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TERRY JONATHAN LODGE
316 N. Michigan Street, Suite 520 Toledo, Ohio 43604-5627 Phone (419) 255-7552 Fax (419) 255-8582 firstname.lastname@example.org
May 10, 2011 Michael Reynolds, Regional Director Midwest Regional Office National Park Service 1709 Jackson St. Omaha, NE 68102 Via email to Michael_Reynolds@nps.gov and certified U.S. Mail RE: potential conversion of remainder of Jean Klock Park in Benton Harbor, MI Dear Mr. Reynolds: I represent the seven plaintiffs in Weiss v. Salazar, Case No. 10-1313, which is currently pending in the Sixth U.S. Circuit Court of Appeals. My clients allege, among other things, that the conversion provisions of the Land and Water Conservation Fund Act (“L&WCFA”), 16 U.S.C. § 460l-8(f)(3), were not followed by the City of Benton Harbor, Michigan and Harbor Shores Community Redevelopment, Inc. in connection with the 2008 conversion of 22.11 acres of Jean Klock Park. We claim that there consequently was noncompliance by the National Park Service with NEPA and the L&WCFA. A central issue in the appeal is whether or not the plaintiffs, as regular users of Jean Klock Park, possess legal standing to enforce the provisions of the L&WCFA. Harbor Shores, the City and the NPS all maintain that the plaintiffs are merely members of the public with no differential status which should afford them specific enforcement of the Act’s provisions. We maintain that the public is entitled to enforce violations, and thus we are bringing potential violations of the L&WCFA respecting Jean Klock Park to your attention. We see a new threat to the continued existence of Jean Klock Park as a public park. In March 2011, a new Michigan statute, Public Act 4, was passed into law. It dramatically increased the powers of Emergency Financial Managers appointed by Michigan’s governor to take over complete control of financially-strapped local governments. Benton Harbor was placed under the control of an emergency manager in 2010 because of the sorry state of its municipal fisc. The new law concentrates unprecedented powers in one person, such as dispensing with the requirement for any consultations with, or authorizing votes by, public officials prior to the disposition of public assets which might be sold to stabilize local government finances. Benton Harbor’s EFM, with no obligation even to announce that he might be considering plans to dispose of public assets, is believed to be contemplating the selloff of Benton Harbor's water treatment plant (located within Jean Klock Park), and conversion via lease or sale of the remaining 50 acres of the Park which were not leased in the 2008 conversion.
Following are URLs to the specific statutory provisions of Public Act 4, along with FAQs prepared by the Michigan Treasurer’s office about the new law: http://www.legislature.mi.gov/(S(dbyvth55eztm1i45nhnnx1fu))/mileg.aspx ?page=PASearch&paNumber=4&paYear=2011 http://www.michigan.gov/documents/treasury/FAQs_Act_4_348233_7.pdf The 2008 conversion parkland has become 3 of 18 golf holes of a golf course-centered residential and commercial development under the aegis of Harbor Shores Community Redevelopment. The still-public part of the Park consists of a half-mile of prime Lake Michigan beachfront and a small parcel of interior parkland surrounded by the three golf holes and other inholdings. The Land and Water Conservation Fund Act mandates a public inquest into the particulars of any plan to convert public parkland to private usage, and compliance with the National Environmental Policy Act. We believe, however, that the unbridled discretion of Benton Harbor’s EFM might be easily harnessed to dispose of the remaining land in the Park to a developer. The purpose of L&WCFA is to protect parks in perpetuity, not trade them for lands unsuitable for public use. Jean Klock Park was deeded to the City especially for Benton Harbor’s children in 1917, and the donor’s intention was reinforced later with the L&WCFA, a law that is meant to protect against privatization. While Joseph Harris, Benton Harbor’s EFM, denies having any plans to sell off the Park or water plant, in March he advertised the water plant for sale or lease and two days later, disavowed the published legal announcement, claiming he had misread the boilerplate language of a template form - although Mr. Harris had added the “sale or lease” language himself. Presently, he is arranging to contract with a private operator. Clearly, the EFM may lawfully change his mind instantly, and arrange for the sale or lease of assets without disclosure to the public nor advance consultation with anyone. And the emergency manager is immunized by statute from the consequences of his decisions and is not politically accountable through the electoral process. Benton Harbor’s EFM may have already altered the original conversion plan for Jean Klock Park in favor of the developer and against public access. Mitigation for the 22.11 acres removed from the public recreation estate for golf consists of scattered parcels along the Paw Paw River. The most valuable parcel, known as Parcel H (appraised @ $714,000 of the approximately $900,000 aggregate appraised value of all mitigation land), is situated on former Whirlpool Corporation factory land where the Paw Paw and St. Joseph Rivers meet. Last November, the Harbor Shores developer changed the configuration of this parcel with the approval of the City of St. Joseph, Michigan, (co-owner with Benton Harbor of Parcel H) and apparently also with the consent of Benton Harbor’s Emergency Manager. An easement recorded in April 2007 which the NPS had required to be vacated nearly 3 years prior was finally terminated in November 2010, but then immediately restated, and it disallows riparian uses of Parcel H by the public in favor of Cornerstone Alliance (“its assigns”), which is a component of
Harbor Shores, developer of a private marina, the perimeter of which apparently still includes part of Parcel H, although absent required public notice of the November, 2010 change in its configuration, the exact configuration of Parcel H is not officially known. As appraised, Parcel H comprised 80% of the dollar value of the mitigation parkland for the 2008 conversion of JKP. But since the November 2010 “stealth” changes by the EFM, it has been seriously compromised as a “public” asset, quietly and without the discussion (and veto possibility) that might have otherwise occurred were the decision left with Benton Harbor’s elected commission. Under the EFM law, no one was consulted nor required to be notified of this decision by the emergency manager. Reason dictates that similar tactics might be employed to dispose of the remaining 50-acre beachfront of JKP and the water plant by private sale or lease. We are very concerned that the EFM could in near-total secrecy sell Jean Klock Park and the water plant, with State approval despite the federal requirement of adherence to the L&WCFA. While the NPS has recently been enjoined to explicitly follow the requirements of § 6(f)(3) (16 U.S.C. § 460l-8(f)(3)) prior to a conversion, see Brooklyn Heights Ass’n, et al. v. National Park Service et al., Case No. 1:11-cv-00226 (slip op. April 8, 2001), that decision affords scant assurance that the NPS would go so far to block an illegal conversion as go to court itself, against the other units of government. In sum, the State, the rump City of Benton Harbor and Harbor Shores might have reasons to collude in order to remove Jean Klock Park from public ownership and access, and we are looking to the NPS to fulfill its regulatory role under federal law. We therefore ask that the NPS consult with Michigan state officials, now, to ensure that a transparent, deliberative public process be completed prior to any decision to dispose of Benton Harbor’s park assets. You may be aware of recent national publicity focused on the use of an EFM in Benton Harbor. We expect there will continue to be controversy over the decline in democratic participation caused by Benton Harbor’s receivership status. Please ensure compliance with the L&WCFA and its purposes of protecting public parkland, whether or not a municipality named "Benton Harbor" still exists in the future. Jean Klock Park should remain a public park for its own intrinsic qualities for all of the public of Michigan. Thank you very much. Sincerely, (Original signed by Terry J. Lodge) Terry J. Lodge cc: Jon Jarvis, NPS Director (Jon_Jarvis@nps.gov) Wayne Strum, Wayne_Strum@nps.gov (NPS State and Local Assistance Programs) Michael D. Wilson, email@example.com (NPS State & Local Assistance Programs Division)
Quentin Pair, Esq., firstname.lastname@example.org Mustafa Ali, email@example.com Katherine H. Stevenson, firstname.lastname@example.org Thomas Allenson, U.S. Army Corps of Engineers, Thomas.E.Allenson@usace.army.mil Wm. Isaac Robinson, email@example.com (Office of Hon. John Conyers) Hon. John Conyers Hon. Debbie Stabenow Hon. Carl Levin Freshwater Future, Jill Ryan, Executive Director, firstname.lastname@example.org Alliance for the Great Lakes. Joel Brammeier, President Resource Renewal Institute, Nancy Graalman, email@example.com
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