Lawsuits Against City of Traverse City Heard Before the Court of Appeals

"They're going to call it the way they see it. All we can do right now is hope for the best.” – Attorney Michael Naughton

Two controversial issues in Traverse City are going to court, and are now in the hands of a panel of judges. Tc Lawsuits Appeals

The Court of Appeals made a rare trip up north on Tuesday to hear several cases on appeal. Two of them involve lawsuits against the city of Traverse City.

The Court of Appeals is hearing the two cases: the FishPass lawsuit, which the city lost in a lower court; and the suit by Save Our Downtown – arguing over the height of new buildings in Traverse City (which the city also lost in the lower trial court). At the special session of the Court held in Emmet County, the panel of judges heard the arguments from both sides.

FishpassThe three judge panel heard the arguments about FishPass project set for Union Street Dam Park. It was derailed right before groundbreaking over a lawsuit arguing that the change in use should have gone before voters. City resident Rick Buckhalter filed that suit and prevailed. His attorney, Jay Zelenock, says, “The people should have the right to vote before something as massive as the FishPass project is done.”

Zelenock told the judges that altering the park’s use should have triggered the vote. “(The city is) giving possession, use, and control, and right to entry, to entities that aren’t the city. For their commercial proprietary purposes.”

City Attorney Lauren Trible-Laucht countered, “If we’re going to blur that legal meaning so that every single project the city does on public lands goes to a vote of the people, that’s just not the system we have.” She argues it’s not technically parkland because it was never dedicated as such. And she says the city is not giving up ownership of it for the FishPass project. “I think the most important thing is that for the community, it’s not being disposed of. Nothing will change hands as a result of the project. It’ll just be enhanced for the community to use. The dam will be a better, safer, newer dam.” Thumbnail Tc Tall Buildings Pkg 6 022200 00 18 28still002

The second case is about tall buildings, and whether they should be measured to the concrete roof, or if that measurement should include any additions like elevator shafts, heating/cooling and ventilation equipment, even chimneys. Zelenock also represents “Save Our Downtown,” the plaintiffs in the suit against the city. “In 2016 the people amended the City Charter. So that they had a right to vote on buildings over 60 feet. This project that was involved in litigation was 79 feet 11 inches. So they had their right to vote triggered by the charter and the size of this project. We thought it was a relatively easy call.”

But the city and the developer argue the lawsuit confuses a simple issue, the city measures building heights the same way it always has from the street level to the top of the concrete roof deck. Trible-Laucht says in fairness, the measurement has been “uniformly applied.” She cites three recent city buildings that have been approved where antennas, elevator shafts, or vents were not measured. She asks, “What constitutes the building?” But in this case, Innovo was the developer singled out in the lawsuit. The attorney for the developer, Michael Naughton, also addressed the court. “My client was standing when the music stopped and the chairs were taken out.”

Brenda Quick with Save Our Downtown says the measurements in the city ordinance say it should be calculated from “the grade to the highest point ON the roof deck.” But the plans from Innovo include the measurements “to the top OF the roof deck.” It may be a slight distinction to some, but it’s what brought this case to the Court of Appeals.  “We’re fighting for the right of people having their constitutional right to vote,” she says. “Whether it be on a national scale, a state scale, or a local scale. If people have a right to vote then they should be able to exercise that right, and no one should be able to interfere with that.”

Court Of AppealsThe court of appeals is a chance for both sides to make their final arguments. Trible-Laucht says, “The arguments have been well-briefed, the judges are extremely well-prepared and they know what the cases are about. It’s really just to highlight what you really want them to be thinking about.” And Naughton adds the panel of judges “had questions for both sides, and I think that’s good. This is an issue in our community where a lot of people have questions. It’s important for the court to weigh in.”

Anyone expecting a decision here will be disappointed. The Court of Appeals will take the arguments under consideration, with a ruling to be issued later. There’s no set date for when that might happen.