2013-08-23 / News

Cawthorne Explains Process, Will Investigate Transportation Authority

By Stephanie Fortino

At the first meeting of the city’s newly-created Legal Committee Thursday, August 15, members listened as attorney Dennis Cawthorne explained his plan of action for the legal effort investigating the possible acquisition of the Coal Dock and Arnold Dock. The legal team will investigate legalities of the docks, will opine on whether the city should attempt to acquire any property, and might even suggest creating a transportation authority. While another committee meeting was not scheduled, Mayor Margaret Doud noted that the group may meet again soon in the coming weeks.

Council member Jason St. Onge chairs the legal committee and council members Anneke Myers and Dominic Redman are the other members.

Mr. Cawthorne laid out the three main functions of the independent legal team he is coordinating, to include answering ownership questions, investigating dock acquisition options, and arriving at a plan to purchase the docks and adjacent properties.

The first step is to establish the facts pertaining to ownership, title, deed, riparian rights, and bottomlands by reviewing documents and speaking with the various affected parties. Historical records pertaining to development of the shorefront are sketchy.

Once the list is compiled, it will be distributed to affected parties to solicit consensus on its accuracy and thoroughness.

“I hope by that exercise that we will end up with a set of base facts, which basically cannot or should not be controverted. Maybe I’m entirely too optimistic that this particular aspect can be accomplished, but I don’t think so,” Mr. Cawthorne said.

Other attorneys have already collected some of this information, Mr. Cawthorne pointed out, such as Gary Rentrop, who represents the city’s Historic District Commission.

“I can already tell you, as I’m sure you all know, the facts keep changing, sometimes very rapidly,” he told committee members, referring to ongoing liens, lawsuits, financing, and management issues.

The committee was optimistic that the basic facts could be presented in time for the Wednesday, September 4, regular council meeting, but Mr. Cawthorne said he couldn’t promise that.

While an emphasis on factfinding has been the focus of some grassroots efforts, Mr. Cawthorne explained that the task is only the first step in the process to address the questions surrounding the possible acquisition of the docks and related properties.

“I know many people are very sincere regarding their interest in focusing on the facts,” he said, “but the point that I’ve always made, and I think Mr. [Richard] Manoogian in his letter also made, is at the end of the day you have the facts, so what? I mean, something’s got to come out of it. There has to be another step, otherwise we’re all wasting our time….At the end of the day, what difference does it make unless you have some policy alternatives that you all can consider?”

Such “alternative policies” would include acquisition of the docks by purchase or eminent domain, and payment for the docks either by selling bonds or other means.

“Who’s going to pay for what?” he asked, and “What is the public willing to accept in the way of an obligation?”

Indeed, the public has yet to discuss whether the city should even own the docks.

Taking property by eminent domain can be complex, he noted, and a court would decide how much the city would pay, which probably would require millions of dollars to be paid up front.

“Where are the millions going to come from that make it possible to even commence that kind of domain action?” he asked.

Before the city decides whether it wants to venture down the path of acquisition by eminent domain, Mr. Cawthorne will consult the experts to determine the strengths and weaknesses of such action.

After the options for acquisition are discussed, the city will discuss implementation, such as whether the city should acquire the docks, how the city would pay for the docks, and opinions on related properties, such as the lots at the head of the Arnold Dock being proposed for use as a hotel.

Creation of a transportation authority is another topic the legal committee will investigate. The city council has discussed such a way to regulate its harbor and boat service over the past several years, and transportation attorney Jim Dunn educated it on the matter last April.

Creating such an authority would have significant benefits, Mr. Cawthorne believes, but factors such as a facility to house the authority and an appropriate structure and governance system for the City of Mackinac Island would need to be investigated.

Mrs. Myers asked if structural studies on the docks and buildings would be provided to city council, and Mr. Cawthorne noted they could be provided before any policy decisions are made.

In another matter brought up by Mr. Redman, Mr. Cawthorne said he would determine how two lawsuits filed by lenders that concern ownership and control of Arnold Transit and Union Terminal Piers are relevant to the city.

Mr. Cawthorne said Mr. Rentrop, a lawyer specializing in eminent domain, and Department of Environmental Equality employees will be consulted regarding bottomlands and riparian rights.

Riparian rights and bottomlands issues are essentially connected, he said, and while the DEQ will provide opinions on these issues, there could be differing opinions from other experts. In the event of a disagreement, a court would decide which party is correct, he added.

Mr. Cawthorne also made it clear that the legal effort will not interfere with the Historic District Commission, which is in the process of reviewing the proposed

Main Dock Inn at the head of the Arnold Line Dock.

“I do not view what the council has directed and authorized me to do as in any way undercutting the Historic District Commission,” and suggested that his work could actually strengthen the role of the HDC.

City council and the community should also be involved in the process and make some decisions to come to a final and predictable conclusion, Mr. Cawthorne continued, and he suggested a compromise could be the best solution.

“[If] we start marching down the road to litigation, no matter who commences it,” Mr. Cawthorne continued, “you don’t know the outcome and you don’t know the cost. So there is a value, it seems to me, in finality and predictability. And regardless of what the HDC says and recommends, that issue of predictability and finality will still be there and will play a role in what you all end up doing.”

Later, Historic District Commissioner Lorna Straus commented that the commission is ready to act on the proposed Main Dock Inn at its Tuesday, September 10, meeting, but noted that the city’s recently enacted moratorium on all work in the historic districts may affect the commission’s ability to make any decisions.

Audience member Susan Lenfestey wondered what final outcome of the legal process might look like.

“My sense of this community, and certainly the people that show up to these meetings, is that we’re here because we’re very concerned about what happens at the head of that dock,” she said.

“I want to feel like we can trust you 100% to go forward with that as an end goal of some way to preserve that end of the dock,” Mrs. Lenfestey said. “Or can you see yourself having to make some sort of compromise that comes back and splits the difference? Or ,at this point, is everything on the table?”

Mr. Cawthorne said he will make recommendations to the city based on the facts and options, and noted that a compro- mise is an option.

“It is very clear that a very large segment of the public, and I think…a very large segment of this council, does not want to see development of the open space in front of the Arnold Dock. So, certainly that will be very much in my mind as I go forward,” Mr. Cawthorne had noted earlier.

Mayor Doud said she believes both the Coal Dock and Arnold Dock should be maintained as they are.

Mr. Cawthorne said he hopes the community will support the legal process and noted that, while he does not know what or if a solution can be determined, he is confident that he can lead the effort.

“For better or worse, I’ve spent 40 years struggling, balancing between the house, the senate, the governor, and all sorts of competing interests,” he said “Based on that, I believe I can be successful. I can’t guarantee I’ll be successful, but I believe I will be. And with your support of the process, I think we can…make some important progress.”

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