MOUNT VERNON — A visiting judge dismissed some parties involved in the lawsuit regarding ownership of the Knox Cattle Company Dam on Yauger Road but left the door open for additional parties to be added.
Earlier this month, Judge James Kimbler dismissed defendants Waters Edge, Delano Asset Management LLC, and 24 property owners on Mallard Pointe. Kimbler was appointed to the case last fall by then Ohio Supreme Court Chief Justice Maureen O’Connor after Knox County Common Pleas Judge Richard Wetzel recused himself.
The state did not oppose the dismissals on the grounds that there are no facts to support the defendants’ ownership of the dam:
•A previous court case determined Waters Edge is not an owner.
•The property owners are in The Landings Phase V and therefore subject to Phase V restrictions.
•There is no legal instrument stating that these property owners have any rights or responsibilities to the lake or dam.
The state never alleged that these defendants were potential owners. They were added to the case following a court order by Judge Wetzel in October 2021.
In addition to The Landings Property Association, the original suit filed by The Ohio Department of Natural Resources named Mullins Bros. Ltd. In turn, Mullins Bros. filed a complaint against property owners in The Landings Phase VII and Phase VIII.
Mullins Bros. contends that when owners bought the lots from Mullins Bros., they were required to become members of a homeowners association (The Landings Common Area Association) which was given sole and exclusive control of the lake and responsibility for maintenance.
Instead of The Landings Common Area Association, however, Mullins Bros. created The Landings Property Owners Association and transferred ownership of the lake, dam, and the properties known as Phase VII and Phase VIII to The Landings POA.
Mullins Bros. asked to be dismissed from the case because it transferred the property to the POA. Attorney Nina Hanson said the name difference in the POAs is a “scrivener’s error” and is immaterial.
In February, Kimbler denied Mullins Bros.’ request to be dismissed. In his denial, Kimbler said the only evidence that it was a scrivener’s error is the statements by Steve Mullins in the motion to dismiss and in responses to the state.
Additionally, when the state asked for an explanation of the error, Mullins Bros. declined to answer, citing attorney-client privilege and attorney work-product privilege. Kimbler cited four issues in his denial:
•Whether it was a scrivener’s error or something “more consequential”
•Does the name difference mean the court can negate the property transfer to The Landings POA via quitclaim deed?
•Is the fact that the transfer was via quitclaim relevant?
•If the transfer is effective, what happened to the title of that land when the Secretary of State canceled The Landings POA?
In a pre-trial hearing this week, Hanson said she spoke with Mullins’ legal counsel present during the POA document filings.
“I believe it will be his testimony that it was a mistake in paperwork when the association was formed,” she said.
The Phase VII and VIII property owners became involved in the case via the third-party complaint filed by Mullins Bros. Kimbler told state’s attorney Brett Kravitz that if the POA name difference proves to be a scrivener’s error, the state itself has a good argument to add the Phase VII and VIII property owners to the case.
He approved Kravitz’s oral motion to add the property owners and asked Kravitz to file an amended complaint. Phases VII and VII involve about 70 property owners.
Interim repairs
The Ohio Department of Natural Resources filed the lawsuit in June 2020 to determine ownership of the dam. The dam needs repairs, but an owner(s) must be identified to cover the cost of those repairs and handle future maintenance.
While the ownership issue winds its way through the court, the City of Mount Vernon is under a court order to work with the state to maintain the water level in the lake.
The city made emergency repairs in 2020. In November 2021, the city repaired the emergency spillway and removed a rusted 60-foot pipe. Repairs included lowering the water level and installing a siphon to maintain the lower level.
In January and February of 2023, the city made emergency repairs when the siphon became plugged several times. Water backed up and went over the spillway. City Engineer Brian Ball explained at the time that when the water level backs up, you start to get seepage at the bottom of the dam.
At the March 17 hearing, Ball said repairs are ongoing.
“It is extremely challenging to maintain the siphon in ice,” he said, adding that the current siphon is the third one. “It’s worked for a few days, then quit. The last three days we’ve started it every day.”
Ball said the outlet and drain are at the bottom of the pond and city crews cannot get to it with their equipment. Although the siphon is dry, the channel is not. That means the seepage is coming from the dam, not the siphon.
“If it continues, we’ll have to do more work on the dam,” he told Kimbler.
City Law Director Rob Broeren said the city is also going to ask the court to permit removing silt from the bottom of the pond.
“The silt does have value,” he said. “We’re going to ask to sell that and use that money to offset other costs and offset the ARPA money [from the commissioners.]”
The Knox County commissioners gave the city $1 million in American Rescue Plan Act money to put toward dam repairs. Broeren noted in February that the $1 million gets drawn down every the city has to make repairs.
He estimates there is about $900,000 remaining in ARPA funds.
Kimbler asked the city to submit documentation as to what interim measures the city is requesting.
Background
According to Law Director Broeren, the people managing the homeowners’ association decided in 2015 that since the name in the deed documents did not match the association name, there was no need to pay the dues and so let it lapse.
“The reason we are in this spot is because no one has done maintenance for more than a decade,” he said at this week’s hearing.
Initially built for agricultural purposes, the dam, over time, became a part of stormwater management. ODNR inspections in 2008, 2010, 2015, and 2020 document multiple safety violations.
ODNR reclassified the dam in 2008 to a Class 1 because of downstream development.
In July 2022, Stantec Consulting Services, on behalf of the city, created four alternatives to resolving the dam safety issue:
• #1 Repair and rehabilitate the dam entirely. Construction cost $2.56 million, $36,500 annual maintenance
• #2 Remove the dam. Construction cost $1.39 million, $38,500 annual maintenance
• #3A and #3B Lower the height of the dam and incorporate a variety of flood-control measures. Construction cost $2.12 million, $34,200 annual maintenance and $1.61 million, $35,700 annual maintenance, respectively
Judge Wetzel held public hearings to get input on which alternative residents preferred. Part of the difficulty is that the ultimate dam owners will be the ones who choose the alternative.
Wetzel recused himself from the case last fall, citing a potential conflict of interest. He had previously ordered the City of Mount Vernon to file a list of property owners in the dam’s watershed area on the possibility that they might be added to the case. Wetzel’s wife is associated with one of the properties as an employee.
“Rather than wait for the addition of all of those parties, I thought it best to recuse myself and request the Ohio Supreme Court to assign a visiting judge to preside over the case,” Wetzel told Knox Pages in February.
