Attorney explains village’s position
By Bruce Rolfe
A Village of Climax resident voiced her concern to the Climax Village Council for a second straight meeting June 18 about tree maintenance and right of way privileges on her property.
Cathy Weissert, of 138 N. Church Street, brought up two concerns in a letter she received from the Village’s attorney at the regular meeting after she made public remarks concerning tree trimming and removal and right of way access for reading her water meter at an earlier meeting.
A letter obtained through the Freedom Of Information Act from the village attorney states the Village asked the village attorney to respond to Weissert’s allegations respecting the trees on her property.
Weissert claimed the letter sent to her from the Village attorney had two errors.
The letter from the Village attorney states “At the June 4, 2024 Village Council meeting, you indicated that if the Village did not trim your trees located in the right of way, you might not allow the Department of Public Works onto your property (subject property) to read your water meter.”
Weissert claims she only said the village would not be allowed to pass the right of way and the Department of Public Works would not have access to read her water meter or shut off her water if necessary, as they would be on the right of way, indicating she did not issue a warning what would happen if the Village did not cut the trees in the right of way.
Weissert then read a second sentence from the Village attorney that read: “On June 7, 2024 you indicated to the head of the Department of Public Works, TJ Gibson, that the Village is no longer allowed on to your property to read the water meter.”
She claims the sentence was also incorrect. She placed a call to the DPW on June 10 and left a voice message stating until further notice village employees were not allowed on her property at 138 North Church Street. She added when her water meter needs to be read, she requested that the village notify her and she would take photographs of the water meter for billing purposes.
The letter from the Village attorney also states: “The Village has retained the exclusive right to establish, maintain, and collect rates and charges for water supply service and may make such rules, orders, and regulations as it deems advisable and necessary to ensure the efficient establishment, maintenance, and collection of such rates and charges.”
The letter from the Village attorney to Weissert obtained through FOIA adds, “If you refuse entry to read the meter, the Village will undertake to make estimated charges and bill accordingly. If, at any point the Village or Building Official has reason to believe that there is contamination or disconnection of service, it has the automatic right to enter your property pursuant to Section 34-50. Finally, if at any point the Village is forced to obtain a warrant to read the meter or to investigate a possible contamination, the cost of securing that warrant will be charged to you.”
Weissert claimed the last sentence noting the cost to obtain a warrant to read the meter or to investigate a possible contamination would be charged to her, as threatening. She felt the letter was unnecessary and a waste of citizens tax dollars.
She then asked the council to vote on removing interim village president David Miller as village president and appoint an interim village president.
Miller thanked Weissert for her comments, however he, and the other Council members did not respond to Weissert’s comments.
When attorney Erin Geschwendt, who represents the Village, was introduced to explain right of way and tree maintenance procedures, Weissert left the meeting.
Geschwendt said the Village has an easement to come onto the property to trim or remove a tree if the tree does become a danger, however she adds basic tree “maintenance purposes are the responsibility of the property owner.”
“The only reason that anybody in the village would need to access or trim those trees is for one of the two main reasons. They are dying and becoming a danger, or they’re blocking a traffic control signal device or important sign. That would be the responsibility of the village,” explained Geschwendt.
“The trees in the right of way, they’re owned by property owners. They’re not owned by the village. The trees are to be maintained and kept in good condition by the owners of the properties themselves,” continued the attorney.
Geschwendt, from the law firm Bauckham, Thall, Seeber, Kaufman, & Koches PC, then explained right of way laws for reading water meters, noting access for water meter reading is another legal easement for the village to access the property.
“The easement to access the water meter, the amount of water used to determine billing, that is another legal easement authorized by federal law, common law, State of Michigan and local law,” said Geschwendt.
The Village attorney adds if someone did inform the Village a Village employee was no longer allowed on a property to read a water meter, the village could estimate water usage based on previous use. However Geschwendt said a better option would be to obtain a limited purpose administrative warrant which would allow access to the property for an accurate water meter reading, ensuring that the customer is not overpaying or under paying.
A Village of Climax resident voiced her concern to the Climax Village Council for a second straight meeting June 18 about tree maintenance and right of way privileges on her property.
Cathy Weissert, of 138 N. Church Street, brought up two concerns in a letter she received from the Village’s attorney at the regular meeting after she made public remarks concerning tree trimming and removal and right of way access for reading her water meter at an earlier meeting.
A letter obtained through the Freedom Of Information Act from the village attorney states the Village asked the village attorney to respond to Weissert’s allegations respecting the trees on her property.
Weissert claimed the letter sent to her from the Village attorney had two errors.
The letter from the Village attorney states “At the June 4, 2024 Village Council meeting, you indicated that if the Village did not trim your trees located in the right of way, you might not allow the Department of Public Works onto your property (subject property) to read your water meter.”
Weissert claims she only said the village would not be allowed to pass the right of way and the Department of Public Works would not have access to read her water meter or shut off her water if necessary, as they would be on the right of way, indicating she did not issue a warning what would happen if the Village did not cut the trees in the right of way.
Weissert then read a second sentence from the Village attorney that read: “On June 7, 2024 you indicated to the head of the Department of Public Works, TJ Gibson, that the Village is no longer allowed on to your property to read the water meter.”
She claims the sentence was also incorrect. She placed a call to the DPW on June 10 and left a voice message stating until further notice village employees were not allowed on her property at 138 North Church Street. She added when her water meter needs to be read, she requested that the village notify her and she would take photographs of the water meter for billing purposes.
The letter from the Village attorney also states: “The Village has retained the exclusive right to establish, maintain, and collect rates and charges for water supply service and may make such rules, orders, and regulations as it deems advisable and necessary to ensure the efficient establishment, maintenance, and collection of such rates and charges.”
The letter from the Village attorney to Weissert obtained through FOIA adds, “If you refuse entry to read the meter, the Village will undertake to make estimated charges and bill accordingly. If, at any point the Village or Building Official has reason to believe that there is contamination or disconnection of service, it has the automatic right to enter your property pursuant to Section 34-50. Finally, if at any point the Village is forced to obtain a warrant to read the meter or to investigate a possible contamination, the cost of securing that warrant will be charged to you.”
Weissert claimed the last sentence noting the cost to obtain a warrant to read the meter or to investigate a possible contamination would be charged to her, as threatening. She felt the letter was unnecessary and a waste of citizens tax dollars.
She then asked the council to vote on removing interim village president David Miller as village president and appoint an interim village president.
Miller thanked Weissert for her comments, however he, and the other Council members did not respond to Weissert’s comments.
When attorney Erin Geschwendt, who represents the Village, was introduced to explain right of way and tree maintenance procedures, Weissert left the meeting.
Geschwendt said the Village has an easement to come onto the property to trim or remove a tree if the tree does become a danger, however she adds basic tree “maintenance purposes are the responsibility of the property owner.”
“The only reason that anybody in the village would need to access or trim those trees is for one of the two main reasons. They are dying and becoming a danger, or they’re blocking a traffic control signal device or important sign. That would be the responsibility of the village,” explained Geschwendt.
“The trees in the right of way, they’re owned by property owners. They’re not owned by the village. The trees are to be maintained and kept in good condition by the owners of the properties themselves,” continued the attorney.
Geschwendt, from the law firm Bauckham, Thall, Seeber, Kaufman, & Koches PC, then explained right of way laws for reading water meters, noting access for water meter reading is another legal easement for the village to access the property.
“The easement to access the water meter, the amount of water used to determine billing, that is another legal easement authorized by federal law, common law, State of Michigan and local law,” said Geschwendt.
The Village attorney adds if someone did inform the Village a Village employee was no longer allowed on a property to read a water meter, the village could estimate water usage based on previous use. However Geschwendt said a better option would be to obtain a limited purpose administrative warrant which would allow access to the property for an accurate water meter reading, ensuring that the customer is not overpaying or under paying.
Railroad Quiet Zone Feasibility Study Nearly Complete
Joline Chaney said the feasibility study to determine the cost of implementing a Railroad Quiet Zone is 99 percent complete and the cost is considerably lower then what was said by a council member at an earlier meeting.
In April, the Climax Village Council hired OHM Advisors, a municipal, architectural, engineering and planning firm to perform a feasibility study at a cost of $4,238, and provide an estimated cost to construct a Railroad Quite Zone at the Maple Street and Main Street crossings in the Village of Climax. Cost for the final design, bid documents, construction administration services and equipment used for the project would be extra.
One Council member noted at an earlier meeting the total could reach $100,000 or more, however Larry Bowron, of OHM Architects, Engineers and Planners of Kalamazoo, hesitated following a presentation April 2 to give an estimate until the feasibility study was completed and felt the cost could be much less.
The council received petitions containing the signatures of 118 Village of Climax residents against the Railroad Quiet Zone at the May 14 meeting. The group that collected the signatures feel if the Council does not drop the issue all together, they would like to see the Railroad Quiet Zone issue be decided by the voters in the Village, not by the seven-member Village Council.
While there have been citizen requests for the Council to consider placing the Railroad Quiet Zone item before the registered voters of the village rather then the council voting, Chaney reminded the Council and audience at the June 18 meeting that when the Council purchased a $30,000 sign and a $45,000 truck, those items were not voted on by the citizens, but approved by the seven-member council.
Warning Siren Information Collected
Public Safety and Fire Chairman Nick Ludwig informed the Council and audience he continues to gather information about the weather warning siren estimated to have not worked since at least 2014.
Ludwig learned after visiting with Office of Emergency Management personnel, Comstock Township, Kalamazoo Township, Texas Township and Oshtemo Township do not have working warning sirens.
Ludwig said a West Shore representative told him a new Equinox, 220-volt warning siren installed would cost $28,000 and a used 220-volt Equinox would cost $18,000. A used 220-volt generic brand model would cost $5,000-$10,000 and a used 330/3-pphase warning siren could be purchased for $2,500-$3,000.
Ludwig also discovered if a 330/3-phase used unit was installed, there would be monthly costs of $30-$40 for electricity service. He adds the used $10,000, 220-volt warning siren would not have monthly costs. The Village could hook into an existing village building or could work with the Climax Township Fire Department about placing the siren on township fire department property.
Former late Galesburg-Charleston Township Fire Chief Gary Henson was able to purchase five warning sirens over 10 years ago. Four were put up at various locations in Galesburg and Charleston Township, including Cold Brook Park (which still functions) and a fifth warning siren was offered to the Village of Climax at no cost and installed near one of the well houses on the west side of the village. The cost for the village to install the system was $875.
After the siren failed in 2013 Climax Township Fire Chief Scott Smith informed the Council a dealer would have to obtain parts for the siren.
The Council accepted a proposal from West Shore Service in the amount of $1,180 to replace the batteries and the charging system for the emergency siren. West Shore also offered an annual maintenance agreement in the amount of $425. Under the agreement the batteries would be replaced at no cost in 2016.
Smith said after the system failed again, the Village Council at the time chose not to have the siren repaired.
A previous Climax Crescent article notes the warning siren worked in June, 2014, but did not rotate.
In other items covered at the June 18 meeting:
• The Council unanimously approved a motion to hire Kevin Harvey to rebuild the Village of Climax website at a cost of $376.20. Any future work performed by Harvey would be at an hourly rate of $30, however he indicated he would not charge for items that would not require much time. There will be a $3.99/month charge from the website host for a village calendar.
• DPW Manager T.J. Gibson said DPW employee Forrest Cope passed the water certification test that makes him a certified water operator.
• After DPW Manager T.J. Gibson noted the cost of engraving columbarium niches has increased significantly, the Council unanimously approved a motion to adjust columbarium opening and closing costs from $1,450 to $1,000, however the columbarium nitch purchaser would be responsible for engraving costs.
• DPW Manager T.J. Gibson informed the council EGLE highly recommended the Village update chemical feed equipment at pump house #1. Gibson contacted Elhorn who provided a proposal of $5,002 for the equipment. The cost to instal the equipment is $850 for a total cost of $5,852. The Council unanimously approved the expense. Because the council still has approximately $57,000 in uncommitted ARPA funded projects, the money for the pump house #1 project will come from ARPA funds.
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