TRAVERSE CITY — A developer planning a six-story building on Hall Street in Traverse City doesn’t have the vested right to build it, according to a 13th Circuit Court judge.

That’s because Innovo TC Hall LLC doesn’t have a building permit to construct the building, nor have the company or contractors done substantial work toward building it, Judge Thomas Power said Thursday. He cited case law establishing those as the standards for when an owner has a vested right to complete a building.

The developer acknowledged it applied for but not received a building permit, but argued in court filings that it has done substantial work pursuant to other permits.

But Power said the earth work the developer cited doesn’t count, according to past Michigan Court of Appeals rulings. One involved a project where demolition of an existing building, removal of underground storage tanks and earth work was already done, but courts ruled that ultimately wasn’t enough.

“So the preparation of this site, particularly through earth moving, is not sufficient to constitute substantial construction on the property,” Power said.

Citizens group Save Our Downtown asked Power to rule the company, which is owned by the same Kalamazoo-based developer behind nearby Breakwater Apartments, doesn’t have a vested right to construct a building taller than 60 feet. Such a ruling would settle any question over whether the developer can proceed regardless of the outcome of Save Our Downtown’s legal challenge, said Jay Zelenock, an attorney for the group.

At issue is whether Innovo TC Hall’s plans are for a building taller than 60 feet, thus triggering a citywide vote requirement that Save Our Downtown supported adding to Traverse City’s charter in 2016.

The group and city resident Albert Quick sued the city and its planning commission because they contend elevator shafts, stairwells and an atrium that climbs up to 76 feet should be included when measuring the building’s height, meaning it should go to a vote.

Both city and developer countered that city zoning rules define building height measure from the grade to the roof deck of a flat-roofed building like the one Innovo TC Hall plans, so the stairwells, elevator shafts and atrium don’t count.

While the city disagreed that the building should be considered taller than 60 feet, city Attorney Lauren Trible-Laucht said she agreed the developer has no vested right to build any building of any height for the same reasons Power cited.

John Lynch, an attorney for the developer, said Save Our Downtown’s motion was moot because the company isn’t planning a building taller than 60 feet in the first place.

“This is the determination not just by the city planning commission, but by municipalities all across the state of Michigan, and by architects and engineers and as a uniform standard for the way buildings are measured consistently across the state of Michigan,” he said.

He also questioned whether Save Our Downtown or Quick had standing to sue, as neither would be any more impacted by the building’s construction than anyone else.

Zelenock pointed to case law that voters have standing to sue to enforce the right to vote.

That issue, while legitimate, will have to wait, Power said. He suggested it be raised in a separate motion so all parties will have a chance to spell out their arguments in briefs.

Standing in zoning issues could be a high standard to meet, Power said, recounting a “horror story” of a Mayfield Township case where state appeals court judges ruled a next-door neighbor to a cellular communications tower had no right to sue to block its construction.

“That’s how crazy they’ve become, but this is not actually a zoning issue, explicitly,” he said. “The city charter is not a zoning statute, so I’m not sure that the ‘aggrieved party’ standard applies, but there is a lot of difficult law on the question of standing.”

Power also held off on ruling on Traverse City’s motion to throw out the suit, mainly on the argument that the building in question wouldn’t exceed 60 feet as city zoning defines it. That decision could come later in October.

Brenda Quick, an attorney for Save Our Downtown and plaintiff Albert Quick’s wife, said the argument comes back to the plain meaning of the charter amendment. Allowing exceptions could create a slippery slope where developers can claim they need to build this or that above the 60-foot limit, potentially creating fights over every building planned for the city.

“What we’ve asked the court from the very beginning is to help the city understand that 60 feet means from the ground to the very top of the building, whatever that may be,” he said.

Zelenock and Lynch disagreed over whether building codes require rooftop structures for stairwells, with Zelenock dismissing an affidavit the developer filed and Lynch defending it as well-researched.

Engineers and architects came up with a standard way to measure buildings that avoids inconsistencies of where to start and stop measuring, Lynch said. He pointed to several buildings in town where measuring from the “ground” could be done at more than one point.

Brenda Quick said after the hearing that she believes Power made the right call on whether Innovo TC Hall has a vested right.

Lynch declined to comment after the hearing. A message for Trible-Laucht wasn’t returned Thursday.

 

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