A judge has handed over the lawsuit filed in August about the condition of a dam in a Springboro neighborhood to a magistrate “for all further proceedings.”
The Remick Lake Dam is one of 11 in the Dayton area in such poor condition that surrounding areas are left at risk, according to state inspections.
“If the dam were to fail, its spillways would direct floodwater toward a day care center, a strip mall and eight homes located downstream,” according to a press release publicizing the lawsuit issued on Aug. 7 by the Attorney General’s Office.
The lawsuit, filed on Aug. 2 by the Ohio AG against the Settlers Walk Homeowners Association and MCS Land Development, is one of 10 currently pending in Ohio courts, filed on behalf of the Ohio Department of Natural Resources as part of efforts to get dam owners to take steps to take proper care of the dams.
“The owners of this dam have shrugged off the state’s warnings for over a decade at the expense of the public’s safety,” Attorney General Dave Yost said about the Remick Lake Dam in the press release. “It’s well past time for them to accept responsibility of this hazard and make the necessary repairs.”
This week, Judge Robert Peeler referred the lawsuit to Magistrate Andrew Hasselbach, according to filings in Warren County Common Pleas Court.
All future filings shall contain Hasselbach’s name “and all motions shall be referred to the magistrate for decision,” Peeler said in an order of reference filed Monday.
Peeler also left it to Hasselbach to decide whether MCS should be considered an owner of the dam.
In a decision filed Tuesday, Peeler, “upon a thorough review” denied the state motion to dismiss MCS’s counterclaim that it doesn’t own and is therefore not responsible for the dam.
Ownership of the dam is a key issue in the case.
“The determination and extent of property rights and interests are within the exclusive jurisdiction of Ohio’s courts,” Assistant Attorney General Amber Lucci wrote in the initial complaint.
MCS filed its answer and counterclaim on Sept. 10. The homeowners association was granted an extension. On Oct. 17, the homeowners filed an answer and urged the judge to consider MCS an owner.
In the lawsuit, the state also asked the judge to decide who should be held responsible for the cost of fixing or breaching the dam.
The lake and dam are located south of Remick Road, between homes in Settlers Walk and the Marketplace at Settlers Walk, anchored by a Dorothy Lane Market.
The Kids R Kids Learning Academy is the day-care center at risk from the floodwaters, according to the AG’s office. On Tuesday, the owners declined to comment.
The day-care center is in one of the separate buildings in the Marketplace at Settlers Walk shopping center, generally west of Remick Lake and the dam.
There are hundreds of homes in Settlers Walk. The state has declined to identify the “eight homes located downstream” referred to in the press release.
The lawyers and Hasselbach are scheduled to meet next at 10 a.m. on Jan. 15 to move ahead with the case.
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