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Wednesday, July 22nd, 2009

New suit filed over flooding

Grand Lake spillway

By Nancy Allen
Once again, the state is being sued over flooding caused by Grand Lake's West Bank spillway.
This time, 86 landowners have filed a lawsuit in the Ohio Supreme Court seeking compensation for their flooded land along the Wabash River and Beaver Creek.
The mandamus complaint requests the court order the Ohio Department of Natural Resources (ODNR) to begin appropriation proceedings to pay the landowners for the "physical invasion" of their properties by floodwaters caused by the redesigned West Bank spillway.
Lead attorney Bruce Ingram of the Columbus law firm Vorys, Sater, Seymour and Pease, LLP, said this case is completely separate from a case filed in 2001 by five farmers. Those farmers won more than $1 million for their flooded land, but are still suing for more. Ingram's law firm also represents those farmers.
Ingram said a mandamus complaint can be filed in any court. It was determined the Ohio Supreme Court was the best court to file it in, he said.
ODNR spokeswoman Beth Ruth this morning said she did not know yet whether the state had filed an answer.
A writ of mandamus is an order issued by a court ordering the state to pay landowners for illegally taking property for a flowage easement. This is the same type of action the five original landowners won their case with, Ingram said.
Opened in 1997, the new 500-foot spillway releases a larger amount of water at a faster rate than the original 39-foot-spillway built in 1913. ODNR replaced the spillway after a dam inspection showed the old one was in danger of over-topping and failing.
From the outset of the replacement project, federal and local agencies and numerous landowners expressed concern that the new spillway would result in greater flooding downstream, the complaint says.
After the new spillway was opened, the state discontinued a drawdown policy whereby water was let out of the lake to minimize flooding, even though the new spillway has two tubes at its base designed for such purposes, the complaint states.
Since the state opened the larger spillway and changed its water level management practices, landowners have experienced and continue to experience increased and severe flooding, the complaint states. Some land that never used to flood now floods, the complaint says.
Landowners continue to suffer damage from erosion, soil compaction, the deposit of silt, sand, stones and other debris on their land, drainage tile failure, crop losses, the destruction of trees and other vegetation, the destruction of homes and buildings, damaged equipment and livestock losses, the complaint states. Severe flooding occurred as recently as this year, it says.
In conclusion, the complaint says that the state's action of redesigning the spillway and improperly controlling the lake's water level has forever altered the landowners' lives, making flooding not a one-time event, but a continuing, persistent and frequent and inevitable threat to their land, their businesses, homes and lives.
The complaint references two other cases involving Mercer County landowners who experienced flooding blamed on the spillway - the five farmers who filed the original suit in 2001 and a second suit filed in 2005 by Celina businessman Tom Case, owner of fitness facility Breakaway RecPlex.
The five farmers have been paid more than $1 million from the state for flood-damaged farmland along the Wabash River and Beaver Creek in a case they won in the 6th District Court of Appeals in Toledo. On the grounds that the payments are too low, they have requested a jury trial in Mercer County Common Pleas Court to try to get more money.
An Ohio Court of Claims judge awarded Case's company $3.2 million in damages, which Case appealed because he said the amount is not enough. He originally sought $5.3 million. The state also appealed this ruling, saying the amount is too high. Case now awaits a decision in the 10th District Court of Appeals in Franklin County.
Breakaway RecPlex closed a few weeks ago after utilities were turned off because it owes $47,363.50 in unpaid utility services to the city of Celina. Last month Case made a public appeal for donations to keep the business open while he awaited the court's decision.

Lawsuit participants:
From Celina:
Wayne T. and Janet K. Doner
Richard L. and Nancy L. Adams
The Baucher Farms, Inc.
Lawrence J. and Joyce A. Dwenger
Carman R. and Jill E. Ellis
H. Edward and Mary E. Gilbert
David L. Granger
Robert E. and Patricia L. Highley
Jason E. and Emily A. Hines
Daniel W. Johnsman
David A. Johnsman
Thomas L. and Candace L. Krick
Darrell D. Kuhn
Linda B. Linn
Lee A. Fennig
David J. and Brenda McDonough
David J. and Laura B. McNeilan
Lois J. McNeilan
Charles J. and Mary K. Meier
Jerome L. and Amy L. Meyer
Matt J. and Lynette Muhlenkamp
William M. Muhlenkamp
Carolyn J. Pierstorff
Thomas L. and Brenda S. Powell
Thomas D. Rasawehr
Carl W. and Lucile M. Rose
Dorothy K. Schroyer
Robert E. and Bonita A. Searight
Duane R. Sheets
Rodney E. and Linda J. Sheets
Ronald J. and Carol L. Siefring
David J. and Rita K. Suhr
Carl A. and Judith A. Sutter
Gale A. and Nelda G. Thomas
Jerry and Vicki L. Weisman
Charles F. and Jennifer M. Zumberge (Z-Farms Inc.)
From Coldwater:
Stanley M. and Vicki L. Ebbing
Chad M. and Andrea M. Knapke
Timothy A. Knapke
Jerry W. and Betty L. Powell
Jeff A. Siefring
Mark A. Siefring
Neil J. and Mary K. Siefring
Marilyn L. Uhlenhake
Mark L. Knapke, Fort Recovery
Marvin E. and Marilyn M. Kuhn (Kuhn Farms Inc.), Rockford
Timothy Rasawehr, St. Marys
Larry V. Pugsley, Findlay
M. Leone Powell, Lima
William J. Ransbottom, Oakwood
Opal L. Post, Indiana
Jean A. Karr, Colorado
Paul A. and Rhonda E. Powell Agnello, Michigan
David M. and Karen S. Doner, West Virginia
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