NEW BUFFALO — An effort to circulate recall petitions targeting New Buffalo City Council members John Humphrey (who serves as mayor) and Brian Flanagan has been challenged in Berrien County Circuit Court.
The “Recall Election Petition Appeal of Clarity/Factual Review from May 3, 2022” as filed on May 12 by Humphrey (who said “Flanagan’s appeal is identical to mine in the case of petition 1”) follows:
I, John Humphrey, am writing to appeal the clarity/factual review decision by the Berrien County Election Commission issued on May 3, 2022.
On Tuesday April 19, 2022, a recall petition was submitted to the County Clerk’s office for the recall of Mayor John Humphrey. The Berrien County Election Commission; consisting of Chief Probate Judge Mabel Mayfield, County Clerk Sharon Tyler, and Prosecuting Attorney Steven Pierangeli; held a factual and clarity hearing on Tuesday May 3, 2022. The County Election Committee found that the petition’s language (as stated below) was “factual in nature and of sufficient clarity,” which enabled the officer sought to be recalled to “identify the course of conduct that is the basis for the recall.” The commission thereby approved the petition for circulation.
1) “At a meeting of the City of New Buffalo council on November 23, 2021, Mayor John Humphrey actually voted in favor of an ordinance to prohibit new short-term rentals in the R-1, R-2, and R-3 zoning districts.”
2) “At a public meeting of the City of New Buffalo council on March 21, 2022, Mayor John Humphrey instructed a New Buffalo police officer to remove an individual while she was speaking during her allotted time at the session of the meeting reserved for public comment.” I contest this decision on the basis that the statements do not provide “sufficient clarity” because they mislead the general public by providing partial facts without any context and are factually inaccurate.
With regards to the first petition language, the petition implies that Short Term Rentals (STRs) in the City of New Buffalo have been a property right in the R-1, R-2, and R-3 zoning districts—and that I acted to withhold or defy that right—this is not factually accurate. The few STRs in those districts are a unique and limited property privilege that had come about due to the previous City Council allowing STRs to exist without a permit. By operating without a permit, STRs were in violation of local ordinances. What the petition language does not provide clarity on is that my vote was to enforce an existing ordinance, not create a new one as this language suggests.
In 2019, the City of New Buffalo approved an illegal use of property in the mentioned districts by issuing permits, or a Special Use to residents to allow for STRs. This Special Use violated both the City’s zoning ordinances as well as other provisions of the town charter. By May of 2020, the same City Council – having realized the error, passed resolution 2020-11, which imposed a moratorium to suspend new permits because of property conflicts and other harmful impacts to the community. On November 23, 2021, the current City Council passed a zoning ordinance amendment upon recommendation of our City Attorney and the City Manager that upheld the language of our existing zoning and also satisfied the conditions of the moratorium, thereby allowing said moratorium to expire. While the global effect did prevent future rentals in those areas, the city has honored existing permits. We didn’t prohibit anything as there was never a right for new permits from the start.
With regards to the second petition language, the language is not factually correct. Ms. Carie O’Donnell was out of order for violation of Section D of the City of New Buffalo’s City Council rules for meetings and procedures (a police report on the incident is included in the appeal). As a result, and in an effort to maintain the decorum of the meeting, I repeatedly called Ms. O’Donnell out of order.
Ms. O’Donnell was repeatedly warned that she would be removed if she continued to exhibit contempt for the public order. As Ms. O’Donnell refused to comply, I acknowledged to the Police Chief that it may be time to intervene. Officer Severn, of the New Buffalo Police Dept., choose to remove her for “disturbing the peace” and did so without my direction. The police report filed by Officer Severn confirms that I did not direct to have Ms. O’Donnell removed.
In the case of petition 1 it should be made clear that Councilman Roger Lijewski also voted identically to Councilman Brian Flanagan and myself. No recall petition has been filed against him, demonstrating that the public has suffered no injury, but instead a personal grievance has been aired against me. Furthermore, petitioner, Michael J. Davis, did not appear in-person at the May 3, 2022, clarity hearing, instead he was represented by Attorney Dan Hatch of Grand Rapids, who did so without notice to the Commission. Additionally, this same attorney represents Michael J. Davis in an ongoing federal case, Moskovic v. The City of New Buffalo, case no. 1:21-cv-00144.
In conclusion, I request this court revoke the petition approval for circulation and find that both of the recall statements lack clarity because they mislead the public on the matters alleged and are factually inaccurate.
John Humphrey City of New Buffalo, Mayor