Douglas Officials & Tower Marine's Attorney Trade Accusations Over Ongoing Dredge Pile Work
The area’s prominent marina owner keeps trying Douglas city officials’ patience.
City officials claimed Monday night that Tower Marine’s recent moves regarding drainage work and the dredge spoils facility project have all the indications of a unilateral and deliberate intent to waste taxpayers money with unnecessary legal maneuvers and is operating with a complete lack of transparency.
“It seems like intentional harassment for no particular reason,” Douglas City Manager Bill LeFevere said in his report to the Douglas City Council at its meeting Monday. “Nobody will talk to us except the DEQ (Michigan Department of Environmental Quality,” he added.
Those non-transparent entities that are not talking to LeFevere or other Douglas leaders, according to city officials, includes Tower Marine Owner RJ Peterson and his engineers - Lakeshore Environmental and Nederveld and contractor Top Grade.
But Tower Marine’s legal team accuses LeFevere of not being truthful.
“There is clearly some misunderstanding and a lot of what has been said by Bill LeFevere is simply not true,” Bill Sikkel, Tower Marine’s attorney with Sikkel & Associates, PLC, told The Local Observer Newspapers on Wednesday.
The controversy centers on the dredge spoils pile and its related drainage work which is part of a 2015 legal settlement between the city and marina owner requiring Peterson to reduce the pile and landscape it in a way that conforms with local land-use ordinances and state environmental regulations.
The project is meant to not only address state and local regulations, but at the same time enhance drainage and the waterfront view relative to the Blue Star Highway (some of the landscape grading runs long the west side of the road).
Per a legal agreement, the city and Tower Marine are both paying for the ongoing grading of that facility (moving silt around to designated spots) with an estimated cost totaling some $49,000.
But the unexpected and unnecessary moves on the part of Tower Marine, argue city officials, has increased that cost.
In the latest development, Douglas officials say they have grave concerns that Peterson’s actions indirectly implicate the city in violations of State of Michigan environmental standards because the city holds a state-issued joint permit application with the marina owner for portions of the project, namely a permit to fill wetland areas related to the drainage work.
“We are in violation of the DEQ permit right now. We have no idea how we are going to deal with it and they are not involving us in the conversation,” LeFevere informed his council Monday.
The placement of fill outside the permitted wetland area is something that Tower Marine’s own attorney, Sikkel, concedes in an April 21 email sent to DEQ Kalamazoo District Coordinator Jordan Kameron that states: “It appears that an additional 3,316 square feet of fill has been placed in wetlands that were not included in the original permit request.”
Sikkel’s communication came in response to a DEQ inquiry when that state agency noticed something awry with the project upon review.
However, on Wednesday, Sikkel explained in writing that “Unfortunately, portions of this parking lot were wetland areas which neither party realized at the time. The contractor placed the material in the areas approved by the city and Mr. Peterson.
“It was recently discovered that some of this area was wetlands. These wetlands are in the process of being restored. This has been discussed at length with the city and the MDEQ,” noted Sikkel in his response.
Another concern city officials have is Sikkel’s recent legal filing with the Allegan County Circuit Court stating that the plaintiff (City of Douglas) had dismissed its motion to hold defendant (Tower Marine) in contempt of court (this is related to a 2015 circuit court order in which Tower Marine was legally required to finish the project work by May 31, 2017).
“He (Peterson and his attorney) submitted this to the court knowing full well we (the city) objected to it,” said LeFevere.
Sikkel responded to this in writing: “The court held a hearing on March 6 regarding the city’s motion to hold defendants in contempt of court. The city had asked the court to enter an order that the defendants (Peterson/Tower Marine) were in contempt, and to allow the city to immediately take over the soil grading project.
“After hearing the arguments of both sides the court indicated that Mr. Peterson had until May 31, 2017 to complete the project. The court did not grant the city’s request for sanctions as requested. I contacted the city attorney and asked them who should prepare the order.
“The city attorney sent me an email telling me to draft the order because ‘the city did not prevail on anything.’ I prepared an order and sent it to the city attorney for review. The proposed order simply stated that the city’s motion was denied and that Mr. Peterson had until May 31 to complete the work. The city attorney reviewed the order and told me to file it with the court under the 7 day rule which I did. They (city) filed an objection to the motion.
“The city attorney did not properly file the objection so the court did not rule on it. The motion for consideration was not because defendants forced the city to do so, it was because the objection to the order was not filed properly by the city.”
In either case, Sikkel’s action forced the city to motion for a reconsideration, which was granted by Allegan County 48th Circuit Court Judge Margaret Bakker on April 17.
Bakker ordered “that plaintiff’s motion to hold defendant in contempt is adjourned until June 12, 2017” and “that defendant shall complete the work required by the order of this court dated August 20, 2015 by May 31, 2017.”
Finally, city officials contend Tower Marine drastically deviated from previously agreed upon plans with the city regarding drainage work.
Tower Marine and Top Grade’s recent plan has not been designed by an engineer and is approximately three times more expensive than the previous drainage solution proposed by the city engineer, Prein & Newhof, and Tower Marine engineer (Nederveld), according Douglas City Attorney Philip A. Erickson of Plunkett & Cooney.
About this, Sikkel said: “The court order requires the city to design and install any needed infrastructure at the site.
“The city has failed to do so. There was a need to install a drain extension which the city refused to do. This was holding up completion of the project.
“The city proposed installing a short extension pipe which would drain in the middle of Mr. Peterson’s parking lot into a small swale. The city’s engineer said this would be temporary and that a permanent connection to Lake Kalamazoo would be needed at some point.
“The city refused to install the pipe and refused to install the permanent solution recommended by their engineer, despite repeated requests by us for them to do so.
“To keep the project moving along, my client (Peterson/Tower Marine) ultimately had to perform this work. Mr. Peterson’s engineers informed him that the permanent solution proposed by the city’s engineer would be significantly more expensive than an alternative design. My client’s engineer designed a more cost effective solution, which my client’s contractor recently constructed,” wrote Sikkel.
At Monday’s meeting, the Douglas City Council passed a resolution asking LeFevere and Erickson to provide Tower Marine with the city’s position: oppose the marina’s recent actions and request corrective action, for example, reduce the wetland impact or designate a different area as wetland.