Judge Upholds Proposal 3
By Beth Milligan | June 27, 2019
A Thirteenth Circuit Court judge this week rejected a developer’s argument that Proposal 3 is illegal, upholding the Traverse City charter amendment requiring a public vote on buildings over 60 feet tall.
Judge Thomas Power dismissed the complaint of developer Tom McIntyre, who is trying to construct a 100-foot building called Peninsula Place next to the Park Place Hotel. McIntyre received city planning commission approval for his project and went to voters for approval in November, but his proposal was rejected at the polls. McIntyre then filed a lawsuit challenging the legality of Proposal 3 in Thirteenth Circuit Court, arguing that the charter amendment violates state law and unfairly deprives property owners of their rights. It was his second such lawsuit, with an earlier lawsuit dismissed because Power determined McIntyre brought it prematurely before he had gone through the city approval process.
Power once again ruled against McIntyre this week, this time dismissing the case on its merits. Power stated that because Proposal 3 is a charter amendment and not a zoning ordinance, the state’s Zoning Enabling Act does not apply. He also said McIntyre was not unfairly impacted by Proposal 3, noting that the charter amendment applies equally to all property owners in the city.
Members of the group Save Our Downtown, which helped pass Proposal 3 and legally intervened to defend it in court, celebrated Power’s decision. Attorney Jay Zelenock posted that it was a “great win for the rule of law and for local voters,” while Brenda Quick – another attorney associated with the group – sent a message to supporters saying she was “delighted” with the ruling and that she hoped McIntyre’s development group, 326 Land Company, would comply with the wishes of voters. “I have asked the attorney who represents 326 to ask his clients to reconsider and construct their new building within the 60 feet height allowed by right,” she said.
McIntyre could choose to either accept Power’s ruling and keep his building to a maximum of 60 feet, or appeal the ruling to a higher court. McIntyre has not yet stated which option he’ll pursue, but he and others – including legal experts as well as members of Save Our Downtown – have indicated Proposal 3 is likely to be challenged to the Michigan Court of Appeals and/or Supreme Court, whether through a lawsuit by McIntyre or another developer. “My reading of the tea leaves is that (scenario) is likely,” Zelenock previously told The Ticker.