Michigan Court of Appeals Overturns FishPass Decision

The Michigan Court of Appeals has overturned a Thirteenth Circuit Court decision regarding FishPass in downtown Traverse City. The court determined a public vote is not needed for construction on the $19.3 million FishPass project to proceed, rejecting a 2021 decision from Judge Thomas Power. Power had ruled in favor of Rick Buckhalter – a resident suing the city – agreeing with Buckhalter’s argument that installing a research facility at the park was a fundamental change in property use and would require a public vote to proceed under the city charter.

The Michigan Court of Appeals rejected that argument, ruling that "the property continues to be used for valid park purposes under the project. There will be no meaningful deviation in the usage of the property as a park such that a vote of the electorate is necessary to execute the project. Both the current use of the dam and its planned use under the project regulate lake levels, control flooding, and aim to control the passage of fish." 

The court continued: "Furthermore, the project is not limited to mere improvement of the dam and research purposes. As part of the project, the shoreline accessible to the public is to be increased approximately 500 feet, whereas the current shoreline is mostly hardened concrete and not as accessible. Similarly, the project will lead to an approximate increase in parkland of 66 percent. And more amenities and facilities are to be added. Therefore, the project will result in a net gain of parkland and more public use. The property will remain a park under the project."

According to the ruling, "engaging in environmental research concerning the habitat of species found in the area has a natural connection to the property’s purpose and use as a park. If parkland was used to conduct research wholly unrelated to the operation of the park, it might be arguable that the voting requirements of (the city charter) would be triggered. But that is plainly not the situation in this case. Furthermore, the trial court essentially ignored the planned improvements to the existing dam as well as to the park itself. In sum, the trial court erred by ruling that (the city charter provisions) require a vote of approval by the electors before the city can move forward with the project."

The Michigan Court of Appeals concluded its opinion by stating it was reversing Power's decision and entering an order "summarily dismissing (Buckhalter's) complaint." Having prevailed, the city is entitled to recover costs, according to the ruling. Buckhalter has 42 days to file an appeal to the Michigan Supreme Court.

Pictured: The Union Street Dam site prior to FishPass construction (left); rendering of site with FishPass built (right)