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December 24, 2013

Judge dismisses Division Street part of case

TRAVERSE CITY — A judge ruled he would not decide on the validity of a 2012 vote that allowed city commissioners to dispose of parkland around Division Street, but he delayed a decision on another park-related matter.

Thirteenth Circuit Judge Thomas Power ruled Monday that a portion of a lawsuit filed by former Traverse City Mayor Fred Nelson and his attorney, Grant Parsons, was not entered in timely fashion. Power said a motion to challenge the parkland election vote needed to be filed within 30 days of that voter-approved 2012 ballot measure.

Nelson filed suit against the city in October and challenged how the city disposes of parkland, an action that came on the heels of the city’s decision to allow Traverse City Film Festival officials to use a portion of Clinch Park for the fledgling Bijou by the Bay movie theater.

Another part of the suit revolved around whether the Division Street vote, which city officials said passed with a 59 percent majority, violated a city rule that disposal of park lands requires a 60 percent majority.

“I’m not ruling whether the three-fifths vote is still required or not, because we won’t get to that because it wasn’t filed within 30 days,” Power said.

Parsons argued that the city’s Board of Canvassers made an error in declaring the issue approved. He also said Traverse City Mayor Michael Estes misled the public because he said the ballot did not authorize commissioners to dispose of land, which it did.

Lawyers for the city argued that a simple majority was required to pass the measure because city law mirrored state law, which changed from 60 to 50 percent in 1966, Power said.

“The city is basically saying that instead of deciding the issue, they’re going to get out on a technicality,” Parsons said. “I think the city is doing everything it can to avoid taking a real position on the parkland issue.”

Nelson’s case also asks whether commissioners were allowed to give Film Festival officials the right to manage the Con Foster building at Clinch Park for the next 10 years without seeking public permission with a vote.

Power said he did not have time to rule on the Con Foster building issue on Monday. He said he planned to resume the hearing after the Christmas holiday.

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