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Judge dismisses Crooked Lake residents' lawsuit

Thu, May 30, 2019
Barry County Judge Amy McDowell dismissed the complaint after a two hour hearing Wednesday. Boring to begin Thursday to create pipeline into holding basin

Rebecca Pierce


A lawsuit against Barry County Drain Commissioner Jim Dull and the Watson Drain District was dismissed Wednesday by Circuit Judge Amy McDowell.

“It's very unfortunate that this occurred,” McDowell said of the flooding at Crooked Lake. “I don't think it's unusual when you see this weather happening everywhere. Unfortunately, it doesn't seem like homeowners have a very quick and efficient legal remedy to address that.”

“I'm required to apply the law as stated in the statute and the act, and that's the only result that I can come to,” she said. “For those reasons, your motion … is dismissed.”

Ten Crooked Lake property owners – Robert and Sharon Ritchie, Michael and Sandra Golembiewski, David and Ann Skender, David and Leslie Bolton, Mark Nelson, and Jill Sterling, who own property adjacent to Upper Crooked Lake – filed the suit against Dull, claiming that his actions in 2017 caused flooding that made their homes uninhabitable.

If the case had continued, some other property owners expressed an interest in joining the suit, the plaintiffs' attorneys mentioned.

After the judge's decision, no one involved – on either side of the issue – expressed satisfaction with the outcome of the case. The plight of the homeowners was mentioned numerous times.

Dull said borings would begin Thursday that would allow water to be pumped from Crooked Lake into a holding basin created for that purpose.

Engineer Brian Cenci said this process should lower the lake level enough to provide some relief to homeowners who are inches away from having to abandon their homes.

The lawsuit only distracted from the problems facing lakeside property owners, some court observers pointed out.

This is not the way to solve the problem, attorney Stephon Bagne of Birmingham said. “The way to solve this problem is to get the water out of there. This is not going to help.”

Dull said a crew will begin boring under the road Thursday to create a pipeline from Crooked Lake that will allow water to be pumped into a holding basin on Delton Road.

He also mentioned a 10 a.m. June 8 informational meeting at the Delton Kellogg Middle School gymnasium.

The show cause complaint, filed May 14, had asked the court to order Dull and the Watson Drain District to immediately begin eminent domain proceedings and compensate the 10 property owners for the loss of their homes.

Wednesday's hearing involved about 90 minutes of argument between the plaintiffs' attorneys, H. Kirby Albright and Michael Perry from Lansing, and Dull's attorneys Douglas Kelly of Lansing and Stephon Bagne from Birmingham.

The 10 Crooked Lake residents alleged that “the massive increase in Upper Crooked Lake’s lake level” occurred because of the 2017 replacement of a culvert on Floria Road, which allowed water in the upper portions of the Watson Drain District, such as Mud Lake and others, to enter Upper Crooked Lake.

Kelly disputed this claim, pointing to a large photograph showing Crooked Lake and the Floria Road culvert.

“The culvert here is between Pleasant Lake and Mud Lake and Upper and Lower Crooked – there's flooding on both sides of this culvert,” Kelly said. “And it has nothing to do with the culvert. “Damned if you do, damned if you don't. You can open that culvert and flood more or close it and flood more upstream.

“What we did want is to maintain the status quo. That’s all.”

The property owners bringing the action against Dull and the drainage district alleged that, by his actions, he, in effect, “took possession” of their properties by rendering them uninhabitable without payment of just compensation.

“There's no way around the fact that Mr. Dull has discretion,” Judge McDowell said before issuing her decision. “That's the nature of his job as drain commissioner to make determinations of what's appropriate or not – not only to the size of the project but to the extent of it and to whether or not he feels a taking is appropriate.”

Dull, as drain commissioner, is responsible for the operation and maintenance of the Watson drainage district, which is connected to Upper Crooked Lake and has a direct impact on it. The drainage district is a corporate body that may sue or be sued, the complaint noted.

About 1,085 property owners live in the Watson district and would bear the cost of any court finding for the plaintiffs.

Since the 10 residents say they can no longer live in their homes, the suit claimed, they demanded that the drain commissioner start eminent domain proceedings by making good-faith offers on their properties so that they may move and obtain new housing.

“I've worked in hundreds of drain projects,” Kelly told the judge. “We've always listed options. One of them is sometimes is to condemn properties.”

In the case of Crooked Lake flooding, “that option was rejected in favor of another option, that is to take the water elsewhere.

“It's cheaper and more cost-effective for the people who have to pay for all of this. The people that have to pay for all of this are those in the district. Condemning those properties would cost their neighbors over $6 million, over $10 million. That alternative was rejected.”

A number of properties on both lakes are impacted by flooding, Bagne said. If the judge had ordered eminent domain proceedings, “This is what would happen,” he said. “There's no magical pot of money. The only source of funding to pay for anything that's being asked for is the people who are taxpayers that own land in this district.”

Some people built their houses higher up, he pointed out, and some chose to build on lower ground near a lake that has no outlet. “And because it has no outlet, it's predictable – when you get crazy weather – that it could flood.”

“We're very sympathetic to these people,” Bagne noted. “That's why Mr. Dull is the one person working the hardest to try and fix this situation.

“But what they're asking is that the low-lying [property owners] get bought out at the cost of all the other people and the money that goes to it means there's no money to get the water out of there, which means the water continues to rise.”

And if the water continues to rise, more properties would have to be bought out, which eventually would mean the assessments get so high no one can afford to live there, Bagne said.

The district and Dull don't have a magic pot of money, he told the judge. “Mr. Dull has tried to find that magical pot of money. He's sent letters to the DEQ and Gov. Whitmer and (U.S. Rep.) Justin Amash advising them of the situation to see if they would come in with relief funds.”

Dull is limited as to what he can do, Bagne said. But, as far as the assertions in the lawsuit that the Floria Road culvert and Dull are the culprit, there is “no legal basis for it. No factual basis. No evidence in the record to support that this is the case.”

“Everywhere you look, there's flooding,” from the Mississippi River to the Saginaw River, he said, gesturing toward the window. “I have never seen the waters on Lake Michigan so high. It's flooding. “The cause is not Jim Dull. The cause is not the district. The cause is not the culvert. The cause is an act of God.

“And the person who's attempting to fix this problem is Jim Dull.”
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