Traverse City News and Events

Judge Ruling Coming On Whether To Dismiss FishPass Lawsuit

By Beth Milligan | April 22, 2021

Judge Thomas Power is set to make a ruling soon on whether to dismiss a lawsuit that has temporarily ground one of the largest city projects in decades to a halt: the $19.3 million construction of FishPass at the Union Street Dam.

Power presided over a nearly three-hour virtual hearing Wednesday with attorneys for the City of Traverse City and the Great Lakes Fishery Commission – the city’s partner on FishPass and a co-defendant in the lawsuit – as well as resident Rick Buckhalter, who filed the lawsuit. Buckhalter is arguing that the Union Street Dam site is city parkland and thus cannot be “disposed” of without a vote of residents under the city charter. Though no property is changing hands – the city will continue to own the land, FishPass, and planned new amenities like ADA-compliant kayak/boat landings and riverwalk – Buckhalter contends that the major changes planned for the site constitute a disposal of parkland. In previous hearings, Power determined that Buckhalter had enough of a case to warrant issuing an injunction halting construction – previously slated to start January 18 – until the lawsuit is resolved.

The city has since filed a motion for summary disposition, asking Power to throw out the lawsuit without going to trial on the grounds that Buckhalter’s case is baseless. City Attorney Lauren Trible-Laucht argued Wednesday that the Union Street Dam property was never dedicated as city parkland. Accordingly, the site is not subject to the city charter provision requiring a vote when disposing of properties “dedicated” to park purposes, she said. Even if the property was dedicated parkland and subject to the charter, the city is not “disposing” of the site, Trible-Laucht said. Past courts have looked at issues like how the property will be used and whether public access is still maintained when gauging disposal.

“A change in use is allowed if the new use is a park use,” Trible-Laucht said, citing legal precedent. She said that the city has made major changes to other park properties before without a required public vote, such as Clinch Park evolving over the years from a dump to a zoo to a playscape and the Con Foster building changing from a museum to a shuttered facility to a movie theater. In the case of FishPass, the project calls for replacing one type of dam with another – the aging earthen Union Street Dam with a modern labyrinth weir – and one type of fish passage system with another, the former Union Street fish ladder with a new experimental fish-sorting channel. The primary use of the property, then, will still be a dam and fish passage system, along with amenities that provide for even greater public access to the property and river, Trible-Laucht said.

The city attorney acknowledged that some city residents may not be happy with the FishPass plans, but said that wasn’t a determining factor in triggering an election. Residents don’t have the ability to vote on every legislative decision made by the city commission, she said. “Not every change to a city-owned property is subject to a vote,” she said. “Disliking a project is not a trigger for a vote under the charter.”

Buckhalter countered that the city has 34 parks, many of which date back decades or even centuries, which can make it difficult to find paperwork proving each one was “dedicated” to being a park when the city first acquired the land. He questioned what might happen to other city parks if the city could suddenly claim such properties weren’t dedicated parkland.

“Dedication may just be by long-term use because you may not find a history,” he said. “Record keeping was just horrid (in the past).” If the public has used a property long-term as parkland, and the city has invested and maintained the site as parkland, it should be categorized accordingly, Buckhalter argued. He added that if the city is allowed to proceed with its major excavation and renovation plans at the Union Street Dam, it will “remove one of the most beautiful and heavily used parks in northern Michigan, at least by the fishermen.”

Power opted not to make a ruling Wednesday on the city’s request to dismiss the lawsuit, as the hearing had already stretched until nearly the end of the court day. He said he would review the arguments for all parties and set a follow-up hearing “at some point” soon to issue a decision. As part of his decision, Power will also consider the city’s “laches” argument that the timing of Buckhalter’s lawsuit should lead to its dismissal. Laches refers to an unreasonable delay in taking legal action that unfairly damages the other party. Trible-Laucht said Buckhalter waited “until the very last moment when shovels were ready to go into the ground (and) funding was secured” to file his lawsuit, with the construction delay caused by the litigation creating a “real potential to sink the project.” Scott Howard, representing the Great Lakes Fishery Commission, also spoke to the damage caused by the delay. “It is substantial, and it is a problem that this is all coming up at the last minute,” he said. Buckhalter noted that he had already been working on mounting a referendum to force a vote on FishPass when the construction start date was announced by the city last fall, prompting him to file the lawsuit.

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