Injunction decision in Lowry lawsuit expected soon

By Robert Tomlinson
News Director

CENTREVILLE — A decision on whether or not a preliminary injunction can be granted on a controversial land transfer between Lockport Township and Park Township could be made by a judge this week.

On Thursday, Feb. 8, St. Joseph County Circuit Court Judge Paul Stutesman said he would rule this week on whether or not the preliminary injunction sought by Tom Lowry in his lawsuit against both townships would be granted, following a 100-minute hearing where arguments from both sides were once again presented to the court.

Lowry sued both townships back in December, seeking a preliminary injunction and the invalidation of two land transfer agreements involving his property, a 37-acre parcel in Lockport Township along Buckhorn Road northeast of the Armstrong Park Sports Complex that Lowry has owned since 2021.

The transfers in question involve, or partially involve, his property. The first one, which involved solely his property, was approved by both townships in April and later rescinded prior to the first hearing on the case in December, while the second one was approved in November, and involves the Lowry property, the Tim Avenue neighborhood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.

Lowry opposed both transfers, as he wished to secure a separate land transfer agreement for his property between Lockport Township and the City of Three Rivers for the purpose of bringing city sewer and water services to the property, which he plans to develop as multiple residential lots. The township has not considered the transfer, even when it was presented to them during the April meeting where the original transfer between the two townships was approved, and more than likely will not consider it due in part to the frigid relationship between Lockport, the city, and both municipalities’ leaders, and due in part to disagreements over who should have the land at the end of the transfer period.

In both transfers, the transaction would be between Lockport Township and Park Township, not Lockport Township and the City of Three Rivers, as was erroneously claimed in a flyer reportedly sent to properties involved in the transfer by a Lockport Township resident prior to Thursday’s hearing. The townships have stated their goal for the transfers was to provide sewer and water service to those properties, which is currently in the planning and feasibility stages at this point.

If the injunction is issued, the transfers would more than likely not take effect. Outside of the case, Lowry filed a request in September following the referendum request on the April agreement, which was not acted on by the township, to have his property – and his property only – annexed into Three Rivers through the State Boundary Commission. So far, because of the ongoing litigation, no movement has been made on that request as of yet.

A date this week on when the ruling would be issued has not been decided as of press time.

In the previous hearing in December, Stutesman asked both sides to file briefs on whether the referendum has to proceed despite the April transfer in question being rescinded, the effect of the April transfer, which was still in place at the time, on the ability for the townships to enter into the November land transfer agreement. Both sides addressed these issues during their arguments Thursday.

During Thursday’s hearing, Vince Duckworth, Lowry’s lawyer for the case, said Lockport Township chose to use a statutory process to do the land transfer, and therefore is subject to the referendum process that is included in it. Duckworth also decried the transfers in question, saying they are “white knight” agreements to block annexation or other transfers and, overall, a “sham.”

“We believe this is a sham process that’s been started here, and the problem is the playbook is set up, let’s find a white knight, let’s find someone to help us bring an agreement,” Duckworth said. “They are trying to create an artificial buffer without any substance in a 425 agreement.”

Duckworth later argued the lack of a sewer and water system currently in place precluded Lowry from developing the property.

“It’s not like you can just file a 425 agreement and essentially have a moratorium on annexations until we get around thinking about something and studying about something six years, up to 15 years, that could go on indefinitely,” Duckworth said. “It would effectively preclude him from developing his property as he is entitled to do so. … There is no real economic development project, there is no treatment facility, there’s not even a study, there’s no route, there’s no infrastructure identified, and there’s no means to pay for the infrastructure.”

Later, Stutesman mentioned that in Duckworth’s filing, it was mentioned that if the injunction wasn’t granted, Lowry could use septic service for the development, but sell fewer lots. Duckworth acknowledged there would be fewer lots on the property, but said it would prevent Lowry from developing the property to its “potential.”

James McGovern, Park Township’s lawyer, then discussed the issue at hand from Park’s perspective, noting there were a couple of issues, notably that Park Township couldn’t have a referendum because the property currently only sits in Lockport Township, and that the agreement, as it is now, does not exist.

“What if Park says, you know what, because of that referendum, it’s not worth our time, our money and our taxpayer dollars to continue with this 425 agreement, we rescind it? What’s the vote about? The agreement between the two parties no longer exists. What are they voting on? They are voting on something that’s moot. There’s no longer an issue. We know that’s what would happen, because it already has happened,” McGovern said.

McGovern also argued that Park did not “breach” a contract, rather the township, “with the agreement of Lockport” rescinded the April transfer. Stutesman interrupted, saying the townships went into the November transfer agreement before the April transfer was rescinded. McGovern then claimed the April transfer was “abandoned” before the November transfer was discussed, something Stutesman also took issue with, asking what caused the townships to “abandon” it.

“What I’m trying to get at is, tell me that it wasn’t just because Mr. Lowry was the only property owner named there and they wanted to add additional ones to prevent there being a referendum,” Stutesman said. “That wasn’t the goal of rescinding it?”

After some more back and forth between Stutesman and McGovern, McGovern said the plan with what he called the “425 plan” from the beginning was to “know what is the boundary of this future multi-million-dollar utility.” Stutesman then asked why the boundary for the transfer wasn’t the whole township, to which McGovern replied, “You have to start somewhere.”

Overall, McGovern said that in Park Township’s view, the transfer agreements are “legitimate.”

“This is a preliminary injunction and there are four factors that need to be addressed. I appreciate the court wanting general background, but a lot of what we heard from the plaintiff relate to their complaint, but does not relate to the preliminary injunction. The likelihood of the plaintiff prevailing on the merits is low,” McGovern said. “These 425s are legitimate … this isn’t about whether or not a 425 was done incorrectly, and this also isn’t about whether or not the two townships have entered into a 425 generally. It comes down to whether or not this is a sham 425, and that’s their legal merit argument, and both of those arguments fail.”

Tom Meagher, Lockport Township’s lawyer, then made his arguments to the court. He argued that injunctions are “drastic remedies,” and that there are “well-established rules” about injunctions. He argued that there wouldn’t be “irreparable harm” to Lowry if the injunction isn’t issued.

“When I hear things like, ‘obviously, Mr. Lowry doesn’t want that 425 in April to be approved,’ then what are we doing here? When I hear what’s really going on is he wants to be first to the Boundary Commission because he wants to have the advantage of having sewer or water more quickly and conveniently coming to his property, convenience is not irreparable harm. It never has been and never will be,” Meagher said.

He then discussed motivation for both sides in this case, saying when asking questions about the motivations of the townships to do the April transfer and then rescind it, questions should be asked about Lowry’s motivations.

“Why is he now running to the Boundary Commission if all he wants is a vote?” Meagher said. “Frankly, what I heard as clear as I could hear it is he doesn’t want a vote. What injunction are they seeking? To order a referendum? What’s the motivation behind that? If we’re going to wade into who’s wearing the white hat, we’re wasting our time on whether or not an injunction should be issued.”

Meagher then discussed that the November transfer agreement was still viable, arguing that while it’s still pending, the township could still enter into other transfer agreements.

“The whole premise is that because there’s not been a vote here, you’re entitled to have a referendum concerning the other properties other than plaintiff’s, even though you’re entitled to, you shouldn’t be allowed to do it yet,” Meagher said. “The law does not allow preliminary injunctions to give him the delay he wants.”

He wrapped up by saying that Lowry’s camp hasn’t proved their case. Stutesman asked Meagher whether or not it was true Lowry approached Lockport first with a transfer proposal, and Meagher deferred to Chris Patterson, a lawyer that has been helping the townships with the land transfer process. He then addressed the court about the process, saying that while there was a proposal put forth by Lowry to the township, the proposal would have given all control to the city, not Lockport, and would’ve given full control to the city after the transfer agreement expires.

“There’s always a question at the end of a 425, where does that property go? The city’s offer was only permanent transfer upon the end of the 425 agreement. That’d mean at the end of its term, at the end of 50 years, or the statutory 99, that property ends up in the city permanently. Basically, sort of annexing it,” Patterson said.

He compared that to the transfer between Lockport and Park, where it defines the jurisdictional rights of which township has control of what services, and noted that at the end of their agreement, the land would go back to Lockport, and then “granting a franchise and consent to Park to be able to continue to provide wastewater services.”

“They’re completely different legislative decisions if you compare those 425s,” Patterson said. “If you’re sitting in Lockport’s seat, you can see the fundamental reasons why the 425 with Park is particularly beneficial for Lockport residents for the purposes of how the 425 is going to be effectuated.”

Duckworth then had the opportunity to rebut the arguments made by Lockport and Park’s lawyers. He said the only services being split up is jurisdiction, as Lockport retains most everything when it comes to services such as fire, police, zoning and more, something he argued was “evidence of a ruse.” He also claimed again that the April transfer agreement was in “direct response” to Lowry wanting to develop his property now.

“There were documents exchanged, a proposed 425 agreement was exchanged well before that April meeting. The April 2023 meeting of these townships was in direct response to Mr. Lowry’s intent to develop his property now. That’s the harm here,” Duckworth said. “The townships are proposing a process that has no substance, no plan, no finances, no treatment facilities, and Tamarac’s not even included and that’s the most-needed subdivision for this project.”

Overall, Duckworth said he believes they will win on the merits.

“Whether it’s the first one or the second one, they’re nothing more than an attempt to block annexation and defeat Mr. Lowry’s immediate ability to develop property now and pursue a State Boundary Commission petition,” Duckworth said.

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