By: Lydia Crawley
The Parsons Advocate
The legal team of Pete Johnson, the land developer at the center of an Eminent Domain filing by the Town of Davis, appeared in court with a motion to dismiss the filing made by the town on Johnson’s housing development project along the river in Davis. Johnson was represented by Attorney F. Sayre III and Attorney Pat Nichols. The Town of Davis was represented by Attorney Chenoweth and Davis Mayor Al Tomson.
Judge Robert E. Ryan proceeded over court. Judge Ryan opened the hearing by acknowledging that the court had been overwhelmed lately due to back to back trials. The court had just finished conducting the Capital Kidnapping case of Keith Dishler minutes before the hearing began and there was to be a jury selection in the afternoon for a trial beginning the following Monday. Ryan was apologetic for not being able to review the filings and motions as he would have liked, but said he had a general grasp of what was being asked of his court and agreed to hear arguments.
Sayre opened arguments with noting not only case law, but statements that the filing by the Town was faulty on several fronts. Ryan addressed Sayre on a number of occasions to question whether the motion to dismiss was relevant under the case law that applied with the early status of the filing.
Sayre claimed that at least three separate motions should have been filed in the case. Sayre also acknowledged the Town’s right to Eminent Domain, but said that the Town should have also posted compensatory money when the filing was made. Sayre also said he and his client doubted that the Town even had the money to pay the fair compensation the law requires. “It appears the town is not planning to put the money into the court,” Sayre said.
Sayre said that each homeowner affected should have had individual petitions filed in the case. “The town of Davis, if they properly do this, have the authority to do this,” Sayre said.
Sayre also noted that the five HOA homeowners with houses already under construction were not named in the filing, as well. Sayre noted the homeowner’s ownership interest in the development’s private drive that was included in the Town’s filing.
Sayre also said that there was never a public vote on the issue by the Town Council. This was an allegation that Johnson has been making over the filing since the beginning. Sayre also noted a lack of ordinance on the issue, as well. Three governmental bodies were listed on the filing, according to Sayre: the Town of Davis, the Building Authority and Davis Parks and Recreation.
Judge Ryan said the law requires him to treat what is in the filing as factual. “If you take it all as true,” Ryan said, “which the law requires me to do.”
Judge Ryan said that many of the issues Sayre brought up did not apply to motion to dismiss that he had before him. “There are matters well outside of the petition,” Ryan said. “We’ve got the cart well before the horse here.”
Attorney Chenoweth said that all of Sayre’s issues and objections were noted and addressed in the filing by the Town of Davis. “This is addressed in the petition,” Chenoweth said.
As with Sayre, Chenoweth noted several points of case law in his arguments. A large basis of his arguments hinged on the commonly owned properties and the ownership interest that entailed. “Everyone’s interest is affected by what is taken,” Chenoweth said.
As to the requirement of an ordinance pertaining to the action, Chenoweth said the Town was under no legal obligation. “None of those cases state that a town has to pass an ordinance in order to claim eminent domain,” Chenoweth said.
Chenoweth argued that a motion to dismiss is rarely granted in cases such as this. “A motion to dismiss should rarely be granted,” Chenoweth said.
Chenoweth addressed the money issues by saying that the Town was not seeking right of entry. According to Chenoweth’s argument, that would have required the Town to post money with the court. He also said that the value of property could be evaluated at a later date and the money posted at that time. Judge Ryan acknowledged that several properties were currently under contract in the development and stated that the contracts could reflect a fair market value for the properties. “Isn’t a contract for sale a fair estimate of fair market value?” Ryan said.
Judge Ryan took no action on the matter and requested that the attorneys submit any proposed orders to him for review. “A motion for leave is going to depend on a motion to dismiss,” Ryan said.
