Opus files motion against restraining order

Saturday, August 16, 2014 | 5:21 p.m. CDT; updated 5:58 p.m. CDT, Saturday, August 16, 2014

*This article has been updated to further explain Opus Development Co.'s stance on the temporary restraining order.

COLUMBIA — Opus Development Co.'s lawyer took the legal matters blocking the developer from getting a building permit into his own hands Friday afternoon.

The developer's attorney, Thomas Harrison of the Columbia law firm Van Matre, Harrison, Hollis, and Taylor, P.C., filed a motion to intervene in the case of Betty Wilson and Michael MacMann v. the City of Columbia and City Manager Mike Matthes. The developer cited Missouri Supreme Court Rule 52.12 as cause for intervention. The rule states intervention by a third party in a civil case is allowed "when the applicant claims an interest relating to the property or transaction that is the subject of the action."

Opus also filed a motion to dissolve the temporary restraining order issued by Boone County Circuit Judge Christine Carpenter on Wednesday. She ordered the city to take no "action with respect to proposed student housing development ... other than voting on the bills relating to the referendum petition to repeal Bill 130-14," the city's second development agreement with Opus.

Carpenter granted the restraining order as a result of a petition for relief, often known as a complaint, filed against the city by the plaintiffs' attorneys, Jeremy Root and Josh Oxenhandler.

MacMann and Wilson are affiliated with the group Repeal 6214, which has sought — through two referendum petitions — to stop Opus's plan to build a 259-bed student housing project on the north side of Locust Street between Seventh and Eighth streets downtown.

MacMann and Wilson allege the city violated their rights to referendum and free speech. In a July 31 news release, city staff said Opus was clear to receive all the permits it needs to proceed while the second petition process was ongoing, which sparked the lawsuit. If the city issues Opus permits, the plaintiffs allege they will suffer immediate and irreparable harm.

Both Wilson and MacMann declined to comment on the case.

In the complaint filed Tuesday, the plaintiffs asked the court to stop the city from issuing Opus any permits until six months after the repeal of either development agreement and until infrastructure such as sanitary sewer is adequate to serve the project.

A brief that accompanied the motion against the restraining order said that Opus will suffer irreparable harm if the restraining order isn't lifted and that the temporary restraining order is "substantively deficient."  The developer is expecting permits by Aug. 25.

The brief provides several arguments as to why the restraining order — and the plaintiffs' argument — is deficient: The plaintiffs have no chance of stopping permits from being issued because the petitions only pertain to legislation that authorizes Matthes to execute agreements with the developer; the city doesn't need a development agreement for the project to receive the proper permits; there will be sufficient infrastructure in place to serve the project; and the city is compelled to issue Opus permits because all requirements have been met.

Opus also argues the restraining order was unnecessary because the plaintiffs' right to submit referendum petitions against both development permits wasn't infringed upon. The brief said the plaintiffs have freely and openly exercised their rights and "have gotten everything to which they are entitled and everything that they claim ... to have been denied."

Per the brief, the plaintiffs would still have the opportunity to oppose issued permits in court. "Plaintiffs would have the opportunity to challenge the City's issuance of the necessary permits as being arbitrary and capricious."

It also said Missouri case law establishes that the judicial restraint of an administrative act such as issuing a building permit can only happen after the action has taken place. The brief suggests the plaintiffs file a lawsuit after the permits have been issued.

The brief said the company has invested more than $6.5 million into the project and would lose about $5 million in profit if the project were to be "scuttled."

According to the brief, the restraining order is not in the public interest. The public interest is served when the city is allowed to perform its executive and administrative functions, and "when citizens can rely on zoning laws, building code and permit requirements."

The brief concludes with the assertion that if permits from the city are not issued quickly "the Project will be scuttled." It said the plaintiffs should be required to post a bond in excess of $10 million to protect the developers against damages that would be caused by the restraining order.

Opus said that failure to proceed with the project would cost Columbia hundreds of new jobs and cause the local economy to lose an infusion of millions of dollars. It also argues that failure to open the apartment complex by August 2015 would have "an overall detrimental impact on the community and its schools and students."

In an interview Friday afternoon, City Counselor Nancy Thompson rejected the plaintiffs' claims that the city had violated their right to referendum with its intention to give Opus building permits while the second referendum process was still ongoing.

She said the referendum petition submitted against the second development agreement only applies to the ordinance it's petitioning against, which is an ordinance that allows Matthes the ability to execute the development agreement. It doesn't apply to standard building permit procedures.

The temporary restraining order didn't stop the city from marking where the site's utilities are Friday morning in preparation for shutting off water and light service, which is something that's required before demolition can begin.

Deputy City Manager Tony St. Romaine said marking the location of utility lines was normal procedure because Opus owns the property and asked that water and electricity be shut off.

"The only thing we have been restrained from doing is facilitating construction," St. Romaine said.

Meanwhile, the site of the planned construction has been busy this week. The buildings that housed Chong's Oriental Market and Crazy Music have been emptied, and a tow-away trash receptacle has been parked on the site.

The motion hearing set for 9 a.m. Monday in the case has been canceled.

The cancellation came Friday afternoon after a change of judge request by the plaintiffs' was granted. Carpenter will now preside over the case instead of Boone County Circuit Judge Kevin Crane, to whom the case was originally assigned. Oxenhandler filed the request Thursday afternoon but declined to say why.

Root said the parties probably won't hear about a rescheduled hearing until Monday. Root provided a copy of Harrison's brief to the Missourian.

The Columbia City Council is scheduled to decide during its regular meeting on Monday night whether to repeal the second development agreement with Opus or to place it on the November ballot for a public vote.

Supervising editor is Scott Swafford.

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