Memo in support of Mtn for Entry of Consent Judgment FOR FILING

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Case 1:10-cv-00210-PLM Doc #135 Filed 07/26/11 Page 14 of 20 Page ID#1767Law and ArgumentI. The Consent Judgment is Fair, Adequate, and Reasonable andShould Be Entered by This Court.a. The review of a consent judgment is within the discretion ofthe Court.Consent judgments have been recognized as hybrid, combining the attributes ofa contract and a judicial decree. Local No. 93, Intern. Ass’n of Firefighters, AFL-CIOC.L.C v. City of Cleveland, 478 U.S. 501, 519 (1986). Because of this “dualcharacter,” courts typically review a proposed consent judgment before entering it toensure that it is not illegal or the product of collusion, Kelley v. Thomas Solvent Co.,717 F. Supp. 507, 515 (W.D. Mich. 1989), and that it is “fair, adequate, andreasonable as well as consistent with the public interest.” Williams v. Vukovich, 720F.2d 909, 920 (6th Cir. 1983).The review of a consent judgment is committed to the informed discretion of theCourt. Kelley, 717 F. Supp. at 515. In the exercise of this discretion, the Courtshould consider the strong policy favoring voluntary settlement of litigation. Id. Inaddition, when the government is a party to a consent judgment, “the balancing ofcompeting interests affected by a proposed consent decree ‘must be left, in the firstinstance, to the discretion of the [government representatives].’” The Court alsoshould consider the nature and duration of the litigation, and the judgment ofexperienced counsel, when evaluating the Consent Judgment for entry. Id. Asexplained below, the Consent Judgment proffered here is neither illegal nor theproduct of collusion. It was fully negotiated over the course of one year, and is a fair,adequate, and reasonable compromise of the parties’ dispute.14
Case 1:10-cv-00210-PLM Doc #135 Filed 07/26/11 Page 15 of 20 Page ID#1768b. The Consent Judgment reflects a compromise of disputedclaims.The reference points for evaluating the reasonableness of the proposed ConsentJudgment are the possible outcomes, i.e., the result if Plaintiff wins versus theresult if Plaintiff loses. The proposed Consent Judgment sets forth terms that fallsquarely within these two possibilities.First, the Consent Judgment avoids a much more intense use of the land thatwould be possible if Plaintiff prevailed in this case. If Plaintiff were to prevail andthe old zoning restored, the potential number of residential dwelling units wouldnearly triple on the 200 acres that make up Parcels SD-1– SD-4. Likewise, ifPlaintiff were to prevail, the range of uses available to Plaintiff would greatlyexpand. Rather than being restricted to a waterfront resort project in the midst of atourist area, Plaintiff could take advantage of the additional density to develop aretirement village. Although Plaintiff has never sought to use the land in any otherway, the prior zoning opens up a range of non-residential uses such as sand miningor other mineral extraction. The prior zoning also allows use of the land for publicutility buildings or to house an educational institution. The Consent Judgmentensures that these sorts of uses will not be restored by a judgment of this Court andinstead that the use of the Subject Property will be consistent with the resortnature of the Saugatuck area.Second, the Consent Judgment avoids catastrophic financial consequences forthe Township. By settling now, both parties avoid the ongoing costs of litigation, butthe Township also avoids the risk that it might be ordered to pay Plaintiff’s legal15
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Memo in support of Mtn for Entry of Consent Judgment FOR FILING

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