Traverse City Mayor Jim Carruthers wants to change the city’s zoning code to reflect voting requirements for tall building projects – a proposal that could face an uphill battle with fellow commissioners.

Carruthers requested that the commission discuss at a study session tonight (Monday) changing the city’s zoning ordinance to mirror the city’s charter, which was recently amended by voters to require that all building projects over 60 feet tall go to a public vote for approval. Carruthers is suggesting updating the special land use permit (SLUP) section of the zoning code to explain “that if taller building SLUPs are to be approved by the city commission, such request must be placed on a ballot for consideration by the electorate before approval is made by said commission.”

Carruthers says having the zoning code match the city charter will help “reflect the will of the electorate” across both documents. “These amendments are only meant to clarify the zoning ordinance as identified by the citizens of Traverse City through the successful voter referendum known as Proposal 3,” Carruthers wrote in a memo to city staff. “I support this request based on cleaning up our zoning ordinance language so it better reflects the will of the Traverse City citizens Proposal 3 city referendum vote in (2016).”

But at least three other commissioners expressed concerns about the proposal to The Ticker, noting the zoning code is a different legal document than the city charter and is guided by specific regulations through the Michigan Zoning Enabling Act (MZEA). That state law outlines rules regarding SLUPs, including the stipulation that such permits can only be reviewed and approved by a zoning commission, planning commission, legislative body, or “official charged with administering the zoning ordinance.” The electorate or a public voting body is not one of the listed parties that can approve SLUPs. Adding public voting approval to the SLUP section of Traverse City’s zoning code would thus run afoul of state law, Commissioner Brian Haas believes.

“One only has to open up the MZEA to see it says explicitly who can and cannot approve a SLUP,” says Haas. “It does not list a popular vote of the people. One can speculate why that is, but one reason is…you have to have a legal basis for making any zoning decision.”

Haas says that the MZEA requires city commissions or other bodies approving SLUPs to follow set criteria when making those decisions. If an applicant meets the criteria, a permit must be approved. But voters would not have to use zoning criteria or provide a reason for their approval or disapproval of tall buildings at the ballot, Haas says, another reason the city’s zoning code would conflict with the MZEA if amended.

The potential legal conflicts posed by amending the city’s zoning ordinance is one of the reasons Proposal 3 supporters originally sought to change the city’s charter instead. Commissioner Michele Howard points to campaign materials distributed by Save Our Downtown, a community group that helped get Proposal 3 on the ballot. “This is a legal amendment to our city charter,” the campaign material reads. “It is not zoning. If the law passes, no zoning law needs to be amended or repealed. City Prop 3 does not conflict with any state law.”

“When I’m looking at what the mayor is asking us,” says Howard, “I’m just wondering if people voted for this proposal and it says no zoning changes were required, why would we bother to go ahead and change the zoning? Hopefully Mayor Carruthers will be able to answer that on Monday night.”

Commissioner Amy Shamroe expresses a similar desire for more information. “Proposal 3 is part of the charter, and we have added in steps as part of our process for how we abide by what’s in the charter,” she says. “But I’ll be curious to hear what the (city) attorney has to say about it in regards to the MZEA...because by the state of Michigan law, we’re not allowed to zone by vote. It has to be done through an approved system involving planning and everyone else.”

A confidential memo from Acting City Attorney Karrie Zeits was distributed to commissioners regarding the zoning code proposal. Because the memo is attorney-client privileged, commissioners declined to discuss its contents. The board could vote tonight to go into closed session to discuss the memo in more detail with Zeits, and could also elect to make the memo public in the future. Haas, noting the city is already facing a lawsuit from developer Tom McIntytre over the Proposal 3 charter amendment, expresses concerns that additionally changing the zoning code would expose the city to further lawsuits. “It potentially opens up a whole other level of litigation,” he says.

Because tonight’s meeting is a study session, commissioners will not take action or vote on the proposal to change the zoning code. If enough commissioners support the concept, it will be placed on a regular commission agenda at a future meeting for further review and potential action.

Pictured: Conceptual rendering of Tom McIntyre's proposed Peninsula Place project next to the Park Place Hotel. The building could be one of the first projects to go to a public vote under Proposal 3. Photo credit: J. Scott Smith Visual Designs, Inc.