A lawsuit filed against Traverse City over Proposal 3 could hinge on two key questions set to be answered in the coming weeks: What is the city’s plan for implementing the new charter amendment? And does developer Tom McIntyre – who is challenging the legality of requiring a public vote on buildings over 60 feet – have standing to sue the city?

Judge Thomas Power indicated at a Thirteenth Circuit Court hearing Tuesday both questions will need to be answered before McIntyre’s lawsuit can proceed. “I have an independent responsibility to question whether there’s a case or controversy,” Power said. “You can’t just wander into court and say, ‘I’m idly interested as an intellectual manner in the outcome of such-and-such an issue; here, you’re required to decide it.’” The judge said determining whether McIntyre has the right to sue the city would be an “important issue” to resolve early in the proceedings.

Attorneys for Save Our Downtown (SOD), the community group that helped get Proposal 3 on the ballot, argued Tuesday that the standing issue should result in the immediate dismissal of McIntyre's case. Since the developer hasn’t yet applied for a special land use permit (SLUP) from the city, there’s no official project to litigate, the group argued. Though McIntyre’s attorney, Thomas Grier, pointed to thick folders and architectural renderings he said represented “tens of thousands” of dollars in planning for a 100-foot building on State Street (pictured), SOD said the lack of a formal SLUP application meant McIntyre hasn't yet been deprived of anything and doesn't have grounds to file a lawsuit.

“There hasn’t been a request, let alone a denial,” SOD attorney Jay Zelenock said. “(The case) should be dismissed at this time.”

Power declined to dismiss the case, saying no official written motions have yet been filed requesting dismissal. He agreed, however, to grant SOD “friend of the court” status, which will allow the group to have a voice in the lawsuit going forward. SOD had argued Proposal 3 wouldn’t be properly defended by the city on its own, citing several comments from commissioners and staff opposing the charter amendment.

The case will next head to an April scheduling conference, at which time the question of McIntyre’s standing is likely to be addressed. Power said he would set the meeting for April in order to allow city officials enough time to finish a planning process on how best to implement Proposal 3. Ambiguity surrounding how the charter amendment works – including whether an election is triggered as soon as a SLUP application is submitted to the city, or if the project can go all the way to the city commission for review before final approval is put on hold pending an election – was cited as part of the basis of McIntyre’s lawsuit.

“It doesn’t make any sense for us to apply for a SLUP…because where does it go from there?” Grier said to Power, arguing that voters now have a “gatekeeping role” for development that makes it pointless to apply for permits until election issues are resolved.

Similar confusion from city staff over the timing of when elections are triggered prompted commissioners in December to instruct staff to come up with a proposed implementation policy and bring it to the board for approval. Based on Power’s desire to see the city's policy before ruling on McIntyre’s standing, City Planning Director Russ Soyring says staff met Wednesday to work toward meeting the April deadline.

“We hope to have something to the commission before the end of March,” he says. “Our goal is to get something (to which) the commission can say, ‘Yes, we agree we can work with these parameters and guidelines.’”