The city plans to file suit Friday asking a Warren Circuit Court judge to clarify who owns parts of 601 State St.
After a 90-minute discussion in closed session Tuesday, the Bowling Green City Commission voted with no discussion to file the suit.
“We have made what were a reasonable number of offers, but they have all been rebuffed,” Mayor Bruce Wilkerson said.
The issue over ownership arose this year when the Downtown Redevelopment Authority leased part of its building to restaurateur Jake Simic, who plans to open a catering venue.
“We worked with Jake so he could put his canopy over the entrance,” Wilkerson said.
But DRA is laying claim to a squared-off lot that includes its building, part of the parking lot and a part of the fountain area, including the controller for the fountain, the mayor said.
“We thought maybe the staff and attorneys were getting in the way of negotiations, so we met in a closed session with them and then they complained that going board to board was an open meetings violation,” he said. “We’ve offered mediation; we’ve offered extra parking and even money and nothing has worked. So we are going to let the court decide to see if that area was intended to be part of (Circus Square) or if using taxpayer money to build the park was intended to go to a private entity.”
Part of that taxpayer funding to build the park came from federal Community Development Block Funds, but Wilkerson said he thinks the case can still be filed in state court.
The primary claim in the lawsuit that will be filed by Hamp Moore will be that the DRA is getting unjust enrichment from a park and plan that it helped design.
“To see if they are unjustly enriching themselves ... over what was intended to be a public park and public parking,” Wilkerson said.
The original idea of Circus Square was to be entirely green space, but then the Historic Preservation Commission got involved and wanted to save the old gas station on one corner and the building that now houses the DRA on the other, he said. In 2006, the city deeded to the DRA the 601 State St. building and a portion of property.
“I don’t believe anyone anticipated that DRA would exercise ownership control over that because they were the city’s agent in building the park,” Wilkerson said.
But all that changed in June 2011, when the city terminated a parks management agreement with the DRA.
“As long as DRA received funding from the city and managed Circus Square Park there were no conflicts with the potential users of the park,” reads the municipal order approved Tuesday night.
But DRA continues “to assert ownership of this portion of the park to the detriment of the city of Bowling Green and its citizens and in violation of its fiduciary duties,” it continues.
Because of those reasons, the city voted to file the lawsuit, which essentially will determine ownership of about 9,000 square feet of property that includes about eight parking spaces and the fountain.
Eminent domain will be used if necessary, the municipal order says.
Wilkerson said the city already offered DRA the appraised value for the parking lot and fountain space in question – more than $107,000 – but the DRA rejected that.
“I don’t think that offer has been rejected,” DRA Executive Director Ron Murphy said. “All we asked for is some more information about the appraisal that they had done, and that is the last I have heard about it.”
Murphy said this morning he was surprised to learn that the city will be filing suit.
“I guess we will just have to wait and see what develops,” he said.
Without “looking into” what the city voted on, Murphy said he would decline to comment further.
“We received an offer late Friday afternoon in a hand-delivered letter with an incomplete copy of an appraisal and asked for us to respond,” DRA attorney David Lanphear said. “I sent a letter (Tuesday) asking (attorney) Hamp Moore for additional information and then I hear ... that they are filing suit. There was no deadline in the letter. ... I guess waiting two days was too long a time.”
Lanphear said he plans to met with the DRA and discuss a plan of action.
The city won’t be seeking money in the suit.
“We just want what the city built and paid for to be open to the public,” Wilkerson said. “We don’t even care that their patrons and customers would be using the parking lot.”