The county filed a 2nd Motion for Summary Judgment to try again to get the lawsuit dismissed. On March 18, 2019 the judge heard the arguments from the county and from Diane’s attorney, and DENIED the county’s motion in total, and set the trial for April 22.
Below is the motion filed by Diane’s attorney in opposition to the county’s motion for summary judgment. It is a good summary of the facts of the case, and of some of the legal issues involved.
Here are some of the high points which are detailed in the motion:
Page 3: “all members of the public would be allowed access to the park”
Page 4: “…the County requested an updated appraisal and the County’s appraiser updated his appraisal and determined that the fair market value of the golf course had increased to $275,000.”
Page 8: “..The County’s corporate representative acknowledged that the letter was sent out, and the County was in fact acting pursuant to Chapter 94….the County’s corporate representative testified that he did not have an understanding as to what procedures the County ultimately decided to follow for the creation of the MSBU…”
Page 10: “Mr. Wiley later confirmed that environmental assessments did in fact identify parameters above the state acceptable levels…”
Page 11: “The results of these findings most certainly will restrict future development and add costs to the project”
Page 18: “The MSBU will be obligated for all amounts in excess of ELAMP’s contribution, including the ongoing maintenance of the entire property.”
Page 18: “The actual text of Ordinance 16-25 does not limit use of the park to MSBU residents.”
Page 23: “Movants (the County) next argue that the ballot was merely a straw poll and had no binding legal effect. This is nothing more than an after-the-fact rationalization that is completely contrary to the testimony of the County’s corporate representative who testified that when the ballots were originally sent out to voters, it was the County’s position that the project would not proceed unless it was approved by more than 50 percent of the voters.”
Page 28: “…neither the ballot nor the letter that accompanied it even mentioned the issue of environmental contamination….failing to inform voters of a material issue necessary to inform the electorate as to the true effect of the measure…”
Page 29: “…the Agreement of Sale and Purchase does not insulate the MSBU from environmental clean-up costs….the Agreement for Sale and Purchase is absolutely clear that the County can, if it so chooses, close on the sale notwithstanding the presence of contaminants.”
Page 29: “If the County chooses to close on the Sale without obtaining a reduction in purchase price or finding some other arrangements to fund clean-up efforts, as if may under the Agreement for Sale and Purchase, the MSBU will most certainly be on the hook because it is obligated to cover all costs in excess of $600,000.”
Page 32: “…the voters are simply not informed of the potential risk of the MSBU having to pay more than $600,000.”
And below is the entire motion filed with the court:2019-03-14-Plaintiffs-Memorandum-Of-Opposition-of-Second-Motions-for-Summary-Judgment