Lowry seeks injunctions, invalidations of Lockport/Park 425s in lawsuit

By Robert Tomlinson
News Director

CENTREVILLE — A lawsuit filed last week in St. Joseph County 45th Circuit Court seeks a preliminary injunction and the invalidation of two land transfer agreements made between two local townships this year involving the same property owned by the mayor of Three Rivers.

On Friday, Dec. 8, a lawsuit was filed by Tom Lowry against Lockport Township and Park Township in regards to two Public Act 425 land transfer agreements approved by both townships in April and November of this year. The suit seeks a preliminary injunction to stop any action related to the 425 agreements, as well as asks the court to declare the agreements invalid for a number of procedural and logistical reasons.

Specifically, the lawsuit alleges that the townships did not honor a referendum petition for the first agreement in April, that both agreements do not provide for an “economic development project” as required by Public Act 425, that both agreements don’t conditionally transfer property from Lockport to Park Township, and that the townships violated the Open Meetings Act with specific conduct that occurred during the public hearing on the second agreement on Nov. 20.

The lawsuit was filed by attorneys of the law firm Cunningham Dalman of Holland, Mich., who are representing Lowry in the case. A hearing date on the preliminary injunction is scheduled for Thursday, Dec. 21 at 9:30 a.m. in circuit court. Circuit Court Judge Paul Stutesman is expected to preside over the hearing.

The Commercial-News reached out to Lockport Township Supervisor Mark Major and Park Township Supervisor Ed English for comment on the lawsuit and its allegations. English declined to comment, while Major did not respond before press time.

The transfer agreements in question involve, or partially involve, a 37-acre parcel in Lockport Township that Lowry has owned since 2021, located along Buckhorn Road northeast of the Armstrong Park Sports Complex. According to the filing, Lowry has intended to develop the parcel as residential lots while donating the net profits to charity – Lowry has stated previously at public meetings that the Three Rivers Promise would be the beneficiary of said profits – and has sought the land to be transferred and/or annexed into Three Rivers so that municipal water and sewer could be provided to those properties from the city’s system.

According to a motion for preliminary injunction filed alongside the lawsuit, Lowry initially reached out to Lockport Township in spring to discuss a possible 425 agreement between the township and city, including City Manager Joe Bippus sending a letter dated April 10 to Major proposing the development of the land with the city providing services and negotiation. However, the lawsuit claims the city was “met with stone silence” by Lockport.

“Lowry attempted, on several occasions, to facility [sic] discussion, arrange meetings, and the City provided an initial draft of a 425 to the Lockport Clerk for review. Again, stone silence,” the preliminary injunction motion stated.

According to a timeline of events laid out at the Nov. 20 joint meeting of the two townships in a presentation by Chris Patterson and Hannah Stocker, attorneys from Park Township’s law firm, Fahey Schultz Burzych Rhodes of Okemos, Lockport Township had begun discussing a 425 agreement between them and Park Township back in March, while the initial request from the city was made on March 27. The indication of Lowry wanting to develop his parcel, according to the timeline, was made on April 7.

On April 10 and 12, both Lockport and Park’s boards, by a 5-0 and 3-2 vote at their respective meetings, agreed to a land transfer agreement that would see just the Lowry property change jurisdiction from Lockport Township to Park Township. The main reasoning behind the agreement was that it would offset expected industrial and commercial wastewater with residential wastewater as part of a proposed sewage treatment facility and plant in Park Township, which is still in the feasibility stages; a feasibility study has not been completed or issued publicly as of this writing.

However, Lowry filed a referendum petition with Lockport Township via a letter dated May 9 from Cunningham Dalman, calling on a referendum vote to be held at an upcoming election, “stalling” the transfer agreement, according to language in the Fahey Schultz presentation. A referendum on the transfer agreement was not on the ballot in Lockport Township in either the August or November elections, according to election records from the state.

According to the Fahey Schultz timeline of events, the law firm then reached out to Lowry in June to discuss a franchise agreement, rather than a 425, for the property, which was then further discussed by counsel in July. However, on Aug. 2, 2023, according to the timeline, Lockport Township circulated a new 425 agreement between the two townships, which “would allow for installation of wastewater sewer to service a broader area of Lockport.”

On Sept. 22, after negotiations for a franchise agreement fell through, Lowry filed a petition with the State Boundary Commission seeking annexation of the property into the city, which according to the complaint is currently pending before the commission.

The second 425 agreement was then discussed in the Nov. 20 joint meeting between Lockport and Park, held at the Lockport Township Hall, where a unanimous vote of both boards approved the new agreement, which expanded the area to transfer, including the Lowry property, the Tim Avenue neighborhood south of Lovers Lane, parcels on Buckhorn Road from Lovers Lane to the City of Three Rivers border, and Meyer Trust properties west of the Tim Avenue neighborhood.

Both agreements, the April and November ones, stipulated that if no sewer service is installed within six years of the 15-year timeframe in each agreement, the properties would revert back to Lockport Township, but if it is installed, Park would receive sewer service rates from connected users.

The lawsuit complaint alleges the township violated Public Act 425 by “failing and refusing” to place the April agreement on the ballot for citizens to vote on, thereby claiming the transfer agreement is invalid because the request was not honored and the request never made it to a public ballot. The lawsuit cited MCL 124.25 in its argument, which states that if no registered electors reside within the property to be transferred, a referendum petition signed by a majority ownership of the property can be filed within 30 days, and a referendum on the transfer “shall be held in that local unit.” It also alleges the 425 was not pursued until Lowry requested Lockport enter into the original 425 proposal with the city.

“The 425 Agreement #1 is merely a blocking agreement designed by Defendants’ legal consultant to do nothing but ‘stop annexation in its tracks’ and prevent the development of the Lowry Property,” the complaint states, citing a quote from a separate Fahey-Schultz presentation, dated Nov. 16, 2021, about “Protecting Your Township Boundaries,” which talked about so-called “White Knight” 425 agreements, which they claimed is a “township defense to annexation.”

The preliminary injunction motion also claims that because the April 425 agreement is pending a referendum vote, the November 425 agreement cannot become effective until the referendum vote regarding the first one is completed.

This week, both Lockport Township’s board and Park Township’s board, at separate meetings, approved unanimously a resolution to rescind the April 425 agreement. At Park Township’s meeting Wednesday, while the lawsuit was mentioned while describing the resolution and its purpose, it wasn’t cited as the main reason for the resolution’s creation. However, Zoning Administrator Doug Kuhlman stated to board members it was of “somewhat of a critical nature” to pass the resolution.

“It never really went through anyplace, because you passed it, then there was a petition of referendum filed, and then there’s not been an election since then,” Kuhlman said Wednesday. “With our legal counsel on board, they think it’s best to get that first one out of the way and we can plan on moving forward with that one because we did the expanded 425 agreement.”

The lawsuit also alleges that both the April and November agreements are invalid because it claims neither township “considered the financial ability of Park Township to provide sanitary sewer services to the Lowry Property” nor “considered the ability of Park Township to provide sanitary sewer plant.” It states that Park Township hasn’t obtained the feasibility study for constructing or financing the sanitary sewer lines or sewer plant, nor obtained any construction plans for either project. Kuhlman stated at the Nov. 20 hearing that an estimated cost for a wastewater treatment plant would be $61 million, however, nothing has been set in stone as of yet.

It also alleges both agreements are invalid because the agreements don’t actually conditionally transfer Lowry’s property from Lockport to Park, citing a clause in the agreement that states that the property would still be subject to Lockport’s ordinances, zoning requirements, rules, regulations, building codes and enforcement, and that Lockport retains fire and police services, the power to specially assess the property, that residents would still vote in Lockport, and that Lockport retains taxing authority, subject to sharing with Park.

Later in the complaint, the lawsuit alleges that both township boards violated the Open Meetings Act during the Nov. 20 joint meeting when it came to a public comment by Bippus. The complaint cites MCL 15.263, which requires that “all persons be granted an opportunity to address the Township Boards at the meeting.”

During the public hearing on the second 425 agreement, Bippus, the Three Rivers city manager, requested to speak, but was initially refused the chance to speak by Major, the Lockport Township Supervisor, who said, “Joe, you don’t live in this township,” when he raised his hand, which elicited smattered chuckles and murmurs from the crowd. Bippus then asked, “Do I not get a public comment,” to which Patterson, the Fahey Schultz lawyer, advised Major to allow Bippus to speak before closing the public hearing. Major then said to Bippus, “You’re lucky they’re here,” referring to Patterson and the lawyers in attendance, before permitting him to make his comment, in which he asked if the two townships could do the agreement without doing a 425.

Lowry’s preliminary injunction motion at one point also claimed that Lowry was told by Major that he couldn’t speak “because he was not a resident of Lockport Township.” There is some truth and some falsity to this claim; however, it is not true that Lowry was denied to speak because he wasn’t a resident of Lockport Township.

Major permitted Lowry to speak when he requested to do so during public comment, which occurred prior to Bippus’ comment, commenting on the water quality of the city’s system and the referendum petition. However, a few minutes into his comment, when Lowry and Major began to go back and forth about state law regarding referendum petitions and letting people vote, Major told Lowry to “sit down,” which led to applause from the audience, which Township Trustee Rick Daniels shouted at to stop, saying that Lowry should be “treated with respect.” Lowry asked why he was being asked to sit down, but did not get a response. Then a little bit more verbal snippiness between Lowry and Major ensued, as well as questions asked of Lowry from the audience that Major permitted briefly, before Patterson chimed in to let Lowry finish his comment, and then proceeded with his explanation on why there was no further action taken on the referendum petition.

The preliminary injunction motion also alludes to a “fact sheet” being circulated in the township prior to the Nov. 20 meeting, which the lawsuit alleges “was transparent, the purpose of 425 Agreement #2 is to ‘prevent the city from annexing our land into Three Rivers.’”

Overall, the lawsuit and preliminary injunction motion alleges that the effect of both 425s is to “take and substantially interfere with Plaintiff’s investment expectations for the Lowry Property,” and that Lowry “will continue to suffer damages from the inability to develop the Lowry Property for a reasonable use” as a result of the townships’ actions.

“Irreparable harm will be caused to Plaintiff should Defendants’ blatant efforts to prevent Plaintiff from responsibly developing his property be indefinitely suspended by their ‘buffer[ing]’ plans,” the preliminary injunction motion states.

Author’s note: This reporter was contacted by Kuhlman on Monday morning regarding this lawsuit, requesting this reporter’s audio recording from the Nov. 20 joint meeting, which includes references to the claims of Lowry and Bippus being denied the chance to speak. This reporter declined to share the audio recording, due to newspaper policy regarding professional notes and the fact Kuhlman is neither a lawyer nor representing either township in the lawsuit.

Robert Tomlinson can be reached at 279-7488 or robert@threeriversnews.com.