MOUNT VERNON — Attorneys on a conference call last Thursday agreed to wait 60 days to allow time for parties involved in a Knox Cattle Company Dam civil suit to find alternative solutions.
The state of Ohio, on behalf of the Ohio Department of Natural Resources, filed the suit in June 2020 in Knox County Common Pleas Court. The state is asking the court to declare the legal owner(s) of the dam on Yauger Road.
The purpose of declaring the legal owner(s) is so the owners can bring the dam into compliance with Ohio's dam safety laws and compensate ODNR for interim risk reduction measures undertaken to protect public health and safety.
While the current focus of the suit is to determine the owner(s), Common Pleas Judge Richard Wetzel is also interested in determining who contributes to the water flowing through the dam.
“The idea is that if this case is going to arrive at a long-term solution for maintenance and payment for maintenance of the dam and the lake, it seems to me that a fair and equitable allocation of those costs across a larger group of people who contribute to the cost and maintenance of the lake might be in order,” he said.
“If a few people get assigned the responsibility, they would have right of contribution. It seems to me that if we get that issue on the table and discuss it, we might avoid future litigation.”
The contribution doctrine states that people under a common burden must share that burden equitably.
As it stands, 135 parties are involved in the suit.
The suit names The Landings Property Association Inc., Mullins Bros Ltd., Delano Asset Management LLC, Crown Hill Condominiums at Mount Vernon Unit-Owners Association, the City of Mount Vernon, and 10 homeowners who reside or formerly resided on Mallard Pointe as defendants.
In September 2020, Mullins Bros. Ltd filed a third-party complaint against approximately 117 property owners in The Landings Phase VII and Phase VIII. The complaint contends that when owners bought the lots from Mullins Bros., they were required to become members of a homeowners association which was given sole and exclusive control of the lake.
Including properties in the total watershed area would involve adding an estimated 100 to 150 parcels to the suit. Additional parties could include those in the Waters Edge development.
Wetzel said ODNR did not include Waters Edge property owners in the suit because a 2004 court settlement between Knox Cattle Company and Waters Edge Homeowners Association stated the HOA is not an owner of the lake or dam.
“I think those parties should be parties,” Wetzel said. “They do contribute to the water in the lake and the load on the stormwater system, and the resolution will affect them.
“Who owns the dam is what started this, but who is responsible for maintenance and how is that cost going to be equitably shared is where I'd ultimately like to get this case.”
Relating to the best way to address ongoing maintenance, Wetzel asked the attorneys to start thinking about alternative solutions that might lower the cost of dam compliance.
“Does it need to stay a lake?” he asked. “Is there another alternative that would be more feasible? A lake is beautiful. If it's necessary for storm water purposes, then it might need to stay a lake. But if another way is as effective but not as costly for compliance [then I'd like to think about that.]”
Wetzel asked Mount Vernon Law Director Rob Broeren if the city is able and willing to provide some initial engineering suggestions as to whether something else might be feasible.
Broeren said that Brian Ball, the city's engineer, might have already discussed potential solutions with ODNR.
“Once we start engineering, the cost will escalate quickly,” he said, adding that the city initially projected about $50,000 in engineering costs. “We might be able to front the money, but I don't know to what extent we could absorb those costs over time.”
Noting that it was a “chicken and the egg” situation, Wetzel said, “If we're talking about potential solutions to maintain the dam that are not as costly, it makes more sense to explore potential solutions first before adding more parties.”
Regarding residents' fear about a 100-year flood or homes being demolished while alternatives are explored, Attorney Ken Lane said he did not believe there is any urgency because the water level in the lake is so low. Broeren said the city is working with ODNR to monitor the water level and maintain the safety of the community.
Wetzel and the attorneys also agreed to halt discovery (the exchange of legal information) during the 60 days in order to save clients' litigation costs.
The attorneys and Wetzel will hold another conference call in 45 days to revisit the issue of alternative solutions. If no solutions are available, discussion will turn to adding additional parties and proceeding with discovery.