Save Our Downtown v. City of Traverse City

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
SAVE OUR DOWNTOWN and ALBERT T. FOR PUBLICATION
QUICK, October 13, 2022
9:00 a.m.
Plaintiffs-Appellees,
v No. 359536
Grand Traverse Circuit Court
CITY OF TRAVERSE CITY, LC No. 21-035862-AW
Defendant-Appellant,
and
TRAVERSE CITY PLANNING COMMISSION and
TRAVERSE CITY CITY COMMISSION,
Defendants,
and
INNOVO TC HALL, LLC,
Intervening Defendant-Appellant.
Before: MARKEY, P.J., and SAWYER and BOONSTRA, JJ.
BOONSTRA, J.
Defendants Traverse City (the city) and Innovo TC Hall, LLC (Innovo) appeal by right the
trial court’s order granting summary disposition under MCR 2.116(I)(2) in favor of plaintiffs Save
Our Downtown (SOD) and Albert T. Quick (Quick). The order also denied the city’s and Innovo’s
motions for summary disposition under MCR 2.116(C)(8) and MCR 2.116(C)(10) and granted
declaratory and injunctive relief to plaintiffs. We affirm the trial court’s grant of summary
disposition under MCR 2.116(I)(2) in favor of plaintiffs but reverse the trial court’s grant of
declaratory and injunctive relief.
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I. PERTINENT FACTS AND PROCEDURAL HISTORY
This appeal arises out of a dispute about the effect of a 2016 voter-enacted initiative that
amended Traverse City Charter, § 28. The amendment required city planning officials to obtain
the approval of a majority of the city’s voters through a regular or special election before giving
final approval to any proposed construction of a building over 60-feet tall. The dispute arose when
city officials gave final approval to a site proposal from Innovo, without first obtaining the
approval of the voters.
The city is organized under The Home Rule City Act (HRCA), MCL 117.1 et seq., and is
governed by a city charter. In 2016, city electors approved Proposition 3, a voter-enacted ballot
initiative that resulted in the following amendment to Traverse City Charter, § 28 (the charter
amendment):
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.
In February 2021, the city’s planning commission sought input from the city attorney about
a site plan proposed by Innovo. Specifically, the commission asked whether it could approve a
building when parts of that building exceeded 60 feet in height. The city attorney replied in a
memorandum that the implementation policy for the charter amendment stated that “building
height will be measured using the methods in the [zoning ordinance].” The city attorney quoted
the ordinance’s definition of “height of a building” as “the vertical distance from the grade to the
highest point on a . . . flat roof . . . .” Acknowledging that the proposed building’s staircase tower,
elevator penthouse, and parapet wall were higher than 60 feet from the average grade, the city
attorney opined that, in accordance with the city’s zoning ordinance, these items were not
measured as part of the building’s height. The planning commission gave final approval to the
Innovo site plan the following month.
Three months later, plaintiffs filed a complaint alleging the violation of the city charter
(and the resulting denial of voting rights), and seeking declaratory and injunctive relief. The
essence of their claim was that the “plain meaning” of the charter amendment required the subject
building’s “add-on structures, including elevators, lobby, stairs, a small room for undefined
purposes and a screen around the perimeter” to be included in measuring the building’s height.
With these structures included, the building’s height was not 60 feet, as the city and Innovo had
represented, but over 76 feet. Plaintiffs asserted that the city’s interpretation of Traverse City
Charter, § 28, ignored the plain meaning of the section, that “ ‘sixty feet’ mean[t] ‘sixty feet’ as a
matter of law,” and that adopting an alternative means of measuring height was contrary to the
charter and, therefore, unlawful. Among other forms of relief, plaintiffs asked the trial court for a
declaratory judgment that the “plain meaning” of Traverse City Charter, § 28, prohibited “all
construction of any part of a building over sixty feet in height, without an affirmative vote of the
electors.”
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In lieu of an answer, the city moved for summary disposition under MCR 2.116(C)(8) and
MCR 2.116(C)(10), arguing that the charter amendment did not change the method of measuring
building height stated in the zoning ordinance and that, given the circumstances that gave rise to
Proposition 3,1 voters would have understood when voting for the proposition that building height
would continue to be measured in accordance with the zoning ordinance. In addition, the city
pointed out that the implementation policy for the charter amendment contained a provision
specifically stating that building height would be measured in accordance with the zoning
ordinance and that plaintiffs had endorsed the implementation policy without objecting to the
provision. The city also argued that plaintiffs’ action was barred by the doctrine of unclean hands.
After Innovo successfully petitioned to intervene in the matter, it filed a brief in support of
the city’s motion for summary disposition. Innovo raised arguments similar to the city’s regarding
the method of measuring building height. In addition, Innovo stressed that it had expended
substantial time, money, and resources in reliance on the implementation policy’s statement that
building height would continue to be measured in accordance with the zoning ordinance, and it
contended that plaintiffs’ action should be dismissed on the basis of laches.
Innovo also moved for summary disposition under MCR 2.116(C)(8) and
MCR 2.116(C)(10), arguing that, because there was no inherent inconsistency between the zoning
ordinance’s definition of the height of a building and the charter amendment, the two provisions
should be read together, and that, when they were read together, Innovo’s proposed building did
not exceed 60 feet in height. Innovo argued that the charter amendment had to be interpreted in
light of zoning law or it would constitute an impermissible amendment of the city’s zoning
ordinance. Innovo also argued that plaintiffs lacked standing to challenge Innovo’s land-use rights
because they were not aggrieved parties and because they had not exhausted their administrative
remedies, and that plaintiffs had not established the requirements necessary to obtain the
extraordinary remedy of injunctive relief.
In response to the motions for summary disposition, plaintiffs reiterated their arguments
about the proper interpretation of the charter amendment, and asserted that the zoning ordinance
supported their position when it defined building height as “the vertical distance from the grade to
the highest point on a . . . flat roof” because the “highest point on” Innovo’s flat-roofed building
was over 76 feet. Plaintiffs asserted that they had not endorsed the implementation policy and
insisted that the city charter and zoning ordinance could not be read in pari materia because they
did not serve the same purpose. Plaintiffs also submitted an affidavit from engineer M. Kent
Anderson, who attested that, measured in accordance with the zoning ordinance and adopting the
description and diagrams provided by Innovo’s licensed mechanical engineer, Christopher Miller,
the building was over 60-feet tall. According to Miller, the “roof deck” was the “precast concrete
plank that is over the occupiable space of the 6th floor.” The top of the roof deck was 60 feet
above the average grade. However, on top of the roof deck was a roof covering. According to
1
Although plaintiffs and Traverse City give different interpretations of the circumstances that
resulted in the voter-enacted ballot initiative that resulted in the charter amendment, the
circumstances seem to have involved dissatisfaction with how the city was applying special land
use permits for taller buildings.
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Anderson’s analysis of Miller’s description and diagrams, the roof covering extended 2 feet,
2¾ inches above the roof deck, making the height of the building 62 feet, 2¾ inches. Plaintiffs
requested summary disposition under MCR 2.116(I)(2) against the city and Innovo.
Ruling from the bench after oral argument on the competing requests for summary
disposition, the trial court concluded that plaintiffs had standing because they had alleged that the
city’s approval of Innovo’s proposal deprived them of the right to vote on Innovo’s proposed
building, as provided for by the charter amendment. The court rejected the argument that plaintiffs
had lost their right to challenge the city’s actions because they did not object to the implementation
policy’s provision stating that building height would be measured in accordance with the zoning
ordinance. The court reasoned that plaintiffs had an opportunity to object, but not a duty to do so,
and that there was no evidence that anyone had relied on the absence of their objection.
Turning to the dispute about the height of the building, the trial court found that even if the
height of the proposed building were measured without the rooftop equipment, the height of the
building exceeded 60 feet for the reasons stated by Anderson in his affidavit. Therefore, the height
of the building triggered the right of the electorate to vote on whether to approve Innovo’s proposed
building. The court concluded that the charter amendment and the zoning ordinance could not be
read in pari materia because the documents were of unequal authority. Finding the city charter to
be “like the Constitution,” the trial court determined that the city charter controlled. The city
charter was designed to control the actions of city government and city administration, and the
charter amendment was designed to “restrain a perception of city land use decisions” that a
majority of city voters did not like. Therefore, to read the charter amendment and the zoning
ordinance together would be contrary to the purposes of the amendment. Accordingly, the charter
amendment had to be interpreted in accordance with the plain meaning of its terms.
The trial court rejected the idea that the public knew how the city calculated building height
and concluded that all of the appurtenances that Innovo proposed putting on top of the building—
such as the air conditioner unit, the elevator shaft, and the parapet wall—“were all part of the
building; and, therefore count[ed] against the 60-foot limit.” The trial court issued an order
denying the city’s and Innovo’s motions for summary disposition and granting summary
disposition in favor of plaintiffs under MCR 2.116(I)(2). The trial court declared that building
height was to be measured “from the grade to the highest point on top of the building structure,
including rooftop equipment, elevator towers or components, atriums, parapet and screening walls,
stairwells, fixtures, HVAC, mechanical or other equipment, structures or installations or any other
fixture or appurtenance that may be attached to the structure.” The court also enjoined the city
and its officials from “approving any proposal to construct a building with a height above 60 feet
as measured herein, without first placing the proposal on the ballot and receiving the approval of
the electors as required by Section 28.” The court also declared the city’s previous approval of
Innovo’s project invalid and enjoined Innovo from “from constructing a building over 60 feet in
height as measured herein within the City of Traverse City, unless and until the proposed building
is placed on the ballot and receives the approval of the electors as required by Section 28.” This
appeal followed.
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II. INTERPRETATION OF THE CHARTER AMENDMENT
The city and Innovo argue 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. We agree.
We review de novo a trial court’s decision on a motion for summary disposition. Sherry v
East Suburban Football League, 292 Mich App 23, 34; 807 NW2d 859 (2011). A trial court’s
interpretation of a municipal charter is a question of law we review de novo. Barrow v Detroit
Election Comm, 305 Mich App 649, 663; 854 NW2d 489 (2014).
When reviewing provisions of a home rule city charter, this Court applies the same rules
that it applies to statutory construction. “The provisions are to be read in context, with the plain
and ordinary meaning given to every word. Judicial construction is not permitted when the
language is clear and unambiguous. Courts apply unambiguous statutes as written.” Id. (quotation
marks and citation omitted). Nothing may be read “into an unambiguous statute that is not within
the manifest intent of the Legislature as derived from the words of the statute itself.” Id. (quotation
marks and citation omitted). “Initiative provisions are liberally construed to effectuate their
purposes and facilitate rather than hamper the exercise of reserved rights by the people.” Welch
Foods, Inc v Attorney Gen, 213 Mich App 459, 461; 540 NW2d 693 (1995). “The words of
an initiative law are given their ordinary and customary meaning as would have been understood
by the voters.” Id. This Court presumes that the voters intended the meaning plainly expressed in
the initiative. Id.At issue is whether appurtenances, such as air conditioning units, elevator shafts, and
parapet walls, that are attached to the top of a flat roof building are included when calculating the
building’s height. The city and Innovo argue that Traverse City Zoning Ordinance, § 1320.07(g),
governs how the city measures building height across all the city’s zones and that the charter
amendment did not change that. Plaintiffs argue that the question may be resolved by resorting to
the plain language of the charter amendment, as well as to caselaw interpreting what constitutes a
building. We agree with the city and Innovo.
Record evidence establishes that the method of measuring building height stated in the
zoning ordinance excludes rooftop equipment such as air conditioning units, elevator shafts, and
parapet walls from the measurement. Traverse City Zoning Ordinance, § 1320.07(g), provides in
relevant part: “Height of building means the vertical distance from the grade to the highest point
on a . . . flat roof . . . . (See Figure 1-3, attached).” Figure 1-3 depicts different types of roofs,
none with appurtenances, and shows that the height of a building with a flat roof is measured from
the average grade at the bottom of the building to the ledge of the flat roof. The city also submitted
an affidavit from Shawn Winter, Traverse City’s planning director, in which he attested that the
city had consistently measured building height in accordance with the zoning ordinance. Included
in Winter’s affidavit was a table that listed nine buildings, the maximum height allowed each
building under the zoning ordinance, the actual height of the building, the heights of
appurtenances, and the date of approval; four of the buildings were approved after passage of
Proposition 3. The table showed that, on all but one building that was approved in 2005, each
building had an elevator shaft and a parapet wall and that the height of these appurtenances
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exceeded the maximum height allowed for the building.2 The appurtenances were not included in
any building’s height measurement.
The zoning ordinance and Winter’s affidavit established that the city customarily did not
include rooftop appurtenances in calculation of a building’s height. The policy adopted to
implement the requirements of the charter amendment indicated that building height would
continue to be measured in accordance with the zoning ordinance. Section 3(a) of the policy stated
that “[f]or purposes of determining whether the Charter provision is triggered by a proposed
building with a height above 60 feet, the methods of measuring building height contained in the
Traverse City Zoning Ordinances shall be applied.”
Plaintiffs agree that height should be measured in accordance with the zoning ordinance.
They point out, however, that the drawing of the flat roof in Figure 1-3 does not depict any
attachments to that roof top or any fixtures built above the roof line, so measuring to the roof ledge
was the only option. This argument assumes that if the drawing of the building with the flat top
roof had depicted an air conditioner unit or elevator shaft extending above the roof, the building’s
height would have been measured to the top of the air conditioning unit or elevator shaft. It seems
at least likely, however, that a zoning ordinance illustration purporting to show how to measure
the height of a building would have included all components pertinent to that measurement, such
as rooftop equipment. The record evidence simply does not support plaintiffs’ argument that the
zoning ordinance supports their preferred method of measuring a building’s height.
Plaintiffs also argue that passage of Proposition 3 effectuated a change in how buildings
should be measured. We disagree. As already indicated, the charter amendment states in relevant
part that “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 . . . .” It is undisputed that the amendment does not expressly
address how to measure the height of a building. Plaintiffs argue that “building” and “60 feet” and
“height” are not mysterious concepts or concepts difficult to understand. Plaintiffs first use a
dictionary to arrive at the “plain and ordinary meaning” of “building” as “a usu. roofed and walled
structure built for permanent use (as for a dwelling).” Merriam-Webster’s Collegiate Dictionary
(11th ed), p 162; see Epps v 4 Quarters Restoration LLC, 498 Mich 518, 529; 872 NW2d 412(2015) (indicating that courts may use a dictionary to ascertain a word’s common meaning). Then,
however, plaintiffs resort to caselaw to argue that “building” includes the building itself and
“anything that is annexed to the realty and is intended to be a permanent accession to the realty.”
Plaintiffs also refer this Court to Fane v Detroit Library Comm, 465 Mich 68; 631 NW2d
678 (2001), a consolidated case that required the Michigan Supreme Court to determine whether
attachments that allowed access to a building were considered part of the building for purposes of
the public building exception to governmental immunity. The question in Fane was whether the
elevated terrace by which a patron gained access to the main building of the Detroit Public Library
was part of the building. Id. at 71-72. The question in the companion case was whether a portable
ramp placed at the doorstep of a building owned by the University of Michigan was part of that
2
The 2005 building had only an elevator shaft, but its height exceeded the maximum height
allowed for the building.
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building. Id. at 72-73. The Court concluded that, because the terrace was “physically connected
to and not intended to be removed from the library,” that it was “part of the building within the
meaning of the public building exception.” Id. at 79, 81. As to the portable ramp, the Court
concluded that it was not part of the university-owned building because its removal would not
impair the value of the building or the ramp, and there was no evidence that the ramp “was intended
as a permanent accession to the building.” Id. at 80, 81.
In our view, Fane does not resolve whether equipment and appurtenances on the top of a
flat-roofed building are included in the calculation of the building’s height. How to measure the
height of a public building, or whether building parts outside of the building’s walls would be
included in that measurement, was not at issue in Fane. The issue was whether the library and the
university-owned building “possess[ed]” the items in question. Id. at 77. Although the elevated
terrace belonged to the library, whether it would have been included in calculating the size of the
library building simply was not at issue. Similarly, assuming that the equipment and attachments
on top of the building at issue belong to and are part of the building does not necessarily mean that
they are to be included in calculating the height of the building,3 particularly when the zoning
ordinance that describes how the city has previously measured building height does not include
such items in the height calculation. See Macenas v Michiana, 433 Mich 380, 398; 446 NW2d
102 (1989) (observing that a “reviewing court is to give deference to a municipality’s interpretation
of its own ordinance,” particularly, in cases of ambiguity, when “a construction has been applied
over an extended period by the officer or agency charged with its admission”).
Assuming that the charter amendment implies a method of measuring buildings that differs
from that stated in the zoning ordinance, plaintiffs argue that the city charter controls because it is
tantamount to Traverse City’s constitution and, therefore, possesses greater authority. Even if we
agreed with plaintiffs’ interpretation of the charter amendment and the existence of a conflict
between the zoning ordinance and the charter amendment, which we do not, we would necessarily
have to disagree with plaintiffs’ assertion that the conflict must be resolved in favor of the city
charter because of its superior authority. 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) (“Amendments or supplements to the zoning ordinance shall be
adopted in the same manner as provided under this act for the adoption of the original ordinance.”);
see also Korash v Livonia, 388 Mich 737, 738; 202 NW2d 803 (1972) (holding that the Legislature
intended to authorize home rule cities to enact zoning ordinances by legislation only, not by voter
3
For example, a chimney or exhaust pipe extending above the roof of a house may be part of the
house, but it seems doubtful that homeowners would instinctively view either object as adding
extra footage to the height of their house.
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initiative). Plaintiffs do not claim that the voter-enacted ballot initiative that resulted in the charter
amendment complied with the procedural requirements of the MZEA.
We presume that the voters intended the meaning plainly expressed in the initiative, and
judicial construction is not permitted absent language that is unclear or ambiguous. See Barrow,
305 Mich App at 663; Welch Foods, Inc, 213 Mich App at 461. In the present case, there was no
finding of ambiguity, and no plausible argument that “building” should not be accorded anything
other than its plain and ordinary meaning of a “roofed and walled structure built for permanent
use.” Even if it could be said that voters intended “building” to be accorded something other than
its plain and ordinary meaning for purposes of the charter amendment, whatever method of
measuring building height that the charter amendment established could not displace the method
stated in the zoning ordinance unless the voter-enacted ballot initiative that resulted in the charter
amendment complied with the procedural requirements of MZEA. We conclude, therefore, that
the trial court erred by granting declaratory and injunctive relief in favor of plaintiffs on the basis
of its findings that the charter amendment stated a method of measuring building height that
differed from, and took precedence over, the method stated in the zoning ordinance, and we reverse
those portions of the trial court’s order that granted declaratory judgment and injunctive relief in
favor of plaintiffs. However, as we will discuss in the following section, the trial court nonetheless
did not err by granting summary disposition to plaintiffs, in light of Anderson’s affidavit.
III. SUMMARY DISPOSITION
Innovo also argues that the trial court erred when it granted summary disposition in favor
of plaintiffs because the parties’ competing affidavits created genuine issues of material fact. We
disagree.
The trial court granted summary disposition in favor of plaintiffs under MCR 2.116(I)(2).
Summary disposition under MCR 2.116(I)(2) is appropriate “when it appears to the court that the
opposing party, rather than the moving party, is entitled to judgment as a matter of law.” Sherry,
292 Mich App at 34. The existence of a genuine issue of material fact precludes summary
disposition under MCR 2.116(I)(2). See Ferndale v Florence Cement Co, 269 Mich App 452,
462; 712 NW2d 522 (2006). “A genuine issue of material fact exists when the record, giving the
benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable
minds might differ.” Southfield Ed Assn v Bd of Ed of Southfield Pub Sch, 320 Mich App 353,
361-362; 909 NW2d 1 (2017) (quotation marks and citation omitted).
Our review does not reveal the existence of a genuine issue of material fact that would have
precluded summary disposition in favor of plaintiffs. There was no factual dispute that the
proposed building measured 60 feet in height from the average grade to the top of the roof deck,
and there was no dispute that on top of the roof deck lay an insulating “roof covering.” According
to his affidavit, Anderson used Miller’s description and diagram of Innovo’s proposed building to
calculate the thickness of the roof covering at 2 feet, 2¾ inches. Innovo did not dispute that the
roof covering was “in excess of the roof deck,” but argued that the “roof deck is the measured
point” and that “the way that the City has measured buildings in accordance with their zoning
ordinance is to the top of the average grade of the roof deck.” Although Innovo’s attorney was not
prepared to agree that Anderson’s calculation was correct or to commit to an exact thickness of
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the insulating material on top of the roof deck, there was no dispute that the insulating material lay
in excess of 60 feet above the average grade.
Innovo argues that a factual dispute was created by its engineer’s attestation that he met all
Traverse City’s zoning requirements and Anderson’s attestation that the building exceeded 60 feet
in height, even without the appurtenances. We disagree. Miller’s statement that he met all of the
city’s zoning requirements was a statement about the legal effect of the facts; it did not dispute the
facts themselves. When “the facts relating to a particular use are not in dispute, the legal effect of
those facts, that is, how the terms of the [zoning] ordinance are to be interpreted in relation to the
facts, is a matter of law . . . .” Macenas, 433 Mich at 395 (quotation marks and citation omitted).
The trial court in the present case interpreted the zoning ordinance in relation to the undisputed
facts. The zoning ordinance does not define “roof,” and the trial court apparently construed the
phrase, “highest point on a . . . flat roof,” in Traverse City Zoning Ordinance, § 1320.07(g), to
include the roof covering. This analysis comports with the plain language of the zoning ordinance;
neither the city or Innovo have provided a compelling argument as to why “16 additional inches
of insulation, plus a waterproof covering . . . plus 6 inches of low-profile green roof system or roof
pavers” that covers the entirety of the roof deck in question should not be considered part of the
roof itself. In the absence of a factual dispute that the building exceeded 60 feet in height as
measured in accordance with the zoning ordinance, Innovo has not established that the trial court
erred when it granted summary disposition in favor of plaintiffs.
IV. UNCLEAN HANDS
The city also argues that the trial court erred by not dismissing plaintiffs’ request for
declaratory and injunctive under a theory of unclean hands or estoppel by acquiescence. We
disagree.
This Court reviews de novo a trial court’s equitable decisions, and it reviews the trial
court’s findings of fact in support of its decision for clear error. Yankee Springs Twp v Fox, 264
Mich App 604, 611; 692 NW2d 728, 733 (2004). A finding is clearly erroneous when, after
reviewing the entire record, this Court is left with a definite and firm conviction that a mistake has
been made. Alan Custom Homes, Inc v Krol, 256 Mich App 505, 512; 667 NW2d 379 (2003).
Declaratory and injunctive relief are equitable remedies. Mettler Walloon, LLC v Melrose
Twp, 281 Mich App 184, 221; 761 NW2d 293 (2008); Terlecki v Stewart, 278 Mich App 644, 663;
754 NW2d 899 (2008). “A party seeking the aid of equity must come in with clean hands.”
McFerren v B&B Inv Group, 253 Mich App 517, 522; 655 NW2d 779 (2002). “The unclean-
hands doctrine is a self-imposed ordinance that closes the doors of a court of equity to one tainted
with inequitableness or bad faith relative to the matter in which he seeks relief . . . .” New Prod
Corp v Harbor Shores BHBT Land Dev, LLC, 331 Mich App 614, 627; 953 NW2d 476 (2019)
(quotation marks and citation omitted). “Any willful act that transgresses equitable standards of
conduct is sufficient to allow a court to deny a party equitable relief.” Id. “The doctrine of estoppel
by acquiescence presupposes that the party against whom the doctrine is asserted was guilty of
inaction.” BPA II v Harrison Twp, 73 Mich App 731, 735; 252 NW2d 546 (1977).
In this case, a working group drafted an implementation policy that addressed issues raised
by the new charter amendment. Among the provisions of the policy was that building height would
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be measured in accordance with the method contained in Traverse City’s zoning ordinance. The
implementation policy was discussed at city commission meetings held on April 3, 2017, and on
April 24, 2017. The city commission received numerous written comments on the proposed
implementation policy, none of which raised objections to measuring the height of buildings in
accordance with the zoning ordinance.
The city asserts that plaintiffs do not come to court with clean hands because they endorsed
the implementation policy without objecting to its provision that building height would be
measured according to the zoning ordinance. But the city does not explain why the earlier approval
of the implementation policy in general should estop or prevent plaintiffs from bringing claims
based on the alleged violation of height requirement by a particular building. Although during the
proceedings below plaintiffs offered a different interpretation of the implementation policy than
that put forth by the city, there is no dispute that the they argued, and the trial court found, that the
building in question also violated the charter amendment even when measured according to the
zoning ordinance. Given these circumstances, the city was not entitled to dismissal of plaintiffs’
request for declaratory and injunctive under theories of unclean hands or estoppel by acquiescence.
V. STANDING
Innovo argues that the trial court erred by concluding that plaintiffs had standing to
challenge Innovo’s land-use right. We disagree with that characterization of the trial court’s
holding. The trial court determined that this was a case about voting rights and concluded that
plaintiffs had standing to pursue their complaint for declaratory and injunctive relief. We agree.
“Whether a party has standing presents a question of law that this Court reviews de novo.”
Trademark Props of Mich, LLC v Fed Nat’l Mtg Ass’n, 308 Mich App 132, 136; 863 NW2d 344(2014).
Under Michigan law,
a litigant has standing whenever there is a legal cause of action. Further, whenever
a litigant meets the requirements of MCR 2.605, it is sufficient to establish standing
to seek a declaratory judgment. Where a cause of action is not provided at law,
then a court should, in its discretion, determine whether a litigant has standing. A
litigant may have standing in this context if the litigant has a special injury or right,
or substantial interest, that will be detrimentally affected in a manner different from
the citizenry at large or if the statutory scheme implies that the Legislature intended
to confer standing on the litigant. [Lansing Sch Ed Ass’n v Lansing Bd of Ed, 487
Mich 349, 372; 792 NW2d 686 (2010) (LSEA).]
Plaintiffs’ complaint sufficiently pleaded a voting rights case and not a zoning case,
although it affected zoning issues. Plaintiffs have a substantial interest in enforcing the voting
provisions of the city charter under which they live. Quick had standing to protect his individual
right to vote, and SOD had standing through its members. See Trout Unlimited Muskegon-White
River Chapter, 195 Mich App 343, 348; 489 NW2d 188 (1992) (indicating that a nonprofit
corporation may advocate its members’ interests when “the members themselves have a sufficient
stake or have sufficiently adverse and real interests in the matter being litigated”).
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Innovo argues that the trial court erred by viewing this as a case about voting rights rather
than about zoning or land use. We disagree. It is true that briefing and oral argument pertained
primarily to how to measure the height of a building, a matter addressed by the zoning ordinance.
However, plaintiffs’ request for a declaratory judgment that the “plain meaning” of Traverse City
Charter, § 28, “prohibits any and all construction of any part of any building over sixty feet in
height, without an affirmative vote of the electors” demonstrated that plaintiffs’ initial purpose
was to obtain a favorable interpretation of the charter amendment. Although this case may have
involved a zoning issue, the relief that plaintiffs sought—an interpretation of the charter
amendment regarding how building height is measured that differed from that of the zoning
ordinance—could not be obtained in a zoning case. Further, plaintiffs assumed for purposes of
their complaint that the charter amendment supported their preferred method of measuring a
building and invalidated ordinances to the contrary. Therefore, the city denied plaintiffs their right
to vote on the subject building when it gave final approval to Innovo’s building without holding
the election required by the charter amendment.
Innovo also argues that if this is a voting rights case, the trial court erred nevertheless
because plaintiffs “failed to show a specific and distinct harm different from that of the public at
large.” We disagree. In LSEA, our Supreme Court held that the teachers and teacher organizations
that brought suit to enforce a statute that provided for the expulsion of students who physically
assaulted a teacher had a substantial interest “that [would] be detrimentally affected in a manner
different from the citizenry at large” because “[t]he members of the general public might never be
in a school, and, even for those who are, an assault on those members would not necessarily lead
to the expulsion of the assaultive student.” LSEA, 487 Mich at 373, 374. Analogously, although
plaintiffs’ substantial interest in the enforcement of their voting rights might not be detrimentally
affected in a manner different from other residents of the city, they arguably would be
detrimentally affected in a manner different from the general public, members of which do not live
in the home rule city of Traverse City and are not subject to the city charter.
VI. CONCLUSION
We affirm the trial court’s grant of summary disposition to plaintiffs under
MCR 2.116(I)(2) on the ground that no genuine issue of material face existed regarding whether
the height of the proposed building exceeded the height limitation of the charter amendment. We
reverse, however, the trial court’s grant of declaratory and injunctive relief, including its
interpretation of the charter amendment as providing for a different method of building
measurement than that provided by the zoning ordinance.
Affirmed in part and reversed in part. Neither party having prevailed in full, no costs may
be awarded. MCR 7.219(A)(1).
/s/ Mark T. Boonstra
/s/ Jane E. Markey
/s/ David H. Sawyer
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