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Forest Grove officials try alternate route in David Hill Development case

By appealing the $6.5 million judgment against it in the case of David Hill v. Forest Grove, the city has opened an alternate route to resolving the lawsuit: mediation.

Forest Grove hired a new attorney, Thomas Christ of Cosgrave Vergeer Kester, to handle the appeal, which was filed Nov. 28 in the U.S. District Court in Oregon.

On Nov. 6, United States Magistrate Judge John Acosta upheld the October 2011 judgment by a federal jury that Forest Grove had unfairly delayed David Hill Development’s proposed subdivision, The Parks, located near David Hill Road.

The case will go to the Ninth District Circuit Court of Appeals, which requires the parties in most civil cases to fill out a mediation questionnaire, according to Mary Schlepp, mediation administrator for the Ninth District. Mediators review the questionnaire and, if appropriate, set up a phone conference to assess the possibility of mediation, she said.

Mediation can “quickly and efficiently" resolve disputes and does so hundreds of times each year, according to the Ninth Circuit's website.

David Hill’s attorney, Steve Morasch of Schwabe Williamson and Wyatt, said Forest Grove turned down his suggestions of mediation before the trial. “I made numerous requests to the city’s attorney (Rick Kuhn of Hart Wagner) to sit down and mediate this, and he refused. They were really confident in their case. They thought they were going to win.”

Neither the city nor David Hill would say (through their lawyers) whether they were interested in mediation, which is not mandatory.

Mediators for the Ninth circuit "can’t force anything,” said Steve Morasch, “other than they can make you sit down and talk.”

Paul Elsner of Beery Elsner & Hammond, city attorney for Forest Grove, said Christ is a “top drawer” lawyer who has argued and won a case before the U.S. Supreme Court. The city hired him because “some of its own money is at stake,” Elsner said. “It has skin in the game.”

The city’s insurance has a cap of $5 million, which would leave Forest Grove to pay the remaining $1.5 million of the judgment — and possibly another $1.5 million to cover David Hill’s legal fees — if it loses the appeal.

The city’s insurance carrier, which covers legal fees, supported Christ’s appointment because it is concerned about setting a statewide precedent for developers to sue cities if a project is delayed, Elsner said. "Frankly, there's delays all the time," he said. "It has larger significance."

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