A ruling by Judge Philip Rodgers Monday morning that nixed a public vote on tall buildings paved the way for city commissioners to approve a special land use permit (SLUP) for the proposed nine-story River West project Monday night.
Rodgers denied a request by attorneys Grant Parsons and Brenda Quick to issue a temporary restraining order preventing the city from issuing a SLUP until a public election could be held on building heights. The attorneys had also asked Rodgers to validate referendum petitions that would put the issue to a public vote in March. The petitions were previously rejected by the city clerk’s office due to improper formatting.
Rodgers began his ruling by affirming the plaintiffs on multiple points, including the validity of the petitions. While petitions were initially “properly rejected” by the city for not having sworn affidavits attached, as required by city charter, petitioners corrected the error by submitting supplemental papers within the required 10 days, Rodgers determined. “The clerk was obligated to accept and certify (those papers),” he said.
The judge also ruled that the rights of residents to vote outweighed the city’s and developer’s interests in the case, provided the public had a lawful right to vote on the issue. It was that last tenet, however, that proved a sticking point for Rodgers, who determined that a referendum on zoning ordinance amendments is unlawful in Michigan.
“Michigan law does not allow (an election) in this narrow area of municipal legislation,” Rodgers said. The judge cited both Michigan case law and the state’s Zoning Enabling Act, which precludes municipalities and villages from holding referendums on zoning amendments. “The plaintiffs’ hope to delete buildings of a height greater than 60 feet from the zoning code at this time can be accomplished neither by initiative nor referendum,” Rodgers surmised, ruling out a public election on building heights in Traverse City.
“Accordingly, this court will not interfere in the timing of the commission’s legislative deliberations on the Pine Street SLUP application,” Rodgers concluded. (Read a complete transcript of Rodgers’ ruling here.)
Rodgers’ decision allowed city commissioners to proceed with a scheduled review Monday night of the SLUP request from developers Erik Falconer and Joe Sarafa to build two 96-foot buildings at the corner of Pine and Front streets. The board first took comment from residents during a public hearing, which drew over 60 commenters to the podium in a rough split of 60 percent opponents and 40 percent supporters.
After discussion returned to commissioners for deliberations, City Attorney Lauren Trible-Laucht advised the board to go through each of the twelve zoning conditions required for a SLUP and state the facts behind their support or opposition for each clearly for the public record. “I think we all know that no matter what the decision is, we’re going to go forward with some type of (court) challenge,” said Trible-Laucht, referring to the process by which commission decisions can be challenged in 13th Circuit Court.
A majority of commissioners concurred with planning staff’s findings that all twelve SLUP requirements were met, including consistency with the intended purpose of the zoning district, adequate public infrastructure to support the project and “harmonious” design with the surrounding neighborhood. Commissioners Gary Howe and Brian Haas both cited the neighboring 100-foot Riverview Terrace, planned adjacent mixed-used developments ranging from 60-80 feet and a proposed city parking deck across the street in support of their finding of neighborhood compatibility.
Commissioner Ross Richardson and Mayor Jim Carruthers, however, disagreed that all SLUP conditions were met, citing concerns ranging from Boardman River setbacks to traffic and parking issues to the potential altering of the “character” of downtown Traverse City. “Yes, times have changed, but our master plan does not support this development,” said Carruthers. “I can’t ignore what makes Traverse City – a town just under 15,000 people – such a great place to live, work and vacation. It’s our character and our atmosphere that makes this town so desirable…it’s not the tall buildings.”
After recessing to allow Trible-Laucht and City Clerk Benjamin Marentette to compile and summarize commissioners’ findings for the public record, the board voted at 12:45am to approve the SLUP by a 5-2 vote. Richardson and Carruthers opposed the motion.
Though a victory for developers, the SLUP decision is still likely to face legal hurdles. Quick said Monday she and Parsons were “considering all options" at their disposal, including an appeal in 13th Circuit Court. Richardson also cautioned Falconer and Sarafa that more challenges were likely to lie ahead.
“I’ve never seen a development that has this much opposition from the citizenry succeed and ever get built,” Richardson said. “So good luck.”