Olivia Redux, What Isn't Required by Law, and a Way Forward

I wanted to expand a bit on my thought process with the closed session at the 9.15.20 meeting tomorrow.

Those that voted in favor of the Olivia say that their vote was required by law, that they were compelled to vote to approve the three story, three separate building high density apartment complex in our downtown. Further, everyone who voted in favor has intimated that they are actually not pleased with the project and would have liked something different. I’m not sure I agree with that, but let’s say arguendo that that is true. Here is a chance to prove it.

After an appeal of the decision to approve the Olivia was rejected, a group of residents brought litigation against the City. Since the City is the one that approved the project, allegations of improper approval are properly directed against the city. The developer is considered a Real Party in Interest. At various stages of litigation, the parties must gather at various times to determine if settlement is possible. Settlement may occur because while the outcome of any litigation is uncertain, the fact that litigation is expensive is all but certain. As a result, if the parties could come to some compromise, the lawsuit may be dropped.

The stronger the position of the residents bringing the lawsuit is, the greater the incentive the developer will have to settle. If this Council truly does not like the project, this is a perfect opportunity for us to demonstrate that. The law does not require us to defend lawsuits against us. In fact, the Council could even agree to help the residents who have initiated litigation by stipulating various assertions they raise in their petition. In doing so, the position of the petitioners would be strengthened and make a settlement for something that is less out of character for our downtown more likely.

We as a Council could do this right now. The Council could direct our attorneys to stop defending the lawsuits, and file briefs with the court stipulating, essentially agreeing, with various aspects of the claims that are being made by the residents who initiated litigation. If we did that, of course the developer could continue the litigation as they are considered Real Parties in Interest. However, if we did concede various points raised by the residents, it would strengthen the position of the residents who brought the lawsuit and make a favorable settlement more likely.

If folks who voted in favor of this poorly conceived project really were against it and only voted in favor of it because they felt the law compelled them, this is a way to demonstrate that and give the residents the best chance to prevail. This is the type of creative steps that a Council may take and why I asked for an agenda item to discuss this very option. This will be the topic of a closed session because it is related to litigation. Unfortunately I will not be able to disclose anything that transpires in closed session, but if the city takes no action then the residents should be able to draw their own conclusions on where the three members of this Council who voted to waive environmental review, and roll out the red carpet for a developer, really stand.