020211 south avenue lawsuit

Tom Orr, lawyer for the plaintiffs in a lawsuit by private property owners along South Avenue against the city of Missoula, stands in February 2011 near homes on the street where the roadway was widened nearly to the doorsteps.

TOM BAUER/Missoulian

Chalk one up for private property rights.

In a recent order from Missoula County District Court, District Judge Ed McLean ruled the city of Missoula took land without just compensation, a violation of the U.S. and Montana constitutions.

"This court finds that the City should have pursued eminent domain proceedings before taking and using land it did not have a right to appropriate," reads the order issued recently. "The City was clearly on notice that the private property owners considered the property at issue their own, as evidenced by the landowners' utilization of the property appropriated."

The decision leaves one plaintiff relieved and 11 separate parties compensated some $229,792 in all. But the outcome has surveyors confused about right-of-way determinations - and the city considering an appeal.

In the lawsuit running some six years, petitioners charged the city took their property without compensation for a road project on South Avenue roughly between Johnson and Clark streets. The city, though, argued it used public right-of-way as confirmed by surveyors.

Glen Wohl, lead petitioner in the case tried in 2009, said the lawsuit has been an ordeal for the 17 plaintiffs. In a prepared statement, he blasted the city of Missoula for various violations.

"This case is a clear demonstration of a government entity at its very worst," wrote Wohl. "After nearly six years of litigation, I am pleased the court applied Montana law and ruled in favor of the plaintiffs' property rights. I hope the city of Missoula will compensate other South Avenue property owners for their land the city has encroached upon with public improvements."

The lawsuit lists four separate Wohl properties that were affected by the reconstruction of South Avenue and require compensation.

"I am particularly disappointed that although I had met with the Public Works Committee in regard to the issues in this lawsuit, they simply ignored me and commenced with South Avenue improvements," wrote Wohl.

City attorney Jim Nugent said he believes the city will adapt to the court decision, but he doesn't know whether it plans to appeal the case to the Montana Supreme Court. He said the city relied on expert advice from surveyors in the deal and land surveyors want the case appealed.

"I think it's a big issue among land surveyors throughout the community and throughout the state," Nugent said.


WGM Group did the surveying for the city, and company president Brent Campbell said the court decision leaves surveyors with questions. Many old plats are obscure, and in this case, they contradicted each other. He said the judge ruled the right of way is 60 feet wide from the center of the road, but records showed different center lines, too.

So Campbell said a gap runs between the property boundaries and the right of way, and surveyors need state law to be clarified so they understand who owns land in the gap in similar cases.

"I think it will be difficult for surveyors to determine what is right of way and what isn't right of way with this ruling," Campbell said. "And I think it will require an attorney to be involved to figure it out."

City chief administrative officer Bruce Bender said city officials will have a discussion with the mayor to determine whether to appeal the case.

"We haven't made a decision on that. Certainly, we will give it really strong consideration because not only is the cost to the city in this ruling significant, but also, it sets a very large precedent for other situations like this," Bender said.

Third Street, for instance, doesn't line up perfectly in records either, he said. Bender also said the money would have to come out of the budget somehow, an unplanned cost that typically would come out of street improvements.

In the lawsuit, plaintiffs asked not only for lawyer fees but for "sanctions" to deter the city from "future transgressions." The court declined sanctions because the city "did not act in bad faith" and relied on expert opinion, but the court awarded attorney fees.

Tom Orr, lawyer for the plaintiffs, said the fees over the course of six years are approaching $115,000, "a lot of money and a big hit for the city." That amount doesn't include compensation to property owners, more than originally estimated because the court included properties on both sides of the street, he said.

"From our standpoint, it was disturbing that the city would take this land without paying for it," Orr said. "It's an expensive lesson."

Reporter Keila Szpaller can be reached at @KeilaSzpaller, 523-5262, keila.szpaller@missoulian.com or on MissoulaRedTape.com.


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