How MPR's legal misadventure is driving up the cost of LRT line ...

Executives of Minnesota Public Radio are accustomed to depositing checks. Their annual ?pledge weeks? seem to roll around as frequently as Red Cross blood drives and often sound just as desperate.

However, very soon MPR will have to write out a sizable check ? for $55,000 ? to the Metropolitan Council to reimburse the agency for expenses in connection with MPR?s unsuccessful lawsuit involving the Central Corridor light-rail transit (LRT) line.

To put that number in perspective, it amounts to more than 900 new MPR memberships at the $60 level. The phone lines no doubt are now open!

The $55,000 figure no doubt is dwarfed by the amount of membership money spent by MPR on its lawsuit, which was dismissed late last year by Ramsey County District Judge Elena Ostby. It also pales in comparison to the nearly $1 million in taxpayer costs incurred by the Met Council in defending the lawsuit.

(Disclosure: From 2003 to 2011, I was the Metropolitan Council's director of public affairs. See my full professional bio here.)

This legal misadventure graphically illustrates one of the reasons that public infrastructure projects often escalate in cost and drag on long past their intended completion dates (think Stillwater bridge).

Former Met Council Chair Peter Bell frequently commented on the number of state and federal laws that could be used by opponents of public projects to impede their progress. Bell frankly doubted that the interstate highway system could be completed under today?s legal framework.

One of three suits

The MPR lawsuit was one of three brought against the Central Corridor project, along with suits filed by the University of Minnesota and groups representing the St. Paul minority community. All have now been resolved.

This was hardly unique to the Central Corridor project.? The Hiawatha LRT project was the target of eight lawsuits, all of which ultimately were unsuccessful.

But MPR?s case was particularly weak. Here?s why:

In April 2009, MPR and the Met Council signed a 10-page memorandum of understanding in which the council agreed to install a floating track slab, or its equivalent, ?capable of continuously providing vibration mitigation satisfying the criteria? specified in the document.

The agreement said the council would not commit to ?a specific solution? at that time because final engineering was not yet underway.

On the recommendation of project engineers, the council ultimately opted for a rubber-supported floating slab that has been widely used by other rail projects to protect sensitive facilities from vibrations.

It is the same type of slab being used to protect University of Minnesota research laboratories located near the LRT alignment on Washington Avenue. Cost estimates at the time showed that a rubber-supported slab would be about 30 percent less expensive than a steel spring-supported slab, which MPR sought.

So in February 2010, MPR went to court, essentially trying to rewrite the memorandum of understanding it signed to require a steel spring-supported slab.

In the months that followed, MPR?s lawyers undertook extensive discovery efforts, compelling the Met Council to copy and provide 58,000 pages of documents. The council also was forced to hire several consultants to ?independently analyze the rubber-supported floating slab and rebut the errors of analysis by MPR?s experts,? according to court documents.

Suit dismissed

But none of this changed the plain language of the agreement that MPR and the council had signed, as Judge Ostby ultimately concluded.

Last November, Ostby granted the council?s motion for a summary judgment dismissing MPR?s lawsuit, saying ?there is no evidence that the Met Council has breached the mitigation agreement.? In her ruling, Ostby also ordered MPR to reimburse the council for ?reasonable costs? incurred in connection with the lawsuit.

The council initially submitted an itemized claim for $136,882 in costs, primarily for the independent experts and document copying. But MPR objected to that amount, and the council ultimately settled for $55,000.

However, the taxpayers will have to pick up the entire tab for the Met Council legal bills from Lockridge, Grindal and Nauen ? a hefty $775,914.

MPR?s legal expenses presumably were in the same neighborhood. It was represented by Leonard, Street and Deinard, a prominent Minneapolis firm. MPR declined last week to reveal how much it spent on lawyers and consultants.

Bill Gray, an MPR spokesperson, said the suit was ?based on the advice of multiple engineering experts? that the proposed design of the floating slab was inadequate.? ?We take our obligation to protect the investment made by the public in the MPR Broadcast Center very seriously. That was our main goal in filing the lawsuit.?

Under the original agreement with MPR, the Met Council still will install a 700-foot-long floating slab on Cedar Street to protect MPR?s studios and the two churches to the north. The cost of the slab has not yet been determined, according to project staff.

In addition, the council will pay for $475,000 in acoustical upgrades to three MPR studios to insulate them from any LRT noise.

Source: http://www.minnpost.com/cityscape/2012/03/how-mpr%E2%80%99s-legal-misadventure-driving-cost-lrt-line-0

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