Judge Ruling Coming On Whether To Dismiss FishPass Lawsuit
Judge Thomas Power will shortly decide whether to dismiss a lawsuit that has temporarily halted one of the largest urban projects in decades: the $ 19.3 million construction of FishPass on Union Street Dam.
Power hosted a nearly three-hour virtual hearing Wednesday with attorneys from Traverse City City and the Great Lakes Fisheries Commission – the city’s partner on FishPass and a co-defendant in the lawsuit – as well as Resident Rick Buckhalter, who filed the lawsuit. Buckhalter argues that the Union Street Dam site is urban parkland and therefore cannot be “disposed of” under city law without a vote by residents. Although no property changes hands – the city will continue to own the FishPass land and planned new amenities such as ADA-compliant kayak / boat landings and a riverwalk – Buckhalter claims the significant changes planned for the site represent a divestment of parkland. In previous hearings, Power noted that Buckhalter had enough cases to warrant issuing an injunction to halt construction – previously slated for Jan. 18 – pending settlement.
The city has since filed a motion summary motion asking Power to dismiss the lawsuit without going to court, considering Buckhalter’s case is unfounded. Prosecutor Lauren Trible-Laucht argued Wednesday that the Union Street Dam property was never designated as city parkland. Accordingly, the site is not subject to any city law provision that requires a vote if properties are “reserved” for parking, she said. Even if the property was parkland and chartered, the city is not “selling” the property, Trible-Laucht said. Previous courts have dealt with issues such as the use of the property and whether or not public access will continue to be maintained when measuring disposal.
“A change of use is permitted if the new use is a park use,” said Trible-Laucht, citing a precedent. She said the city had previously made major changes to other parks without requiring a public vote, such as Clinch Park, which has grown from a dump to a zoo to a play area over the years, and that Con Foster building that has changed from a museum to a closed facility into a cinema. In the case of FishPass, the project is to replace one type of dam with another – the aging earthenware Union Street Dam with a modern maze weir – and a fish passage system with another, the former Union Street fish ladder, with a new fish sorting canal experiment. So the main use of the property will continue to be a dam and fish passage system, along with amenities that will allow even better public access to the property and the river, Trible-Laucht said.
The city’s lawyer admitted that some city dwellers may not be happy with the FishPass plans, but said it wasn’t a determining factor in triggering an election. Residents would not have the opportunity to vote on every legislative decision made by the city commission, she said. “Not every change to a property in the city is subject to a vote,” she said. “Rejecting a project does not trigger a vote under the Charter.”
Buckhalter countered that the city has 34 parks, many of which are decades or even centuries ago, which can make it difficult to find records to prove that each park was “dedicated” when the city first acquired the land. He asked what could happen to other city parks if the city could suddenly claim that such properties are not parkland.
“Commitment can only be through long-term use because you may not find a story,” he said. “Keeping records was just terrible (in the past).” If the public has used a property as parkland over the long term and the city has invested and maintained the property as parkland, it should be categorized accordingly, argued Buckhalter. He added that if the city is allowed to carry out its major excavation and renovation plans on Union Street Dam, it will “remove one of the most beautiful and heavily used parks in northern Michigan, at least by fishermen.”
Power chose not to make a decision on the city’s motion to dismiss the lawsuit on Wednesday as the hearing had already lasted until nearly the end of the court day. He said he would review the arguments for all parties and renegotiate “sometime” to reach a decision soon. As part of his decision, Power will also consider the city’s argument that the timing of Buckhalter’s lawsuit should result in its dismissal. Laches refers to an unreasonable delay in taking legal action that wrongly harms the other party. Trible-Laucht said Buckhalter “waited until the very last moment when the shovels were ready to go into the ground (and) funding was secured” to file his lawsuit, with the construction delay caused by the lawsuit having “real potential.” to the downfall of the project “created. Scott Howard, representative of the Great Lakes Fisheries Commission, also spoke about the damage caused by the delay. “It’s significant and it’s a problem that this all comes up at the last minute,” he said. Buckhalter noted that he was already working on a referendum to force a vote on FishPass when the city announced construction would start last fall, prompting him to file the lawsuit.