Michigan Supreme Court Denies Leave to Appeal Building Height Measurement

August 22, 2023

Michigan Supreme Court Denies Leave to Appeal Building Height Measurement

On August 22, 2023, the Michigan Supreme Court denied leave to appeal the Save Our Downtown vs. City of Traverse City/Innovo case. In a unanimous published decision, the Michigan Court of Appeals agreed with the City and Innovo’s arguments that the trial court erred by adopting plaintiffs’ interpretation of the charter amendment and by giving precedence to their interpretation over the method of measuring building height stated in the zoning ordinance. Today, the Michigan Supreme Court upheld this decision, which affirms the City’s longstanding method of measuring building height.

According to the Michigan Court of Appeals decision in October 2022, “…although plaintiffs alleged in their complaint that the charter amendment invalidated certain zoning ordinances, they insist that the aim of the charter amendment was not to amend the zoning ordinance. Nevertheless, the practical effect of plaintiffs’ argument is just that: amendment of the zoning ordinance’s method of measuring building height. However, to the extent that the charter amendment purported to change the zoning ordinance’s method of measuring the height of a building, the charter amendment would be invalid. An initiative that purports to enact or amend a zoning ordinance is invalid unless it complied with the procedural requirements found in the Michigan zoning
enabling act (MZEA), MCL 125.3101 et seq. See MCL 125.3202(1)”

The City developed an Implementation Policy when Charter 28 was amended in 2016. However, the City’s historical method of how it measures building height was not changed by the Charter amendment or the Implementation Policy. The purpose of the City of Traverse City Implementation Policy for Charter 28 Building Height Restriction is to establish a procedure for implementation of the above referenced Charter provision that may be relied upon by property owners, City administration, staff and the public to ensure consistency and predictability in the administration of approvals related to building height, as required by this provision.

City Attorney Lauren Trible-Laucht who argued the City’s case before the Michigan Court of Appeals, indicated, “We are pleased that the Michigan Supreme Court's decision to uphold the Michigan Court of Appeals ruling, and that the City’s interpretation on how the City Charter should be implemented and the City’s method on how buildings are measured has been confirmed.”

“It's great to hear that the City has found clarity on the building height issue and that the historical way of measuring buildings has been confirmed as provided in the zoning ordinance. This clarity is beneficial for the City, as it helps avoid any confusion or misunderstandings regarding building regulations and zoning laws,” stated City Planning Director Shawn Winter.