The lawsuit the state filed in August over the condition of a dam holding back water that could flood the Settlers Walk neighborhood and an adjoining shopping center is moving toward settlement or a trial in November.
On Tuesday, Magistrate Andrew Hasselbach met with lawyers for the Ohio Department of Natural Resources (ODNR), residents and shopping plaza at the Settlers Walk planned community.
After the case conference, the final pretrial was set for Oct. 26. Unless a settlement is reached, a three-day bench trial is to begin on Nov. 4.
“The parties have agreed to mediation,” Dominic Binkley, public information officer for the Ohio Attorney General’s Office, said in an email after the hearing.
The lawsuit, filed Aug. 2, claims the Settlers Walk Homeowners Association (HOA) and MCS Development, owner of a strip center anchored by Dorothy Lane Market, failed to take action after multiple ODNR safety inspections of the Remick Lake dam found it needs repairs.
“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 in a release issued after the lawsuit was filed.“It’s well past time for them to accept responsibility of this hazard and make the necessary repairs.”
If the dam failed, the lawsuit claims its spillways would direct floodwater toward a day care center, the strip mall and eight homes located downstream.
ODNR wants the owners to realign the dam’s emergency spillway, repair its principal spillway and install a lake drain capable of draining the reservoir in a reasonable amount of time.
The lawsuit leaves it up to the court to determine ownership and responsibility for the costs of repairing the dam.
“The court system is currently in the process of determining the lawful owner(s) of the dam, who will then be responsible for implementing the actions specified in the chief’s order,” David Roorbach, public information officer for ODNR, said in November.
“However, if at any time the Division of Water Resources believes that emergency action is necessary, ODNR has the authority under Ohio Revised Code 1521.062 to take immediate measures and actions the chief considers necessary to safeguard life, health, and property.”
1521.062 is the section of state law on inspections of dams and levees.
The dam is located on a large pond off Remick Boulevard and between homes and the shopping center at the entrance to Settlers Walk off Ohio 741, Main Street in Springboro.
On Jan. 3, Michael Sandner, the lawyer representing MCS, filed a motion urging Hasselbach to order the HOA, represented by Scott Oxley, to turn over records sought since late October.
After the hearing, Sandner said the motion was being held in anticipation of receiving the records “shortly.” Sandner said the homeowners owned most, if not all, of the dam and were bound by covenants signed with MCS.
“The ODNR Division of Water Resources continues to closely monitor the situation and, once ownership is determined, will work with the owner(s) to bring the dam back into compliance with safety standards,” Roorbach added in November.
Oxley could not be reached on behalf of the homeowners.
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