The suit involves a development called Clark Fork Terrace 2 along Deer Creek Road. It was filed by the developer, Bob Brugh's Neighborhoods by Design, and is pending in Missoula District Court.
Both parties have asked for summary judgment and plan to file briefs Monday, so the case is expected to quickly come to a close.
“The bigger point is the city has constantly and is increasingly requiring conditions without the proper justification,” said McCormick, an attorney with Garlington, Lohn and Robinson.
City Attorney Jim Nugent declined to comment on the case, saying he did not want to appear to be trying a pending case in the media. In court documents, however, he argues the council acted lawfully when it imposed the contested conditions on the subdivision. He also argues the city has a right to a “taking” - although “no taking has occurred.”
As approved, the development is slated to put 33 lots on 47.38 acres. The land sits south of the Clark Fork River, north of the railroad tracks and east of Deer Creek Road. Brugh also is developing an adjacent property called Clark Fork 1, currently under review by the Office of Planning and Grants.
In the Clark Fork 2 case, trail extensions and property rights are at play. Brugh's plan for the property didn't mesh with the council's desires for the community, and mediation failed. Brugh wanted to put a stretch of land along the river into a conservation easement. He wanted to reserve land along the southern border as a possible link to the Kim Williams Trail if another extension didn't materialize. And he set aside roughly 26 percent of the land as green space, more than required.
The council agreed to the reservation of land along the southern border and mandated common areas have public access. With support from several agencies, the council also required Brugh to grant a public trail easement along the river. Court documents filed by the city note agency support for the decision.
“We support the expansion of the Kim Williams Trail into this area,” reads a statement by the Missoula City-County Health Department in court documents, citing public health and recreation as a concern. “If possible, the trail should go around the perimeter of all three subdivisions planned for this area and along the riverfront.”
Montana Fish, Wildlife and Parks, the city engineer and Missoula Parks and Recreation also backed the idea of a trail along the river. In a letter quoted in court papers, Parks and Rec recommended the subdivision reserve a southern easement to create a trail connection to the Old Milwaukee Road and also set aside land along the river for a trail.
“We would like to keep the option open of the potential for a public trail along the river and thus do not want the conservation easement terms to preclude that possibility,” says the letter excerpted in court documents.
The conditions are about subdivision design and mostly benefit residents and their guests, argued Nugent in the lawsuit. He also argued the council has the right to make such decisions as part of its role approving subdivisions.
“Courts should give judicial deference to City Council subdivision design, non-motorized transportation determinations, public health and safety, trail locations, etc.; unless there is overwhelming evidence of abuse of discretion by the City Council as local governing body,” he wrote.
At a City Council meeting last November, council members debated the merits of asking the developer to put land along the river in a public access easement. Most wanted to take advantage of the chance to continue the Kim Williams Trail there in the future.
“We have missed opportunities to get easements along the riverfront before, and I believe we've lived to regret it greatly,” said Ward 3 Councilwoman Stacy Rye, according to meeting minutes.
At the same meeting, Ward 2 Councilman John Hendrickson disagreed but was in the minority: “I think this is overkill for the developer.”
According to McCormick, the requirements go beyond overkill and infringe on the rights of the property owner. Montana law says conditions need to be related to impacts created by the subdivision. And he said in this case, they aren't.
“Rather, the motivation was simply a function of opportunity because the subdivision happens to be in a location where the city would like to establish a public trail,” state court documents filed by the plaintiff.
McCormick also said the land isn't conducive to a trail because of a steep slope and the high cost of building even just 50 yards of a pathway there. But in the lawsuit, that's also beside the point.
“You can't take something because you just want it. And that's what they did,” McCormick said.
Brugh earlier declined to discuss Clark Fork 2. He was out of the country late last week and unavailable for comment.
Reporter Keila Szpaller can be reached at 523-5262 or at keila.szpaller@missoulian.com.
|
 |
 |
Add your comment now! Write your comment in the form below.
(Email address is for verification only. If you'd like to email a story, look for the link above)