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Judge temporarily blocks further development in Opus project

Wednesday, August 13, 2014 | 11:12 p.m. CDT; updated 7:29 a.m. CDT, Thursday, August 14, 2014

COLUMBIA — After months of effort, thousands of signatures and protest failed to stop a student-housing developer from proceeding with a downtown project, a lawsuit has done just that. At least for a few days.

On Wednesday, Boone County Circuit Judge Christine Carpenter issued a temporary restraining order blocking the city of Columbia from taking any action on Opus Development Co.'s proposed project, except to vote on two bills relating to a referendum petition intended to rescind the city's second agreement with the student-housing developer.

One bill would rescind the agreement and, if voted down, the Columbia City Council would be forced by the city's charter to pass the other bill and put the matter before voters Nov. 4.

The restraining order is the result of a lawsuit filed Tuesday on behalf of two Columbia residents, Betty Wilson and Michael MacMann. Wilson and MacMann allege that the city and city manager violated their rights under the U.S. Constitution and the Columbia City Charter when the city passed legislation allowing a second development agreement while the ordinance allowing the first agreement was being repealed and issued permits after the first agreement was repealed.

Columbia attorney Jeremy Root, the spokesman for the petition group known as Repeal 6214, filed the lawsuit. The city and City Manager Mike Matthes were named as defendants.

Root said the plaintiffs signed both petitions and gathered signatures for both as well, but declined to discuss any strategic issues related to the lawsuit.

He said the filing was a last resort and the decision came after the city issued a news release on July 31. The release stated the city would grant Opus Group all the permits it needs to build the six-story, 259-bed apartment building on the north side of Locust Street in between Seventh and Eighth streets.

According to the complaint, the release came hours after City Clerk Sheela Amin informed Repeal 6214 their petition against the second Opus development agreement was valid, which would force the council to consider the development agreement's repeal.

"Their actions left us with no choice," Root said.

The origins of  Repeal 6214

The group draws its name from the bill number of the first development agreement, which was passed by council on March 19.

It formalized the developer's $450,000 contribution to sanitary sewer and water utilities. Downtown development was stalled in February 2014 after city staff said there wasn't adequate capacity in the sanitary sewer utilities downtown to accommodate further high-density residential development. In exchange for permission to proceed, three developers including Opus agreed to contribute money toward fixing the infrastructure issues as part of development agreements.

The agreements were introduced on March 12 at a noontime special meeting and were voted on a week later at another special meeting. Opus and Collegiate Housing Partners received approval, but inaccurate electric load estimates forced the council to table the proposed American Campus Communities project.

Residents took issue with the one-week process used to consider the agreement with Opus and a group of them began to circulate a petition for its repeal. The petition was handed in first on April 8 and then, after Amin said the petition lacked the requisite amount of signatures, additional signatures were submitted May 9.

While the petitioner's were awaiting word on the signature count the first time, First Ward Councilwoman Ginny Chadwick sponsored another development agreement that would repeal the first, Bill 130-14, in part to address Repeal 6214's concerns with the process council used to pass the first agreement. It was introduced May 5 and passed May 19.

Moments after its passage, the repeal group was at work circulating a petition for its repeal, which was initially handed in June 9, and again with additional signatures on July 16.

The complaint

The complaint provides a list of actions that allegedly restricted the plaintiffs' rights to referendum and free speech.

  • It states that the manner with which Matthes called the March 12 and 19 special meetings to consider  the development agreements with student-housing developers was illegal.
  • The city considering a second development agreement with Opus while the first was still awaiting certification violated the law, it says.
  • It says the city introduced a second agreement despite being bound by the charter not to bring forward an ordinance with the same subject for at least six months after the repeal of Bill 6214.
  • A section of the second agreement made the repeal of the first contingent upon the fact that no petition be submitted against the second. This was "intended to discourage citizens from exercising their right to file a referendum petition," the complaint states.
  • The actions and comments of city council and staff, such as Mayor Bob McDavid saying the petitioners were reckless and exposing the city to financial risk because of Opus' threats to sue and City Counselor Nancy Thompson saying council members were personally liable if Opus filed a lawsuit as a result of the council's failure to pass the second agreement, were "under color of state law," it says. According to the Federal Bureau of Investigation's website, an action is under "color of the law" when it willfully deprives someone of a right guaranteed them by the U.S. Constitution. 
  • The complaint states that the city violated the rights of the plaintiffs when it issued street and sidewalk closure permits to Opus on June 19 because it was within six months of Bill 6214's repeal.

A motion hearing is scheduled to discuss the restraining order at 9 a.m. Monday. Root provided the Missourian a digital copy of the complaint.

 


Supervising editor is Mary Ryan.


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