Posted May 15, 2018
The estate of Mentor developer Jerome T. Osborne is suing Kirtland Hills for fraudulent misrepresentation over work Osborne Co. Ltd. performed on the East Branch Chagrin River.
According to the lawsuit filed this week in Lake County Common Pleas Court by attorneys William Wuliger, Mark Kremser and Amy Wuliger:
Osborne, who died in 2014, was a Kirtland Hills resident who often donated money to the village as well as equipment and services.
Then-Mayor Jerome Hinkel first solicited Osborne in 1978 to maintain the riverbank to protect the adjacent lands from flooding and erosion.
A written agreement approved by Village Council also allowed Kirtland Hills to periodically use heavy equipment owned by Osborne.
The village asked Osborne to clear and drain the property and use a backhoe in the east branch to remove excess sand and gravel that had accumulated in the riverbed.
“At no time did Kirtland Hills instruct the Osborne parties to transport dredged material away from the river bank or otherwise dispose of said material after its removal from the riverbed,” the attorneys stated in the suit. “The scope of the (agreement) was to dredge materials and the village was responsible for ensuring that the dredged materials were properly disposed of.
“At no time did Kirtland Hills advise the Osborne parties that the dredging activities the village was directing the Osborne parties to undertake could violate any Ohio law. At no time did Kirtland Hills advise the Osborne parties that the village had prioritized maintaining the riverbank and protecting the adjacent lands from flooding over any concerns of potential environmental violations associated with the movement and depositing of dredged materials from the river.”
In addition, the lawsuit alleges village officials failed to tell the Osbornes that Kirtland Hills had failed to obtain any state permits to perform the work.
The lawsuit also states that former Police Chief/Zoning Inspector Gerald Smith, whose duties included ensuring all necessary state and federal permits were obtained, was improperly trained to perform any duties to enforce the Floodplain Management Ordinance.
In July 2006, severe storms resulted in a “500-Year Flood Event” in Lake County, causing tens of millions of dollars in flood damage.
As a result, a large amount of sediment and debris in the East Branch Chagrin River in Kirtland Hills resulted in an elevated river bed and fear of further bank erosion.
Following the flood event, Smith ordered Osborne to increase his activities in the East Branch to further help the village’s flood control efforts.
In July 2007, an official with the Ohio EPA visited the site and discovered an Osborne employee dredging the river. After the Environmental Protection Agency began an investigation, Kirtland Hills officials claimed they were unaware of the extent or scale of the dredging operations undertaken by Osborne.
In 2012, the state of Ohio sued Osborne.
After a 2016 non-jury trial in Lake County Common Pleas Court, Judge Richard L. Collins Jr. ordered the estate to pay more than $400,000 in civil penalties, plus interest. The estate then appealed the judge’s verdict.
The estate is now asking Collins for an order declaring Kirtland Hills to be in breach of the agreement, and for unspecified damages and attorneys’ fees.
According to the lawsuit, Kirtland Hills officials knew or should have known its employees were not trained of all applicable local, state and federal laws protecting and maintaining the East Branch Chagrin River.
The village – not the Osborne Co. – is responsible for paying any penalties over the dredging, the lawsuit states.
Kirtland Hills Law Director I. James Hackenberg did not immediately return a phone call seeking comment.
Source: The News-Herald