COLUMBIA — Opus Development Co.'s proposal to build a six-story, 259-bed student apartment building on Locust Street between Seventh and Eighth streets downtown has created a civic drama that has unfolded over several months.
After two referendum petitions failed to block the project, it became the subject of a civil rights lawsuit that's pending in federal court. However, Betty Wilson and Michael MacMann's claim failed to stop the project. U.S. District Judge Nanette K. Laughrey ruled that the city could issue Opus building permits without violating the plaintiffs' First Amendment rights.
Those permits were issued Sept. 10.
Wilson and MacMann filed a second lawsuit against the city of Columbia, City Manager Mike Matthes and Opus on Sept. 11, arguing that the city's issuance of permits for demolition and construction was illegal. That case is pending in the 13th Circuit Court.
The Missourian has created this docket-style report to keep readers up to speed on the case.
New developments will be added to the top of this file as they occur. Click on the hyperlinks in the text to view the documents filed by the attorneys. The links in parentheses are to related Missourian coverage. Scroll down to the bottom of the story to see how it all unfolded from the beginning.
At a pretrial hearing, visiting Judge Richard Scheibe of Warren County grants Opus's motion to dismiss one of the three remaining counts in the state lawsuit. The count alleged, among other things, that the City Council should have used an ordinance, and not a resolution, to issue a permit to Opus to close the street and sidewalks along the construction site.
Two counts remain in the suit. One claims that Opus, not the previous property owner, should have applied for permits from the city to close sidewalks and a street along the construction site. The other argues that the apartment project will exacerbate existing problems with the Flat Branch sewer system.
The parties tell the court that negotiations are ongoing, and Scheibe scheduled a trial for March 19.
Root files the plaintiffs' argument against dismissing the amended third count of the state lawsuit. "Having established a lawful process by which a right can be conferred," he argues, "the city is not free to ignore that process and issue the permit through some other mechanism." A pretrial hearing is set for Dec. 29 on the motion to dismiss and to schedule a trial.
Opus files a motion to dismiss the amended third count of the state lawsuit, saying the plaintiffs are sing a "kitchen-sink" approach.
Root amends one of the counts in the state lawsuit, arguing that the City Council should have used an ordinance, and not a resolution, to issue a permit to Opus to close the street and sidewalks along the construction site. The previous count argued that Matthes, and not the council, should have issued the permit.
At a pretrial hearing in the building permits case, visiting Associate Circuit Judge Richard Scheibe dismisses one of four counts cited by the plaintiffs and allows them to amend another. The count dismissed alleged that the city's authorization to issue permits was revoked by the two referendum petitions submitted by the plaintiffs and other members of Repeal 6214. He allows the plaintiffs to amend the third count, which challenges the City Council's authority to issue a permit to close the street and sidewalks along the construction site and the manner in which the council did so. He leaves intact a count that claims Opus, and not the previous property owner, should have applied for permits.
What happened: In the civil rights case, U.S. District Judge Nanette Laughrey denies the city's request for her stop proceedings in the second lawsuit and preside over that case herself. She says she doesn't believe she has the authority to remove the case and that the situation fails to meet any of the few legal criteria that would justify her doing so.
Meanwhile, in the circuit court lawsuit, Scheibe declines to issue a temporary restraining order against Opus, which would have stalled construction of the apartment building. Scheibe says he did so because he didn't believe the plaintiffs would be immediately or irreparably harmed if construction continued. Opus, on the other hand, would be harmed if he stopped the project, he says. The city withdraws its motion to dismiss the case, and Scheibe schedules a Nov. 13 hearing.
What happened: Opus attorney Thomas Harrison argues that the Missouri Supreme Court should take its time appointing a new judge to the case. There's no reason to rush, he says, because the plaintiffs have objected to a city's desire to move quickly toward a hearing on whether to dismiss the case.
What happened: Boone County Presiding Judge Jodie Asel asks the Missouri Supreme Court to assign a judge to the state court case. Associate Circuit Judge Richard Scheibe of Warren County is assigned.
At 9 a.m., all parties, including the plaintiffs, Wilson and MacMann, pack a small courtroom on the third floor of the Boone County Courthouse for a hearing on the motion for a temporary restraining order that would stop work on Locust Street.
Barely a minute after the proceedings begin, Opus attorney Thomas Harrison tells Boone County Circuit Judge Christine Carpenter that he filed a change of judge request. She issues an order that sends the case back to Boone County Presiding Judge Jodie Asel for reassignment. The hearing closes and the crowd disperses.
Later Friday, the plaintiffs' attorney Jeremy Root files a motion to expedite the case's reassignment to another judge, so there can be a hearing on a temporary restraining order as soon as possible.
The parties in the state court case file a flurry of motions. The city's attorney, Christopher Rackers, files a notice of hearing on his motion to dismiss the lawsuit and a motion to shorten the amount of time that the city is required to give as notice for such a hearing. He also files a notice of hearing on that motion, too.
Plaintiffs' attorney Jeremy Root files objections to the city's notice of hearing regarding their motion to dismiss that says the plaintiffs need five days notice for such a hearing.
Rackers also files a motion in the civil rights case that aims to stop the state court case in its tracks. It says MacMann and Wilson's two lawsuits are virtually identical and seek the same result — stopping the project. It argues that because Laughrey has already ruled against the first one, she should protect the court's jurisdiction, intervene in the state court case and stop the plaintiffs from proceeding with their claim against the building permits.
Boone County Circuit Judge Christine Carpenter schedules a hearing for 9 a.m. Friday on the motion for a restraining order.
Root files a notice of hearing for 9 a.m. Friday. The notice asks that the plaintiffs be heard on their motion for a temporary restraining order at 9 a.m. Friday or as soon as possible. The Opus site is now a giant pit..
Carpenter allows Opus' Minneapolis attorneys, Charles Rogers and Jason Asmus, to enter the case.
Opus attorney Thomas Harrison files two identical motions to allow two Minneapolis attorneys, Rogers and Asmus, to be allowed to practice in the state court case. Both attorneys are admitted and allowed to practice in the civil rights lawsuit.
In the state court case, Opus attorney Harrison files a memorandum to the court that states the plaintiffs' request for a temporary restraining order should be denied, referring to the reasons lined out in the suggestions against the restraining order filed Monday.
Boone County Presiding Judge Jodie Asel assigns Boone County Circuit Judge Christine Carpenter to the case. Carpenter also presided over MacMann and Wilson's civil rights lawsuit before the city's attorney, Christopher Rackers, removed it to federal court.
U.S. District Judge Nanette Laughrey issues an order in the civil rights case that says the parties must file a joint scheduling order/scheduling plan by Oct. 7. That plan would set a timeline for the remainder of the case and discuss how long a jury trial would take, if there were to be one.
Crews begin work at the Opus site a few minutes after 7 a.m. Monday. First, workers knock out storefront windows with a crowbar. Later, a backhoe demolishes what used to be Chong's Oriental Market.
The motion hearing on the temporary restraining order is canceled after the plaintiffs file a motion to request a change of judge. The city of Columbia files a motion to dismiss the lawsuit. It argues that the plaintiffs' first lawsuit is identical to the current one, and, as a result, the first case has jurisdiction, and the second lawsuit should be dismissed.
Opus files suggestions in opposition to the plaintiffs' motion for a temporary restraining order. It says the lawsuit is designed to stop the project, and if it does, Opus will sustain losses of at least $5 million.
Those suggestions also say the plaintiffs' assertion that there isn't adequate sanitary sewer capacity for the project is "factually baseless" and contradicted by evidence on the record, and that there have been changes to downtown sewer capacity since February. The suggestions cite a recent city report that says stormwater flowing into the downtown sewer has been reduced. It also argues that the plaintiffs' argument that the site's owner, HSRE-ODC II MIZZOU, LLC, needed to obtain the building permit is "legally and factually erroneous."
Boone County Circuit Judge Kevin Crane grants a temporary restraining order and then sets it aside. According to plaintiffs' attorney Josh Oxenhandler, Crane's decision to set aside was made in the Columbia Country Club parking lot.
Attorney Jeremy Root files another lawsuit in Boone County Circuit Court that says the city acted illegally and in an "arbitary and capricious manner" when it issued demolition and construction permits on Sept. 10. Root asks the court to declare the permits void, to prevent the city from taking any further action on the Opus project until at least Feb. 18 and to prevent any construction on the apartment complex until adequate utilities are in place. Root also files a motion for a temporary restraining order.
U.S. District Judge Nanette Laughrey rules that the city can issue permits to Opus and that wouldn't violate MacMann's and Wilson's First Amendment rights. In her ruling, she denies the plaintiffs' request that the city be blocked from issuing Opus permits for six months or until sufficient infrastructure is in place.
Despite the fact that Opus can now proceed, the case isn't over. The city files an answer to the 97 "facts" laid out in the original lawsuit.
Once utilities are shut off to the site, Opus can receive building and demolition permits and begin construction.
The parties and Laughrey discuss the restraining order for more than a hour Thursday, and the hearing ends with no ruling. Laughrey says she needs more time to think about the restraining order and says something needs to be done before the restraining order expires at 5 p.m. Friday. A private teleconference among the parties and Laughrey follows the hearing.
The proceedings Thursday focus on the plaintiffs' and intervenors' competing claims about whether there's sufficient infrastructure, particularly sanitary sewer, to serve the project.
Plaintiffs' attorney Jeremy Root claims there has been no substantial change in sewer capacity downtown since February, when a lack of capacity caused the city to negotiate the first development agreement with Opus. He also noted that no downtown development has been able to proceed without contributing to infrastructure costs since February, and that the city's decision to let Opus proceed without a development agreement is designed to avoid the referendum process.
Both of the city's repealed agreements with Opus contained a $200,000 contribution toward sanitary sewer infrastructure and $250,000 for widening water mains.
Opus attorney Jason Asmus argues that infrastructure issues have been resolved and that a development agreement is not mandatory for the project to proceed. He also argues the plaintiffs' request that the city be blocked from issuing permits for six months is not related to their civil rights claim.
MU law professor Richard Reuben, who has signed on with the plaintiffs as a consultant, said the private teleconference likely discussed sensitive information that Laughrey didn't want the public to hear. The teleconference, he said, is the equivalent of attorneys being summoned to a judge's chambers.
Opus attorney Harrison files a reply to plaintiffs' attorney Jeremy Root's Sept. 2 argument, saying the restraining order should be dissolved. He argues there's sufficient infrastructure to support the apartment project, despite Root's assertion. Otherwise, he says, the city wouldn't have entered into the since-repealed development agreements.
Harrison also notes sewer capacity issues only occur during a heavy rain and the Columbia City Council has approved projects that will expand electric and sanitary sewer capacity downtown. If the restraining order remains in effect, he says, the plaintiffs should be required to post significantly more than the $100 bond they've already posted.
Harrison submits an affidavit from City Manager Mike Matthes that gives a timeline of the Opus project since March and says there is adequate infrastructure to serve the project. Another affidavit from Opus Senior Director of Real Estate Development Joseph Downs is submitted, too. Downs' affidavit mentions a May 28 negotiation session among Opus, Root, who was a spokesman for the petitioning group, and another plaintiffs' attorney Josh Oxenhandler.
Root argues against dissolving the restraining order, stating there will be insufficient utilities for the project by its August 2015 completion date. He also argues that case law establishes the need for a restraining order because the city's issuance of permits, despite two successful referendum petitions opposing the project, would be a clear violation of the plaintiffs' First Amendment rights. Opus has until 5 p.m. Sept. 3 to reply.
Also, the city's attorney, Christopher Rackers, files a response to the plaintiffs' motion for sanctions. That motion, which was made in state court, asserted the city violated the restraining order by marking the site's utility connections with spray paint. Rackers argues the spray painting is not facilitating the development and is instead required by state law. He asks Laughrey to dismiss the plaintiffs' motion for sanctions.
U.S. District Judge Nanette Laughrey rules that Opus could intervene in the case for the sole purpose of fighting the restraining order. She sets deadlines for written arguments to be filed by Opus and the plaintiffs and sets a hearing for 3 p.m. Sept. 4. She also extends the restraining order by one day. It is now due to expire on Sept. 5.
Thomas Harrison, the Opus attorney, argues again that Opus should be allowed to enter the case, saying the lawsuit is not about civil rights but instead is designed to scuttle the apartment project. Laughrey schedules a hearing on the matter for Friday.
Root files the plaintiffs' response to Opus' motion to intervene, stating the defendants, the city and Matthes would protect Opus' interests. Laughrey orders Opus to reply by the end of the day Aug. 28.
Harrison files a motion asking the court to speed up the process by requiring a faster response from the plaintiffs to his motion to intervene. Time is of the essence if the Opus project is to succeed, he argues.
Root files an emergency motion to extend the restraining order, which is scheduled to expire Aug. 25. After a teleconference hearing, Laughrey extends the restraining order by 10 days. She states, though, that "the (temporary restraining order) does not apply to emergency actions necessary for the safety of persons and preservation of property."
The city's attorney, Rackers, moves the case to the U.S. District Court, Western District of Missouri. The case is assigned to an outside mediator.
The notices that Rackers filed said the alleged violations of the plaintiffs' First Amendment rights gives the federal court jurisdiction. The mediation, meanwhile, is designed to allow parties to reach a settlement before attorneys' fees make that impossible.
Springfield attorney Joseph Sheppard joins the plaintiffs' legal team.
Sheppard represented Maranda Reynolds, Show-Me State Cannabis Regulation Inc. and the American Victory Coalition in a civil rights case against the city of Springfield. The plaintiffs in that case filed a similar lawsuit after the marijuana law they put forth by initiative petition was repealed by the Springfield City Council instead of being placed on the ballot. The city settled the case by paying $225,000 to the plaintiffs.
Root files a motion for sanctions against the city for violating the restraining order, citing a Missourian article that mentions that a city employee marked the site's utility connections with spray paint while the restraining order was in effect.
Harrison files a motion to allow Opus and its partner company, HSRE ODC II MIZZOU, LLC, to intervene in the case and to dissolve the restraining order.
Boone County Circuit Judge Christine Carpenter issues a temporary restraining order prohibiting the city from any actions on the Opus project other than voting on the repeal of the second development agreement.
As a result, the city couldn't issue permits Opus needs to proceed with demolition of buildings on the Locust Street site or to begin construction.
Wilson and MacMann file the suit against the city and Matthes, alleging the city's actions regarding the proposed Opus Development Co. project violate their rights to referendum and free speech. The lawsuit alleges that the plaintiffs' First Amendment rights would be immediately and irreparably harmed if the project were allowed to proceed.
The document provides a timeline of the Opus project and the utility issues surrounding it that prompted the city to pass two development agreements for the project. The agreements — which were both repealed by the council after referendum petitions were submitted against each — exchanged $450,000 toward off-site sewer and water projects in exchange for permission to proceed. The plaintiffs signed and helped circulate both petitions. It also alleges that the city's actions violated MacMann and Wilson's rights by passing the second development agreement with Opus while the first was being petitioned against and when the city stated in a news release the project would still proceed with the second petition process ongoing.
Supervising editor is Scott Swafford.