Reply to Ruth Beier:
There is no nice way to say this, but it is simply not true that “the property owners gave up valuable property so that the sidewalk could be widened to improve pedestrian safety.”
Number 1: The sidewalk was not “widened to improve pedestrian safety.” Please look at the attached email which lays out the City’s rationale for replacing the retaining wall. Here’s the relevant part of that email, and it should be noted that this is the oldest document I received from the City that mentions this “retaining wall” project (in other words, this email is “ground zero”) –” We are looking to replace the wall and move it back from the curb 6 feet or so and then replacing the sidewalk with a parkway instead of behind the curb as it is now. “Moving the wall back “6 feet or so” never took place –it is in exactly the same place as it was originally, right up against the existing Right-of-Way, so there is simply no improvement to pedestrian safety. Now, if the “parkway” had been installed, that may have been a “pedestrian safety improvement,” but the “Parkway” was never seriously considered (that is, the bid documents make no mention of a “parkway”).
Number 2: The property owners did not “give up valuable property”; not one square inch. I’ve attached the “Woodland Pass Equity Grant of Easement” so that PR readers can see for themselves what the “property owners gave up.” But, again, here’s the relevant language –Woodland Pass Equity grants a permanent easement to “The Easterly eleven feet of the above described parcel running adjacent and parallel to the existing Westerly right-of-way line of Abbot Road [and a] Right-of-way across the foregoing premises for ingress and egress to and from said easement is to be provided to the Grantee, and its designee, to allow for the inspection, maintenance, improvement and/or extension of the public sidewalk and adjoining retaining wall.”
Reread that carefully — all the Grant of Easement does (this is how lawyers explained it to me), essentially, is extend the existing Right-of-Way an additional 11 feet (that is, extend the RoW 11 feet into WPE’s property). The easement did not deed those 11 feet to the City, that is, WPE did not “give up” anything. All they did was grant an “easement” to the City to “ingress and egress” across their property to work on the “adjoining retaining wall” (no portion of the sidewalk is in the Easement, so, any reference to the sidewalk and the easements is irrelevant). Furthermore, and this is important, the easement does not obligate the City to “inspect, maintain, improve, or extend” the sidewalk and/or the retaining wall.
Number 3: It is also important to note that the Easements were not accepted by the City until long after the work had been completed. Consequently, even if it were true that “property owners gave up valuable property,” and it is clearly not true, they did so only after the city used CDBG (and city) funds to rebuild the retaining wall in its original position (the City’s original intent for this “project”) and replace a perfectly good sidewalk in its original position.
Number 4: Given the clear and plain language of the easement, the city never had, and it still does not have, an “easement” within the “existing right-of-way” to do anything to or with the existing sidewalk and/or the existing retaining wall, which is where 95% of the “Project” took place. That is, the entire “easements” debate (no matter how it plays out) has absolutely no bearing on the City’s use of federal and city funds to rebuild WPE’s retaining wall, and replace the “adjoining” sidewalk as neither are within the easement’s “easterly 11 feet.”
Number 5: It may be that these differing interpretations are subject to “further review’ (to use HUD’s reference to their most recent action). In fact, that is exactly what our “60(b)(3) Motion” asks the federal court to do –the False Claim Act gives me (the Qui Tam Relator) the right to a “further review” hearing if and when the “government” decides to do somethingwith this Qui Tam that I object to. And, it is quite obvious that HUD (and the DoJ) first determined that there were no federal taxpayer dollars to “recover,” then, 4 months later, they unexpectedly agreed with me 100% and sought to “recover” the CDBG funds spent by the City on this “ineligible activity” (which was to sole “allegation” behind this Qui Tam, FCA, whistle-blower suit).
So, the “summary” of all of these PR posts is simple — we’ve asked Judge Maloney to grant me a hearing, which is my right under the law, and sort it all out.
-Phil Bellfy
