Legal Status of St. Anne's 5th Floor Remains Unclear

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Sunday, September 16, 2012, 6:59 pm
By: 
Alice Dreger

The extensive investigation by the Lansing State Journal into the "bureaucratic collapse" of St. Anne Lofts addressed many irregularities, but not the background of the still-open question regarding the legal status of the 5th floor (penthouse) of the building. As residents may recall, the owner allowed significant construction to proceed on the 5th floor before obtaining the legal permissions required by the Planning process. On the surface, it would appear that he later did obtain the required approvals from Planning Commission, the Downtown Development Authority (DDA), and City Council. But in fact, several of the steps appear to have involved permissions granted in the wrong name. Advice given to Council by the City Attorney appears to have contributed to the irregularities.

To summarize, with further details provided below, Planning Commission approved the application under the wrong owner name, because Planning staff presented it under the wrong name (“Infinity Companies, LLC”). The DDA approved the “same” application in another owner name, apparently the right one (“St Anne, LLC”). As for City Council, they were informed by a citizen at their July 24 meeting that the company Planning staff had presented as the applicant (“Infinity Companies, LLC”) had actually been dissolved a year earlier. Hearing this, and with the tacit approval of the city attorney, Mayor Goddeeris removed the applicant’s name altogether. Indeed, she also removed from their motion-to-approve any mention of the issue even being an application. At the July 24 meeting, Mayor Diane Goddeeris, Mayor Pro Tem Nathan Triplett, and Councilmember Kevin Beard passed a nameless motion that made no reference to any application. Councilmembers Vic Loomis and Don Power voted against this motion.

So it is unclear whether an application for the modified site plan and special use permit for the fifth floor penthouse from the owner of St Anne Lofts was legally approved by all the necessary bodies, according to the regulations dealing with such matters. Here then are more details:

Application made in the name of St Anne, LLC: On April 26, 2012, the Planning Department received the MSP/SUP application. It was dated April 21, 2012. The owner of the property was listed (presumably correctly) on the application as St Anne, LLC. [Sources: Planning Commission packet of 5/23/12 and Dempsey memo dated 6/15/12]

Planning Commission approves application in (wrong) name of Infinity Companies, LLC: On May 23, 2012, city Planning staff presented to Planning Commission, and Planning Commission approved, "Modified Site Plan and Special Use Permit: An application from Infinity Companies, LLC for Modified Site Plan and Special Use Permit approval for the property at 213-217 Ann Street.” [Sources: Planning Commission agenda and approved minutes for 5/23/12]

DDA approves application in (right) name of St Anne, LLC: On May 24, 2012, the Downtown Development Authority was presented and approved an “Application from St. Anne, LLC for Modified Site Plan and Special Use Permit approval for the property at 213-217 Ann Street….” [Sources: DDA agenda and minutes for 5/24/12]

Council considers an application in (wrong) name of Infinity Companies, LLC on July 10: On July 10, 2012,Planning staff, believing that approval had been obtained first (as required) from Planning Commission and the DDA, presented to City Council “an application from Infinity Companies, LLC to modify the approved Site Plan and Special Use Permit to construct a five story mixed-use building at 213-217 Ann Street.....” The matter was put off until the July 24 meeting. [Sources: Council agenda for 7/10/12 and CD recording provided by City.]

Council again considers application from Infinity Companies, LLC, on July 24: On July 24, 2012, Planning staff again presented to City Council “an application from Infinity Companies, LLC to modify the approved Site Plan and Special Use Permit….” The mayor read the application, from Infinity LLC, in as a motion. [Source: Council agenda for 7/24/12]

But Eliot Singer points out Infinity Companies, LLC, doesn’t exist: At the July 24, 2012, Council meeting, when the mayor allowed citizen comments on the matter, citizen Eliot Singer pointed out in his comments that he had recently discovered that Infinity Companies, LLC, was dissolved in 2011. He raised the question of how a non-existent company could make an application. He noted that all of the documents “have to be in sync” in this kind of approval process. [Source: city-provided audiotape of Council meeting 7/24/12]

The Mayor asks how to get around the problem of an application from a dissolved company: Addressing this point later in the meeting, Mayor Goddeeris said: “Okay the next question that came up to this discussion was also the name of the company. So if someone – this might be Mr. Yeadon or maybe Mr. Dempsey knows this – if this company doesn’t exist and they put this through under this company when they filed this with the city, uh, the site plan amendment and the special use modification, do they have – if they have legal documents that cover this – whatever happened after that, can they use that name?”

The City Attorney advises the mayor on how to proceed anyway: The city attorney, Tom Yeadon, answered: “A special use permit generally runs with the land as opposed to the name of the company, uh, so the special use permit would be applicable to the owner of the property. I don’t know who the application was made by, but it doesn’t look like, it could be [1-second sound obscured] LLC, but the granting of the special use permit would be granted for the property more so than for the company itself. And I don’t know if there’ s any changes or if that’s been a dissolved company, this is the first I’ve heard of that issue.”

Goddeeris responded: “Okay so take us down that path. If it was a dissolved company, but we gave it to that property, then whoever is the company that owns it is the one that gets that special use permit modification.”

Attorney Yeadon: “Correct, correct.” [Source: city-provided audiotape of Council meeting 7/24/12]

So, following the advice of the City Attorney, Mayor Goddeeris simply removes the name of the applicant: Mayor Goddeeris proceeded later by saying: “I’d like to now amend the main motion to read – and make sure our secretary has that. I believe Mayor Pro Tem Triplett said a modified site plan from Infinity Companies LLC – can we include that in there or not? [someone quickly says something, not clear from tape] Okay, to modify the site plan and Special Use Permit to construct a fifth floor penthouse to the already approved four stories….” [Source: city-provided audiotape of Council meeting 7/24/12]

The Mayor ultimately stops referring to any application: As the matter progresses, this is the motion as ultimately voted on, without any reference to an application or to an applicant, as presented by the Mayor, for a vote: “To modify the approved site plan and special use permit to construct a fifth floor penthouse to the already approved four story mixed-use building at 213-217 Ann Street with the fifth floor penthouse site plan as detailed on A-1.3 in our July 19, 2012, packet subject to the original 27 conditions and additional 2 conditions as stated…” [Source: city-provided audiotape of Council meeting 7/24/12]

Goddeeris, Triplett, and Beard voted in favor. Loomis and Power voted against.

I have tried to find out what the City believes to be the legal status of this matter, so far to no avail.

 

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