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Crooked Lake residents file suit against drain commissioner

Barry County Drain Commissioner Jim Dull gives the county board of commissioners an update on flooding Oct. 16, 2018. (Photo by Rebecca Pierce) Rebecca Pierce Editor

Ten Crooked Lake property owners have filed suit against Barry County Drain Commissioner Jim Dull, claiming that his actions in 2017 caused flooding that has made their homes uninhabitable.

The show cause complaint, filed May 14 in Barry County Circuit Court, is asking the court to order Dull and the Watson Drain Drainage District to immediately begin eminent domain proceedings and compensate them for the loss of their homes.

A show cause hearing is scheduled for 9 a.m. Wednesday, May 29, in Judge Amy McDowell's courtroom.

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 complaint.

“I'm disappointed that these people have chosen to pursue this option,” Dull said Wednesday, adding that he could not comment further.

The action brought against Dull and the Watson Drain Drainage District claims that “the massive increase in Upper Crooked Lake’s lake level” occurred because of the 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.

“In a relatively short amount of time, Upper Crooked Lake’s lake level increased from 922.75 feet to 927.5 feet above sea level,” the complaint states.

Since these residents can no longer live in their homes, according to the complaint, the drain commissioner should start eminent domain proceedings by making good-faith offers on their properties so that they may move and obtain new housing.

“Upper Crooked Lake is known as a ‘seepage lake.’ It has no natural outlet,” the complaint points out. “Defendant Drain Commissioner’s replacement of the Floria Road culvert, which allowed upper portions of the Watson Drain District to drain into Upper Crooked Lake, was like turning on a plugged bathtub’s faucet and allowing the water to run.”

The suit also claims that Dull publicly posted his determinations of the condemnation values of the plaintiffs’ properties on the Prairieville Township website.

“Despite admitting that these properties have been effectively condemned (but without the payment of just compensation), he failed to initiate eminent domain proceedings.”

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

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 notes.

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

The Ritchies’ attorney, Michael Perry at the Fraser Trebilcock law firm in Lansing, in an April 26 email message to Dull’s attorney, Douglas Kelly at Clark Hill PLC in Birmingham, requested that Dull “immediately commence the eminent domain process under Michigan’s Uniform Condemnation Procedures Act.”

“When determining the amount of just compensation, I trust that the Barry County Drain Commissioner will abide by the constitutional obligation to pay 125 percent of the fair market value of the property which comprises Mr. and Mrs. Ritchie’s principal residence,” Perry wrote.

According to the complaint, the Ritchies own a residence at 11333 Oak Drive and three parcels nearby or adjacent to that lot. The other residences involved in the complaint are: The Golembiewskis at 11345 S. Oak Drive, the Skenders at 7135 Division Ave., the Boltons at 7105 Division Ave., Mark Nelson at 11430 Peninsular Drive, and Jill Sterling at 11436 Peninsular Drive.

According to the determinations of condemnation values posted on the Prairieville Township website, One of the Ritchies’ parcels was valued at $224,200. For the other properties involved in this complaint, the following values were posted: $171,800 for Bolton, $312,200 for Skender, $219,800 for Golembiewski, $138,600 for Sterling and $197,600 for Nelson.

Under the rules governing eminent domain, a good-faith offer of just compensation for the property is made. Then, if one or more of the plaintiffs were to reject that offer, Dull would begin condemnation action and deposit the amount of the good-faith offer, which would be held until the court ordered payment of the escrowed funds to the plaintiffs.

The Ritchies and their fellow plaintiffs allege that their flooding problem dates back to 2017 when Dull, as drain commissioner, “ostensibly for the public benefit of the citizens of Barry County, affirmatively changed and altered the drainage pattern of the Watson Drain, by way of replacing the Floria Road culvert, which in turn has resulted in an excessive and uncontrolled increase of the lake level of Upper Crooked Lake.”

The complaint notes that the legal lake level, established by the circuit court in 1942, was 922.75 feet above sea level. In 2005, the court re-established the legal lake level at 922.75 feet above sea level and allowed for a 12-inch seasonal variation.

On June 23, 2018, the lake was at 927.40 feet above sea level, the complaint states. As of April 29, 2019, the level was 927.5. feet, it notes.

“Water is entering Plaintiffs’ homes through their floors,” the plaintiffs' attorney wrote. “Despite pumping between 90,000 and 130,000 gallons of lake water per day from their home, the Ritchies are unable to stem the continued invasion of their home by water from Upper Crooked Lake. …

“The Golembiewski, Skender, Bolton, Nelson and Sterling plaintiffs have pumped, and continue to pump, thousands of gallons of lake water per day from their properties … [They] have used multiple tiers of sandbags and pumps in what has proven to be a futile effort to stem the flooding of their properties.”

These residents “have suffered, are suffering and will continue to suffer real and substantial harm because they can no longer safely reside in their residences,” the complaint states.

Attempts to reach Perry and Kelly for further comment were unsuccessful.

 

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