MOUNT VERNON — Common Pleas Judge Richard Wetzel has authorized the City of Mount Vernon to proceed with repairs on the Knox Cattle Company dam.
Wetzel ruled in favor of the two-pond option during a conference call on Wednesday.
The judge based his ruling on the opinion of AK Hydro, included in a supplemental report from Jack Harris of Intercept Management.
Harris is the court-appointed receiver for The Landings Property Owners Association, the owner of the Yauger Road dam and lake.
Seventy-four property owners in The Landings Phases VII and VIII comprise the POA.
AK Hydro is the engineering firm responsible for designing the cattle dam options. In August, the engineering firm provided three alternatives:
•Full reconstruction ($1.1 million)
•Single-pond construction ($303,525)
•Two-pond construction ($701,525)
Harris recommended the two-pond construction. Attorney Stephen Chappelear, representing a group of homeowners in Phases VII and VIII, said the defendants want the single-pond option.
“It appears to me that the two-pond option is the safest based upon this Nov. 6 memo from AK Hydro that it’s their opinion that Alternative Number 3 is the better alternative,” Wetzel said on the call with attorneys and interested parties.
Wetzel said that although the single-pond option is the cheaper solution, “based upon this memorandum, it seems that doing the minimum at the lower cost is going to create more long-term problems for the city and for the residents, and also the people who are downstream of the structure.”
Alternative 3 provides greater safety
Wetzel noted that AK Hydro’s report states that alternatives 2 and 3 both meet the primary design goals, provided the structures are routinely inspected, maintained, and operated as intended.
However, AK Hydro preferred Alternative 3 for several reasons:
•It reduces potential downstream flooding. Anticipated peak discharge during a 100-year storm is 20% less than the preconstruction discharge. Alternative 2 matches the preconstruction conditions and is not expected to reduce peak discharge.
“That, in the court’s view, is a significant safety concern,” Wetzel said.
•The single-pond option provides the maximum allowable storage under ODNR’s dam safety regulations for an unregulated water-retaining structure.
Wetzel recharacterized the single-pond option as being the minimum that can be done to provide dam safety.
“Considering the safety of the downstream residents, it’s adequate. It meets the dam safety regulations now, but it’s the minimum that can be done because it provides the maximum allowable storage for an unregulated water-retaining structure,” he said.
•Long-term maintenance and operational costs are expected to be lower. AK Hydro anticipates more frequent dredging for Alternative 2 to maintain reservoir volume for stormwater routing and to prevent the primary spillway from clogging.
Wetzel said the idea of heavy monitoring, dredging, and future dredging costs, as well as the inability or failure of that dredging, under Alternative 2, “creates a serious safety concern for the downstream residents and the integrity of the structure.”
Currently, that responsibility falls on the 74 residents in Phases VII and VIII.
“I do not have confidence, based upon the reason why we’re in this case today, that those 74 residents are going to be able to provide for that type of monitoring and ongoing maintenance,” Wetzel said. “It does sound like it would create a safety hazard if they do not do those things.”
Neighboring subdivisions prepared to help
Harris said that HOA presidents for Mallard Pointe and Water’s Edge support the two-pond option.
“Obviously, aesthetically it’s a better option for the folks that actually can see it and use the land,” he said.
Harris said they understand that once crews complete the work, he will ask them — and anyone who contributes to the watershed or is protected by the dam — to support future maintenance via a monthly fee.
“They were not in favor of having me come and ask for money on a monthly basis if it’s something that was an eyesore to all of them and potentially could affect their property values,” he said.
The city would manage the maintenance fees. For that to happen, however, 50% of the property owners must petition the city to maintain their private stormwater facility.
Conversely, the court can order the property owners to petition the city.
The 50% threshold of property owners also holds if the petition extends beyond the current 74 property owners. Again, the court could order additional property owners to join the petition.
Wetzel requested Harris to discuss with Waters Edge and Mallard Pointe representatives the option of joining the 74 property owners in asking the city to maintain the lake and dam.
Cost overruns
The initial construction cost for the two-pond solution was $701,525. However, Harris said previously that he found a way to reduce sediment disposal expenses. He also negotiated a lower price from Mark Haynes Construction of $635,200.
The city has encumbered $634,900 in American Rescue Plan Act funds to cover construction.
In the event of cost overruns, Park National Bank has agreed to provide a loan, backed by the Ohio Water Development Authority (OWDA), at an interest rate of 6.5%.
The city has also encumbered $208,000 for AK Hydro and $70,000 for Harris.
Chappelear asked the court to apply leftover funds in those accounts to any cost overruns before imposing loan payments on the 74 property owners in Phases VII and VIII.
Wetzel requested that Harris notify the court of any cost overruns. The court will consider the amount, the reason(s) why, and the availability of other funds at that time.
He also asked Harris to file a letter from Park National stating that the court can choose the amortization period if a loan is needed.
(Below is a PDF of the receiver’s supplemental report and AK Hydro’s comments.)
Background on the cattle dam lawsuit
In June 2020, the State of Ohio, at the request of the Ohio Department of Natural Resources, filed a civil suit in Knox County Common Pleas Court. The state requested that the court declare the legal owner(s) of the dam.
The purpose of declaring an owner was to establish who is responsible for the dam repairs.
Wetzel ruled that The Landings Property Owners Association is the owner. Property owners in The Landings Phases VII and VIII comprise the POA.
Property owners initially paid dues to the HOA for maintenance of the dam and lake. However, the POA stopped collecting fees around 2010.
The case record documents the state’s effort to enforce dam safety laws through correspondence with property owners and the developer since 2009.
