Development 

City botches South Ave. plan

The Montana Supreme Court ruled Feb. 27 that the city of Missoula erred when it took privately owned land without compensating property owners during a 2005 expansion of South Avenue.

Eight years ago, Missoula turned South Avenue east of Reserve Street into a three-lane road—up from two—and added a bike lane, sidewalks and on-street parking. Local residents protested. The expansion, the residents said, encroached on their land.

"We had some people whose porches were torn off their house," says Missoula attorney Thomas Orr, who filed the 2005 lawsuit, Glen and Johanna Wohl et al. v. City of Missoula, on behalf of 17 South Avenue residents.

The problem, the plaintiffs said, was the city had erroneously placed their private property in the public right of way.

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In 2009, during a four-day bench trial before the Fourth Judicial District Court, Orr argued that his clients deserved to be financially compensated for the land that the city had taken. Witnesses provided testimony that South Avenue plans were flawed from the beginning. In the early 1900s, the original surveyors, including James H. Bonner, didn't note there was land unaccounted for above the 60-foot span originally deeded as a right of way. While property owners were using that land—growing gardens and building fences, for instance—it wasn't officially included in the residential plats nor in previous calculations for the South Avenue thoroughfare.

Attorneys for the city called upon a survey conducted by WGM Group, a private firm they had contracted, when arguing that the additional land belonged in the right of way.

The plaintiffs, however, persuaded the Montana Supreme Court that the city had encroached beyond the 60-foot right of way dictated by state law.

In response to the decision, Missoula City Attorney Jim Nugent said that interpreting 100-year-old planning documents is tricky business. He says the courts recognized that the city made an honest error. "Because our engineer thought it was available land, we didn't negotiate," he says. "Both the district court and the Supreme Court note that the city acted in good faith."

The District Court originally awarded the plaintiffs $230,000 for the land and $145,394 in attorney fees. The Supreme Court remanded the case back to a lower court to recalculate the money owed to the plaintiffs. The city of Missoula will be responsible for the payment.

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