How will building height and FishPass chases affect TC in 2022?
A second development in downtown Traverse City is impacted by a recent ruling by Judge Thomas Power against the City of Traverse City over how building heights are measured in the city.
Power ruled last month that all components of a building – including architectural and mechanical features of the roof that historically have not counted in the height of the building – must be less than 60 feet or else call a municipal election in under Proposition 3. The move put the brakes on an Innovo project on Hall Street, but has since also prompted the city to issue a cease-and-desist order against developer Tom McIntyre for his Peninsula Place project under construction. on State Street. McIntyre plans to fight the move even as the city itself challenges Power’s decision in the Michigan Court of Appeals – one of two Power rulings, the other stopping construction of FishPass, which will be brought in. appeal to a higher court in 2022.
City attorney Lauren Trible-Laucht confirms the city sent a cease and desist letter to McIntyre after Power’s November ruling in favor of community group Save Our Downtown, which argued in its lawsuit against the city ââthat all the characteristics of a building must be under 60 feet or call a public vote. The city has argued in vain that the heights of buildings have always been measured the same way, from level to the roof terrace, and that the formula never included parapets, bell towers, clock towers or other mechanical or architectural elements. In its ruling, Power acknowledged that some recently constructed buildings in Traverse City – like the new 4Front Credit Union headquarters on West Front Street – have roof features that extend above 60 feet, but said that he couldn’t apply his decision to those buildings since they were already finished.
Power ordered an injunction prohibiting Innovo from proceeding with construction plans on Hall Street, however, determining that the project was not far enough along to be grandfathered. John Lynch said he would effectively cut a floor or two from the project, or receive voters’ approval to proceed with the building as it was designed. Other major projects under construction were given a pass because they were “largely built,” according to Trible-Laucht, including the new Honor State Bank building on East Front Street and the Commongrounds development on Eighth Street. However, McIntyre’s Peninsula Place project – which like the rest of the listed projects is less than 60 feet as historically defined by the city but has roof features exceeding that height – was flagged after Power’s decision because it is still in the early stages of construction.
âThis one is really in the same category as Innovo, because there hasn’t been any substantial construction,â says Trible-Laucht. âThey had received a permit, but it was not substantially built. The city had to revoke their land use permits.
McIntyre says he believes city staff “made a big mistake” in their interpretation of Power’s order, adding that he is in the process of challenging the decision with the city. “We believe that (Trible-Laucht) made a mistake in his interpretation of the judge’s decision, and we spoke to him about it and will send a letter next week essentially preserving our rights under the original permit,” he said. “We think we can do it.” Construction crews inaugurated the five-story, 42-unit Peninsula Place project next to the Park Place hotel this summer, with the building’s foundation laying already underway, according to McIntyre.
McIntyre calls the cease and desist order an “unfortunate” development for the project, which has already seen several setbacks as a result of Proposition 3. After voters passed the amendment to the city’s charter in 2016 demanding a vote on all buildings over 60 feet, McIntyre sued the city to try to have Proposition 3 declared illegal in court. To prove his standing, or his right to sue, he also went through the new voting process required for his 100-foot Peninsula Place building project. Voters rejected those plans at the polls, and Power then ruled against McIntyre, upholding Proposition 3. Although McIntyre considered appealing to the Michigan Court of Appeals, he ultimately decided to redesign the building and go ahead with a development of just under 60 feet (photo, render) instead of 100 feet so the project can move forward.
McIntyre is currently exploring options with his legal team, including asking the city to reconsider its interpretation of Power’s decision, yet redesigning the building, or considering legal action, such as challenging the cease and desist order. forbear in court or seek to become an intervenor in the Save Our Downtown lawsuit in the Michigan Court of Appeals. City commissioners voted earlier this month to appeal Power’s ruling in the case, which Innovo is also appealing against. The appeal could take 18 to 24 months to proceed, Trible-Laucht believes. In the meantime, city staff are reviewing all incoming projects “in deference to the circuit court order,” Trible-Laucht said, meaning any proposed buildings that approach 60 feet will be needed. to keep all parts of the development below this height line. or go to a public vote. Trible-Laucht says city commissioners will also need to meet at some point to update the Proposal 3 implementation policy so that the new rules are clear to developers and the public.
The case is one of two major lawsuits the city has lost this year in the Thirteenth Circuit Circuit Court before Power over alleged Charter violations. The other case, filed by resident Rick Buckhalter with the assistance of attorney Jay Zelenock – who is also counsel for Save Our Downtown in the building height lawsuit – halted construction of FishPass at Union Street Dam. Power agreed with Buckhalter’s team’s arguments that the dam is a city park and therefore requires a public vote to be changed to out-of-park use, which the judge determined to be FishPass. The city countered that the dam is not officially a park and therefore not subject to the charter, and that even if it was, the planned FishPass improvements still constitute a use of the park and do not require public vote.
Trible-Laucht said the city and the co-defendant, the Great Lakes Fishery Commission, have filed briefs with the Court of Appeal and are now waiting for the plaintiff’s team to file their briefs. She says the higher court sent a request to lawyers in the case asking them to notify the court of any scheduling conflicts over the next six months, indicating that oral arguments in the FishPass appeal could be presented to the during the first half of 2022. Trible-Laucht asserts that all FishPass partners involved have remained “fully committed to the project”, although it is not clear how the costs and funding of the project will be affected depending on the time needed to the resolution of the case and the final decision of the Court of Appeal.
âThe city is doing everything it can in the meantime to maintain the dam as best it can,â said Trible-Laucht, highlighting the recent hiring of engineering consultant AECOM to monitor the Union Street dam. . âThe dam needs to be replaced. This is what must ultimately happen. Since we can’t do this right now, we’re doing everything we can do besides that. Safety is our number one concern.