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Landowner continues to battle North Liberty

Landowner continues to battle North Liberty

Earlier this month, about 40 trees were cut down on the property of Gary Weinman, a rural resident who is suing the City of North Liberty to halt condemnation of a portion of his prairie land for a public sewer project. The city prevailed in a court hearing to stay compensation proceedings, and was ordered to pay Weinman $80,000 for the easement. The city is appealing that award, and more recently communicated with the U.S. Army Corps of Engineers about a permit process questioned by Weinman’s legal counsel. (photo by Tom Tau)

NORTH LIBERTY– The disagreement about the City of North Liberty’s right to condemn private property for a public sewer project has grown beyond local boundaries.
Notification has been sent to the U.S. Fish and Wildlife Service (FWS) and the U.S. Army Corps of Engineers (USACE) suggesting the entities violated the national Endangered Species Act in issuing a permit for the project.
Gary Weinman of 3115 12th Ave., Coralville, lives in the unincorporated area between the cities of Coralville and North Liberty, and was informed last summer that a portion of his rural property would be crossed by a North Liberty sewer line to serve the planned Liberty High School near the intersection of Dubuque Street and North Liberty Road.
Negotiations between the city and Weinman to purchase an easement on .75 acres of Weinman’s restored prairie failed, prompting Weinman to file a lawsuit in November 2014 seeking a permanent injunction to keep the city from constructing the pipeline across his land.
Lacking a determination on that lawsuit– which isn’t set to be heard in court until May 2016– North Liberty officials proceeded with the condemnation process.
Weinman filed a second petition in January seeking to halt a compensation hearing, the last step in the legal condemnation process in which the county’s Compensation Commission would determine the fair value of the property to be paid by the city.
Judge Chris Bruns denied the temporary stay, allowing the compensation hearing to be held on Feb. 13, resulting in a determination that $80,000 should be paid to Weinman.
The City of North Liberty, which proposed to pay first $16,000 and later $27,058 for the easement, has appealed that decision. No hearing date has been set for the appeal.
This month, Oregon Attorney David Shannon notified the FWS and the USAC claiming they failed to properly consult on the project before issuing a permit required by the Federal Clean Water Act.
Shannon sent a notice dated March 4 to the FWS, the USACE and the City of North Liberty describing the project and its potential impact to two federally protected species: the ornate box turtle and the Indiana bat. As the turtles have been documented on adjacent properties, Weinman’s prairie is a potential habitat for the turtle, and the shagbark hickory trees there are roosting sites for Indiana bat colonies, Shannon wrote in his notice. Because the bat is listed on the Endangered Species list and the turtle is considered threatened in the state of Iowa, the presence, or potential presence, of the turtles and bats require that the two entities confer on the project’s possible impact to the protected species.
The City of North Liberty hired Griggs Environmental Strategies Inc. to conduct an impact assessment and note the location and number of trees to be removed to make way for the sewer, but Griggs’ report states that, lacking permission from the property owner, nobody from the firm entered Weinman’s property during the study. Griggs concluded that the sewer project was not likely to negatively impact any Indiana bats or their habitats.
Grigg’s Habitat Assessment report was included in the city’s application for a permit required under section 404 of the Clean Water Act.
Shannon maintains the report’s conclusions were insufficient to determine impact.
“As an initial matter, the assessment did not take into account any trees, habitat or proposed destruction of habitat on my client’s property,” Shannon wrote. “This failure to include– or even, set foot upon– my client’s property calls the assessment’s conclusions into question.”
Further, Shannon stated, the USACE adopted the report’s conclusions and requested the FWS’ written concurrence in a letter dated Dec. 1, 2014, but FWS officials failed to respond.
The 404 permit was issued Jan. 8, but no written correspondence or “meaningful consultation took place between FWS and USACE on the matter, Shannon wrote.
The notice gives the FWS and USACE 60 days to correct the claimed violations, or Weinman will file a lawsuit to enforce the Endangered Species Act, and indicates the City of North Liberty could be enjoined in the action.
A related letter dated Feb. 24, addressed to North Liberty City Attorney Scott Peterson, requests the city to refrain from breaking ground on the project.
“Such forbearance is in the city’s interest -presumably the City does not want to invest public resources in starting a project that will be the subject of a federal preliminary injunction filed contemporaneously with the ESA suit,” Shannon wrote.
Peterson explained the city’s communication with the USACE in an email Monday:
“On March 6, the Army Corps of Engineers contacted the city and asked for work to stop in a few specific areas of the eastside utility project,” Peterson wrote. “The Nationwide Permit was issued on January 12, 2015, but the Corps and the U.S. Fish and Wildlife Service wanted to take a step back, based on a question about the standard of review used between the two offices.  At that point, the city agreed to hold on work in those same areas.  All other project work continued as planned. To be clear, the areas of concern were not within the Weinman property.”
None of the legal maneuvering has halted the project. On March 5, crews used chainsaws to cut down more than 40 mature trees on and around Weinman’s prairie.
Peterson said further communication with the USACE indicated the concerns had been addressed.
“On March 13, the Corps again contacted the city and modifed the Nationwide Permit to reflect the correct standard of review. The city is again good to go in those specific areas, as long as any tree clearing activities is completed prior to April 1. That has been our understanding for some months and even before the original permit was issued,” Peterson wrote.
That does not reassure Weinman; he said Friday he feared the brief spate of warm weather had brought the Indiana bats home to roost sooner than usual, looking for the trees that bring them back to the same location year after year.
“I saw a bat the other day,” Weinman said. “I am no longer as optimistic about this whole thing as I used to be.”