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Former PC member sues village to stop project

April 02, 2014 - Claiming the municipality violated its ordinances during the site plan approval process for a property next door to his home, a former Oxford Village planning commissioner has filed suit in Oakland County Circuit Court to put a temporary stop to the development because he claims it will adversely impact him.

"The village and the planning commission have bumbled (this) and just handled this entirely wrong," said Dale Wolicki, who's lived at 59 N. Washington St. for 15 years and served on the planning commission from August 2011 to October 2013. "They've made the situation a mess."

Wolicki said his suit isn't an attempt to get money from the village; it's about making sure everyone follows the rules and protecting his property rights.

Describing Wolicki's motion as "frivolous" and many of the factual allegations it contained as "flatly wrong," the village, in turn, asked the court to deny it and award payment of its costs and attorney fees.

"This case boils down to private parties trying to bootstrap the government, the local village, into becoming the arbiter of a private dispute (over a driveway)," said village attorney Bob Davis.

Who will prevail? That will be for Circuit Judge Leo Bowman to decide. A hearing was set for April 2, but it was adjourned and a new date hasn't been set.

The suit and some background

Wolicki has requested the court issue a temporary restraining order and preliminary injunction against both the village and its planning commission.

Under it, the village would be prohibited from issuing "any building permits, electrical permits, construction permits, grading permits or commercial occupancy certificates relating to 57 N. Washington St."

If granted by the judge, the village would also be directed to remand a list of issues back to its planning commission and zoning board of appeals for decisions and prevent commercial occupancy of the property until all matters are resolved.

Wolicki's attorney, the Rochester-based Jonathan Crane, declined to comment on the case.

The 57 N. Washington St. property, owned by the Huntoon Funeral Home, is in the process of being purchased by local architect Jim Wilson, who wishes to convert the single-family home into an office for his firm and living space for a family member.

Last year, Wilson, who's also employed as the village's building official/inspector, sold the downtown building (23 N. Washington St.) that housed his firm for many years. It's being converted into an Irish pub.

At its Feb. 18 meeting, the village planning commission gave conditional approval to Wilson's site plan, however, all six conditions have not yet been met, so nothing is final and as such, no permits have been issued.

"The approval of a site plan by the planning commission changes intensity of use (for 57 N. Washington St.), compromises (the) safety and tranquility of (Wolicki's) home, adversely impacts storm water drainage and claims to use a significant portion of (Wolicki's) home frontage to the irreparable detriment of (him)," wrote Crane in the March 12 complaint.

The disputed driveway

Although Wolicki's March 12 complaint contains numerous allegations that the village violated its ordinances during the site plan approval process, his main concern and motivation is the driveway located between 57 N. Washington St. and his property.

That's what the whole thing boils down to for him. Although most of the driveway is located on 57 N. Washington St., a significant portion of it runs across Wolicki's property to the north.

Wolicki doesn't want Wilson using any part of his property to make this driveway functional. He doesn't want any part of his property included as part of Wilson's site plan.

"On his site plans, he's still illustrating using that part of my property and leaving the driveway as it is," he said. "I told Mr. Wilson back in February (2013), I don't want any of this on my property."

Wolicki said he told Wilson "he can do what he likes with that property (57 N. Washington St.) as long as the driveway and curb cut are moved entirely" off of his property so he is not responsible or liable for any part of it.

"He just doesn't want to do it because he's going to have to get an MDOT permit and it will require some funds," Wolicki said.

Wolicki noted he allowed some previous residential tenants to use this portion of his property as part of the driveway for years, but he does not wish to continue that practice in this case because he believes Wilson's office, a commercial use, will intensify the driveway's use and expose him to increased liability.

Wilson claims there's an easement in place to utilize this portion of 59 N. Washington St. for the driveway. He said it was created in 1975 and the person who wrote it "is guaranteeing that the easement is legal."

"The person that lived in that house (in 1975) was paid an amount to let the driveway go across her property, now Wolicki's property," Wilson said.

Wolicki disagrees.

"There is no easement," he said. "There was an easement written, but it doesn't fall on my property. It was written badly."

"The legal description for the 1975 easement . . . is seriously flawed and a new easement agreement is required," Wolicki wrote in an Aug. 28, 2013 letter to the village.

Wolicki noted he has no interest in granting Wilson a new easement.

Wolicki said he agrees with Davis that this whole matter is largely a private dispute between him and Wilson, but he said the village involved itself when it proceeded with the site plan approval process without having them first settle the driveway/easement issue.

"If you've got a project and it involves two pieces of property, you're supposed to have some sort of approval from both property owners," Wolicki said. "(Village Manager) Joe Young should have kept his nose out of it back in March (2013) . . . when Jim Wilson submitted the plan and I showed up at the village office and told them there's no easement. Joe said, 'No, no. Jim Wilson has an easement. It's okay.' At that point, he took sides."

"From that moment on, there's been absolutely no consideration of my property rights," Wolicki noted.

Davis tells a different story.

"Nothing in the site plan process impacts (Wolicki's) property," he wrote in his response brief. "In fact, steps have been taken – and communicated to (Wolicki's) attorney – to ensure that no site plan issues impact (Wolicki's) property."

Davis cited two of the conditions in the planning commission's Feb. 18 site plan approval that specifically pertain to the disputed driveway.

The village required Wilson to, within 30 days, submit a "cross access agreement" between himself and Huntoon whereby traffic from M-24 would be allowed to access 57 N. Washington via the funeral home's parking lot as opposed to the disputed driveway.

Davis noted that Wilson has complied with this requirement by submitting a proposed shared access agreement. "That document remains in 'draft' and is not yet approved," the village attorney wrote.

Even though the Huntoon Funeral Home is for sale, a change in ownership would not nullify or change the cross access agreement, according to Wilson. "It (runs) with (the property) forever," he said.

The other condition imposed by the planning commission specifically prohibits Wilson from utilizing the disputed driveway as part of the current site plan. It states, "There shall be no additional access ways to or from 57 N. Washington St. without a revised site plan showing compliance with the zoning ordinance and presenting all necessary MDOT approvals."

"That access way (between 57 and 59 N. Washington St.) is blocked by boulders and is not being approved as an access way," Davis wrote in his response brief. "This addresses the concerns raised by (Wolicki)."

Davis told this reporter the bottom-line is the driveway between the two properties is "not relevant to this site plan."

"We've gone out of our way to ensure the driveway in dispute is not being site-planned as a valid or approved access way," he said. "And yet, the parties continue to want the village to somehow get involved in that decision and we're not going to do that . . . If (Wolicki) was truly interested in getting a resolution of the driveway issue, why wouldn't he sue on the driveway (as opposed to suing the village)?"

Wolicki doesn't believe the village's conditions afford his property adequate protection. "What they're doing is just shoving it off (to the side) for now and we'll be back fighting again (in the future)," he said.

Wolicki said while the motion mandates MDOT approvals be obtained with regard to future access ways, that's not enough.

"The problem is our village doesn't enforce the MDOT requirement," he said, noting he knows of other projects that have been approved by the village without MDOT permits. "I can't trust the village to enforce it because they don't enforce it anywhere else."

The village has been discussing with Wilson various options to physically close off the disputed driveway such as potentially replacing the apron with curbing.

"We're looking for some way to make it clear to the public that it's not an access way. We're working on that," Davis said.

Although the driveway cannot be used in the current site plan, Wilson said he would still like to have it "available" for use during those times when the Huntoon parking lot is filled to the point where emergency vehicles cannot easily access his property.

Wilson said he's opposed to closing off the driveway completely by installing a curb because the cost to do it is "stupid high."

"At this point, I'm objecting to that. That is so expensive," he said, noting he received one estimate that was close to $60,000.

Occupied or not?

Wolicki's complaint asserted the village has permitted Wilson to have occupancy of the building since December 2013 without a certificate of occupancy and "without proper procedures, inspections and renovations."

"His car is there every day and sometimes, there's been multiple cars that are parked on the Huntoon parcel," Wolicki said. "He's only using the office during normal business hours – no weekends and not late at night, so that's not a problem. But he's running his business out of there."

A Jan. 2 letter to the village, written by Crane on Wolicki's behalf, was included as an exhibit with the complaint.

"Mr. Wolicki advises that Mr. Wilson's architectural equipment was recently moved into the home," Crane wrote. "In addition, he has observed (workmen) on site. We trust that Mr. Wilson is not moving forward without appropriate approvals and is only storing his equipment at this site."

Wilson denied his office is operating out of 57 N. Washington St.

"I do not have occupancy of the building," he told this reporter.

Davis concurred. "There's been no occupancy permit, there's been no building permit, there's been no electrical permit," he said.

Wilson said he's been using 57 N. Washington St. to store his office furniture, files and records, and a large printer that creates blueprints.

"Everything short of the computers is stored in that house," Wilson said.

"If Huntoon is willing to let him store some stuff there pending the outcome of this purchase agreement, (the village is) not going to get involved in that," Davis said.

Wilson admitted to visiting 57 N. Washington St. approximately three times a week to print blueprints and spending an average of about 30 to 45 minutes per visit.

"I am doing that," he said. "(Village Manager) Joe Young knows that I'm doing that. I try to keep him informed."

Wilson explained he didn't want to store and use the printer in his personal home because it utilizes ammonia and he doesn't have the proper ventilation system there to keep it from "polluting the air" inside.

Other than that, Wilson said neither he nor his staff is working out of 57 N. Washington St. or holding office hours there.

"I'm doing no work here," he said. "Occasionally, when people are coming for the (blueprints), I'll wait for them in the parking lot . . . I try to stop them, but I can't say it's never happened because in the four months now, it's probably happened three times, maybe four."

Wilson said he and staff have been working from their respective homes and they send him things electronically.

"This is about as handy as a chicken on ice skates," he said. "It's a miserable way to do business, but I can't do anything other than that."

In Davis' opinion, Wilson's activities at 57 N. Washington St. do not constitute occupancy. "There's no advertising, there's no telephone number, there's no 'open for business' sign, there's no invitation to the public," the attorney said. "None of that is occurring. I think that's just Wolicki grasping for straws."

Wolicki disagreed.

"(Wilson) turned it from a house into a storage building and his office. That's still illegal," Wolicki said. "He's our building inspector. I imagine if somebody else in this town decided to go and turn a house into a storage building, he'd probably show up and want to see their zoning approval and their certificate of occupancy.

"I don't understand why the rules apply to everybody else in this village, but not to him."

CJ Carnacchio is editor for The Oxford Leader. He lives in the Village of Oxford with his wife Connie and daughter Larissa. When he's not busy working on the newspaper, he enjoys cigars/pipes, Martinis/Scotch, hunting and fishing.
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