The owner of a BayView condo unit in the Village of Suttons Bay should get her $729,000 back from the developer because of defects in how it was constructed, according to Leelanau County Circuit Court Judge Philip E. Rodgers Jr.

The judge last week issued a decision affirming the Jan. 25 decision of arbitrator Richard J. Figura of Empire that condo owner Melinda J. Funston of Northport should get her money back from Suttons Pointe Development L.L.C.

The judge also decided that Funston was entitled to additional but unspecified “sanctions” against the developer because the developer’s legal challenge of the arbitrator’s decision was “frivolous.”

Marcus W. Yono of Brighton is the “resident agent” of Suttons Pointe Development, L.L.C., which developed the BayView condos. Yono is also the owner of Livingston Building Company, L.L.C., which oversaw construction at BayView.

Attorney Herschel P. Fink of Detroit is part of a team of lawyers representing the developer. Fink told the Enterprise this week that he and his colleagues will ask Rodgers to reconsider last week’s decision.

“Judge Rodgers found two arguments to be frivolous that we never made,” Fink asserted, “and he overlooked entirely one argument we did make for vacating the arbitrator’s decision – that there was too long of a delay in the plaintiff bringing her complaint to the developer.”

Fink said that unless the judge reconsiders and changes his decision, a formal appeal may be filed on behalf of Suttons Pointe Development.

“This is certainly not the end of the issue as far as we’re concerned,” Fink said.

As part of his order dated April 4, Rodgers noted that the developer had represented BayView as “a luxury condominium that had been constructed so as to limit sound transmission between the walls and floor. (Funston) relied upon these representations and expected that she was purchasing a condominium unit that would provide her with luxury, tranquility and serenity. These representations were false,” the judge wrote.

“Repairs were attempted but to no avail,” Rodgers continued. “It was impossible to fix the defects without reconstructing the condominium because the problem appears to lie in the materials used in the construction of walls and ceilings.”

Arbitrator Figura noted “other building code violations” in the condo unit as well.
As part of the Jan. 25 arbitration award, Figura wrote: “I am satisfied that (Funston) has met her burden of proof in establishing that the moisture barrier, the windows, and the furnace and water heater exhaust vents were not installed in accordance with the manufacturer’s instructions and/or the requirements of the applicable building code.”

However, the “builder of record” on the BayView project, Wayne Cockrum, has asserted that all of the condo units and other structures in the development were “thoroughly inspected by the Leelanau County Building Department, and there are no code violations.” In a statement issued in February, Cockrum said that the “BayView project is absolutely in compliance with the Michigan Building Code and the Michigan Residential Code.”

The head of the Leelanau County Building Inspections department, Robert VanDyke, acknowledged this week that an inspector from his department “approved everything he looked at” in the BayView project.

“However, our mechanical inspector may have dropped the ball,” VanDyke added, “and this is something I am currently looking into.”

Funston’s attorney, Peter Doren of Traverse City, said that although he and his client were “very happy and in total agreement with the judge,” Doren did not expect his client to receive her money back from the developer anytime soon.

“The developer certainly hasn’t offered to pay his debt,” Doren said. “Consistent with past stalling activities, I imagine this developer will try to make it as hard as possible to collect.”

A number of subcontractors working on the BayView project have filed liens against the development. And at least one subcontractor has filed a civil suit against the developer seeking reimbursement for unpaid materials and labor.

Meanwhile, Suttons Pointe Development, L.L.C. still owes Leelanau County more than $432,000 in back taxes, interest and fees. “Forfeiture certificates” on the tax delinquent BayView properties were to be recorded this month, according to county treasurer Vicki Kilway.

Phase One of the massive BayView project is nearly complete. It includes 54 waterfront condo units, office spaces, a clubhouse and indoor pool on M-22 (St. Joseph Avenue) north of M-204 (Race Street) in the Village of Suttons Bay. Construction is currently under way on the second phase of the project off Scott Hill Road west of M-22. In all, BayView was expected to add more than 500 new housing units to the Village of Suttons Bay.