City of East Lansing Called Unethical for Bringing Lawsuit in Driveway Drama

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Monday, September 23, 2019, 8:03 am
Alice Dreger

Above: City Attorney Tom Yeadon in a photo by Raymond Holt.

ELi readers have been asking what’s the latest in East Lansing’s driveway drama – a case where property owner Michael Zydeck has been threatened by the City of East Lansing with arrest for allegedly building a driveway larger than allowed in the Bailey neighborhood.

When last we reported on the story in January, the City had told Zydeck that since he wouldn’t take the City’s “final” offer of $2,000 and fix his driveway at 444 Division Street to the City’s liking, staff would look into issuing a warrant for his arrest.

So what is the latest?

City Attorney Tom Yeadon has now moved to sue the Zydecks. In fact, Yeadon has already now charged the City’s taxpayers over $2,000 in attorney fees – more than the City suggested it would cost to fix the driveway to conform to what the City wants to see.

Meanwhile, in their response to the suit, the Zydecks’ attorney Mark Grebner calls on the Court to order the City “to cease their unlawful threats of criminal prosecution” and “reimburse the Defendants $10,000 for the excess costs incurred in replacing their driveway.”

The case has been assigned to Judge James Jamo in Ingham County Circuit Court.

A long drama over a relatively short driveway

As we first reported in July 2018, Plymouth resident Michael Zydeck and his wife Kimberley Zydeck purchased the property at 444 Division Street to house their daughter and her roommates while they attended Michigan State University.

Michael Zydeck decided to expand the driveway on this corner property and was told by City staff to get a survey. He got the survey, then got a construction permit approved by the City, got a Right of Way permit approved, and had his contractor tear out the old driveway. A City inspector came out and approved the concrete forms. A load of wet concrete appeared.

Then suddenly Zydeck was told by City staff to stop the project. Neighbors had complained to the City, believing the driveway was bigger than permissible. The concrete was sent back, at a cost to Zydeck of $1,500.

Zydeck was then told by City Staff to get a zoning variance. With the old driveway torn out, he waded through the monthslong process to get a zoning variance. His contractor got another permit approved, had the forms set, and called again for wet concrete.

That time, the City’s inspector just didn’t show. Absent the inspector, the second load of wet concrete was also sent away, at another charge of $1,500 to Zydeck.

Finally, the inspector showed up and approved the forms. The driveway got poured … and afterward, the City decided it was too big.

City staff eventually informed Zydeck he should take $1,500 of the taxpayers’ money and fix it. They later upped the offer to $2,000.

By then, Zydeck had spent well more than that – at least four times that amount – and was fed up. Grebner told the City his clients would take $7,000 and the City could come fix the driveway to its liking. The City Attorney has answered by filing suit.

A battle that never should have happened?

With the City having now raised the stakes by filing suit against his clients, Grebner has dug deep into the zoning weeds. What has he discovered?

First, Grebner says in his "answers and counterclaim," it turns out the size of the new driveway was legal all along. A variance was never needed.

Under East Lansing law, a driveway can cover up to 30 percent of a backyard on a property like the Zydecks’. City staff calculated the ratio of driveway to backyard on this property many different ways, coming up with many different numbers, most over 30 percent.

But none of those calculations appears to have been correct, because apparently City staff struggled to understand what legally counts as the backyard on a corner lot.

East Lansing's law is confusing on this issue. First, it is the narrower of a corner lot's two street-facing sides that determines the "front." (In this case, that's Division Street.) The “backyard” is calculated by figuring out elements referred to in various parts of the law, including the "required backyard" and what counts as part of the principle building.

In his response to the lawsuit, Grebner says the survey paid for by Zydeck – which the City had pretty much from the start of this process – puts the new driveway at just under 30 percent of the backyard: legal without a variance. But Grebner apparently calculated this without understanding the rule about the "required backyard," which appears to put the driveway over 30 percent. The court will have to address this question.

The second thing Grebner has found – by listening to a tape of the Zoning Board of Appeals ZBA meeting involving the driveway – is that the new driveway as it was finally built was given a variance that allowed it.

In other words, even if the driveway had turned out to be too large to be allowed under existing code, it legally received a variance permitting construction. (I have listened to the ZBA tape and hear the same thing as Grebner, in contrast to what the City’s later written representations of this recorded meeting say, although as we have noted in previous reporting, what happened at the meeting was extremely confusing, as follow-up correspondence also shows.)

Finally, Grebner has discovered a Michigan Court of Appeals decision in a case called Kalkman v. City of the Village of Douglas, which reads as eerily similar in key points to the case of the City of East Lansing v. the Zydecks.

In the Kalkman case, the City of the Village of Douglas caused Chandler Kalkman major stress and put him through a great deal of expense by issuing erroneous up permits and then telling him he had to absorb the cost of all the City staff’s mistakes by fixing, at his own expense, the mistakes permitted by the staff.

In the case of Kalkman, the Court found that the City of the Village of Douglas could be “estopped” from proceeding legally against Kalkman, meaning that a property owner could not be made to bring a property into code alignment at his own expense when its lack of compliance was due to mistakes made by government workers. Recall that in this case, the Zydecks' contractors got the permit approved and the "okay" from the City's inspectors for the forms.

This could all cost taxpayers a lot more if the City loses

In his response to the City’s suit, Grebner accuses the City of having “unclean hands” – a legal term meaning the City is behaving unethically in bringing the suit.

He points to the tortured history of the new driveway construction and to the costs borne by his clients. He says his clients “have been oppressed by the continued and repeated threats of initiating criminal prosecution made” by the City’s zoning administrator David Haywood:

“Such threat by the Administrator, made with knowledge of senior City staff and the City Attorney, to use criminal prosecution to coerce a financial settlement is illegal and wrongful, and caused Defendants Michael Zydeck and Kimberly Zydeck concern and anxiety.”

What now? Either the case will be dismissed, or settled, or the courts will decide who is right. Regardless, the costs to the Zydecks and to the City’s taxpayers will keep going up.

Who will pay the most for this driveway remains to be seen.


Correction: At 5:15 p.m. on the day of publication, this article was corrected to indicate that most (not all) of City staff's calculations put the driveway at over 30 percent of the backyard. At 8:45 a.m. on the day after publication, this article was corrected to note that under East Lansing law, it is the narrower street-facing side of a corner lot that determines the "front." (We had incorrectly said that the address determines the "front.") We also clarified that the porch on the back of the house is one-story, enclosed, and meets the setback requirement, which under East Lansing zoning law means the porch does not count in the determination of the line of the "back" of the house. On Sept. 26, we  corrected the article to note the issue of the "required backyard," which complicates the calculation of the paving percentage and apparently refutes Grebner's claim that the driveway is under 30 percent. We also added material noting the long-running confusion over the calculation and the two rounds of approvals for the work by building staff. © 2013-2020 East Lansing Info