Jean Klock Park Consent Judgment, 2004

8/9/2019 Jean Klock Park Consent Judgment, 2004

1/13

STATE OF MICHIGAN

CLELLEN BURY et

BERRIEN COUNTY CIRCUIT COURT

AND PERMANENT INJUNCTION

At session of the Cou4 in St Joseph Berrien

County Michigan on

cL/ 0W9LYNDA 1OLNPresent Hon

__________________________

Upon the Stipulation of the parties having conducted hearing on January 27 2004

pursuant tothe Notice of Hearing filed in advance by the parties and being advised in the

premises

Consent Judgment is entered to adjudicate declare find and order the following

Findings

Based on pleadings and evidence in the record including evidence presented at earlier

hearings the Court makes the following findings

Plaintiffs

CITY OF BENTON HARBOR

Defendant

Case Number 03-3430-CE-F

Honorable Lynda Tolen

Charlette Pugh Tall P48780Benton Harbor City

Attorney

Thomas Fette P13396

Paul Taglia P21241

Attorneys for Plaintiffs

William Burgess P36922

GeoffreyFields

P41788Dickinson Wright PLLC

Attorneys for Benton Harbor

200 Ottawa NW Suite 900

Grand Rapids Ml 49503

616 458-1300

CONSENT JUDGMENT

Circuit Court Judge

D010000022


2/13

SETFLEMENT AGREEMENI

This Settlement Agreement Agreement is entered intq by the City of Benton lfarbor

City on the one hand and Clellen Bury Carol Drake Gladys Peeples-Burks Joseph Shurn

Norman Sttnm and Princefla Tobias collectively Plaintiffs on the other hand The

effective date Effective Date of this Agreement is December 18 2003

RccitaI

The City owns Jean Kiock Pait On June 2003 six members of the City Commission

voted to sefl part of Jean Kiock Park to Grand Boulevard Rnaisaance LLC Developer for

residential development On June 16 2003 Plaintiffs commenced lawsuit Lawsuit against

the City in Brv et al City of Benton Harbo Benien County Circuit Court Court Case

Number O3-3430-CEF The primary issue in the Lawsuit involves whether and to what extent

the City may sell any portion of Jean Kiock Park for uses other than bathing beach park or other

public purposes On August 12 2003 the Court entered Preliminary Injunctive Order and on

October 14 2003 the Court entered an Order for Alternative Dispute Resolution ADR Order

Plaintiff Harzell Taylor is being nigsed from this lawsuit with prejudice due to health

problems Pursuant to the ADR.Order the remaining parties engaged in facilitative mediation

and as result of meetings with the mediator Mediator and taking into consideration the

history present-day concerns and future interests of the City Jean Kiock Park and the people

who use Jean Kiock Park these parties have agreed to settle their dispute including the Lawsuit

based on the terms and conditions set forth below

Terms and Conditions

The City Clellen Bury Carol Drake Gladys Peeples-Burks Joseph Shurn Norman

Stcmin and Pthicella Tobias agree as follows

D010000023


3/13

This Agreement is conditioned uponthe approval of the City of this entire

Agreement without changesor amendments as authorized by law The City shall obtain such

approval from the City Commission stacyof its regular meetings scheduled after Januaiy

2004

Upon execution of this Areement counsel for thepaxtiessha1linform thC Couxt

of this Agreement

Upon execution of this Agreement aotmsd for the parties shall file StipnIat

to Continue Preliminary Injunction Order and Modify Case Management and Scheduling

Order in the form attached to this Agreement as Exhibit for entry by the Court

Upon approval of this Agreement by the City as described In paragraph above

counsel for the parties shall submits Consent Judgment in the form attached to this Agreement

as thibit for entryby the Court at ahearingto bescheduledby filing aNoticeof Hearing in

the form attached this Agreement as Exhibit with the Court

Upon execution of this Agreement counsel for the City shall cck to obtain any

required approval by the Michigan Depaxtncnt of Natural Resources MDNR for the sale of

the Grand Boulevard Parcel as defined in the Consent Judgment attached to this Agreement as

Exhibit

In addition subject to approval by the City Cnmn1ision and any other required

governmental entitythe City agrees to provide

for the reopening of Grand Boulevard as

depicted on Exhibit to the Consent Judgment outof proceeds from the sale of the Grand

Boulevard Parcel and replace the fence at Jean Klock Park out of proceeds from the s al e of

the Urana Boulevard Parcel

A.I1YT II.4 tTI bi14R.Jq2 Q7T CY7Y

D010000024


4/13

Each of the parties to this Agreement agreesto cooperate to

take all teessary

measures to obtain and to refrain fromactions that might impede entry and implementation

of

the Consent Judgment and approval bythe MDNR as provided for by paragraphs and above

This Agreement isconditioned upon the successful completion

of the sale of the

Grand Boulevard Parcel as defined in and provided for by theConsent Judgment attached to this

Agreement as Exhibit

Each of the parties supports agreesto publicly support

and promote and

authorLzes counsel of record in the Lawsuit to publicly supportand promote this Agreement the

Consent Judgment and thesuccessful implementation of all of the provisions of this Agreement

and the Consent Judgment including thesale and residential development of the Grand

Boulevard Parcel as provided for in the consent Judgment

10 This Agreement binds and inures tothe benefit of the parties and their respective

successors and assigns

11 This Agreement is entered into for the purposeof compromise and neither this

Agreement nor any ofits terms or conditions shall

be considered to be an admission by or

evidence of liability by or on behalf of any party tothis Agreement

12 This Agreement is the entire agreementof the parties regarding the resolution of

their dispute overthe transactions and occuirences regarding the Lawsuit and no prior

agreements negotiations orother understandings may be used to explain this Agreement or any

of its terms and conditions

13 This Agreement its termsand conditions and all exhibits may not be amended

modified waived or assigned exceptin writing signed by all parties to this Agreement or

their authorized representatives

D010000025


5/13

14 ThIs Agrcenicntwas negotiated jointly by

counsel for the parties with the

assistance of the Mediatorand sb1l not be construed against any party

as the drafter if there is

any questionas to the meaning of this Agreement or any of its tenns

and conditions

15 MIchigan law governsthis AgrcemMt

16 The undersignedcounsel for the parties

have discussed this settlement with the

partiesand each is fully authorized to sign

on behalf of and bind his respecthPclients to this

Agre21ent

17 This Agreement maybe executed in one or more counterparts each of

which shall

be deemed to be an originaland all of which together shall constitute one

and the same

instrument it is agreedthat the counsel for the parties may

transmit this Agreement to one

another by facsimileand that their facsimile signatures shall be accepted

as oiiglnal signatures

pefdsP4l788 ThomuLFcttcP13396Attorney for City of

Benton Harbor Attorney forPlaintiffs

.1ifVT ri wrrwt 9ZCt 2GZJBt/1

D010000026


6/13

Charlette Pugh Tall P48780

Benlon Harbor City Attorney

Thomas R. Fete P13396

Paul TagliaP2124l

Attorneys forPlaintiffs

STATE OF MICHIGAN

BERRIEN COUNTY CIRCUiTCOURT

CLELLEN BURYet aL

PIaintifl

Case Number 03-3430-CE-F

OFBONHono1c L4a Tolen

Defendant

---I

WIIliarnT Burgess P36922

OcoffleyFields P41788

Dickinson Wright PLLC

Attorneysfor Benton Harbor


Grand Rapids MI 49503

616 458-1300

STIPULATED ORDER TO CONTINUEPRELIMINARY INJuNCFWE

ER AND MODIFY CASE MANAGEMENTAND SCHEDULING ORDER

At session of the Courtin

St JosephBerzieu

County Michigan on__________________

Present Hon _______________________Circuit Court Judge

Upon the Stipulationof the parties and being

advised in the premises

iT IS ORDERED as follows

The parties agreethat the Prdliininwy Injunction

Order may rnain in force and

effect until the earlierof the March 2004 trial date or further

order of the Cowt provided that

in so stipulationsthe City reseres and does

not waive any and all objectionsit has raised in

oppositionto entry

of the Preliniinmy Injunctive Order

I.4k1 I4 VTE.L tLLOC8669 9t 8Z/6t/t

D010000027


7/13

The deadline for any person having anyinterest whatsoever regarding

the subject

matter of this action tofiske an application to

intervene in thisaction pursuant to MCR 2.209

shall be 28 days fromthe date of entry of this Order Upon entry

of this Order counsel of record

for the plaintiffsand defendant shall publish

notice of this Order in newspaperof general

circulation of Benien Countyfor three consecutivO

weeks as provided for in MC1 2.106DX1

All other deadlines in theCase Management and Scheduling

OrdCi shall remain in

placeunless the Court orders

otheiwise upon stipulationof the parties

Dated Dccnber 2003Circuit Cout Judge

Sileulation

The parties bytheir respective counsel Stipulsie

to entry of the aboveOrder

GeoeyAJIe1d P41788Thomas It Fette P13396

Attorney for CityofDenton Harbor Attorney

frr Plaintiffs

December 19 2003December 19 2003

GaAflJ I2-l Z43101W

qi EPgZi6tit

D010000028


8/13

STATE OP MiCHIGAN

BERRIEN COUNTY CtRCU1T COURT

CLELLEN BURY et aL

Plaintiffs

Cue Numb 03-3430-CE-P

CITY OF BENTON HARBOR

Lda Tolcn

Defendant

William Burgess P36922

Geoffrey Fields P41788

Dickinson Waight PLLC

Attorneys for Benton HarbOr



616 458-1300

Claarlette Pugh Tall P48780

Benton Harbor City Attorney

Thomas Fette P13396Panl Taglia P21241

Attorneys for PIainti5a

CONSENT JUDGMENT

At session of the Court in St Joseph Bcrxien

County Michigan on____________

Present Hon._________________Ccuit Court Judge

Upon the Stipulation of the parties having conducted hearing on

2004 pursuant to the Notice of Nearing fli ed i n advance by the parties and being advised in the

premises

Consent Judgment is ented to adjudicate declare find andorthe following

Based en pleadings and evidence in the record including evidence presented at earlier

hearings the Court makes the following findings

D010000029


9/13

The City ofBcntofl Harbor BentonHazbor owns Jean Kiock Park

On June 2003 six members ofthe City

Commission voted to sell part of Jean

Kiock Park to Grand Boulevard RenaissanceLLC Developer for residential development the

Residential Project

On June 16 2003 Planitiffscommenced this action to litigate the question of

whether and 10 what extentthe City may sell any portion

of Jean Kiock Park for uses other than

bathing beach park orother public purposes

On August 12 2003 the C ourtentered Preliminary Injunctive Order

Injunction Order The InjunctionOrder provided for temporary injunctive

relief under MCR

3.310 and depended upon preliminary legal rulingon an issue of first impression in Michigan

regarding the abilityof municipality to make permanent

dedication of public lands the

Municipal Dedication Claim The InjunctionOrder also made prelindnaiy ruling that

Plaintiffs are not likely to prevail on their other claimsin this matter including the claims

relating to thedeed

fromLN

andCarrie Kiocic to the City the Deed

Claimand claims

arising under the environmentallaws of the State of Michigan the Environmental Claims

anyofthe

claims of this case

On October 14 2003 the Court entered an Order for Alternative Dispute

Resolution ADR Order

FuUaAt tu thc ADR rde the pardes cngageu in tacthtative mediation As

result of the mediation the parties entered into Settlement Agreement Settlement

Agreement by which they agreed to settle all claims and defenses arising from the transactions

and occurrences that are or could have been the subject matter of this action copy of the

DLL8C8669 9Et /6t/t

D010000030


10/13

Settlement Agreementattached to this Consent Judgment as Exhibit

The terms and

conditions of the Settierilent Agreementattached to this Consent Judgment are incorporated by

reference into this Consent Judgment

On December 2003 the Court entered Stipulated Order MCR 2.106

Oriler toAmend Case Management Order and Scheduling

Order Pursuant to the MCR 2.106

Order counsel for the parties publishedaNotice ofEntry ofMCR 2.106 Orderin newspaper of

generalcirculation in Berricn County for three successive weeks

Exhibit No other

personified plicaticntoieinthsactionsrcVhdbYtheMCR2.1060rderbYthC

court-imposeddeadline of January 2003

On January 2003 at public hearingthe City Commission voted to authorize

entryof this Consent Judgment and initiated proceedings to

amend the Citys Master Plan to

exclude certain portions of Jean Kiock Park as contemplated by theSettlement Agreement

entered by the parties and this Consent Judgment

Conclusions ofLa and Orders of the Court

Based upon the facts of this case the consentof the parties and tnlthi into consideration

the history present-day concernsand future interests of the City Jean Kiock Park and the

people who use Jean Klock Park aswell as the time and expense lncwred and about to be

incurred in connection with the Residential Project the Court makes the following conclusions

of law and orders as follows

This Consent Judgment Is intended to and may be recorded It relates to the

present andfuture use of Jean Kiock Park and the Residential Project

_. nwpcqz qzt 2/tIt

D010000031


11/13

This Consent Judgment places and supersedes all pzior rulings made by the Coutt

i n thi s inatt including the Injunction Order as amended or extended from tithe to time all of

which are dissolved

Subject to paragraph below the Court defines Jean Kiock Park to mean and

include all property depicted in xhibit to this Consent Judgment The Court perrnanentiy

eiJoins the City from using any portion of the property depicted as Jcan Xloc Park in Exhibit

to this Consent Judgment for any purpose other than bathing beach park purposes or other

public purposesrelated to bathing beach or park use except for recreational vehicle park

campsites provided however that the City shall for all time be authorized and empowered to

operate its water freatment facility located at the south end of the park including but not limited

capital ats and expansion The restrictions in this paragraph shall rui with the

land and shall be binding upon the City and its successors

Notwithstanding any other provision of this Consent Judgment the City may sell

theparcel Grand Boulevard Parcel which is depicted In Exhibit to this Connt Judgnient

to Grand Boulevard Renaissance LLC Developer provided that the residences to be

constructed as part of the Eesidentla Project in the Grand Boulevard Parceldepietcd on Exhibit

Dshall not exceed 35 feet in height from thelevel of Grand Boulevard If foranyreason the

City is unable to coinpletc sale of the Grand Boulevard Parcel to thcDeveloper for the

Residential Project and the Developer is unable to complete the Residential Project then this

Consent

Judgmentshall

be dissolved and any party to this action may petition to reopen this

action in which case the Court shall hear and decide the Municipal ledicatjon Claim In

addition the City may also use the parcel M-63 Parcel which is depicted in Exhibit to this

Consent Judgment for purposes other than bathing beach park or other public purposes

Zt/tt $d 3flI RlVR-4 DLLCBS9 qzT 7gTzT

D010000032


12/13

provided howeverthat the City may only use

the M-63 Parcel forsuch oth uses If each of

the followingconditions is xnct

the City Commissionmust approve

such otb uses as

required by the City Charterand the Michigan Department

of Natural Resources MDNR

must approvesuch other uses to the extent

the MDNR is required todo so tmdcr the temis of

grantsmade by the State of Michigan

to the City

This Court shall retain jurisdictionof this matter for the purpose

and to the extent

necessaly of enforcingthe terms and provisions

of this Consent Judgment and foT deciding any

issues arising from the implementationof the terms of this Consent Judgment

and the Settlement

Agreement

Except as otherwise providedabove in this Consent Judgrnent

this action

Including the DeedClaim and Environmental Claims

is dismissed with prejudice

Based upon the foregoingand subject to the provisions of paragraphs

and

above this Consent Judgmentresolves all pcndhig claims

and closes this case

Honorable LyndaTolen

Stipu1atiQ

The parties by their respectiveounsel pursuant to their

Settlement Agreement stipulate

and consent to entiy of the above Consent Judgment

4g ______ThoninaR.FetteP13396

Attorneyfor P1aiiitiffi Attorney

for ty ofBenton Harbor

OA l4S13I

na 3i13.1 I-vi tLLGC86691 9CtC9/6t/t

D010000033


13/13

STATE OFMICHIGAN

CLELLEN BUPYat al

BER.RIEN COUNTI CIRCUITCOURT

P1aintif

ciTy OF BENTONHARBOR

heard

Case Nwnber 03-3430-CE-F

Honorable Lynda Tolen

Charlette Pugh Tall P48780

Senton Harbor City Attorney

Thomas Fette P13396

Paul agU P21241Attorneys

forP1ainti

TAGUAI pgflE DUMKEWH1Th P.C

Attorneysfor Plairttiffi

ByThoinsaR FttP13396

Paul Taglia P21241

720 State Street PostOce Box 890

St Joseph Michigan49085

269-983-0755

AIU1 i%.I I%

ArY1 l14 VIV.L tLLBC8669e/6t/

Defendant

Wij1irnT BurgeN P36922f

GeoeY Fields P41788

Dickinson WrightPU-C

AttorneysforBentoil

Harbor



616 458-1300

NOTICE OF HEAIL1NG

PLEASE TAICENOTICE that counsel for

the parties tothis action will submit

Consent

Judgment Inthe form attached as

Exhibit for entry bythe Court at hearing on

January 2003at __ rn or as soon uftr as counsel

of record may be

DICKiNSON WRIGHF PLLC

Attorneysfor City of Benton Harbor

B414illgessP36922

Geo Fields P41788


Grand Rapids Michigan 49503

616-336-1017

Documents

Jean Klock Park Consent Judgment, 2004