Traverse City Record-Eagle

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November 10, 2012

City vote on park land challenged

Measure may have fallen just short of 60 percent needed

TRAVERSE CITY — The city vote to give up park land for the widening of Division Street may prompt a legal challenge over the validity of the city charter.

The measure authorizing the city commission to part with the land passed with just short of 59 percent of the vote. The city charter requires three-fifths, or 60 percent voter approval. City attorney Lauren Trible-Laucht ruled that particular city charter provision hasn't been valid since 1968.

Local attorney Grant Parsons, however, disagrees and said he plans to challenge the city's interpretation.

"That section of the charter is an important deal. If they can get rid of stuff willy nilly that's real bad stuff," Parsons said. "I think its crummy to let something sit in the charter for 44 years and let people think this is the law of the city and then when it's not convenient, say it's not applicable."

Parson's doesn't live in the city but has been active in parkland issues since the mid 1980s. The simple majority or three-fifths question hasn't been an issue in other elections because city voters either overwhelmingly approved the sale of tiny chunks of park land or overwhelmingly denied the sale of larger tracts.

The city commission seeks to give away a six-block long, 30-foot wide strip of parkland on Division Street to the Michigan Department of Transportation for a potential redesign of the state highway to improve safety. City officials maintain MDOT won't invest money in a redesign without first receiving voter approval to use park land to widen the road.

Prior to the election, Trible-Laucht cited a 1968 Michigan Supreme Court decision that found a legislative change to Michigan's Home Rule Cities Act automatically changed the three-fifths rule for bond elections in city charters. The case, City of Lansing vs. Board of Canvassers, involved a bond proposal passed by voters that didn't meet the 60 percent requirement in the city charter. Trible-Laucht said the ruling also applies to the sale of park land because both come under the same section of the home rule cities act.

"Therefore under City of Lansing it is clear that a simple majority is required for passage of the Division Street ballot proposal, not a three-fifths majority," she wrote in a memo dated Oct. 11.

City manager Ben Bifoss said he won't be surprised if someone challenges the city's determination but remains confident in Trible-Laucht's interpretation.

"It's pretty well established case law," he said.

But Parsons said the case law isn't applicable because it deals specifically with a bond sale.

The attorney said he expects to seek a declarative ruling from the courts but said there may be other options. It will be several weeks before he takes any formal action, he said.

"Then we'll finally know, once and for all," he said.

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