The City Vs. The Voters

May 6, 2017

Does City Hall work for residents or for developers?      

Last year, Traverse City residents petitioned for the right to vote on buildings over 60 feet high. City Hall fought that petition with everything it had – and arguably crossed ethical lines.

Despite Michigan Campaign Finance Act prohibitions, the City Housing Commission adopted an official resolution opposing Prop 3. The city attorney proclaimed Prop 3 was illegal. Some – not all – city commissioners used their public office to voice their opposition. Personnel at the DDA, a city agency, campaigned against Prop 3.

Perhaps there was wiggle-room in campaign ethics laws for City Hall’s electioneering. No one filed a complaint, so we’ll never know for certain.

But then Prop 3 passed; the result was clear as a bell; wiggle-room disappeared. When voters say “yes”, the public servants at City Hall are duty-bound to abide by it. That’s what the term “public servant” means.

What does a democratic election mean in Traverse City? Are election results “optional,” like a bathing suit or a tie? 

The question of ethics was drawn into sharper focus after the election, when a developer – 326 Land Company LLC – announced it would sue the city and challenge Prop 3. The 326 developers want to build a 100 foot-high development on the edge of Boardman neighborhood, and they don’t want residents to vote on it. 

One might ask why a developer is so afraid of a public vote even before plans are disclosed. Is the development so bad they know in advance the public will not like it? That’s either a) damn paranoid or b) damn smart.  

At any rate, 326 developers did what has become de rigeur in beautiful small towns and villages across the United States: The developer sued Traverse City to avoid Prop 3.

As a founding member of the Prop 3 campaign and as a pro bono attorney for Prop 3 supporters, I helped draft a Freedom of Information Act (FOIA) request to find out what the developer and the city are up to. 

The FOIA uncovered the fact that City Hall is working hand-in-hand with the developer. City Hall didn’t just help the developer review plans; city officials helped the developer draft a lawsuit against the city! I hate exclamation marks, but this situation’s a rule-buster. These are excerpts of emails between the developer and city staff:

* * * * *

(Dear City Dept. Head]

Thank you for all of your assistance Tuesday afternoon with the zoning and planning background of the city. Very helpful. Attached is the draft Complaint we spoke about. I have hi-lighted in yellow those portions of the draft Complaint that address, in particular, the zoning and planning background and would certainly appreciate any thoughts or comments with respective to accuracy, completeness, etc.  Thanks again.

[Sincerely, 326 Developer Attorney]

* * * * *

[Dear 326 Developer Attorney]

I reviewed the text and the statements appear mostly accurate based on the information we have in the City Planning Department with the exception of the Park Place tower being reflective of the 1943 Zoning Code and the 1977 City Plan suggests buildings up to 8 stories not 10 stories. Also, on line 29, page 7, the document states a SLUP application has been submitted. No such application has been received by the City Planning Department for a taller building at 326 East State Street as of this date. The Planning Department has reviewed early concept plans for a taller building and we have discussed with the architect and builder the SLUP standards that would apply for the building shown on the concept drawings.

[Sincerely, City Dept. Head]

* * * * *

[Dear Dept. Head]

Thanks for your comments. I have made corresponding corrections within the draft.  Thanks again for all of the assistance.

[Sincerely, 326 Developer Attorney]

                           * * * * *

Days later, the 326 developer filed suit against the city using the complaint edited by city officials. This lawsuit may cost Traverse City an estimated $30,000 in legal fees and $1 million or more in liability.

Then City Hall put a cherry on top of its betrayal of residents. City Hall, like every defendant in a lawsuit, must file a court statement listing its defenses. Remarkably, the city filed a statement saying “none”; that is, the city waived all legal defenses to the 326 complaint. 

If a private person’s lawyer did what the city’s legal counsel did, it would be legal malpractice.

City Hall can disagree with resident factions; that is fair, that is politics. But what City Hall cannot do is abdicate its institutional role. City Hall is bound by election results. It has a duty to advocate for residents if sued. 

Let’s be frank. The tall buildings controversy has gone on too long. The Prop 3 vote should have ended the controversy. But since Prop 3 won, four city commissioners and some city staff have acted like the South lamenting the Civil War. They can’t accept it.   

Traverse City is being damaged by commissioners and staff who are still fighting Prop 3. If there’s any hope to regain a cooperative, efficient civic spirit, something must change. 

The change that is needed will become obvious if City Hall answers two questions: 1) Who authorized staff to help the 326 developer draft the complaint against the City? 2) Who authorized the city’s counsel to waive its legal defenses?

Grant Parsons is a trial attorney, a native of Traverse City, with a keen interest in local politics, especially land use. He served as a pro bono advisor to Traverse City’s Proposal 3 proponents.