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Developers File Appeal In Tall Building Case

April 23, 2016
Developers File Appeal In Tall Building Case

The developers behind two proposed nine-story buildings on Pine Street are appealing a recent decision by Judge Philip Rodgers to vacate a special land use permit (SLUP) for the project.

Attorneys representing Erik Falconer and Joe Sarafa filed the appeal late Thursday with the Michigan Court of Appeals. The legal team is seeking immediate consideration of the case by the court, and has also requested a peremptory reversal. That motion argues that Rodgers’ decision contains errors “so manifest” that the appeals court should overturn the ruling without considering a response from opposing attorneys.

Rodgers vacated the River West project’s SLUP on March 31 and remanded it back to city commissioners for further review. The judge agreed with arguments made by attorney Grant Parsons – representing Traverse City resident Priscilla Townsend and the Northern Michigan Environmental Action Council (NMEAC) – that city commissioners failed to properly analyze the project’s impact on city services and infrastructure, as well as its use of “extensive public subsidies on the backs of local taxpayers.”

City commissioners, while debating whether to appeal the ruling last week, questioned whether Rodgers’ criteria matched zoning requirements for a SLUP. City Attorney Lauren Trible-Laucht told commissioners she believed “the city has a good chance of prevailing on appeal.” However, the commission’s 4-3 vote to pursue an appeal fell one vote shy of the five votes required to take action.

In a written statement to The Ticker Friday, Falconer and Sarafa said that “since the commission has elected not to appeal, we are compelled to take on that responsibility.”

“We strongly believe that the positive merits of the River West development were fully considered by the city commission, and that the comprehensive findings of the elected commissioners should be upheld,” the developers wrote. “In order to bring clarity to issues so important to this project and future city developments, an appeal is necessary.”

In appeal documents filed to the court, attorneys Jonathan Moothart, Joseph Quandt and James Scales argued that Townsend and NMEAC did not have proper standing to challenge the city commission’s SLUP decision. Parties cannot appeal zoning decisions unless their legally protected interests are at risk, and unless they suffer damages “not common to other property owners or the public at large.”

Townsend’s claims that the project would impact the quality of light, air and views at her neighboring Riverview Terrace residence aren’t legally protected interests under Michigan law, the attorneys argued. Additionally, claims from Townsend and NMEAC that the development would impact neighborhood character and the surrounding environment – even if true – would not be particular to them, attorneys wrote. Because Townsend and NMEAC didn’t have legal grounds to appeal the SLUP, attorneys said the challenge should be dismissed “with prejudice” by the court – meaning it could not be litigated again.

The appeal documents also defend city commissioners' "substantial" review of SLUP requirements, and state that Rodgers improperly focused on the financial impact of the entire project on city services, rather than the 36 extra feet of height developers sought as a "special use." Attorneys also allege that Rodgers conflated brownfield and tax increment financing (TIF) subsidies with infrastructure costs, and improperly opened the door to city elections on projects that use those funding sources in the future.

Parsons told The Ticker Friday his office had received copies of the appeal documents, and that his team was prepared to fight the case.

“We have retained appellate counsel,” says Parsons. “I think it’s crazy that the city didn’t think it’s a big enough decision to appeal, but the intervening party says they have to have an immediate decision now. We’ll know more once we have a chance to review it, but we're ready to defend Judge Rodgers' decision. We don't think this is a valid appeal."


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