By Scott Sullivan
Last week’s story “Floating homes flap: city may be liable” contains inaccuracies, Saugatuck city officials say, based on a courtroom observer’s synopsis rather than official transcripts from a March 23 Allegan County Circuit Court hearing and this writer’s legal misapprehensions.
Large portions of the 1,000+-word piece were correct, others not, city attorney John Brennan says.
To start, past council members will not be liable personally for damages, as has already been determined based on governmental immunity.
Judge Roberts Kengis did March 23 deny the city’s motion to dismiss council, which as a body is a defendant in the Dune Ridge suit, from entitlement to immunity, that to be decided at a trial not by motion. But elected individuals aren’t on the hook.
The case, Brennan says, does not involve past city representations made in a 2019 land-swap deal with Dune Ridge. Zoning standards that preceded it have been upheld by the planning commission, zoning board and circuit court in the city’s favor.
Kengis has not yet ruled on motions by both parties whether the city has breached land swap provisions. Dune Ridge contends one was a promise Saugatuck would not pass regulations such as its 2021 Floating Home Ordinance that would prohibit the four structures it has since placed at its 443 Park St. marina.
The judge, Brennan says, stated his initial impression was those provisions were not a such a promise or any promise.
Dune Ridge, the lawyer goes on, argues another provision allowed it to erect a privacy screen (the 8-foot wall still up between the site and west Chain Ferry landing) above the height permitted by its zoning ordinance.
The judge did say his impression was this provision was a promise that may expose the city to liability if it requires the fence to be removed, per Brennan. He adds Kengis has requested further briefing from the parties on these issues and has yet to rule on eithers’ motions.
Our story’s statement that, “based on this summary” (made by a private lawyer observer, not official court transcript which this newspaper has requested) “Kengis also made clear he believed Dune Ridge was entitled to damages against the city because its floating homes ordinance, passed almost two years after the land-swap deal, harmed the developer,” is not true at all, says Brennan.
Instead, the judge indicated the provision relied upon by Dune Ridge in the land swap agreement relating to regulating what could be put in the water was not a promise, thus would not subject the city to damages.
Kengis asked for further briefing to learn whether he is entitled to make that ruling in a motion or it must be submitted to a jury in a trial. There will be a further hearing on this issue, the city attorney says.
The judge did, as the story notes, dismiss the neighboring Prokopeaks’ trespass claim, but it gave the family time to amend their complaint against Dune Ridge to state other viable claims, says Brennan.
The court denied Dune Ridge’s request to dismiss the nuisance claims stating it could not be resolved by motion, as there are fact questions that must be presented to a jury.
We apologize for any errors and look forward to reviewing official court transcripts at such time as they are released.