Open Meetings Act case dismissed

HOUGHTON – A meeting held by the Houghton city manager, city attorney and three council members who voted against a rezoning request for a proposed apartment complex last year did not violate the Open Meetings Act, according to a Thursday ruling in Houghton County Circuit Court.

The Open Meeting Act only applies if a quorum of the council – in this case, four members – is present, Judge Charles Goodman said.

The plaintiff, Derek Bradway, will still have 21 days to file an amended complaint. Attorney Steve Pence said he would be meeting with Bradway and the other landlords Wednesday to decide if the next step.

The landlords say the city gave preferential treatment to developer Jonathan Julien regarding his proposal for a 135-bed complex on the former site of Good Will Farm.

The proposal required a rezoning from R-3 (residential), where it did not meet the density requirements, to B-3 (business). In September, the City Council voted 3-2 against the rezoning. Councilor Rachel Lankton was absent; Councilor Mike Needham abstained, since he had already voted on the proposal at the Planning Commission level.

Five days later, then-City Manager Scott MacInnes and city attorney Dave Mechlin met with the City Council members who voted no – Mayor Bob Backon and Councilors Craig Kurtz and Gernot Joachim.

At a council meeting in October, Mechlin said after reviewing the minutes of the September meeting, he saw potential for a lawsuit from Julien because the city had not followed the criteria to determine if the proposed use was acceptable. The number of people for or against the issue at the meeting, which one councilor had cited as a factor, could not be the primary basis, Mechlin said.

The council voted again in November, this time 5-0 in favor of the project. Kurtz, who had voted no originally, was absent. Lankton was at the second meeting. Needham again abstained.

During a motion hearing last month, Pence argued the three members were a quorum of the five members of the council who voted. They also became a de facto quorum by providing the decisive margin in the vote, he said.

However, Goodman said in his ruling, nothing suggests a quorum number is fluid, or can vary depending on how council members vote.

“In that there was not a quorum present, the gathering is not considered a ‘meeting,’ and without a ‘meeting’ there cannot be an OMA violation of the type alleged in Plaintiff’s complaint,” he said.

Goodman said the plaintiffs could still file an amended complaint alleging an Open Meetings Act violation on the grounds the three members constituted a subcommittee of the council. Although Pence made that argument at the April court hearing, it was not included in the complaint.

Houghton City Manager Eric Waara said Friday he had not yet seen the ruling.

“It’s certainly good news, but I haven’t read it yet,” he said.

Pence said while they knew it would be a difficult case, they hoped with new leadership, the city would not hold a similar behind-the-scenes meeting after a public decision in the future.

“What happened was wrong,” Pence said. “Decisions of government are supposed to be made in public. I took the depositions of all of the council people except for Rachel Lankton … I think some of them agreed, with hindsight, that the process was wrong, and it was unfair to only provide the special information in the meeting to the no voters.”