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Mountain Park Life :: Forums :: City Issues
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Lake Litigation

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Keith
Thu Aug 05 2010, 07:25pm
Registered Member #46
Joined: Fri Jul 29 2005, 02:20pm
{LOCATION}Posts: 158
Here's some of my notes as well...

We've spent $1.8 million in litigation and they figure it's $800K-2.4M to clean up the lakes....

Mayor Still said we've spent the following:

2005 - $26K
2006 - 351K
2007 - 338K
2008 - 588K
2009 - 372K
June 2010 - 122K

A settlement ($800K plus another $100K to be paid in 4 installments over 4 years) was offered by the collective developers.

Council is considering the offer. Some of the info is still considered confidential and couldn't be shared with public.

Unknown - how much money still to pursue this litigation. Jim Still threw out another $300K+ to go to trial. He asked the question , where is the point we can't spend anymore money on this?

There have been 3 meditations so far...all unsuccessful.

There is concern about individuals ability to pay due to their financial health.

None of the defendants according to our attorney, Shelton are out of business.

Insurance companies claim they have no responsibility, but are covering legal costs for the defendants

Julia Neal's reminder - This is not first council to decide what to do. stay the course. She expressed concern about property values going down, taxes going up to make up for the drop in property values.

Council needs to decide by this coming Monday.

800K-2.4M for restoration. If spend 800K, silt would be relocated and islands would be built in the lake. The larger end of $2.4 would result in silt being removed and a more complete restoration of the lake.

As of 3 years ago there were 4000 dump-trucks of silt to be removed.

Oct 12 (14th?) court date with trial (6 jurors 2 alternates) Sept 2 pretrial ?

A question was asked about renegotiating the legal fees with Shelton on a contingency basis. Shelton said they are already doing that as well as accepting a monthly budget payment schedule.

It was stated the two weren't the same and to be clear would he accept a contingency payment and he said yes, they already are?!

Suggestion to look at grant dollars for matching award settlement (seemed like a new idea and no one had looked at this before in the last 5 years)
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Sam
Fri Aug 06 2010, 11:12pm
Registered Member #424
Joined: Fri Aug 06 2010, 09:06pm
{LOCATION}Posts: 18
Can't they tell them that they need more time to make a decision beyond August 9th? By nature I'm resistant to ultimatums unless there is a good reason for them.

The decision about whether to settle or not is "risk management".
They need plenty of nonresident, non emotional and non Shelton expert opinions to get the best insight on whether to cut our losses as opposed to stay the course and to have to do that by August 9th is unreasonable.

If I understand the math from the posts $900,000 settlement
-$600,000 still owed the attorney.
+ grants

I hope the contingencies are a significant deduct since we owe him $600,000.00. I take it that Mr. Shelton feels like he was generous to allow the monthly payments since it was not part of the original agreement that we gave him.
There had to be attempts to manage this that we don’t know about which contributes to their decision that I’m glad that I don’t have to make.

To make silt into an island would be like attempting to make pancake batter into a ball.
It's not easy to dry out lake silt and it would take a long time. One way is to drain and channel the lake and wait until it is as hard as a rock. There are numerous other methods to remove, haul and or dry silt.

Not hauling away the removed silt would be a tremendous savings. The further you have to haul it the more it costs.
I don't know the terrain or property ownership/permission on the back side of the Lake Cherful dam. That is usually what is done if the silt is not hauled away they make a wider dam and dump the wet silt on the down stream side of it with scoops using erosion control.

To do with the Islands, the problems need to be prioritized that you fix.

1) Stop the silt or a way to periodically remove it.
2) Islands would actually slow the water and silt would be deposited around them. It would end up like it is now but with islands but not any different.
There would be no improvement with just moving silt around and making islands unless the silt is stopped.
Possibly make the islands functional for a purpose like sediment structures which is what they would end up being anyway? Still there's the maintenance expense of that but at least we would have a design.
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editor
Sat Aug 07 2010, 02:24pm

Joined: Tue Jul 12 2005, 10:03pm
{LOCATION}Posts: 236
MPL attended the Special Called Council meeting for the Lakes Litigation Executive Session. Before calling for the closed Executive Session, the Mayor announced the purpose: to determine if Council wanted to make a counter offer to the one made by the defendents. If an open announcement is made after the closed session, we will post it here.
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editor
Sat Aug 07 2010, 03:44pm

Joined: Tue Jul 12 2005, 10:03pm
{LOCATION}Posts: 236
No formal announcement was made before ending the meeting.
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Sam
Sat Aug 07 2010, 06:53pm
Registered Member #424
Joined: Fri Aug 06 2010, 09:06pm
{LOCATION}Posts: 18
Using the $300,000 trial fee which in itself is unreliable judging from the other cost overruns. The decision as it stands is if we go to court what are the chances of receiving at least a net $1,200,000.00 after all expenses including any contingencies that must be paid if they really exist. I assume we will give a counter offer first, so the figure is adjustable.
This is against the risks of losing and getting nothing, expense of the appeals, and also taking into account if Fulton County would come out and reappraise homes for less because of silt in the lakes reducing our tax base in the decision.

I have no intention in influencing the decision either way because I don't know.

Everyone would rather have the lakes as a preference but we have to face what's realistic.

This is a financial and engineering decision and not about our preferences on a modern design that meets our situation with silt and the velocity of moving water through the city, and it is going to be more water in the future, with what it carries with it including silt. Residents got flooded and others were close to that.
You would be surprised, how aesthetic some of the alternatives can be with creativity.

I think we need to consider moving the water and silt through the City of Mountain Park downstream and having the environment that we want to live in.

I don't believe any part of the lakes are legitimate legally designated wetlands but if they are, it would make it more difficult to do any work in those areas including removing what I say is only silt but they would attempt to claim that it was soil supporting life. We could need permits from several Federal agencies to work in the lakes anyway but if they are wetlands, they could be denied or have restrictions. Wetlands are not controlled by the property owners.

There was abusive silt and there is and will be natural silt. When there was development upstreams, were they designed to minimize the effects on our lakes? If they were designed with systems like detention ponds, I doubt if they are being maintained.

As much water that enters the lakes must move out of the lakes with the same velocity with no changes in elevation or we will have flooding.
Since the silt can't be stopped, there would have to be a perpetual expensive maintenance system that would most likely be neglected like the rest of the infrastructure here.

Islands would end up being a stream with a fork around the islands and not moving the water and silt out of here.

We have to base our opinions on past performance for us and Martin Shelton. His track record has not been impressive to me especially based on some of the judge's comments in this lawsuit if what I read was correct. I remember with George Menden's environmental tickets that he lost one of them because he did not have an expert witness to support the accusation, which was customary, and the judge addressed that in her ruling as a reason that he lost on one of the tickets. Didn't he handle those tickets for free or a reduced fee and lost on all of them? All through his employment, watching his conduct, you have to consider if there has been a possibility that his conduct has been to do the least amount of work for the most amount of money that he could bill us for. This includes how he presented the settlements to the city council, which could be interpreted as less work for him because of less defendants but with no reduced billing to us.
I remember him being asked, if we took the settlement would we break even and he said possibly. It didn't appear as a break even amount to me.

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Client-9
Mon Aug 09 2010, 12:59am
Registered Member #311
Joined: Wed Mar 12 2008, 12:36pm
{LOCATION}Posts: 30
Shelton=Defining Insanity Personified or DIP for short.

Eliot
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Sam
Mon Aug 09 2010, 02:34am
Registered Member #424
Joined: Fri Aug 06 2010, 09:06pm
{LOCATION}Posts: 18
I’ve seen this before more than once.
I saw a doctor get a standing ovation from the best of his peers because he was a great speaker. Some prestigious doctors applauded. He could talk a good game but he was a terrible doctor.

I’m sure Mr. Shelton gives seminars about environmental legislation to all these really great lawyers and talks a good game and they applaud to him too but that doesn’t mean he is a moral, qualified or talented attorney.
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George_M
Mon Aug 09 2010, 05:34pm
Registered Member #115
Joined: Mon Mar 06 2006, 02:52pm
{LOCATION}Posts: 71
I have just returned to town, and I regret the recent meeting to discuss the settlement occurred when we were in Wyoming.

I will add only a few comments to this discussion:

1. The decision to settle (or not) is a council decision and not a community referendum. Our city is not a democracy (thankfully). If it were so, every decision would be placed to a community vote, and those shouting the loudest would prevail. It is particularly important to keep this in mind where the issues are complicated – like the lake litigation. Very few in the community have read, or are even aware of, the 946 documents which have been filed in the case so far (some of the documents are over 100 pages long). Even for those who have read the documents, and I have read most of them, litigation is nuanced and argumentative. Council has access to advice (consisting of confidential discussions with Shelton, the city’s lake litigation attorney, as well as Brandon Bowen, the city attorney) which the rest of the community is not receiving. Ultimately, the decision is a council decision, and I will continue to pray the decision will be thoughtful, well informed and appropriate for the community.

2. Misunderstanding about the lake litigation is widespread. Carol Silver sent an email message to some of her friends in the community on August 4th encouraging them to come out in force to oppose the settlement. Carol’s message ended with this statement: “I have attached a photo taken in my backyard in spring 2010 showing the enormous amount of siltation that continues to flow into Lake Garrett with every rainfall.”

Carol may not understand that this statement actually proves part of the defense offered by the lawsuit defendants – that the silt in Mountain Park’s lakes is entirely, or largely, the result of natural causes. (Fortunately, Carol’s picture and message cannot be introduced into evidence against Mountain Park because the time has passed for the identification of trial exhibits and testimony.) The lake litigation has become an emotional issue in Mountain Park. We are all emotional and passionate about the Mountain Park lakes – I am more so than most, as I get to enjoy Lake Cherful every day from the windows of my home. However, any expectation that the defendant developers will be required to remove natural siltation from Lake Garrett is misplaced. This lawsuit is about silt which accumulated during a specific period of time (where recovery is permitted by applicable statutes and law) and for development lapses (which caused environmental damage), and not about muddy storm runoff which Carol Silver photographed in 2010 (development activities upstream from Lake Garrett ceased in 2006/2007). Council needs to ignore the emotion and misstatements and make a practical and factual decision which will benefit the community as a whole.

3. Mountain Park is unlikely to recover all of the legal fees, even if the city is successful at trial. Recovery of legal fees in Clean Water Act cases is permissive and not mandatory. If you don’t believe me, PLEASE read the Act yourself. The city’s legal fees incurred to date are obscene. There are some in the community who are now arguing, “We have to see the case through trial because that is the only way to recover our attorney’s fees.” To this group I caution:

• Do not assume victory at trial. Juries are unpredictable, this case is complicated, and for every picture the city will introduce into evidence the defendants have two pictures which show natural sources of erosion and siltation.

• The determination of the legal fee award will be made by the Judge, not the jury. If you are wondering where the Judge will come down on this issue, I direct you to document 533 where the judge wrote, "The court is concerned that this case has degenerated into a series of acrimonious, yet often trivial disputes between counsel. Inordinate amounts of time and money have been dedicated to these highly technical and largely unnecessary disputes. The parties would have been much better served, in the court’s opinion, had this same level of effort been applied toward resolving the underlying causes of the dispute."

• Courts have refused to award legal fees in instances where the lawyers have worked and billed inefficiently/improperly. The city attorney can be engaged to perform a search in Clean Water Act and environmental cases, but a quick search of cases on my part produced these sound bites which are all warning bells in the Mountain Park litigation as evidence of these items appear in the Mountain Park attorney billing (which I received through an Open Records request):

- [Attorney’s fees were denied where there was an] “unjustified duplication of work that took place.”

- [Attorney’s fees were denied where there was evidence of] “task padding, over-conferencing, attorney stacking (multiple attendance by attorneys at the same court functions), and excessive research.”

- And finally, “Such a spare-no-expense strategy calls for close scrutiny on questions of reasonableness, proportionality and trust benefit.”

$1.8 million billed in attorney's fees so far. Ouch.

4. Studies have demonstrated that settling litigation is often better than going to trial. This New York Times article makes the point adequately: http://www.nytimes.com/2008/08/08/business/08law.html, although the referenced survey was not specifically performed for Clean Water Act cases. (If the link is broken, paste the link into a browser and you will access the article.) (Before dismissing this information, remember that only part of Mountain Park's remaining case is a Clean Water Act case.) Consider, “The lesson for plaintiffs is, in the vast majority of cases, they are perceiving the defendant’s offer to be half a loaf when in fact it is an entire loaf or more,” said Randall L. Kiser, a co-author of the study and principal analyst at DecisionSet, a consulting firm that advises clients on litigation decisions."

Our thoughts and prayers will be with council as they consider this most important decision.
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Keith
Fri Aug 13 2010, 04:03pm
Registered Member #46
Joined: Fri Jul 29 2005, 02:20pm
{LOCATION}Posts: 158
Any word as to what decision the council has made re: the $800K + 100K 4 year annuity?
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Whizbang
Fri Aug 13 2010, 07:34pm
Registered Member #286
Joined: Tue Feb 05 2008, 03:55pm
{LOCATION}Posts: 13
yippee
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