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Plaintiffs say spray paint violates Opus restraining order

Tuesday, August 19, 2014 | 10:33 p.m. CDT; updated 9:00 a.m. CDT, Wednesday, August 20, 2014

COLUMBIA — Opponents of a proposed student-housing development say the city violated a judge's orders with a few cans of spray paint.

Columbia attorney Jeremy Root filed a motion for sanctions against the city Monday that states that by marking utility connections with spray paint around the proposed site of the Opus Development Co. project, the city directly violated a judge's restraining order.

The motion for sanctions was among three documents filed by Root on Monday.  He also filed a response to Opus' motion to intervene in the case and a response to the developer's motion that the restraining order blocking the project's construction be dissolved.

The three were added to the growing sheaf of documents related to the lawsuit filed by the plaintiffs. The lawsuit, filed on behalf of Betty Wilson and Michael MacMann, alleges the city violated their rights to free speech and referendum by passing a second development agreement with Opus while the first was the subject of a petition that sought its repeal. It also alleges the city violated their rights by announcing Opus would proceed without a development agreement the day a petition against the second was validated by City Clerk Sheela Amin.

Boone County Circuit Judge Christine Carpenter issued a temporary restraining order Aug. 13, restricting any action by the city related to the proposed project except for voting on two bills relating to repeal of the city's second development agreement with Opus. Columbia City Council repealed that ordinance early Tuesday morning.

Motion for sanctions against the city

Root learned during a Missourian interview Friday morning that a Columbia Water and Light employee had been using spray paint to mark the spot of utility connections at the Opus site. After learning about the work, Root said he would take the issue up directly with city staff.

The motion said the plaintiffs' lawyers discussed the matter with City Counselor Nancy Thompson later Friday and that she said she didn't know what a city employee was doing on site. According to the motion, Thompson also told them she didn't believe the work violated Carpenter's temporary restraining order.

Carpenter's order restricts any city action on Opus' proposed six-story, 259-bed building, with the exception of the council's votes on Tuesday. The order states that "Defendants City of Columbia and (City Manager Mike) Matthes, and all those acting on their behalf, are enjoined and restrained from taking any action with respect to the proposed student housing development at Eighth and Locust other than voting on the bills relating to the referendum petition."

The motion also cites comments made Friday by Deputy City Manager Tony St. Romaine, which were first published by the Missourian. St. Romaine said that marking utilities was routine procedure and that he didn't believe doing so violated the restraining order.

But in his motion, Root alleges "the Defendants' actions on Friday, August 15 represent a willful and contemptuous violation of this Court's temporary restraining order."


Suggestions in response to Opus' request to dissolve restraining order

On Friday, Columbia attorney Thomas Harrison filed a motion on behalf of Opus to intervene in the case and a motion to dissolve the restraining order. The motion to dissolve argued that since the order was granted without naming the developer or giving the city notice, it was improperly granted and should be removed.

In a separate filing, Root wrote the court should reject their "hollow bombast" of a motion and cited Missouri Supreme Court Rule 92.02 which states that a restraining order can be issued without notice if "notice would defeat the purpose of the order."

It said the temporary restraining order wouldn't have been granted without merit and contains the four elements — likelihood of success, threat of irreparable harm, balance of harms and public interest — that allow preliminary judicial restraint.

The city has yet to respond to the temporary restraining order, Root states. Thompson, the city counselor, declined to comment Tuesday evening. Root did not respond to multiple requests for comment as of Tuesday evening.

Plaintiffs' response to Opus' motion to intervene

Root also filed a response to Opus' motion to intervene that says the developer's motion is defective.

A limited liability company, HSRE ODC II MIZZOU, LLC, owns the site of the proposed project. And Opus' brief in support of dissolving the restraining order states that Opus Development Co. — the project's developer — is a member of that limited liability company. In the brief, the two entities are referred to collectively as "the Developers."

But Root's response states that HSRE ODC II MIZZOU, LLC shouldn't be afforded the ability to intervene in the case because it didn't exist until the day before the second petition was validated. According to the Missouri Secretary of State's website, the company was created July 30.

Supervising editor is Edward Hart.


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Comments

Richard Saunders August 20, 2014 | 11:36 a.m.

So... did the judge's restraint order explicitly apply to the Missouri One Call system, as well as the City? I'm having a hard time understanding how a judge can implicitly negate state law in an effort to settle a local dispute.

Then there's the whole issue of NOT being allowed to turn off utilities. How can anyone make the case demanding that utilities be left on in order to prevent damage to other parties?

Opus' lawyers are gonna get paid big time for this obvious overreach of judicial authority. And we are the ones who will ultimately pay.

I don't like the Federal Reserve, student-loan fueled debt bubble that funds this student housing malinvestment either (as it's another waste of a jobs program, pretending to support the economy as it makes us all poorer). But I'd much rather focus on the root of the problem (monetary expansion), rather than its symptoms that are addressed by the coercion of legalized gang warfare.

Cut off the free money (i.e. "super cheap credit"), and NONE of these issues would exist. Instead though, Columbia is being setup for a disaster in a few years when there's no way to sustain this level of development. Debt service requires revenue. When it's gone, so is the rest of the ponzi.

To put it bluntly, when the student loan bubble finally blows (as ALL bubbles do), Columbia is screwed. Regardless of the outcome over Opus, the consequences of legalized counterfeiting will not be denied.

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