City awarded two lots, still fighting over price

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Despite an Aug. 8 ruling that the city was entitled to two of Sandra Baird's four Stout Street lots, the fight isn't over for either side. The action that started in 2000 with the city claiming its right to eminent domain may not end until it goes to trial April 15.

A court may have to decide what the city owes Baird for the two lots it was awarded because Baird has refused the city's offer, which was based on an appraisal of the vacant lots plus any damage that resulted from taking those lots.

Negotiations have been ongoing since the Aug. 8 eminent domain hearing.

City Attorney Kenneth Wohl thinks there is a chance that the matter will be settled before it goes to trial.

"(Baird) could accept our original offer, which I think was more than fair," he said.

The city is offering $22,500 for the lots and damages.

The city will use the lots as part of a plan to extend Industrial Avenue, which will act as an alternate route to decrease traffic on Victory Way.

The city fought to gain possession of all four of Baird's lots, but Moffat County Court Judge Mary Lynne James ruled the city had not proved there was a need for all four lots to extend the street.

Following that ruling, James ordered the city to deposit $50,000 in escrow pending a trial -- requested by Baird -- to determine the value of the property and any loss Baird may have suffered as a result of the city's action.

The city first discussed extending Industrial Avenue in 1993. Baird claims she hasn't been able to sell or upgrade her property because of that pending action.

The request doesn't specify the amount Baird was seeking in damages.

Since James' ruling, Baird's attorney has requested damages for what he termed as a "temporary taking" -- the 10 years the city threatened to condemn the property, but didn't.

"Sandra Baird's counterclaim against the city seeks compensation for the damages caused to her, by the city's 1993 actions, which deprived her of the reasonable use of her property over the last 10 years," the request for damages states. "Sandra Baird is entitled to be compensated for the 'temporary taking' of her property, as well as for the permanent taking of her property that has now occurred."

The city has refused to pay any damages for the non-use of the property over the last 10 years saying she could have made use of the property -- as a rental, for example -- during that time.

"(Baird) was under no restrictions to move forward with her project other than her financial limitations, health limitations and the limits she placed upon herself in her own mind," states the city's response to the request for damages. "The (city) should not be held liable for (Baird's) non-use of the property."

The city claims it never made an offer on the property and should not be held accountable for "merely expressing an interest" in it.

The city also contended that awarding Baird damages for her loss of use of the property would be setting bad public policy and a precedent for any other case in which the city considered acquiring property.

"The result would be a chilling effect on discussing public projects for the common good," the city's brief states. "It is unfathomable that local governing bodies ... would consider publicly discussing or planning public projects."

Judge James agreed. She ruled against Baird, saying the city's actions did not limit Baird's use of the property and that the statute of limitations for her to make a claim if it had done so had expired nearly eight years ago.

Following that ruling, Baird asked the court to force the city to pay $24,000 in attorney fees. The court ruled Baird was entitled to $8,000 for fees associated with actions she was successful with -- that the city was entitled to only two of the four lots -- and none for the actions she was not successful with -- that the city negotiated in bad faith or negotiations on price.

Now, Baird has filed a motion requesting the court release the $50,000 that was placed in escrow pending an official ruling on the value of the two vacant lots the city now has possession of.

Former city attorney Sherman Romney, still lead counsel on the case, objected because he expects the amount of the withdrawal will be higher than the expected price of the lots. Baird is entitled to withdraw 75 percent of the deposit before a final ruling.

The lots have been valued at $9,375 with estimated damage to the remainder of the property valued at $13,125, for a total of $22,500.

"If Sandra Baird withdraws $37,500 from the court registry as requested, there is a very real possibility, based on the appraised value of the two lots, that the jury could return a verdict of less than this amount. In that case, Ms. Baird would have to return money to the (city)," Romney stated.

The city originally offered Baird $80,000 for all four lots, which included a house.

Baird refused to comment until the matter is resolved.

Christina M. Currie can be reached at 824-7031, Ext. 210 or by e-mail at ccurrie@craigdailypress.com.

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