A judge in Calhoun County will rule in the coming days on a citizen-led challenge to the validity of a Marshall rezoning ordinance in a decision that could significantly affect the timing and future of Ford Motor Co.’s planned battery plant.
The impact the case could have on Ford’s $3.5 billion battery plant development was enough to push the automotive giant, the state of Michigan and a regional economic development agency to seek entry into the case late last week.
But visiting Judge William Marietti on Wednesday blocked the state and Ford from inserting themselves into the case, while allowing the Marshall Area Economic Development Agency to become a party. MAEDA, alongside the city of Marshall, will fight the suit brought by citizens seeking to undo zoning changes critical to the Ford development.
Marietti said he expects to issue a written opinion in the next five days on whether the city of Marshall’s inclusion of an appropriation in a May rezoning ordinance violated the city charter. He’ll also rule on the clerk’s rejection of signatures for the referendum based on the fact that some of those who circulated the petitions weren’t members of the referendum committee.
The city has argued the inclusion of the money in the rezoning ordinance to accommodate Ford’s development made the ordinance impervious to referendum — a move clipped right from the playbooks of Govs. Rick Snyder and Gretchen Whitmer that’s allowed them to sidestep citizen-led efforts to repeal controversial laws.
Robby Dube, a lawyer for “Committee for Marshall — Not the Megasite,” the group seeking to repeal the zoning ordinance, argued that the city’s attempt to block efforts to put the question on the ballot amounted to a violation of the citizens’ constitutional right to referendum. The prospect of delays to a multibillion-dollar development isn’t a sufficient excuse to sidestep those voting rights, Dube argued.
“The idea that there’s millions of dollars at stake so therefore we should just ignore the clear law laid out and people’s clear constitutional rights is just anathema to the United State and the American form of governance,” Dube said.
Dube asked for a temporary restraining order — or a temporary pause on the zoning ordinance’s effect — while the court decides whether to require certification of the referendum.
The city and MAEDA urged the judge to reject those seeking a referendum, arguing that the rezoning decision was exempt from a citizen-led repeal and that the delays caused by the referendum could cost millions.
“… That’s exactly what this temporary restraining order is designed to do, it’s designed to halt the project,” said Joseph Colaianne, an attorney for the city. “There is a significant timetable here that will be impacted by suspension of the ordinance itself, significant dollars that will be impacted.”
The Marshall plant will bring 2,500 jobs to the area, add about 35 gigawatt hours of annual battery capacity to Ford’s operation, and help the Dearborn automaker diversify the capabilities of its EV lineup by adding a second battery chemistry — lithium iron phosphate — to its existing use of nickel cobalt manganese, or NCM, batteries. The factory will license battery cell technology from China-based Contemporary Amperex Technology Co. Ltd.
Residents in recent months have mounted pushback against the 950-acre megasite project, centering on a few key concerns: how it was introduced to the public; whether environmental and health worries — including threats to the Kalamazoo River — were considered; the extent of involvement by China-based CATL; the massive, $1.7 billion taxpayer-funded incentive package the project is slated to receive; and how the project could affect Marshall’s small-town character.
How locals gained legal footing
The legal battle that played out in court Wednesday centers around a May decision by the Marshall City Council to rezone about 741 acres of property transferred to it by the township as industrial, in order to assemble land for Ford’s BlueOval Battery Park.
The city, which approved the zoning ordinance change after a joint planning commission rejected it, added in an appropriation of $40,000 for site plan review services and $250,000 for building inspection services. Marshall argued the appropriations made the zoning ordinance exempt from citizen-led efforts to undo the change.
Despite Marshall’s insistence, the “Committee for Marshall — Not Megasite” collected 810 signatures from residents for a referendum petition to put the zoning change up for a local vote. The committee collected more than the 10% of the voting electors needed for petition referendums as noted in the city’s charter.
If the committee was successful in getting its referendum certified, the city would have been required to suspend the zoning ordinance until the referendum could go to a vote of the people.
More:How Marshall landed $3.5 billion Ford battery project
But City Clerk Michelle Eubanks on June 15 determined the opponents’ filing was not valid because the ordinance in question would not be subject to referendum since “the referendum power is not available where the ordinance includes an appropriation of money or a levy of taxes.” She also found the referendum petition “legally insufficient because many of the petition sheets were circulated by individuals other than committee members in violation of the City Charter.”
Opponents appealed but city council upheld the clerk’s determination, leading the committee to file a lawsuit on June 27 asking the court to “immediately issue a certificate of sufficiency” on its petition.
Marshall pushes back
In court Wednesday, Dube argued that the city’s prohibition on non-committee members collecting signatures and its efforts to block a referendum by placing an appropriation in the ordinance amounted to unconstitutional restraints on residents’ rights.
Moreover, Dube argued, the Michigan Zoning Enabling Act bars communities from putting appropriations in most zoning ordinances and the city’s own charter stops appropriations from being included in anything other than budget resolutions or ordinances related to bonds and loans.
Dube also argued the clerk overstepped her bounds by weighing in on the merits of the referendum, rather than sticking to ministerial duties regarding assessments of its form and the validity of its signatures.
“This city charter-violating appropriation was inserted into the ordinance with the express intention of nullifying the city’s electors’ right to a referendum on the ordinance,” Dube said in a court filing. “The city took this step because it was aware that its proposed ordinance was unpopular and unsupported by the electors.”
Colaianne, Marshall’s attorney, dismissed Dube’s arguments and maintained the city had a right to include an appropriation in the ordinance and that such an appropriation made it impervious to referendum.
Christopher Zdarsky, a lawyer for the Marshall Area Economic Development Agency, urged the judge to consider the cost to MAEDA should the project be halted by allowing the referendum to move forward. He noted MAEDA had already committed about $200 million to redeveloping the site and had agreed to a “very aggressive timeframe” for developing the megasite.
“If they don’t meet certain deliverables by certain timeframes, there’s money that they owe to Ford,” Zdarsky said. “If they don’t meet a deliverable by October of this year, they’re going to owe $10 million to Ford.”
A MAEDA spokesperson did not answer follow-up questions after the hearing regarding what types of promises the group made to Ford regarding the development timeline.
After the hearing, Dube questioned MAEDA’s timeline agreement, saying it appeared to depend on the votes of independently elected government bodies and on the idea that such a rezoning decision wouldn’t face referendum.
“That was a very financially risky decision to make,” Dube said. “That was your decision to make and your assumption that the people were not going to refer rezoning when that’s their right to do so.
“Even so, if MAEDA really thinks that all this rezoning is going to be so catastrophic, it can do what it should have done from the beginning, which is make the political argument against the referendum. To try to go into court and make the political argument is deeply improper.”
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Staff writer Jordyn Grzelewski contributed.