Preliminary injunction issued in Lowry lawsuit; annexation of property can be pursued

By Robert Tomlinson
News Director

CENTREVILLE — In a win for Tom Lowry and a blow to Lockport and Park townships, St. Joseph County Circuit Court Judge Paul Stutesman granted a preliminary injunction Wednesday in a lawsuit filed by Lowry against the townships regarding property transfer agreements involving his Buckhorn Road property.

Stutesman said in his ruling that no further action is to be done on either of the Public Act 425 transfer agreements in question in the case agreed to by Lockport and Park. The judge also lifted a stay on Lowry pursuing annexation of his 38-acre property into the City of Three Rivers, saying he has the “absolute right” to do so through the State Boundary Commission.

“There will be no irreparable harm because the same factors that go into the decision to draft the 425 agreements will be brought up by the townships to the Boundary Commission,” Stutesman said. “Neither of these contracts were filed, and the second contract cannot be filed until we have a hearing as to whether or not it meets the requirement.”

While the preliminary injunction was granted, it is not the end of the case entirely. The trial in the lawsuit is scheduled for sometime within the next six months in what Stutesman called an “expedited” fashion.

The attorneys in the case, as well as Lowry himself, joined the hearing virtually to hear the injunction decision in the case, which comes three months after the case was initially filed by Lowry. He had sought a preliminary injunction, as well as the invalidation of two land transfer agreements involving the property, which he has owned since 2021.

The transfers in question involve, or partially involve, that property. The first one, which involved solely the 38-acre property, was approved by both townships in April and later rescinded prior to the first hearing on the case in December, while the second one was approved in November, and involves the Lowry property, the Tim Avenue neighborhood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 had filed a referendum petition on the first transfer in Lockport Township, which he is allowed by Public Act 425 to do, in May, which would have brought the transfer up to a vote of Lockport residents. The township, however, did not honor the petition and set an election, which was one of Lowry’s complaints in the lawsuit.

In both transfers, the transaction would transfer the properties from Lockport Township to Park Township. 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.

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. He has planned to develop the property as multiple residential lots, with proceeds from the sales of the lots going to the Three Rivers Promise.

In September, Lowry filed a petition with the State Boundary Commission to annex his property into the City of Three Rivers. On Feb. 14, the commission determined the petition was legally sufficient, but did not make any final decisions regarding annexation of that property. There was some question about whether or not the item being on the agenda was in violation of a December order by Stutesman to “take no action to advance [Lowry’s] annexation petition before the State Boundary Commission,” but Stutesman clarified during Wednesday’s hearing that it did not violate the order.

“There is absolutely nothing wrong with the Boundary Commission conducting their business,” Stutesman said. “The petition was filed, and the first job of the boundary commission is to determine whether or not the petition is legal and satisfactory. The plaintiffs did nothing to encourage it, to set it, or to attend it, and there’s also pleadings to that effect from plaintiff’s counsel.”

Stutesman spent the majority of Wednesday’s hearing running down the timeline of events in the case, as well as discussing some of the exhibits in the record. He also talked about Public Act 425 and what it entails, as well as the different factors townships need to consider before entering a 425 agreement, which included composition of population, population density, land area, land use, assessed valuation, topography, natural boundaries, drainage basins, and the past and probable future growth of the areas to be transferred.

One thing Stutesman pointed out when reading the transfer agreements between the townships was a clause indicating that the agreement cannot be terminated without it being put in writing between both Lockport and Park’s boards.

“Any petitions or resolutions of either governmental unit contemplated by this agreement shall not be changed, withdrawn, amended or rescinded without the express written consent of the other governmental unit,” Stutesman read.

Commenting on the November transfer agreement, Stutesman observed that the agreement keeps services, jurisdiction, building codes, ordinances and more in Lockport Township, with the only thing going to Park Township is ½ of 1 percent of the operating millage on the property. He also stated that at the end of the agreement, the properties in question would be going back to Lockport Township in full.

Speaking on the injunction request and the likelihood of Lowry winning on the merits of the case, Stutesman stated that Lowry has asserted that both townships did not follow the statutes of Public Act 425 with either transfer agreement, paraphrasing that Lowry believes the transfers were a “ruse” to keep him from annexing the property into the city. Stutesman said one of the questions he had in the case regarded the study areas in a sewer feasibility study, noting that there were several areas – including in Tamarac and near Fisher Lake – that were talked about in the study that were not included in the 425 agreements in question.

“If the purpose of the sewer system is to provide sewers into these areas where there’s already a need, why weren’t they included? There was never a good answer at the initial hearings from counsel,” Stutesman said. “In addition, they attached a township map which shows the new – the first parcel was just Mr. Lowry’s, but now they’ve included parcels along Lover’s Lane, along Buckhorn. Plaintiff asserts they added these to avoid a referendum; the townships indicate, no, no, that wasn’t it, it was to – again, because these were in need of funding and these would be areas that need it. Still doesn’t explain how they ignored Tamarac, Fisher Lake and other areas that are part of their study if that was truly the goal.”

The other question Stutesman said he had was regarding a notice to citizens to appear for the public hearing regarding one of the 425s, which stated, “You must appear, we need to stop the annexation of the property in the township,” as well as a question on proper notice at all about the public hearing.

Stutesman also discussed an affidavit provided by the townships from Zoning Administrator Doug Kuhlman, which Stutesman said was “more opinion than fact” regarding the situation, noting it “offers his opinion as to why people do things or what’s going on,” which he said is “not the proper purpose of an affidavit.”

“His opinion that the city wants to take property from the townships, his opinion that the city can’t provide it, that their taxes will go up. Those are all opinions, those aren’t facts,” Stutesman said. “In both the affidavit from Mr. Kuhlman and [Mark] Major, the chair of Lockport Township, suggests this is all happenstance, that they threw the first 425 together and then included only Mr. Lowry’s parcel. There’s no explanation as to why they were afraid of referendum, would cause any further delay than what’s being anticipated by this whole procedure.”

Stutesman than added he was “troubled” by the township not having a written recission by both parties of the April transfer agreement before agreeing to the November transfer agreement.

“I know the first contract wasn’t effective because they never held a referendum, but I’m troubled by what occurred,” Stutesman said. “The fact Mr. Lowry is the mayor of Three Rivers and he’s also the president of the Three Rivers Promise and he’s seeking to develop property what we assume are tiny homes or otherwise small, affordable homes. [Kuhlman] indicates that the need for the sewer system is great, and the townships will go through with it.”

Before making his ruling, Stutesman commented on the projected timeline for the sewer project.

“Having worked for the county for 19 years, the belief you can put together a $61 million project, have all the property bought, all the environmental studies done within 18 months and then build it in two years – we’ve been trying to rehab this building for 15 years – it’d be pretty amazing,” Stutesman said. “I admire the townships for having such a goal to be able to do that in the next four years to build this $61 million facility.”

But, Stutesman said, there were procedural things with the transfer agreements that did not happen and lingering questions about the transfers as a whole.

“The fact of the matter is, Mr. Lowry filed his petition, he never got his referendum. I have serious questions as to whether or not the second contract’s even valid. It wasn’t rescinded in writing as the terms of the contract indicate. It wasn’t mutually agreed to be rescinded after the second contract was entered,” Stutesman said. “Therefore, I’m granting the preliminary injunction.”

Stutesman said following his ruling that irreparable harm would occur to Lowry if the injunction wasn’t granted, because the November 425 agreement would bar him from annexation.

“He had filed his petition for annexation, as he’s allowed to do, after the townships did not hold the referendum for whatever reason, and there’s a question in my mind as to whether or not the second contract’s even valid,” Stutesman said. “Harm to the public interest if the injunction is issued is none because the Boundary Commission can still conduct their hearing and apply all the same terms that were going to be done by the townships in their determination.”

However, Stutesman said – in what may be kind of a silver lining for Lockport and Park – that since the injunction only affects Lowry’s property, they can still do a transfer agreement, but just not have Lowry’s property in it.

“This only affects Mr. Lowry’s property, so the second contract with all the other lots in it, I guess, can go ahead, but I’ve indicated that as far as Mr. Lowry’s property, that contract cannot go,” Stutesman said. “They won’t be harmed, because they technically can still do a 425 agreement, still transfer the ½ of 1 percent of the millage to Park.”

Overall, Stutesman said if the injunction wasn’t granted, the second contract would be filed and Lowry would not have been able to annex his property when “his goal is to get the property developed.”

“The township doesn’t own the property; he owns the property. The township provides services to the homeowners and to the owners of the property in their townships, so there’s no issues as far as that goes and what he has done,” Stutesman said. “He has a statutory right to a referendum, and if that doesn’t take place, he can ask for annexation, which he did.”

Stutesman said he has “no problem” with anyone who wants to appeal the decision.

“I think this is an open area, a gray area, as to what the rule would be, but I’ve issued my decision, and it can be built on or torn down from here,” Stutesman said.

Robert Tomlinson can be reached at 279-7488 or robert@acnccrtest.c1.biz.