Wayne County Circuit Court Judge Sharon Tevis Finch's Ruling On The Lower Woodward Housing Coalition & Friends vs. City of Detroit

Detroit, Michigan

Tuesday, November 18, 1997

THE COURT: All right. I'm going to make my decision at this time. I realize this matter is important not only to all the people in this courtroom, but to many other people.   First of all, I think it's necessary to define the lawsuit here, to define what this hearing is about. This hearing is not about whether Hudson's can be torn down or should be torn down. This is hearing is about whether it can be torn down at this time and with these funds, and there's been a great deal of public interest. Obviously, Hudson's over the years, I've shared that interest as a lifetime resident of Detroit.  

All of us who are old enough can sit here and tell Hudson's stories all day long. I get to tell mine because I'm up here, but I got my first W2 from Hudson's. I did my shopping up there until the bitter end, until it finally closed, and over the years, it's been a landmark, not only to me but I think to people in Detroit and the Metropolitan area.  

In line with that discussion, however, it's only fair in all figures. I know that it's a market place. It's the taxpayers. It's the residents. If the people of this area that had supported this store and kept it open, we wouldn't even need to be here having this discussion. but, it did close. That's the reality. It's sad to see it so many years vacant.  

According to a document in evidence here, it talks about 13 years. Somebody has mentioned 15 years. Certainly, over ten years. It's obviously in sad shape from the testimony you've heard here today. Still, I think this causes a lot of unhappiness and pain to a lot of us, but that's really sentimentality and that can't decide this matter.  

It would be easy if it were decided on sentiment, because sentiment would certainly favor Hudson's surviving, although I don't know, frankly. The sentiment would want it to be open and thriving as it always was or developed in some way that would prosper all, but we're not here about sentiment.  

This is, indeed, not an easy decision. It's a hard one. It has to be based on the law. It has to be based upon facing the facts. Now, there are some specific issues here. I deal with them one by one and decide all of them, because I'm sure there'll be an appeal, in any event, in Court of Appeals. So, you may as well know all my reasons. I will not keep them.  

First of all, regarding standing, I believe that some of the Plaintiffs have standing here. I don't believe we have five taxpayers to satisfy the court rule requirement, but we do have some taxpayers and we do have a specific organization.  

"MCR 2.20(14) (a), In the name of a domestic nonprofit corporation organized specific improvement purposes.

I believe that the organization of the citizens group here are a nonprofit corporation, whose articles of a corporation are in evidence, Exhibit 3, the Lower Woodward Housing Coalition. The purpose or purposes for which that corporation is organized are, and I'm quoting from the document,  

"Housing advocacy for the lower Woodward area of Detroit, the multi redevelopment of the J L Hudson's building into housing, promote the use of the historic investment tax credit, and other tax credits for the redevelopment of buildings in downtown Detroit into housing."

The argument has been made that this could be amended and that taxpayers could be added until we have five. I'm sure that five taxpayers would come forward and allow themselves to be added, but they haven't been. I'll decided it based on what I have, and I don't have five taxpayers. Since time is of the essence here, I don't think that an amendment would be fair, but I do believe there is standing for at least one of the Plaintiffs. So, that puts the matter before the Court.  

In terms of the argument that a specific organization must be somehow impacted differently than other specific orgainizations, specific organizations or have members who are impacted differently than the taxpayers, I don't think that's really so. And if it were, this organization, I believe, is impacted differently because it is formed in order to deal with this Hudson's building, among other things, in downtown development. So, certainly, it's differrent many other specific organizations.  

Okay. Now, the likelihood of success and the merits. That suit is brought on the bases of the statute and the Downtown Development Authority statute of the Michigan State Law specificially MCL 125.1667 ßc and ßg have been violated, and therefore this money cannot be spent for this purpose.  

In terms of ßg, I find there is, in my opinion, zero percentage on success and the merits for the Plaintiffs here. I don't believe that paragraph applies to the situation. I believe that paragraph applies to properties which the authority is selling or donating or exchanging or which they leasing or secure from municipality. I don't think it applies to portions of the development area that the authories have bought or is buying from the municipality.  

In terms of ßc, there is a stronger question. There is a question, I believe, and the question, in cutting through all the verbage here, there is a bottom line question here. Which is, Does the development plan as constituted with its amendments allow the Downtown Development Authority to demolish a building which was not listed by specific description as its legal description named, etc., in the plan or in the Land Assembleage Plan and into the document having to do with the development plans? As opposed to later actions taken by the City Council and specifically authorizing the demolition.  

The difference here is before us because the implementation of the Downtown Development Authority act requires that when there's a plan, as setforth in Section 1667, I think there must be a hearing on plan. It must be a public hearing, and notices must be given in specific ways and that is found in Section 1668. And obviously, there is a difference in public hearing and in a Council meeting or Council discussion, and the difference is when there is a public hearing the public is invited to attend and to speak to make their views known.  

That is not the same as a meeting of the City Council at which the City Council takes matters on its agenda and may or may not hear from the public or other persons as it chooses. So to me, the single, sole question is, Did the plan and its modifications need to state the name, address, as a legal description of the Hudson's building in order to tear it down with this money? If it did, then this money cannot be used, and if it doesn't, it should be granted. If it did not, then this money -- if it not necessray, then this money can be used and this injunction should be denied.

I believe that the Land Assembleage Plan, Section 407.9.2, which is found in Exhibit 6, that sets forth in general terms in the first paragraph and in the second paragraph which is entitled, Location, and it's found in the paragraph for Proposed Treatment, which I'll it read into the record.  

"The targeted area in developing area number one, as appropriate activity will consist of acquistion, demolition, clearance, and public interest structure, improvements of vacant parcel nonoccupied and under these like structures downtown.

 No tax increment funds will be used for rehabilitation or redevelopment of the land acquired without further amendment to this plans detailing the particulars of said proposed rehabilitation or redevelopment.

 Prior to its spending any portion of the $30 million on demolition incurred costs, the Authority shall present to the City Council of the City of Detroit for the Mayor and their approval for Land Assembleage Plan which identifies real property to be developed.

 Further, no portion of such $30 million shall be used for land acquistion costs or demolition costs with respect to the new Tiger Stadium."

This is the document from which the Defendants rest their position that the Hudson's parcel is specifically enough described by that verbage, the vacant property, nonoccupied, unutilized structure downtown to be torn down by using these monies. The argument made by the Defendants that it is not exactly the law requires, specifically ß(c), 125.1667,  

"A description of existing improvements in the developing area to be demolished, repaired or altered in the description of any repairs or alterations and the estimates at the time prior to completion."

The Defendant's argue -- The Plaintiff's argument is that this language, description of existing improvements, description of any repairs or alterations anx estimates at the time required for completion requires that there be, if it was not included in the original plan it not. That there be a public hearing on each and every address which is sought to be demolished.  

There has been some discussion here that the Hudson's building is somehow different than the other buildings in the development area. I agree it is different. It is larger. It has more history, perhaps for more people than other buildings.  

I'm sure there other buildings in the downtown area that have been or will be or may be torn down. I have a lot of history for people, but Hudson's is -- Mr. Myckowiak says it's large. It's large, is well known, and is a landmark. But, I don't think this act provides for a different treatment for a building on that bases.  

I don't think the legislature could possibly have intended, nor do I think that this language requires that there be a public hearing on every street address, or every site that is to be altered or demolished approved under the act; and I do not think Hudson's to be treated as an exception to this general rule and to the general makeup of this act. Despite the fact that is a well-known building, it is well loved by many people.  

I recognize that, obviously, this is one Judge talking, making a decision that this is something that reasonable minds can differ, but I believe that, it does not appear to me that there is a likelihood, at least that strong likelihood, based on the merits of this claim by the Plaintiffs.  

As to Section g, as I said, I think there is not an exception and again I think there is -- it is not strong, and ln the likelihood of success, it goes to Defendant. I want to make it clear I don't believe any of the Council meetings that were held and any of the votes that were taken to permit the use of funds satisfy this statute. I think what satisfies the statute is the language in the plan and the merits of the plan.  

I specifically do not find -- I hold that in my opinion, the legal opinion, that there need not be a specific legal description for each parcel to be demolished, and I found no legal exception here for Hudson's.  

Under the question of irrevocable harm, I believe yes. There would irrevocable harm if this demolish proceeds. It is unique real estate. It is, even real estate, all real estate is unique, and this is especially unique because it is probably the centerpiece of downtown Detroit retail area in its prosperous days. As of now, it just there, probably more a dinosaur than anything else.  

It's a discussion here that if a public hearings had been held, perhaps there could have been opportunities to put forward plans for redevelopment so it would not be lost as a building or at least as the shell of a building. That's probably true.   But, on the other hand, I think we can take a look at the reality of this and say that well all the time it's been standing vacant, both when it was privately owned and after it went for taxes and even now, so far as I can tell from what I've heard here in this hearing, there's no one stepping forward to actually do this. People like to talk about these things, but no one is actually doing it. Whether or not this will actually happen, who can say?  

I think that the building obviously once torn down cannot be so easily replaced. No construction of former days can be replaced in the way it existed. Work just isn't done in those ways. Part of this is probably better when we replace because of the asbestos. By many parts of that construction which are precious and which can never be replaced.  

There is also irrevocable harm in that the tax money, bond money here, this redevelopment money, will be gone. Of course, you can go back and get more money from the taxpayers, but that doesn't mean you haven't spent the 15 million. Nobody's going to give you that back. So, I think there is irrevocable harm.

On the question of the public interest, I think this is mixed. There's a lot of public interest at stake here. Probably, the first and foremost public interest here, indeed, is the right to participate in public process in a democracy. Opposed to that in this case, is the public interest in having a viable city and having a downtown and having a prosperous environment for the citizens. The way to get there, of course, is arguable.  

The City, in its development, feels that this can come about with demolishing Hudson's. The Plaintiffs feel that this can come about preserving it and somehow redeveloping it. And as I said, there are two points of view on this. There is a strong public interest not to misuse public funds in terms of using funds that should not be used. That, obviously, goes against the public's interest, if that were the case here. So, I think with that factor it's mixed.  

On the balancing of harm issue, I think the taxpayers have both sides in this case. It's taxpayers' money however you decide it would be used. The elected officials of the taxpayers have decided to do this. I don't think we should forget that. Not that it's part of this here, but certainly this not a matter which has not been taken -- which is not in the public arena. And, even the Council is divided in terms of final decision.  

Certainly, the two Plaintiffs, even if they could not hold this lawsuit on their own, certainly, these two Plaintiffs and many other people would feel who sided with the Plaintiffs in this case with the concept that Hudson's should not be torn down and should somehow be redeveloped. Although, as I said, that is not the issue here. The issue here is whether this money can be used to do this, because it isn't that there is someone here begging to redevelop it.  

Certainly taxpayers' money is being used for this project. If they do not want it used for this, in some philosophical way, it causes harm to them. I think there are mixed viewpoints on this balancing. If the project is stopped, will there be additional construction costs? Yes, of course there would be. Anytime any building demolition, etc., building construction project goes on, any delays causes blockage of funds.  

Even if the Plaintiffs are correct, that the subcontractor here would not have a claim against the contractor, that doesn't mean the contractor does not have a claim against the owner, who happens to be the DDA; and even if there is no specific harm and no breach of this contract, that the specific subcontract of the asbestos removal, subcontract.  

Obviously, if this ever goes forward, this demolition, the longer the delay the more it will cost. We know that from everything. It's been seen, overall, these past many years. Costs go up. They don't go down. So, I think that there are things to be said on both sides in regards to the balancing of harm if the injunction is granted or not granted.  

Because I do not believe there is a likelihood of success on the merits, I am going to set aside the TRO and I'm going to deny the Plaintiff's motion for preliminary injunction. I am going to, keeping in mind here that's what has been prayed here in the way of bond, bond versus no bond. What I'm going to do here is stay my decision, and I assume Plaintiffs would like a stay here? You're asking for a stay?

MR. MYCKOWIAK: A stay. Which decision, your Honor?

THE COURT: My decision to set aside the TRO, which will allows the demolition to go forward. I assume you would like that stayed so that you can appeal?

MR. MYCKOWIAK: Yes, your Honor, I would.

THE COURT: And your moving for that?

MR. MYCKOWIAK: Yes, your Honor, we would move for that.

THE COURT: All right. I assume the Defendants are opposed to that?

MR. BOYKIN: Most definitely, your Honor.

THE COURT: And if it was granted, you would want a bond?

MR. NOSEDA: Yes, your Honor. There would have to be one to overrule.

THE COURT: All right. I'm going to, on the motion for stay, I'm going to grant a stay until Friday morning at 8:00 a.m. At that time, the TRO will expire, and there will be nothing in the way of the demolition or unless a higher court has issued a further stay or some evidence enjoining this demolition.

This will give the Plaintiffs an opportunity to seek an appeal, and I believe the appellate question here is that a bond is not required for this short stay. So, TRO is set aside. That will become effective until Friday morning at 8:00 a.m., and that's Friday, November the 21st of November, 1997.

It will stay in effect until that time, and at that time it will expire and will be of no effect. It will be void, and I am denying the motion for preliminary injunction. There will be no injunction in place, unless another court has ordered one or a stay is granted.

MR. MYCKOWIAK: Your Honor, at this time, in light of your ruling, the Plaintiffs would like to make a motion for an expedited trial in this matter, MCR 2. 501.

THE COURT: As far as I'm concerned, you've had all the trial that you're entitled to at this point. If want to appeal this rulings, you can file at the Court of Appeals.

That's why I had you put in all your evidence. I don't see any reason to expedite it and do the same thing over for three days that we just did for three days.

Okay. The Defendants, the City, is asking me to dismiss the case, and the Defendants, DDA, is asking me to dismiss the case. I'm not going to dismiss the case at this time. I don't think it's right for dismissal. These are not motions for summary disposition. This is a motion to set aside the TRO and a motion granting the preliminary injunction.

I don't think the Plaintiffs should carry their burden here for the injunction, which is why I made the ruling that I made, but that does not mean the case will not proceed.

I'm going to set a track at this time for this case as I'd set for any other case. I'll ask that counsel, the parties sign this track. This may be basically moot, but nonetheless, I'll do it in case continues to pend on the other issues in the case.

A witness list exchange will be April 23rd of '98. Discovery will also be due June 11th of '98. The mediations in July and then you'd mediate on those issues, economic issues, and there may be settlement conferences according to mediations.

Anything further, counsel? Mr. Reifman?

MR. NOSEDA: Your Honor, if I could just speak now.


MR. NOSEDA: I wanted to know -- I understand that your are denying the request in response to the preliminary injunction. The Court dismissed the action. I just want to make it clear on the record that it's denied without prejudice to a motion being brought.

THE COURT: Of course.

MR. NOSEDA: Thank you.

MR. REIFMAN: Sorry, your Honor, you were asking?

THE COURT: Yes. Did you have anything, any questions or anything?

MR. REIFMAN: No, your Honor. You were clear.

THE COURT: All right.

MR. REIFMAN: Thank you very much.

THE COURT: Okay. This is Tuesday the 18th. I just need counsel to step up and just put your name and P number on it so we can make you a copy for this track order.

Is everything in that order, counsel?

MR. BOYKIN: Yes, your Honor.

THE COURT: I do have a praecipe order right now. Just hold on.

Just have a seat. Court is still in session. If you want, you can to in the hall. If not, have a seat.

I'm entering a praecipe order saying you have approved, that what the formal language says, and it says this motion is denied and this is Plaintiff's motion for temporary restraining order and injunction relief.

The stay is granted for TRO instructions until 11/21 at 8:00 a.m. and expires then. No bond. The Plaintiffs will have time to submit an order to appeal.

Once again, the Court will have copies before you leave.

Anything further, Mr. Myckowiak?

MR. MYCKOWIAK: No, your Honor.

THE COURT: Mr. Reifman?

MR. REIFMAN: No, your Honor.

THE COURT: Mr. Boykin?

MR. BOYKIN: No, your Honor.

THE COURT: Mr. Noseda?

MR. NOSEDA: No, your Honor.

THE COURT: This court's in recess.

THE DEPUTY: All rise.

THE COURT: Thank you.