Following Tuesday’s passing of Proposition 3 – an amendment to Traverse City’s charter requiring a public vote on buildings over 60 feet – city staff and commissioners are wrestling with how to implement the new policy and whether to legally challenge the amendment.

Voters approved Prop 3 by a margin of 4,521 in favor to 4,012 against – a difference of 509 votes. The charter amendment states: “It is hereby declared that buildings over 60 feet in height are generally inconsistent with the residential and historical character of Traverse City. Therefore, any proposal for construction of a building with a height above 60 feet shall not be approved by the city or city commission until after the proposal is submitted to and approved by a majority of the city electors at a regular election, or at a special election."

City officials say Prop 3’s language does not outline a specific process for placing buildings on the ballot or otherwise detail how the policy should be implemented. Under the city’s traditional zoning process, buildings over 60 feet must obtain a special land use permit (SLUP) – going first to city staff for review, then the city planning commission, and finally the city commission. With Prop 3's requirement that a public vote occur on a building before any type of approval is granted by city staff or commissioners, officials say they’re uncertain what constitutes approval and when an election is triggered. Is it during staff review? At the planning or commission level? Is a SLUP the only type of permit that triggers an election, or would any building or construction permit require voter approval?

(As an example: Munson Medical Center has a SLUP for a 110-foot new building, and Great Lakes Central Properties has a SLUP for a 68-foot building at 124 West Front Street. Neither project has yet started construction. Even though the buildings received SLUPs before Prop 3 was passed, city staff express concerns both projects will be subjected to a vote once additional permits for those developments come up for city review.)

Confusion around the charter language has also raised questions over whether staff can first review buildings to determine if they qualify for a SLUP before placing them on the ballot, or if projects have to go immediately to voters, even if they might ultimately be illegal or ineligible for a SLUP. Officials are also uncertain whether 60-foot-plus building applications will now go first to the city planning department, which oversees zoning and development, or the city clerk’s office, which oversees ballot proposals.

“There are a number of questions like this that are lingering and we’re working to resolve,” says City Clerk Benjamin Marentette. “To be really frank, we don’t know exactly how it would be implemented. We’ll be conferring with the city attorney on how to proceed.”

Other outstanding questions include how building height will be measured, and what criteria voters will use to decide whether to approve projects. On the issue of building height, City Planning Director Russ Soyring notes some city buildings could be 45 feet tall, but have mechanical or architectural features that put them over 60 feet. While the city’s zoning ordinance describes methods for measuring height in such situations, the zoning ordinance is inapplicable to Prop 3, which is part of the city's charter. “Because it’s not part of the zoning code, we can’t look to the zoning code (for how to measure height),” Soyring says.

As for voting criteria, while staff and commissioners must go through an extensive checklist of SLUP standards when reviewing taller buildings, those standards won't appear on a ballot proposal for voters to review, say officials. Staff express concerns that without objective criteria in place for evaluating buildings, project votes could become “popularity contests" and open the door to discrimination against developers based on race, sexual orientation, gender, religion or other personal factors unrelated to project specs.

“That’s exactly why we have zoning rules dictated by local and state law,” says Commissioner Brian Haas. “It’s our job as a city to protect the rights of everyone, to make sure all people and properties are treated equally under the law.”

Commissioner Ross Richardson, who supported Prop 3, says he believes fellow commissioners and staff are “way, way overcomplicating” the new charter amendment. “I would think on technical questions like (building height), you would defer to the process that’s in place,” he says. “I’m not a lawyer…but the common sense path is simply that voters have established a height limitation for new construction, and if someone wants to build taller than 60 feet, it goes to a public vote.” Richardson says Prop 3’s passing offers an “important opportunity for people to express their opinions” about city development.

Commissioner Amy Shamroe, however, disagrees Prop 3 will be straightforward or easy to enforce. "It offers no road map or protocols...and it's (a process) that doesn't exist anywhere else in the state," she says. "It leaves a lot of decisions up in the air that would normally come from zoning and planning, and puts a question mark next to who handles those." Shamroe says she also has a "a big question of whether (Prop 3) is even legal" – a sentiment echoed by Haas.

Due to the number of staff questions surrounding implementing Prop 3, as well as commissioners' concerns over its legality, City Attorney Lauren Trible-Laucht says she plans to soon send a memo to the board addressing the amendment. "Usually if there is a proposal to amend the charter, these kinds of contigencies are vetted in advance," she says. "There are a lot of moving pieces to this and things that could happen that are unanticipated...we will start to explore those to move forward." Trible-Laucht acknowledges one of the issues that could be addressed in her memo is whether or not city commissioners should consider challenging the legality of Prop 3.

Shamroe believes the city may ultimately have to consider going down that road. "I don’t see how we will be able to untangle it in a way that’s legal and binding, and that won’t get us sued by a developer or another group, without taking some of those legal steps," she says.