… the Clark Fork Terrace II lawsuit, city attorney Jim Nugent said he believes the decision will come in the next 30 to 60 days. In court on Tuesday, Judge Ed McLean said he didn’t expect more briefs in the case.
It was interesting to watch the lawyers quiz witnesses on the stand. City attorney Jim Nugent called Parks and Rec’s Jackie Corday, the Health Department’s Peter Nielsen, and OPG’s Tim Worley.
When questioning Corday, the plaintiff’s lawyer, Alan McCormick, suggested the city required easements because it wanted them — and not because the developer needed to offset some impact from the project.
Said Corday: “I am not going to let you put words in my mouth.”
At one point, Nugent tried to bring a draft of Corday’s recommendation letter into the argument. He said the letter changed after suggestions from WGM Group, and the draft would be telling. McCormick, though, said the new evidence wasn’t allowed. The judge agreed.
One of the most curious tidbits came out of McCormick’s line of questions to OPG’s Worley. The lawyer started off with inquiries that established the planner as a well-educated, experienced and meticulous reviewer of proposed subdivisions. Maybe even a perfectionist.
Then, McCormick pointed out the perfect omission, one that must not have been accidental given the fastidious tendencies of the planner. Or so he argued as he made the case the council wasn’t “mitigating” anything when it required the trail along the Clark Fork River. The city argued the subdivision would create some 750 car trips a day, and the trails helped alleviate that effect.
But after each requirement noted in the “Conditions of Approval,” the author cited related subdivision regulations. And after Condition No. 15**, on the river trail easement, the only citation listed is Article 3-6***, about easements. The author didn’t cite 3-2, the one that deals with transportation and non-motorized travel.
The implication? Certainly a thorough planner like Worley wouldn’t have overlooked such an omission. And that’s because it wasn’t missing at all — it never was part of the rationale. At least “with respect to”**** the lawyer’s argument.
At least at the public hearing*, one of many meetings on the project, that trail was discussed in terms of recreation and not transportation. (Another possible trail on the southern edge of the property was mentioned as a commuter route.) Councilors wanted to secure the northerly one on the river to keep the options for trails open in the future and not lament a “tragically missed opportunity.”
Wanna know who said it? ‘Bout to read the minutes? Consider yourself the supreme ruler of government geeks.
— Keila Szpaller
**This is a draft of the conditions. Some language was added to the final No. 15, but the citations are the same.
***Scroll (or search) for the correct article.
****”With respect to” is something Nugent said, like, a gajillion times in court. (Gajillion is a number invented by Mayor John Engen.)