Controversy Continues over Rooftop Party Ordinance

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Wednesday, August 19, 2015, 7:15 am
Alice Dreger

Image: City Council last night.

Amid continued sharp legal criticism of a drafted ordinance aimed at stopping rooftop partying, East Lansing’s City Council voted last night to send the matter to a work group for further discussion.

Mayor Nathan Triplett made the motion, which was to ask City staff to convene a work group that would include representatives from the University Student Commission, ASMSU (MSU’s student government), the East Lansing Police Department, city building officials, and landlords. This work group will be asked to make a recommendation back to Council.

Triplett made a point of saying that he did not share “the legal concerns” that had been “raised at the podium,” meaning raised by lawyers not on Council. Triplett was speaking to criticisms brought by East Lansing citizen Patrick Rose, an attorney, at the August 4 Council meeting. (Read our report.) Rose sent a follow-up to Council this week continuing to raise criticisms, and this week was backed by former Ingham County Assistant Prosecutor Robert Nelson.

Nelson told Council in an email, “police officers can take actions to keep the peace that are not specifically authorized by statute or ordinance.” In other words, the City doesn’t need this ordinance for officers to order off roofs people who are acting in a way unsafe to themselves or others, according to both Nelson and Rose.

But speaking last night, Triplett, also a lawyer, disagreed. Triplett said that requiring officers to use individual subjective judgments without an ordinance will leave officers in an untenable position and leave the City open to lawsuits should officers take action to order people off roofs.

Triplett referred in his remarks to research by himself and City Attorney Tom Yeadon. In his latest memo to Council on the subject Yeadon wrote, “Even if one could properly characterize certain recreational uses of a roof as a ‘public nuisance,’ asking our police officers to enforce unwritten rules based on individual judgment calls about when a person’s presence on a roof constitutes a danger and when it would not, is bad policy.”

Rose, however, told Council that the City Attorney was giving East Lansing Police Department (ELPD) officers bad advice by telling them they couldn’t already, under existing laws, “order persons on roofs [off those roofs] when their presences puts them at imminent risk of bodily harm.” Rose said Yeadon’s reasoning “is a legally flawed approach to policing” and “puts the public at risk.”

Rose has also raised concerns about how this ordinance could unconstitutionally take away the rights of private property owners, including East Lansing citizens who live in homes where they occasionally want to go out onto their roofs to put up a flag, sunbathe, or rescue a cat. (The ordinance aims to outlaw any activity not aimed at building maintenance.)

Rose has strongly criticized City Attorney Tom Yeadon’s handling of the whole matter in his remarks to Council, including taking Yeadon to task for alleged poor research, alleged poor argumentation, and alleged conflict of interest. Rose has noted that if, following Yeadon’s advice, Council passes an ordinance that will be challenged in court, the City taxpayers will then be paying Yeadon even more money to defend the ordinance in Court. (Yeadon is paid by the hour, and this year our legal bills are expected to top a half-million dollars.)

Yeadon’s latest advice to Council says that he has now conducted research that shows that there appears to be no other ordinance like this in any city in America. Rose wrote to Council this week, “The City Manager and City Attorney had a duty to tell City Council that what they were proposing was without precedent. Instead, the City Attorney told the council that it was such a simple matter he could draft it without any research.”

Yeadon is acting not as judicious counsel to City Council but as an advocate for this ordinance, according to Rose, who told Council, “It is improper for the City Attorney to give law and policy arguments and ordinance language on just the point of view he supports (or that the City Manager advocates). Yet that is what he did.” Rose explained in detail in his memo what he believed Yeadon’s advice should have looked like.

Outside attorney Nelson told Council in his written communiation that “It would be fitting to subject the ordinance to further review by an independent counsel before proceeding.” But the motion put forth by Triplett last night, and passed by Council, does not call for any outside legal review.

As I previously reported, this ordinance idea originated in the office of City Manager George Lahanas. Before the meeting last night, Councilmember Ruth Beier asked Lahanas to have ELPD Chief Jeff Murphy provide data from the last three years about how police have managed rooftop partying problems. But Lahanas told Council last night that because of how records are kept, this was impossible to provide. He said officers would be keeping records going forward in the next few months that could be provided to Council.

Lahanas also said that police and fire personnel who were meeting with student groups during August move-in would make a point of educating them about safety issues with alcohol and insecure high roofs.

During the discussion on this matter, Mayor Pro Tem Diane Goddeeris expressed concern about the safety issue and said she wanted an ordinance to move forward. Councilmember Kathy Boyle said that since the city was going to be “a leader” by passing what appears to be the first-ever such ordinance in the country, it needed to “really serve a purpose and be effective.” Boyle has consistently indicated support for such an ordinance.

ELi will continue to follow this story.


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