Traverse City to appeal FishPass ruling
May 18—TRAVERSE CITY — Michigan Court of Appeals judges will consider a 13th Circuit Court ruling concerning FishPass and whether Traverse City must put the project to a public vote.
The Michigan Municipal League could help through its legal defense fund, and possibly by filing an amicus brief supporting the city's position, city Attorney Lauren Trible-Laucht said. Commissioners unanimously approved both the appeal and seeking that help Monday.
It came a week after city leaders met with Trible-Laucht in closed session to discuss the suit, and just over two weeks after 13th Circuit Court Judge Thomas Power ruled against the city and in favor of city resident Rick Buckhalter.
He challenged the city's right to approve FishPass, a planned fish-sorting system and channel and labyrinth weir planned to replace the Union Street Dam.
Power agreed the 400-foot-long fish-sorting channel planned as part of a replacement to the Union Street Dam doesn't serve a parkland purpose, and he rejected the city's arguments that Union Street Dam Park isn't a park. That would mean FishPass couldn't go forward without a citywide vote.
Like many cases that start and end in a circuit court, the lawsuit is appealable by right, so Michigan Court of Appeals judges must consider it as long as it's properly filed, according to a state-issued court rules explainer.
Marc Gaden, Great Lakes Fishery Commission communications director, said in a statement that the agency will join the city in its lawsuit, with the city to take the lead.
The agency in April joined the lawsuit as a co-defendant, as previously reported.
Attempts to reach Buckhalter after Monday's meeting were unsuccessful. He previously questioned on what grounds the city would appeal, as he saw Power's decision as thoroughly supported. Nor did he think MML's support would make much difference, if the organization opted to join at all.
Construction of the roughly $20 million structure has been on hold since mid-January. It was intended to replace the aging dam with a weir and channel that would be used to research technologies and techniques to let desirable migratory species upstream but keep invasive species out.
Commissioners voted Monday after little discussion, but they mentioned it in passing during other agenda items. Traverse Area Community Rowing has an equipment storage area in Hull Park, and before approving its expansion and a new five-year use agreement, Commissioner Tim Werner noted the request was being approved without any public outcry.
Power in his ruling cited lack of public access to the fish-sorting channel as part of his reasoning.
Mayor Pro Tem Amy Shamroe referenced hearing criticism that FishPass was planned with no public knowledge, despite attending a public planning meeting for it herself. She said as much before commissioners agreed to request proposals to develop public parking Lot O as a mixed-use building at State and Cass streets.
It's one of four under consideration for similar redevelopment, including Lot T — next to another city lot that hosts the Sara Hardy Farmers Market.
Mayor Jim Carruthers said it's possible the city could face a similar legal challenge if commissioners did eventually decide to move forward with redeveloping Lot T. And Commissioner Brian McGillivary said he wants to work with the Michigan Economic Development Corporation to find public feedback on the lot's future.
Shamroe said she supports the idea, but referenced Carruthers' remark on a lack of public input during a hearing for the city's proposed July-through-June budget.
"While I'm all for public engagement and I want to see the process and I want to work on it, I think that we need to also be very mindful of the fact that, much as was discussed before, you can lead a horse to water but you can't make it drink, that that is always going to be an issue," Shamroe said.
