Graham Jaehnig/Daily Mining Gazette Andrew Speica, attorney for the Keweenaw Road Commission, said that the core of the dispute between the KCRC and Fitzgerald’s Restaurant is that the restaurant owner neither applied for, nor received a right-of-way work permit for the construction of a smoker enclosure.

MOHAWK — Attorneys for both the Keweenaw County Road Commission and Fitzgerald’s Restaurant, in Eagle River, spoke during the public comment period of the regular May meeting of the Keweenaw County Road Commission on Tuesday.

Andrew Speica, attorney with the law firm Henn and Lesperance, for the KCRC, said that the core of the dispute between his law firm and the restaurant is that while applying for construction and zoning permits to construct a smoker enclosure at the restaurant, the business’ owner, Mike LaMatte, did not apply to the KCRC for a right-of-way work permit.

Speica said that everyone, including the Road Commission, understands Fitzgerald’s owner, Mike LaMotte’s, frustration over the issue of relying on permits. There is one thing, he said, that has become abundantly clear: People misunderstand how this process began.

“There are permits that are required for anyone performing work within a right-of-way, with certain statutory exceptions,” Speica said. “That means any time you’re doing any kind of construction within a right-of-way, you have to come to the Road Commission in advance and seek that permit.”

Mr. LaMotte did not ever apply for, nor was granted, a right-of-way work permit in connection with this case, said Speica.

“I’m not saying that’s his fault; I’m not saying it was intentional,” Speica said. “But the facts are the facts, that the Road Commission never received an application for a right-of-way work permit and never granted one.”

Speica went on to say that a county Road Commission and a county Board of Commissioners are separate governmental entities and it is the county Road Commission that is required to issue a (right-of-way work) permit, and the Keweenaw County Road Commission did not receive, and therefore did not approve, a work permit regarding the restaurant. A critical element in resolving the situation, and what the majority of the public do not understand is that the Road Commission did not issue a permit and then revoke it.

The Road Commission is committed to reaching a mutually beneficial solution to the case, said Speica. Permitting the encroachment to remain in the right-of-way is not nearly as simple as people may think. It does not affect only the property rights of the owner of Fitzgerald’s.

“The Road Commission holds jurisdiction over right-of-ways in trust for members of the general public,” Speica said. “That includes residents and tax payers of Keweenaw County, the entire county, and it also includes anyone from anywhere who decides to come to Keweenaw County, as a tourist or a visitor, to use those right-of-ways.”

The Road Commission has a number of obligations and responsibilities, under a variety of different statutes, Speica said, which all work together to inform final decisions.

“We have reviewed the proposal to permit the encroachment to remain on the right-of-way,” he said, ‘and our firm has advised the Road Commission that that is not a legally viable option, because of other statutes and potential issues that can stem from that,” going on to say that any decision the Road Commission makes with respect to a public right-of-way can have a ripple effect on the entire county. Significantly, he said, it can effect the county’s liability if the Road Commission permits an encroachment to remain (and) can create a potential nightmare for liability for the county.

Because of ongoing negotiations between the Road Commission’s attorneys and that of Fitzgerald’s, Speica said that is all he is permitted to say on the issue.

“But I do want to assure you,” said Speica, “that the Road Commission is committed to finding a solution and that the decision regarding permitting encroachment is legally complicated and in our firm’s opinion, (it is) prohibitive to using that as a solution.”

Ryan Plecha, with Kostopoulos Rodriguez, responded to Speica’s comments, addressing, he said, three points.

The first, he said, is that the Michigan legislature provides road commissions with extreme trust and discretion in dealing with issues of roads and roads rights-of-way.

“The Michigan act provides that a road commission may require removal of a structure that is in the right-of-way,” he continued. “The legislature does not demand that a road commission remove all encroachments in a right-of-way. The legislature provided trust and discretion in this (KCRC) board to do the right thing.”

The second, he said, focuses on the Fitzgerald’s reliance on permits issued by Keweenaw County and building the smoker enclosure.

It is important to note, Plecha said, that under Michigan law, an issued permit is an official document authorizing its holder to proceed with the proposed project.

“Once a city or township issues a valid permit to an applicant,” Plecha said, “the applicant has every reason and right to rely on that (permit) in its business dealings.”

Plecha went to say that Michigan courts have allowed zoning commissions to be prohibited from enforcing zoning ordinances under a theory of equitable estoppel, in which a compelling reason is presented under a totality of circumstances to allow a structure to remain, in which it would be contrary to equity and good conscience to do otherwise.”

Under that same theory, Piecha said, equitable estoppel has not been proven or have there been any cases applying it to a road commission.

“And I don’t think my client or the (Keweenaw County Road) Commission want to be the Michigan Supreme Court’s test case on whether that applies,” Plecha said.

The application of equitable estoppel does depend on the facts and circumstances of each case, Plecha continued. In the case of Fitzgerald’s permits were granted, permits were issued and permits were relied on.

The third point addresses the ongoing attempts of the Fitzgerald to find a resolution to the issue that is fair all stakeholders involved. Plecha said those attempts have been ongoing since Sept. 2022.

“Some of those discussions have been with the attorney for county, Mr. Charles Miller, as well,” Plecha said.

KCRC Board Chairman, Rick Olson, said as chairman, he would like to comment.

“I’ll just reiterate that we are, and have been, committed from the start of this to working out a resolution,” he said. “But upon the advice of counsel, we have to follow what the laws are and what we are required to do.”

Board members are elected to their positions, he continued, to legally uphold what is supposed to be done, so it is not as simple as “signing a piece of paper and calling it good for the day.” If it was that simple, he said, it would have been done.

“But we have to follow that advice (of counsel,” he said. “We’re not lawyers, we don’t know the ins-and-outs of making these decisions of abandoning roads or making them a one-way street, or anything else. So, we need to follow this counsel’s advice and make sure we do the right thing — and that’s all we’re trying to do.”

[Editor’s Note: Zoning Estoppel stops local government from changing its position concerning a land development decision when a property owner has relied upon the government’s position, and if it would be unfair to allow the government to change its position. Totality of circumstances refers to the totality of circumstances test, in which courts focus “on all the circumstances of a particular case, rather than any one factor.”]