Why I will Vote No on Kevin Baity for City Manager

I said in the previous post (emailed Thursday),

In most cases, in issues as important as selecting the next City Manager – the City’s chief administrative officer – the minority will defer to the majority and vote with it in public. In my judgment, it requires very deep concerns and objections to oppose the majority.

I said that I would vote “no” on the ordinance before us at next Tuesday’s special city council meeting to appoint Kevin Baity as Carbondale’s City Manager. I believe such a vote requires a full explanation to the voters of this city. This is my explanation:

On at least two occasions, in his position as Director of Development Services overseeing our Planning Department, Kevin Baity has over-ridden the courageous refusal by his professional staff to issue permits. In these cases he has taken it on himself to issue permits that directly violate City codes. And, when asked to explain, he has misrepresented the facts both to me and to the public.Mr. Baity has many positive qualities, which became apparent in a survey of staff conducted by Don Monty, as well as testimony by some people who contacted me and my own experience with him. But I cannot vote to appoint someone who has shown clear disregard for our laws. He will, after all, be the chief administrator of those laws.

For too long there has been widespread public perception that “who you are” counts more than the fair administration of our laws and benefits. I fear that Mr. Baity’s past conduct supports these perceptions.

I have received more requests that we not appoint Mr. Baity than I have requests that we do so. Most of these requests came from people from around the city who have not found Building and Neighborhood Services — the division that enforces our residential codes — or Mr. Baity to be responsive to their complaints. This is a problem that long pre-dates Mr. Baity’s tenure as Director of the department. Final authority regarding administration of this department lies with the City Manager and, ultimately, Council.

I hope that Council will strongly instruct our new City Manager to make sure that Building and Neighborhood Services works effectively and efficiently, and that complaints are quickly addressed and tracked. We should make this part of his performance reviews. I would expect no less no matter who we select.

But the problem of differential access — that those with “pull” get unfair and sometimes illegal breaks, that our government is bought by the highest bidder — is one that corrupts the foundations of our government. It’s a national disease. It’s one that has put Illinois dead last among the states in our credit rating. It has seen our two previous governors go to jail.

Honest government begins at home. Here, where we can look one another in the eye and hold one another accountable.

Because on at least two occasion Kevin Baity issued permits that his professional staff refused to authorize — permits that violated our code — I cannot vote to make him our City Manager.

The Anatomy of a Deal

I am most familiar with, and have the record regarding, the permit he issued to Lindsey Fisher / Home Rentals last August. Over objections by our professional planning staff, he authorized the conversion of the old Coca Cola warehouse at 411-413 N. Oakland into an auto repair shop. This is an R-1 (single family residential) neighborhood, designated for restoration in the Comprehensive Plan.  Auto repair shops are not included in the long list of special uses allowed in R-1 neighborhoods. Nor was the issue brought before the Planning Commission nor the City Council. Planning Commissioner Navreet Kang took issue with this omission.

A mother with babies walks by the new auto repair shop at N. Oakland and Sycamore.

Warehouse for Sale

As it happens, last January I looked at that building with my husband and a neighbor. It appeared to be used to store RVs, boats, cars, and other vehicles. It was in bad repair, with open gasoline cans near dangling electric wires, a couple of batteries hooked up to chargers, and a few wrenches and other tools scattered about. The old office, long ago converted to an apartment, was a wreck. My husband, concerned about a potential fire hazard, contacted Kevin Baity, who referred the message to BNS. Later we heard that the Bucky Dome NFP was going to use warehouse to repair the dome.

In late spring we noticed Home Rentals for rent signs in the apartment’s windows. On May 20 I inquired of City Manager Allen Gill, and he told me that the building had been purchased by Home Rentals with a legal non-conforming warehouse and an apartment that he said was a legal non-conforming use.

Alarm bells ring

Then, on October 25, the Carbondaze Gazette reported that an auto repair sign had appeared on the building. Several people called to ask me what I knew about it.

I immediately inquired of Mr. Baity, asking him about the zoning relevant to the warehouse. He said,

In late July-early August, at the request of Home Rentals prior to their purchase of this property, I reviewed the files on this property which dates back some 20+ years.

He confirmed its legally non-conforming use as a warehouse. But he then described the building, making the case that the “owner” said that  “the building has been used as an automotive/over-the-road bus repair business since 1999 … and subsequently.” These are the same “findings” laid out in his August 22 memo authorizing the zoning permit. Here is our email exchange. Read from the bottom up.

As it turns out, many statements he made in his reply to me were erroneous. For starters, Home Rentals had purchased the building in April, so he spoke with the former owner, Mark Robinson. More significant, I knew, based on my own tour of the building, that there was no evidence that it was being used as an auto repair shop. But, perhaps, there had been an “informal” repair shop operated outside of the City’s regulations?

In the discussion with Mr. Baity following our email exchange, he told me that he had checked with the neighbors before issuing the Zoning Certificate. He said that the man in the adjoining property (Jim Temple) had confirmed that the building had been used for an auto repair facility, and that he approved of it being used for an auto repair shop. Mr. Baity said the neighbor to the south also approved of this use.

But just last week I received a copy of a letter written to Mr. Baity dated Oct. 31, from James A. Temple, the retired owner of our longest lasting neighborhood grocery, Jim and Ruth’s.  Mr. Temple’s home lies just east of the warehouse; they share the driveway/parking area in the building’s rear.   Mr. Temple had also been concerned about the auto repair shop and had queried Mr. Baity. He wrote, and I quote with his permission:

Mr. Robinson [the owner] parked a school bus in the building and may have repaired his own bus. To my knowledge Mr. Robinson did not repair buses as a mechanic in business. The person who rented the building for the Limousine service to my knowledge may have repaired his vehicles. He never indicated that he was in the limousine repair business. If my information was correct, he was in the business of providing transportation, not a repair shop.

Sun Shines In – Freedom of Information

On November 1, Sandy Litecky, President of the Arbor District Neighborhood Association, submitted a FOIA request for information about the property.

The records are unequivocal. They show that the City has consistently restricted use of that building to a warehouse. It lost its legally non-conforming office in the early 1990s, and in any event, that space had been converted into an apartment that had been inspected by the City.

The record

  • On December 19, 1994, the City’s Planning Department insisted that the Hoffman’s “have Maid EZ vacate the premises and remove all signage.The Planning Services Division’s position has been that the only legal nonconforming use remaining with the property is warehousing. The use of the property for office or service uses is not permitted in the R-1-5, Low Density Residential District.” The Hoffmans complied five weeks later, on January 27.
  • In May, 1997, the Planning Department issued a zoning certificate, noting “Approved use: legal non-conforming commercial warehousing operation (continuation of use) / Office use for Warehouse Manager/Security. Conditions of Approval: 1)May not be utilized for bus terminal; 2) No signage identifying commercial use of structure.”
  • On Nov. 12, 2003, responding to a query by James Temple regarding the status of the property, Lisa Reime, Senior Planner, wrote, “The only legal nonconforming use remaining with the property at 413 N. Oakland Avenue is warehousing. The property may not be used for office or service uses since the legal nonconforming use of the property for office or service uses lapsed for more than six consecutive months since the sale of the property in 1983.”

After these documents became public, Mr. Gill, Mr. Baity, and the City Attorney met and agreed that the permit had been issued improperly. On November 18, 2011, one of Mr. Baity’s first acts as acting city manager was to issue a letter rescinding the zoning certificate he had issued on August 22nd.

Permits and Approvals

The FOIA also revealed the series of steps leading up to Baity’s issuance of the zoning certificate:

July 26, Sunny Freidrich applied for an electric permit for Home Rentals.

August 1, Lindsey Fisher wrote to Kevin Baity,

I am writing regarding the property located at 411 & 413 N. Oakland. I have a business who would like to sign a 5 year lease agreement on the property. They want to use it as a mechanic/repair shop. This property, as you are aware, is a huge commercial building. I need to be allowed to use it for how it was originally intended; otherwise the building will sit vacant because it is not zoned R1.
The business is eager to get up and running and settled in. They have already arranged financing, etc. for new equipment.

I feel we should be working together to bring new business to Carbondale. It is a no win situation for both parties if we can’t come to a resolution quickly.

Please let me know if I can be of further assistance.

Thank You,

Lindsey Fisher

August 10, Councilman Chris Wissmann, writing for himself and Councilman Lance Jack, emailed City Manager Allen Gill supporting Fisher’s request.

Allen Gill responded,

have already discussed this with Planning. There was an automotive shop in the warehouse operation previously, so it is not a new use for the property, although this would be a retail operation, I think. There are repair bays and drains existing in the building. The building has been in continuous use as a storage facility so it has not lost its grandfathered status. I will let you know the outcome later.

August 15, Kevin Baity wrote to Lindsey Fisher,

I will direct staff to authorize a Zoning Cert and a Cert of Occupancy for an initial one year period (subject to annual review and extension), with the following conditions: [specified]

However, our courageous professional staff refused to issue the Zoning Certificate, and on August 22 Kevin Baity, Development Services Director, issued a Memorandum authorizing a zoning certificate for the automotive repair business, with restrictions specified.

August 24 ,Home Rentals paid the fees for their Zoning Certificate and Building/Plumbing permits. Kevin Baity issued the Zoning Certificate under his signature.

August 25, Building Inspector John Lenzini issued the electrical permit to Home Rentals that Sunny Freidrich had applied for on July 26. The same day Lenzini issued a building permit.

That’s where the situation lay until October 24, when Scott Thorne wrote that he saw a sign and remodeling for a new auto repair shop in the old “Blue Star Limo building at the corner of N Oakland and W Sycamore.”

And then the November 1 FOIA. An observant blogger, an active citizen’s organization, and an inquiring city councilperson shone sunlight on the back-door deal.

The future

Mr. Baity’s error in judgment will undoubtedly be expensive, and the City will have to pay. He laid the city open to lawsuits from Home Rentals, from the owner of the auto repair shop, and from the neighbors who may well consider themselves negatively impacted.

Mr. Baity told me the City has offered to help find the owner of the auto repair shop a new location. The repair shop owner is entirely blameless. He had every reason to believe he was acting legally. He has invested a lot to get his business up and running. Yet he is the one who is most harmed.

My role as Councilperson

A few people have counseled me to not make this issue public. The way to influence, they say, is to smooth things over in public and make your strong arguments within the confines of private conversation and Executive Sessions.

That is the way things have operated for far too long. And the decline of our City has been the consequence. I was elected by the people to represent their interests. Citizens must be informed of government malfeasance. City Council members must be held accountable for the actions of the administrators they employ.

This case shows that back-door deals that evade our laws are bad for business and bad for the city. In the digital era, with Freedom of Information laws requiring open records and with pervasive digital media, it is very hard to conduct business in the dark. As this case shows, disregard for law is bad for business.

We must work together — City Council members, City Manager, City staff,  citizens, and business interests — to revitalize our residential neighborhoods and our older business districts, and to run an efficient and thrifty government operation.

Good government is good business. And strong neighborhoods are the foundation of a prosperous community.

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