Wasilla told to go ahead: Jacobus tells council to proceed with arena

WASILLA -- Attorney Kenneth Jacobus advised the Wasilla City Council Monday to proceed with plans for developing a sports arena on the land that the city sued to gain title to. The city won title to two tracts of land in a lawsuit filed against land investor Gary Lundgren and non-profit The Nature Conservancy (TNC), the property's former owner.

After the city won the case in July 2000, Lundgren's attorneys appealed. But now the case is coming back from the U.S. District Court of Appeals Ninth Circuit to the court of U.S. District Judge John Sedwick in Anchorage. Sedwick is the judge who initially awarded Wasilla title to the property. Jacobus was Wasilla's attorney when the case was filed, and although he is no longer contracted as city attorney, he continues to represent Wasilla in the lawsuit against Lundgren and TNC.

"Don't accelerate [the project] or delay it, because of these alleged legal issues that Lundgren is raising," Jacobus told the council Monday.

Jacobus expressed similar confidence in the case last winter in the weeks leading up to Wasilla's March 5 special election on the sports arena bond proposition. At that time Jacobus told the Frontiersman that if he were a Wasilla voter, he wouldn't consider the legal issues a factor. It's likely that a temporary sales tax increase was the biggest factor for voters who balked, but the sports complex squeaked by with 306 votes to 286.

Jacobus gave two reasons for staying the course at Monday's meeting: First he said the city won't likely lose, but even if they do, Jacobus said the city can take the property by condemnation. Jacobus told the council he would argue that the two properties were purchased in separate deals so right-of-way issues brought up by Lundgren's attorney would be moot in the case of the parcel where the sports arena will be built.

"It's my opinion that the city is going to win again with respect to tract D," Jacobus said.

Lundgren's attorney Jim Gorski said he is preparing to argue that Wasilla's purchase of the two tracts was one land deal and that Judge Sedwick should declare it void.

"Our argument is that the two are intertwined together," Gorski said. "There's one contract, not two."

Gorski also said he and his client "aggressively disagree" with many of the points in an opinion column from Wasilla mayor Sarah Palin which was published in the July 16 issue of the Frontiersman.

"I stand by my statements. We are back to where we were more than two years ago," Gorski said.

On the subject of condemnation, Jacobus told the council there was a potential solution that could be used even after the sports complex and associated street and utility projects were complete. Jacobus didn't go into detail, but he was talking about a practice called inverse condemnation.

Condemnation is the practice of taking private property for public use by a government or a public utility. The private owner is paid market value for the property, although market value is sometimes negotiated or even argued in court. Inverse condemnation is a legal practice where the property owner may claim damages for loss of value when the proposed condemnation hasn't been instituted by the government or other condemning body.

According to Jacobus, city leaders shouldn't worry that the construction project will add value to the property only to pay more after an inverse condemnation is completed.

"When you value a property for condemnation you value it without taking into account the public facility that's being built," Jacobus said. " … I just have to go forward with knocking down all of Lundgren's roadblocks."