics, can be found here.
Also, here's a reminder that the Hillsdale City Council is meeting with the BPU board in the council chambers at 7:00 Thursday evening to determine what to do now that the city has voted down Rick Rose's proposed new contract.  I would highly suggest that you be there.

One of the little pains of city life is property lines.  If you own a house in the city limits, you have to deal with them every time you do something with your property, because you don't want to go over the line into your neighbor's property.

Especially when your neighbor is the city government.

I'm speaking, of course, of right-of-ways, the small strips of property in front of your house that aren't yours.

One local man who knows this all too well is Jay Easterday.  In front of his house was a tree that, for years, posed a safety hazard to just about everyone passing by.  It was located in the right-of-way, sitting at the throat of his driveway, just on the corner where it met Lumbard Street.  The placement of the tree made it dangerous and darn near impossible for anyone to turn in or out.

The tree, as shown in Google Earth.

A close-up shot of the tree as seen in Google Earth. Impact marks can clearly be seen on the lower portions of the trunk.

"We hit it on a rainy night on my stepdaughter's side, and it did $4,000 worth of damage to my truck," Easterday tells me.  "Two other people hit it in the years the tree was standing there, not to mention everybody -- I mean everybody -- almost hit this tree."

He even has confirmation of the hazard that this tree posed from an employee of none other than the United States Postal Service.

"I have a letter from a mail lady that has delivered mail in Hillsdale for 25 years, and she has hit the tree [in the winter] and had to have [her vehicle] towed," he says.  "She has said in a personal written letter that this is the worst hill tree combination in Hillsdale in her opinion.  It is so bad that, in the winter, she had to deliver mail in a special way to my house."

Easterday received this letter from his mail carrier describing her accidents with the tree and her opinion of the danger it was in the winter.

So, after incurring thousands of dollars in damages to his own vehicle -- not to mention the climbing insurance rates and who knows how much money in damages done to other vehicles -- Easterday did what any rational, intelligent, sensible person would do: he cut down the offending tree.

Now, nobody is contesting the fact that he cut down city property.  Not even Easterday himself.  At first he was unaware of the right-of-way's location, but he now concedes that the tree was within it.  He's even apologized for cutting it down.  And, as such, he made an offer to the city: $500 in cash as a fine, and he would pay to have the stump removed.  It was a perfectly reasonable offer, and given the costs that he's already faced for his troubles, it's more than the city should ask for.

City Attorney Lew Loren had a one-sentence response when Easterday called him to make this offer:

"No, sir, absolutely not," Easterday quoted the official.

Easterday then made another generous offer: he again would pay to remove the stump, and he would plant another, smaller tree at a cost of $300 in the same location.

That offer was turned down, as well.

So what is Loren demanding?  The genius mind that came up with our super-drunk former(?) BPU director's failed ADA-violating contract is insisting that Easterday pay $1,000 with $300 up front, $50 per month installments, and 6% interest, plus removal of the stump at his own expense.

But that's just the settlement offer.  In fact, there is now a court date of June 15th set for this case, and Loren plans to come after $2,008 plus court costs.

Why $2,008 and not just $2,000 flat?  Because LewLo's just that vindictive, that's why.

Some Hot Debates members jumped right on this and did a little investigating.  They found that the current interest rate for money judgments set by the state is 2.678%.  The settlement would still be a better deal than the full lawsuit, but the interest that Loren wants out of that settlement is more than double the going rate.

The offer having come from the person that it did, I honestly can't say that I'm surprised.

Additionally, they noted that most cities have standards for tree placement according to distance from various other street-side installations such as fire hydrants, utility poles, curbs at an intersection and the like, as well as the distance from the edge of the street, distance from the edge of a sidewalk, and distance from the throat of a driveway.

Hillsdale does not.

Kentwood's code was offered as an example, which sets the distance from the street based on speed limit and the distance from the throat of a driveway at 25 feet across the board.  Those standards were adopted from the desirable clear zone guidelines laid out by the American Association of State Highway and Transportation Officials.

Quite obviously, being the older city that we are, and not knowing what the twentieth century would bring in terms of automobiles, speed of travel and necessary safety standards -- not to mention the need for much straighter city streets and rounder intersection corners than we have here in Hillsdale -- most of our city streets predate the time that these standards were formulated.  Which doesn't excuse the fact that they're still not in place now, but nevertheless, Hillsdale does not employ such standards.

However, Easterday contends that Hillsdale does have an applicable ordinance here.

"It should fall under Section 14-114; Public nuisance," he says.

I would have to concur.  The very first paragraph of that section says this:

"Any tree or shrub or parts thereof growing upon private property but overhanging or interfering with the use of any street, park, public improvement, or public place of the city that in the opinion of the city forester endangers the life, health, safety, or property of the public shall be declared a public nuisance."

Now you might be saying to yourself, "but that says private property.  The tree was in the right-of-way, which is public property."  And you'd be correct.


For the relevant ordinance, we go back to Section 14-103, which states (emphasis mine):

"The city council shall have full power and authority over all trees, plants, and shrubs planted or hereafter planted in the streets, parks and public places of the city. The maintenance of such trees, plants and shrubs shall be subject to the provisions of this article, and such rules and regulations as the city council may from time to time hereafter adopt, and as it deems necessary to properly control and regulate the planting, maintenance, protection and removal of trees, plants and shrubs on public areas of the city."

So the city is just as responsible for obeying Section 14-114 as private property owners are.  That makes the tree in question a public nuisance, and it should therefore be the city's responsibility to remove it, not Jay Easterday's or anyone else's.

But Easterday says that his mentions of the ordinance fell on deaf ears.

"I've said it to [interim city manager] Doug Terry, the forester, [Department of Public Services Director] Keith Richard, in front of my house, and at the council meeting.  Oh, to Mr. Loren, also.  It's kinda 'act like you never even said anything.'  I have heard nothing about it.  Maybe 'cause I'm right at the end of the day, and hey, who wants that?"

One would think that taking this before the City Council might be beneficial.  Easterday went that route and got so far as to have Terry put the issue on the council's agenda for the January 5th meeting.

"The council helped very much at first," Easterday says.  He later told me that, "even at the council meeting that night, Mr. Stockford apologized to me."

Indeed he did.  After painstakingly sifting through the video (the technical problems with which the city does not seem inclined to fix, and I can't imagine why), I found that Stockford took a moment in the council comment session at the end of the night to do just that.

"I want to apologize to the Easterdays as well about that," the councilperson said, "and I really wish that something could be done about it, because I do believe you that it was an honest mistake, and if it was left up to me, I'd be inclined to give you a pass or charge you a hundred dollars to replace the tree; plant a new sproutling or something.  I'd like to see us more resident-friendly, and we appreciate you being residents here."

But things took a sharp turn for the decidedly un-helpful.

"Keith Richard slammed his folder down and threatened to retire because of Stockford's remarks," Easterday told me.

If that didn't do it, Richard's out-of-order approach to the podium -- as seen in the video -- certainly revealed his feelings on the matter.

And our esteemed City Attorney's expert legal opinion?

"Mr. Loren said it didn't belong in front of council, it belonged in court," Easterday says.

It wouldn't be the first time LewLo has tried to sideline the council.  And this time, while he cited a council resolution to defer these things to the courts, he quite obviously has a monetary motivation for doing so.  After all, why should City Hall be forced to obey the law when they can just ignore it and force someone else to pay for something that the city is responsible for?

Basically, Loren believes that he and the Code Enforcement Office can get away with what amounts to legalized extortion here.  They know that the city doesn't have the resources to actually enforce the majority of what it demands of residents.  Just ask the people in the office themselves, I'm sure they'll admit as much.  So they jumped at this golden opportunity as soon as it came along, thinking that they could make Easterday an example of what happens to people who don't pay debts that the mafia claims they owe.

I'm sorry, city.  Not mafia.  City.  My mistake.

But you can understand how it's an easy mistake to make.  Honest city employees would acknowledge the ordinances that make this their responsibility.  Honest city employees would accept Easterday's counter-offer and leave it at that.  Honest city employees would present some reasonable standards for the city council to vote on so that this sort of thing doesn't happen again.

We're not dealing with honest city employees here.

Instead, Loren and his cohorts, in the name of The City of Hillsdale, are suing Jay Easterday because he did their job for free.

Don't you just love bureaucracy?

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