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Crooked Lake residents aren't taking ruling for an answer

Luke Froncheck

Staff Writer

More Crooked Lake property owners are turning to legal avenues in search of remedies to the flooding crisis.

Some invested their savings in these lakefront houses, now ruined by rising water.

Last week, a notice of foreclosure was published for the Prairieville Township real estate owned by Larry B. and Charlene Bovia. According to that legal notice, the balance owing on the mortgage is $260,312. At 1 p.m. on Aug. 15 the Upper Crooked Lake property will be sold to the highest bidder at a public auction in the county courthouse in Hastings.

On July 8, 10 Crooked Lake residents filed a motion for a rehearing of their Barry County case against Drain Commissioner Jim Dull and the Watson Drain district.

Judge Amy McDowell dismissed the original lawsuit June 10. Now, property owners Sharon and Robert Ritchie, Michael and Sandra Golembiewki, David and Ann Skender, David and Leslie Bolton, Mark Nelson and Jill Sterling, who filed that complaint, are saying the court made “palpable procedural errors” in dismissing their case.

They are asking the court to vacate and set aside that dismissal, allow them to file an amended complaint, and grant them additional relief that is “just and appropriate.”

Property owners who brought this suit say Dull and the Watson Drain district, in effect, converted their private property to its own use without paying for it. Their complaint alleges that Dull has effectively taken their properties “as a result of the excessive and uncontrolled rise in the Upper Crooked Lake's lake level and that their properties were being used for a public purpose: To hold water from the Watson Drain.”

As a result of this “taking of their property,” they say they have a right to force the government to proceed with condemnation proceedings and that they “are entitled to receive the amount of the government's good faith offer of just compensation while the case is pending and, among other things, reimbursement of their attorney fees.”

The brief filed on their behalf claims that the court made several procedural errors in ruling on a motion for summary disposition by the defendants (Dull and the Watson Drain district), without allowing the property owners, who are the plaintiffs, to respond to it.

The motion points to comments made by the judge during the May 29 show cause hearing that “essentially recognized that a taking may have occurred when [the judge] stated ‘and I furthermore believe that inverse condemnation is an adequate remedy of law. There may have been – there is legal obligation on behalf of the Drain Commissioner. Maybe that was neglected. That remains to be seen at a later time if a complaint is filed for inverse condemnation.’”

Dull, as drain commissioner, is responsible for the operation and maintenance of the Watson Drain 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.

If the court were to rule in favor of these property owners, the 1,085 properties that make up the Watson Drain district would bear the costs of the lawsuit and any condemnation fees. According to Doug Kelly, attorney for Dull and the Watson Drain district, condemning these properties would cost the drainage district between $6 million and $10 million.

During the hearing in May, Judge McDowell said, “There's no way around the fact that Mr. Dull has discretion. 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.”

 

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