Traverse City commissioners voted 6-1 Monday to seek outside counsel for a pending lawsuit against the city over Proposal 3 - though most expressed unhappiness with their decision to do so.

Commissioners went into closed session for more than an hour to discuss the lawsuit with City Attorney Lauren Trible-Laucht before coming back into public session to vote on the motion. The discussion was prompted by a court hearing last week regarding developer Tom McIntyre's lawsuit against the city over Proposal 3 - the charter amendment requiring a public vote on buildings over 60 feet tall - in which Judge Thomas Power questioned the city's decision to take a neutral stance in the case. “It ought to be a core function of the city to defend the city charter," Power said. The judge asked Trible-Laucht to go back to the city commission and discuss again the possibility of using outside counsel in the case, which he implied could better defend the charter amendment. 

After discussing the case in closed session, Commissoner Richard Lewis spoke on behalf of commissoners in public Monday, summarizing the board's discussion and motion. Lewis explained that the city had originally encouraged the court to allow citizen group and Proposal 3 advocate Save Our Downtown to intervene so that a fair decision could be reached in the case. The city decided early on not to pursue its own court ruling on Proposal 3 and to focus instead on an implementation policy for the amendment for the same reason, Lewis said, adding that commissioners "just want a decision" on whether Proposal 3 is legal so the city can put the issue to bed.

"It appears the circuit court judge in this case has an issue with the city's position, and that has caused a problem with our city attorney, whereby it may appear or appears that we are biased in how we want this to be, which we aren't," Lewis continued. "We strongly feel we have tried to act in as good of fatih as we can...but the perception out there is we are trying to maneuver or we are trying to as a city have a different outcome. That is about as far from the truth as you can get. All we want is a final decision."

Noting that public "perception can become reality," Lewis said commissioners felt Trible-Laucht was "caught in the crosshairs" and would seek outside counsel in the case to remove her from a compromised role. "I'm not thrilled with that idea, because that's about $20,000 to $30,000 that potentially will have to be spent," Lewis said. "But if that helps to alleviate the perception that the city has anything other than our goal of getting to a bottom-line outcome...then I think we need to move forward in getting that outside counsel."

Commissioners Gary Howe, Amy Shamroe and Brian Haas echoed Lewis' sentiments, expressing support for Trible-Laucht's work and relutance to spend tens of thousands of dollars in city funds to retain outside counsel. "I'd like to reiterate my thanks to staff for all the work you've done the past several months," Haas said. "You've been in a difficult position this whole time. I'll be supporting this (motion). I think it's necessary at this point...I think it's for the best of the city."

Commissioner Tim Werner voted against the motion. "We as a body are seeking clarity from the courts, and I don't feel that an expenditure of $20,000 to $30,000 in the long run has any sway on the bright individuals that serve in our judicial system," he said.

The commission's 6-1 approval of the motion included the stipulation that outside counsel preferably not be local and that the firm has expertise in municipal goverment as well as zoning laws and is experienced in representing clients in court on both matters. City staff will return to the commission at an upcoming meeting with a recommended contact to approve. A final vote on a contract with an outside firm will require at least five affirmative votes from commissoners to move forward.