Two Lawsuits Could Shape Future of Recreational Marijuana, Building Heights
Two lawsuits against the city of Traverse City could have a material impact on the future of recreational marijuana and the height allowances for new buildings in the city. The ticker includes the latest updates on both cases, including recent rulings that could pave the way for the city to finally grant permits for recreational marijuana retail stores and potential development implications from a civil lawsuit against the city the way it could measure building heights.
Traverse City commissioners could soon vote to pass new rules regulating recreational marijuana retail stores that will allow such stores to finally work in Traverse City. The city had previously been prevented by the court from enacting any form of regulation on adult use, thanks to a pending lawsuit by multiple pharmacies over the first recreational marijuana plan drawn up by commissioners last year. That plan would have allowed four adult pharmacies to operate within city limits – a rule medical pharmacies argued would have ruined those who weren’t lucky enough to get one of the four recreational licenses.
Judge Thomas Power recently sided with the city on part of the lawsuit, saying the city had the right to limit the number of recreational permits it issued (pharmacies have announced they will appeal this decision). At another hearing on Monday, Power clarified that the rating section the city wanted to use to rate applications must be removed. The judge previously stated that some of the rating metrics the city wanted to use were exaggerated and had nothing to do with compliance with state law.
Mayor Pro Tem Amy Shamroe sits on an ad hoc committee of city commissioners who have been working on a new regulatory language and says the group is designing a new evaluation section that reflects feedback from Power.
“The impression was that some of our potential points were going too far and that was heard loud and clear,” says Shamroe. She notes that state law requires recreational permits to be distributed on a competitive basis, so some sort of rating rubric or metric is required, but says the committee has noted the sections that power has objected to and is in the process of doing so will be reflected in the new rubric. The ad hoc decision still determines how many retail permits should be allowed under the regulation, but Shamroe says it will likely be more than four: some committee members like 8-10 while others prefer a range of 15-16, says Shamroe.
One final consideration is where to do business. The ad hoc committee is considering using overlay districts – or a special type of building district that is superimposed on top of other building districts – to determine where in the city recreational businesses can be operated. Shamroe Notes stores must be located at least 300 meters from schools and meet other state and federal requirements, which can be a limiting factor in some areas. However, any existing medical pharmacies that “currently operate legally in the city” are located in areas that would also allow recreational shops, Shamroe says, allowing these locations to make recreational sales if owners get permission. The ad hoc committee hopes the proposed regulation can be submitted to city commissioners for approval before the November 2nd elections, which are expected to generate significant board sales. However, Shamroe says her top priority is to make sure the city has the “best quality product” in their ordinance and does not meet an artificial deadline imposed by the elections.
In another lawsuit against the city, the citizen group Save Our Downtown questions the dimensioning of the building height for new developments. Proposal 3, an amendment to the statutes passed in 2016, prohibits the construction of buildings over 18 meters in Traverse City without voter approval. Save Our Downtown believes a handful of new projects, including the new 4Front Credit Union headquarters on West Front Street and a proposed mixed-use development called The Godfrey on Hall Street (pictured), have been unfairly approved by the city because they have architectural features that go over 60 feet.
The city claims that building height was always measured the same – from the slope to the roof terrace – and that the formula never included parapets, towers, clock towers, or any other mechanical or architectural features. When the city passed an implementing directive for Proposal 3 in 2017, it stipulated that some architectural features on buildings could be more than 18 meters long and would not trigger a public vote. However, Save Our Downtown attorney Jay Zelenock argued in a recent Power hearing that it was “totally inconsistent” with the City Charter for any part of the building to go taller than 18 meters without a public vote. The “plain language” of Proposal 3 should be used to mean that the whole structure must stay below that threshold to avoid voting, Zelenock said.
City Attorney Lauren Trible-Laucht countered that “the way buildings are measured is consistent across all zoning zones,” noting that other buildings in the city – from the 101 North Park building to the new Honor Bank buildings on East Front Street – all of them have features that go over 60 feet. These parts of the building do not have habitable space, but usually contain mechanical or engineering features, some of which are required to meet building and safety regulations. Power asked if buildings could be designed to include some of these features, such as air conditioning, in the lower sections of the building to avoid exceeding 18 meters. The judge said this was an aspect he was likely to look at as the trial progressed.
At a recent hearing, Power made its first decision on the case, finding that Innovo – the development group that builds The Godfrey on Hall Street and had the right to intervene in the lawsuit – had no vested right to build the project. Innovo attempted to claim that since the group had already started earthworks on the site and applied for (but not yet received) a building permit, it had a right of ownership to the property. Power dismissed this argument, citing previous decisions by the Michigan Court of Appeal finding that the site preparation work was not “significant construction” on any property.
Further hearings on other aspects of the case are likely to take place later this month. The city has asked Power to dismiss the case, a motion the judge has implied that he is likely to reject but has not yet formally ruled. Determining whether Save Our Downtown and Citizen Albert Quick, a joint plaintiff in the case, have authority to sue the city could be another issue that will be raised in court. Save Our Downtown, meanwhile, is filing for an injunction prohibiting the city from approving any new building that is over 60 feet tall and “revoking any prior approval and / or approval to build a building over 60 feet high. The group also filed a motion asking the court to rule the case without trial.
If Save Our Downtown succeeds in its lawsuit, it is unclear how the development in Traverse City would play out. Both Trible-Laucht and Innovo attorney John Lynch argued that it is not clear how buildings should be measured, even with a “simple language approach” advocated by Save Our Downtown, since plots can be uneven and create different building heights depending on the measurement location can on the website. Measuring from slope to rooftop is a solution used by communities across Michigan and elsewhere to solve this consistency problem, Lynch said. Trible-Laucht agrees, telling The Ticker that the city is using its current system “so you don’t have to run to a judge every time the building is on a hill.”
Lynch argued that voters who supported Proposal 3 would likely have understood a 60-foot building to be a “six-story building,” not a four-story 60-foot building. Trible-Laucht says developments in boroughs where 60-foot buildings aren’t even allowed – like office service district C-1 with a maximum building height of 45 feet – must now vote if parts of the building are over 60 feet. “That would trigger an election even though it is in a district where the maximum height of a building is only 45 feet,” she says.
In addition, the city would either have to use two different methods of measuring the building height – one in the event of a potential election and one for all other projects – or consistently apply the same measuring method to all buildings. In the latter scenario, for example, buildings in boroughs with a maximum height of 30 or 45 feet would also have to change their design to avoid having features above the height maximum for that borough. This could effectively reduce the height of buildings across the city by at least one floor.
“If you are looking for a uniform dimensioning of a building, you will find it in the building regulations,” says Trible-Laucht. “There is absolutely no standard for how it is measured (in the lawsuit). Where do you start and where do you stop? It invites inconsistency. ”Attorney Brenda Quick, who also works on behalf of Save Our Downtown, reiterated in court Zelenock’s argument that a literal approach to measuring height is best, saying that height is with the“ ordinary and customary meaning should be interpreted as it would be understood by the electorate ”. . “