Waterfront lawsuit heads to state Supreme Court

By Derrick Perkins

A group of residents steadfastly opposed to the waterfront redevelopment plan earned another chance to make their case last month, this time before the state Supreme Court.

Old Town residents April Burke, Beth Gibney and Marie Kux sued the city after the controversial plan passed in January, arguing officials incorrectly moved ahead with the vote after opponents filed a protest petition. A circuit judge ruled for the city in March, but the Supreme Court opted to hear the case — likely in the spring.

“We’re obviously excited,” said Roy Shannon, who represents the three residents. He believes the high court could invalidate the entire plan if the justices side with his clients.

Though connected to the protest petition filed by plan opponents on the eve of city council’s vote, the lawsuit stems from Planning Director Faroll Hamer’s rejection of the last-minute effort. When residents asked to appeal her ruling — effectively postponing the city council vote — officials again denied their request, saying it needed to be filed during business hours.

Had Hamer accepted the original petition, the plan would have required a supermajority vote — 6-1 or 7-0 — to pass. Instead, city council split 5-2 in favor of the redevelopment roadmap.

Hamer’s decision set a bad precedent, Shannon said, and gives officials a tactic to circumvent public protest.

“If that’s the case, you may never be able to appeal a determination by the director relating to a protest petition,” he said. “If you have to wait until after she makes her decision and she makes it on a Saturday morning, you can’t appeal until after city council has voted.”

And because city council voted on the redevelopment plan and density changes along the waterfront simultaneously, Shannon believes a favorable ruling nullifies the entire package. The plan’s legitimacy is hanging in the balance, he said.

City Attorney Jim Banks doesn’t agree with Shannon’s assessment. While he would not speculate on possible outcomes, Banks said the waterfront plan is not in danger.

“The plaintiffs have come up with some theory that a defeat of the zoning changes defeats the entire waterfront plan,” he said. “But I’m not aware of any procedure of the law that would allow a planning document to be invalidated. I’m not aware how someone can invalidate a planning document.”

Banks is optimistic the justices will look favorably on the city’s arguments. They’ve already convinced a circuit judge, he said.

“[The circuit judge] applied fairly standard principles of law, therefore we think on appeal we have a good chance of securing the win again,” Banks said. “I feel good about the case.”

The waterfront plan has sparked multiple lawsuits since its passage, though the city has won most of them. Another case — City Hall’s appeal of a BZA decision upholding the protest petition as valid — heads to court in the spring as well.

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