Tomorrow, we’ll publish a story about the lawsuit between the city of Missoula and Neighborhoods by Design. NBD, the firm developing Clark Fork Terrace No. 2 in East Missoula, is suing the city over four stipulations the city council imposed as a condition of its approval. The most controversial condition asks NBD to leave a 20-foot wide easement along the Clark Fork River for the city to construct a trail. For years, the city has struggled to extend the Kim Williams trail east to the confluence of the Clark Fork and Blackfoot rivers. NBD is willing to help in the endeavor, but the firm feels that the trail could run along Deer Creek Road, then east along an abandoned section of the Old Milwaukee line. The extra trail along the river is too much, NBD says, and doesn’t comply with the city’s subdivision regulations. Yesterday, Judge Ed McLean held an evidentiary hearing in district court to decide whether the city could compel NBD to give up the easement. I was there, as was Missoulian reporter Keila Szpaller. Our takes on the case run relatively parallel, but she focused on some aspects of the hearing that I passed over and vice versa. As such, if you’re interested in the lawsuit, both are worth reading. Her report is here. The text of mine follows after the jump.
Missoula city officials have dreamed for years of connecting the Kim Williams Trail to the confluence of the Blackfoot and Clark Fork rivers past Bonner. Now, a judge may decide whether the city can compel developers to make that dream a reality.
The city’s desire stems from a lack of alternative routes to and from the eastern parts of Missoula. As it stands now, bicyclists must fight high-volume traffic on Highway 200 and Interstate 90 to reach downtown from East Missoula and Bonner. An extension of the trail would bypass those roadways and provide a scenic path along the river.
City Council thought it found the solution to the problem with its Nov. 26, 2007, approval of developer Bob Brugh’s application for the Clark Fork Terrace No. 2 subdivision. Brugh’s company, Neighborhoods by Design, proposed 33 homes on 47.38 acres east of Deer Creek Road along the Clark Fork River near East Missoula.
As a condition of approval, the city proposed a trail running along Deer Creek Road to the east. That trail would connect with the abandoned Old Milwaukee railroad line and, the city hoped, eventually extend to the Kim Williams Trail, linking the popular Missoula path with Bonner.
Brugh agreed to the council’s stipulation, but balked at a second condition of approval—an easement along the river to build a second trail. Brugh then sued the city, in part, to remove the additional condition.
On Tuesday, Missoula District Judge Ed McLean held an evidentiary hearing to decide whether the city has the authority to force Brugh to create an easement. McLean put the burden on the city to provide more information on why, exactly, the riverfront trail is necessary to the project—and why Brugh should be responsible for it.
City Attorney Jim Nugent first called Peter Nielsen, an environmental health supervisor with the Missoula City-County Health Department who has worked for the past 15 years to extend the Kim Williams Trail. Nielsen explained that an easement and riverfront path would make the extension more desirable—a vital component to a route he expects to be in heavy use. As proof, Nielsen pointed to traffic figures that project the subdivision will add more than one car per minute to local roadways, making an alternative commute to services in Missoula all the more necessary. He also said children living in the subdivision would likely attend the Bonner School, and to drive to the facility parents would need to backtrack to East Missoula, then back up the river—a circuitous 5-mile drive. With a pedestrian bridge the city hopes to build, children could walk or bike just 1.4 miles to school.
“It is, in fact, the subdivision that creates the need [for a trail],” Nielsen said.
But on cross examination, Alan McCormick, the attorney for Neighborhoods by Design, had Nielsen explain that the roads in the subdivision, bordered by sidewalks, already led to the trail on Deer Creek Road, which eventually leads to the abandoned Old Milwaukee Line. McCormick’s point: the subdivision provides sufficient non-motorized access out of the neighborhood without the easement.
During Nielsen’s testimony, McLean asked why the city didn’t use the power of eminent domain to just build the riverfront trail itself.
“Because it’s part of the city’s subdivision regulations,” Nugent answered.
To explain the regulations, Nugent called Tim Worley, a planner with the Office of Planning and Grants (OPG), to testify. Worley pointed to a provision mandating that all trails should be continuous and provide access to services, including open space.
Jackie Corday, open space program manager for Missoula Parks and Recreation, then testified that when Brugh’s application passed her desk, it included a conservation easement along the river. Recognizing that conservation easements generally preclude public access, Corday asked Brugh to leave space for a public trail, which Brugh allegedly supported. Brugh didn’t return a call seeking comment.
“I don’t think there’s a person in this room who isn’t a fan of the city’s riverfront trail system,” McLean told the courtroom. “But the issue of this case is not whether the trail can be built. It’s whether the city has the authoritative power [to take the easement].”
In addition to the riverfront trail issue, Brugh is also arguing other conditions attached to the city’s approval of his development. One states that if the city isn’t able to buy the Old Milwaukee line from Burlington Northern, the council wants to use Brugh’s property to extend the Kim Williams Trail with an additional easement. Also, the subdivision has slated nine acres that “resemble” public space. The city wants the space to actually be open to the public.
McLean didn’t rule on the case Tuesday. McCormick said he thinks a decision will come in the next three weeks.