MOUNT VERNON — A problem that generated heated discussion in the summer of 2019 during the city's stormwater utility discussions is now making its way through the courts.
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 is asking the court to declare the legal owner(s) of the Knox Cattle Company 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.
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.
In October 2020, the state filed a motion for preliminary relief for interim safety measures. The motion requested that the court order the City of Mount Vernon, acting on behalf of ODNR, to take interim risk reduction measures (IRRM) until the owners are determined and the dam is brought into compliance.
At a hearing held Jan. 21 to consider the IRRM motion, Common Pleas Judge Richard Wetzel said the case was interesting because it involved various aspects of law, including zoning, deed restrictions, and real estate. It also involves action for declaratory judgment as well as determining who needs to be a party to the case.
“The most serious consideration, and the most important consideration, is to reach a long-term solution that is fair and equitable,” he said. “It's time that we get to a resolution that will be sensible, fair and equitable to everyone, but also so that we don't have to come back in 10 or 15 years.”
History of the dam
Don Yauger built the dam in 1945 principally as a farm pond. Mia Kannik, program manager for the dam safety program at ODNR, said the state first became aware of the dam in 1992 as part of ODNR's inventory process. ODNR classified it as a Class II dam.
ODNR inspected the dam in 2008 and changed it to a Class I dam based on the development of property downstream. Additional inspections were in 2010, 2015, November 2019, and April 2020.
When ODNR reclassified the dam in 2008, it notified property owners of the measures needed to bring the dam into compliance. The 2010 report noted the same measures, as did the 2015 and 2019 reports along with new violations in each report.
ODNR states it sent the reports, as well as an April 2018 letter, to The Landings POA, Crown Hill Condominiums, and five property owners on the downhill slope of the dam.
In March 2020, city officials discovered a goose carcass blocking the principal spillway pipe. This caused the water level to rise and flow into the emergency spillway, causing additional erosion.
The city removed the carcass from the spillway and removed 2 feet of pipe to reduce flow in the emergency spillway and lower the water level. The city lowered the water level still more via a siphon in June 2020.
Interim Risk Reduction Measures
At the hearing on Thursday, ODNR's Kannik reviewed the history of the dam. She noted that the conditions have worsened since the state filed its suit in June 2020. With the spillway non-functioning, the upcoming spring rains increase the risk that the water level will rise and overtop the dam.
Pending declaration of ownership and responsibility, the state is asking the court to order the following interim risk reduction measures:
- Continue using the siphon to maintain the current lowered water level
- Unclog the principal spillway pipe
- Install a plate to prevent future clogging of the spillway pipe
- Provide pictures twice a month documenting the water level
City Engineer Brian Ball said the city has agreed to contract out the work for the IRRMs on behalf of ODNR. The cost estimate is $4,500 to $5,500, which the city will pay. Once ownership is determined, the owner(s) will reimburse the city.
Judge Wetzel has not yet ruled on the motion.
Ownership of land
Knox Cattle Company (Jerry Baker) owned the dam, the lake, and the surrounding land in 1992. Between 1998 and 2004, the company sold lots on the north side of the lake to various individuals to form Waters Edge condominiums. In 2004, the Knox Cattle Company sold five acres surrounding those lots to the Waters Edge Homeowner's Association Inc.
Through a 2004 court settlement agreement, the Knox Cattle Company retained ownership of the dam, the lake, and the surrounding land on the east, south, and west sides of the lake. The agreement states the Waters Edge HOA is not an owner of the lake or dam.
Mullins Bros. acquired the lake, dam, and other nearby property from the Knox Cattle Company in March 2005. Mullins Bros. then developed properties in The Landings Phase VII and the Landings Phase VIII.
Mullins Bros. transferred ownership of the dam and lake to The Landings Property Owners Association LLC in August 2007.
Mullins Bros. filed the paperwork in March 2005 for developing phases VII and VIII of The Landings. In addition to specifications for landscaping, colors, fencing, parking, refuse, and other similar issues, the restrictions required property owners to become members of a nonprofit corporation known as the Landings Common Area Association Inc. The corporation was granted sole and exclusive control of the lake and was to be responsible for its care and maintenance.
Requirements also included each lot owner paying an annual assessment of $200 to the corporation until the corporation changed the amount.
However, Steve Mullins, on behalf of Mullins Bros., filed articles of incorporation for The Landings Property Owners Association Inc., not the Landings Common Area Association Inc. The stated purpose of the POA was to hold, maintain, and control the common properties of The Landings Phase VII and VIII.
The articles of incorporation were renewed in 2010 with George Bertko as statutory agent. It was not renewed in 2015 because the POA failed to file a statement of continued existence.
In its suit, Mullins Bros. states that it was a scrivener's error in the filing of the different association name. Mullins Bros. contends that the property owners have known about and exploited this error to their advantage and asks the court to declare the owners members of The Landings Property Owners Association, and thus responsible for maintenance and care of the dam and lake.
It is not clear when The Landings POA stopped collecting the annual assessments. Mullins Bros. contends that had the dues been collected, there would be sufficient funds to provide for the care and maintenance of the lake and dam.
Mullins Bros. also states that if the company is found to be liable to the state, then the property owners for The Landings phases VII and VII are liable to Mullins Bros.
The property owners have filed motions to dismiss Mullins Bros. suit. Judge Wetzel will rule on the motions in the upcoming weeks.
In its suit, ODNR named Delano Asset Management LLC (Mallard Pointe) and 10 other homeowners who reside or formerly resided on Mallard Pointe among the defendants.
These defendants state they received a quit-claim deed from the Knox Cattle Company on March 30, 2005. The deeds represented tiny parcels of land between their purchased lot and the southern downhill slope of the dam.
According to their response to ODNR's suit, these defendants have no rights to the lake or the dam. They paid nothing for the parcels, did not know of any concern or liability related to the dam, and did not know of ODNR warnings about the dam. There is also a question as to whether they knew that the deed was placed in their name.
According to their statement, they later learned that the property was a drainage ditch that was part of the spillway of the dam. When they attempted to repair damage caused by the drainage ditch, they allege the City of Mount Vernon advised them they could not do so.
After reviewing the ODNR suit and other court filings, they found that The Landings Property Owners Association owns the lake and the dam. Through a corrective quit claim, the defendants transferred the parcels to The Landings POA in August 2020.
They contend that they are not owners of the dam; have no rights to the dam; did not participate in the planning, construction, or maintenance of the dam; and are innocent bystanders in the dispute. They demand that the action against them be dismissed and ask the court to declare they have no responsibility for the dam.
The Board of Managers for Crown Hill Condominium Association responded to ODNR's suit with a letter stating that while the CHCA is adjacent to the cattle dam and lake, none of its property is on a significant area of the property in question.
It has paid for repair of an underground pipe behind one of its western-most parcels and has maintained its common areas, including the area adjacent to The Landings parcels.
The City of Mount Vernon is named as a party because it implements a stormwater management and erosion and sedimentation control program under city code. Additionally, it has taken interim corrective measures to reduce flooding risks associated with the dam.
At Thursday's hearing, City Engineer Ball said that around 1999 the developer submitted a stormwater plan for The Landings. The dam was retrofitted to meet the requirements at the time.
Stormwater management includes managing the quantity of water leaving a site, sedimentation downstream, and water quality. Upstream of the lake, a weir failed, causing water to enter downstream more quickly. Ball said the city issued a failure to maintain stormwater utility notice to The Landings POA in 2016.
Judge Wetzel questioned Ball about what water flows through the Knox Cattle Company Dam and what comprises the watershed area. Wetzel said that other parties might need to be joined to the case because of their contribution to stormwater runoff. Going forward, the court might order that the cost be assessed over a broader representation of the watershed area, especially if it gets to the point where significant repairs are needed.
Noting that he will not drag out nor rush the process, Wetzel said he wants to make sure that remediation protects the homeowners and property values but that it also is thorough and efficient.