Judge Thomas Power will soon decide whether a developer can move ahead with a lawsuit against the city over Proposal 3 – and has asked the city to reconsider its decision not to use outside counsel in the case.

Attorneys for Traverse City, developer Tom McIntyre and citizen group Save Our Downtown (SOD) met for a scheduling hearing in Thirteenth Circuit Court Thursday to determine next steps in the case. McIntyre – who hopes to build a 100-foot residential complex called Peninsula Place at 326 East State Street – is challenging the city charter amendment requiring a public vote on buildings over 60 feet tall. His lawsuit seeks to have Proposal 3 declared illegal by the court.

SOD attorney Jay Zelenock argued Thursday that McIntrye’s case should be dismissed for lack of ripeness, meaning the case is too premature to be heard by the court because any harm to McIntyre is hypothetical at this point. Since courts are generally barred from providing advisory opinions or ruling on hypothetical scenarios, cases must be based on an actual timely dispute, or “controversy.”

Zelenock argued McIntyre’s project needs to be more fully fleshed out by going through the city’s new implementation process for Proposal 3 – which states projects should go through a planning commission review before going to a public election – before McIntyre can sue the city.

“I think that this is clearly not ripe until it gets through the planning commission stage, at least under the city’s implementation plan that they just developed,” Zelenock said.

But attorney Thomas Grier of Running, Wise & Ford – which represents McIntyre – disagreed, arguing his client’s case is “clearly ripe at this point.” Grier pointed to an “itemized list of costs exceeding $100,000” McIntyre and his partners have already invested into Peninsula Place, as well as a special land use permit (SLUP) application on file with the city. Both indicate there is a real project on the line that will be adversely affected by Proposal 3, Grier argued.

Grier also wrote in a brief to the court that McIntyre has a right to ask for a ruling on Proposal 3’s legality under the Michigan Court of Appeals case UAW v. Cent. Michigan Univ. Trustees. In that case, the Michigan Court of Appeals held that a controversy is present in a case if a policy “merely by existing" interferes with individual rights – even if that policy hasn’t yet been applied to a specific individual, Grier said.

Power said Thursday he hopes to see more evidence Peninsula Place is actually going forward and isn’t a theoretical project that might never come to fruition. He cited the oversupply of condominiums in the market, as well as other local developments that have changed or scaled back their plans, as causes for concern. He asked McIntyre’s legal team to provide financial and other documents to substantiate the seriousness of the project. “It raises the question, is this project going to happen?” Power said. “And do we need to have a ruling on whether a charter provision adopted by the public is valid or not, or do we have to be pretty darn convinced (first) that, ‘Yes, this is going to happen.’”

Power said he will soon issue an order scheduling a hearing date to determine whether McIntyre’s case is ripe and can proceed. That hearing is likely to come in the next several weeks. Attorneys for SOD expressed frustration to Power Thursday that because they’ve only been granted “friend of the court” status – and aren’t an actual party in the case – they can’t compel McIntyre’s team to release documents to them through discovery to prepare for the hearing. While McIntyre’s attorneys offered to cooperate with SOD in order to speed things along, Power also noted City Attorney Lauren Trible-Laucht should be doing the lion’s share of discovery and defending Proposal 3.

“It ought to be a core function of the city to defend the city charter,” Power said. Trible-Laucht responded that city commissioners had ordered her to “take a neutral position” in the case. When Power asked if that meant she had not been charged by the commission to defend Proposal 3, she replied: “Not in so many words, Your Honor.”

Power asked Trible-Laucht to go back to the city commission and once again discuss the possibility of hiring outside counsel, whom he suggested could more fairly handle the case. After the hearing, Trible-Laucht told The Ticker she will honor Power’s suggestion. “I will report back to the city commission on everything that happened here today, including (the possibility of) hiring outside counsel,” she said.