Judge tosses out Crockery Lake contract, claims former county board overstepped authority

OTTAWA COUNTY — A contract approved by the Ottawa County Board of Commissioners late last year to give more than $560,000 to Chester Township to “revitalize” Crockery Lake is not legally valid, a circuit court judge ruled Monday.

“Because the Ottawa County Board of Commissioners acted outside its authority and bypassed its Parks Commission when it contracted with defendant for park management and maintenance, the contract at issue is contrary to law and is void ab initio. A contract was not created, and summary disposition is granted in favor of plaintiff,” Judge Jon Hulsing said in a ruling released Sept. 22.

The finding comes after an Aug. 25 hearing that saw the county arguing that the contract was invalid — even after the previous board of commissioners approved the contract with Chester Township in December.

“The purported agreement is void. It has no legal effect,” Hulsing said. 

How we got here

The previous board, controlled in 2023 and 2024 by far-right political group Ottawa Impact, approved the contract Dec. 10 in the amount of $563,000 to Chester Township to “revitalize” Crockery Lake.

Read More: Ottawa County approves $563K contract to restore Crockery Lake as process faces criticism

On Dec. 16, a legal challenge was filed, claiming the board exceeded its legal authority in paying the township the entire amount — despite being a five-year remediation plan — allegedly so that the former OI majority on the board could complete the deal before losing their majority at the end of 2024.

To commissioners not in the former OI majority, the contract seemed sudden with little public process. They expressed deep concerns about the agreement’s language that gave the county little control over the project and increased liability should the lake cleanup go wrong.

Just weeks later, internal emails showed that the contract was crafted in less than two months by Chester Township’s attorney, with only select officials involved in the process — including the contractor who was poised to receive the funds to complete the work.

The goal, according to emails from the former interim county administrator, was to ensure that new commissioners — set to be sworn in at the beginning of 2025 — would not be able to stop the project.

Read More: Emails: Crockery Lake contract was 'rushed,' intended to prevent new board from dismantling deal

“We want to make sure that once the funds are transferred on this project, that there's not the ability for the project to easily terminate or cease,” former interim county administrator Ben Wetmore wrote in a Dec. 3 email. “We intend to be bound to this agreement.”

Wetmore left at the end of the year after procuring a controversial $175,000 severance that has also been legally challenged in court.

At a Feb. 25 meeting, the new board reviewed a legal opinion from new county attorney Mike Bogren that said the contract was legally unenforceable.

Read More: County to ask court to review Crockery Lake contract as board infighting continues

“It is our opinion the Dec. 10, 2024, agreement with Chester Township is invalid because the (board of commissioners) lacked the authority to enter into the agreement for two distinct reasons,” Bogren wrote in the opinion.

He said the prior board “ceded authority to make improvements to county parks to the Parks Commission” and that the board exceeded the amount it can contribute to a lake improvement project under state law, which is 25%.”

Board Chair John Teeples said at the February meeting there were multiple issues he had with the contract, including flaws brought up by attorney Stacy Hissong, general counsel for the Michigan Association of County Drain Commissioners, who told the former board Dec. 3 there were questions over who would be the owner of the contract — the county or the township — because it was not immediately clear in the existing language.

Teeples appeared to criticize former corporation counsel Jack Jordan's lack of input when the board approved the contract and Wetmore told commissioners Dec. 10 the contract had been in the works for months "even though certain members of the board were just finding out then."

He said his biggest concern, however, was that the contract dictates that the county assume all of the liability and costs if something goes wrong.

"I've never seen where a non-liable party, such as Ottawa County here, voluntarily agrees to assume an environmental cleanup it did not cause," he said. "Ottawa County has arguably agreed to assume an unprecedented liability and risk that might well exceed $563,000 and might well bind the county to future obligations.

"With this so-called negotiated agreement, we are opening a Pandora's Box of potential liability for Ottawa County. I see no reciprocating benefit from Chester Township to Ottawa County. I see it flowing only one way — from Ottawa County to Chester Township."

Teeples questioned former advisors who helped broker the deal.

"When I saw the draft agreement before it was approved, I thought it had to be a mistake," he said. "I thought there was no way that the county intended to incur the risk of non-performance cleanup, pay the fees ... but after reading through the email communications around this agreement, I realize there was no mistake.

"Clearly, we must ask: Was there anyone representing Ottawa County? Why was the public not made aware? Why were these concerns about the agreement earnestly discussed? Why were they so flippantly dismissed?"

Teeples said if the contract is invalid, then attempts to renegotiate now would be moot.

Commissioner Joe Moss, who was chair of the board during OI's majority tenure — he also is the founder and president of the political group — said he didn't feel that the board exceeded its authority.

"I disagree with a couple statements you made earlier," he told Teeples.

Commissioner Jordan Jorritsma said the difference of opinion is the very reason that it would be helpful to have a judge give the board guidance.

"I think the fact that you and our county attorney disagree is exactly why we're asking a court to rule," Jorritsma told Moss. "There appears to be an ambiguity. I have no problem sitting down with Chester Township ... after we know the contract's legal."

Commissioner Jacob Bonnema questioned Moss on what harm asking the court to weigh in would cause.

"Are you opposed to hearing from a judge that this is a legal contract?"

"I think this is a way you can nuke a decision made by the previous board," Moss replied.

"This isn't political for me; I see it from a point of law," Teeples said. "And I think you made a mistake."

After the board voted to seek clarity with the courts, the plaintiff in the December lawsuit, Daniel Zimmer, dropped the Crockery Lake contract portion of his lawsuit. Meanwhile, his claim that the severance agreements with Wetmore, along with an executive aide’s — which were approved at the same December meeting as the lake contract — were illegal remains active.

A settlement agreement in Zimmer’s lawsuit challenging the severance agreements will be considered by the board of commissioners at its Sept. 23 meeting.

The hearing

During the Aug. 25 hearing, Bogren represented the county while Ron Reddick — who authored the contract — represented Chester Township as its corporation counsel. 

Hulsing asked several questions of the lawyers surrounding the state’s various laws that govern the authority to authorize and manage such projects. Of particular interest — and ultimately what the ruling hinged on — was a law that governs county-created parks commissions and whether the former county board worked with its parks board to request the funds for the project and to be involved in managing it.

“I think that's an important question,” Hulsing said. “If this is a disputed fact — if the Ottawa County Parks and Recreation Commission was involved in this action — then we have a factual dispute, and I can't render a decision on any of this.” 

Reddick tried to steer Hulsing to other state laws that he said would be construed favorably for the contract to be viewed as valid and enforceable.

“I would disagree with you, because I think we're talking about the wrong statutes that make this whole thing a moot point,” Reddick said.

“Well, I think it's relevant. … For purposes of this motion, I think it's important,” Hulsing said. “So if you have any information [that] the Ottawa County Board of Commissioners in December of 2024 authorized the park commission to do this, or the park commission requested funds for all

this. … Is there any information that's going to suggest that the county parks commission was involved at all?”

Both attorneys agreed the parks commission was not involved in the contract-drafting process nor is it mentioned in the contract itself. 

The ruling

In his Sept. 22 ruling, Hulsing said the contract “directly relates to property management and improperly invades the authority of the parks commission.”

“At first blush it may appear that concurrent authority exists for both the board and a parks commission to have management authority over park lands,” Hulsing wrote. “However, as noted above, a parks commission shall have custody and management over the parks/property. In contrast, a board has general control over the parks commission, not the property.”

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He said the state Legislature expressly limits a county board's authority after a parks commission is established. 

“In other words, the issue is not about the authority of a county to act, rather it is about whether the [Ottawa County Board of Commissioners] acted outside of its authority within the county structure,” Hulsing wrote. 

Hulsing said commissioners “lacked the authority to contract with the township to restore Crockery Lake. Therefore, the purported contract is void ab initio,” Latin for “void from the beginning.” 

Hulsing further ordered that neither side may recover costs or fees from the other “because no contract existed.”

— Sarah Leach is the executive editor of the Ottawa News Network. Contact her at sleach@ottawanewsnetwork.org. Follow her on Twitter @ONNLeach.