Judge Upholds FishPass Injunction; Construction Halted Until May Trial
By Beth Milligan | Feb. 16, 2021
Judge Thomas Power upheld an injunction Tuesday halting construction on the new $19.3 million FishPass project at the Union Street Dam until a lawsuit filed against the city can go to trial, likely in May.
Power said Tuesday that he believed the lawsuit filed by resident Rick Buckhalter against the city was likely to be successful, and that accordingly, construction must remain halted on FishPass until a trial can take place. Buckhalter is arguing that FishPass violates a section of the city charter requiring a public vote on the disposal of any city parkland, contending that the major, long-lasting changes being made to the Union Street Dam park constitute a disposal of parkland.
While Power previously said he didn't think Buckhalter's lawsuit would be successful on the merits, he changed his mind Tuesday, focusing on language in the city charter that said parks must be used “solely” for park purposes. Power said FishPass has been “primarily designed and primarily advertised” as a scientific research laboratory. Even though other parts of the Union Street Dam site are planned to be upgraded with new park amenities, and public access will still be maintained throughout the site, Power said a research laboratory was not for “public recreational use” and thus could not be considered “solely” a park purpose. “I think it transgresses section 128 of the city charter,” he said.
Because changes made to the park would be difficult to reverse if Buckhalter wins his lawsuit, and because the judge believed there was no risk of imminent public harm from the current dam collapsing, Power said he would keep the injunction in place to prevent any construction work from occurring until the lawsuit goes to trial later this spring. Power acknowledged that FishPass could potentially experience significant delays - if Buckhalter's lawsuit is successful, the case would either be appealed or would require a public election before the project could proceed - but disputed statements from project attorneys that extended delays could jeopardize the entire project. “It doesn't appear that the funding is going to be a problem,” the judge said, though he noted: “I don't doubt there's considerable inconvenience.”Comment