Akron is being sued for private property damage at either end of a massive downtown sewer tunnel.

Attorney Warner Mendenhall filed two lawsuits on behalf of a bar property owner and five homeowners. The separate civil complaints allege that crumbling basement walls, a toppled chimney, fallen gutters and lost business revenue are due to dust, noise, vibrations and the commotion accompanying the mammoth sewer project.

The damage is tantamount to the unlawful taking of private property by the government, according to identical arguments in the lawsuits. “Right now, we consider this to be a taking,” Mendenhall said in a phone interview. “By essentially messing up the houses, [the city of Akron] has taken the homes, especially where chimneys are falling in and basement walls are caving.”

A third case alleging damage, but filed by a different attorney, was dismissed in favor of the city at the end of 2018.

Galaxy Properties Limited, which owns 69 Taps downtown, sued in September. The bar's patio faces a giant hole where Rosie the tunnel-boring machine emerged from a mile-long voyage last summer. Five homeowners on Mustill and Cuyahoga streets filed their complaint Tuesday. From their front porches and backyards, they watched Rosie's 30-foot round drill head spin slowly into the earth in October 2017 as dump trucks moved rock and soil around the construction site.

The 6,211-foot-long tunnel stretches underground from the Little Cuyahoga River to Canal Park stadium. The gravity-fed cavern collects, separates and carries water or sewage to the city's water treatment plant as part of a $1.2 billion court-ordered overhaul of Akron’s sewer system.

Offer rejected

In September 2015, before Mayor Dan Horrigan was elected to his first term, the city offered to buy 17 homes closest to where the $300 million tunnel project would begin.

Purchase prices were set at county-appraised values. Only one of the five suing the city today was extended the offer, which none of the 17 homeowners accepted, though one unrelated to the lawsuit did subsequently sell to the county land bank. Some said their homes were worth more than what the city was offering, based on appraisals that are typically lower than market values.

The construction put the homeowners in a bind. Residents said they have lived in the Cascade Valley neighborhood all their lives. Some put the cost of repairs (for damage they say the sewer work caused) close to the total value of their homes.

The five homes in the lawsuit are collectively worth more than $200,000, according to the Summit County Fiscal Office. But the damages sought could be much higher, and not just because of low-ball appraisals. “It’s not just the value of the house,” Mendenhall said. “The homeowners need to be moved to a comparable house.”

Plaintiffs include Jeremiah Caldwell, whose basement wall collapsed last spring on Cuyahoga Street where neighbor George Ross’ chimney, which is attached to his furnace pipes, crumbled this month. The men are joined by Cynthia Bell, Daika and Eric Moegerle and Joyce Tucker, who own three homes on Mustill Street.

City denies claims

The city did not comment Wednesday on the newer lawsuit.

In October, after the bar property owner sued and as several homeowners retained Mendenhall, Annie McFadden, deputy chief of staff to the mayor, said the city took seriously all complaints on the matter. Seismic monitoring in the area had "never recorded vibrations that would be considered above max allowable industry standards," McFadden said.

Each of the lawsuits are built on the legal strategy of forcing the city to take private property. Mendenhall is asking the judge to approve a writ of mandamus, or a court order that compels government officials to act. In this case, his clients are invoking eminent domain. In these proceedings of "inverse condemnation," Mendenhall is pushing the city to take the property and move his clients into comparable homes.

69 Taps had been losing business before the city's work at the end of the tunnel project, according to receipts the bar supplied with its lawsuit. The Branded Saloon in the same building had closed by 2017.

In a court reply to the bar owners' allegations, the city said in November that it denies that the sewer and associated road work caused "extreme and consistent" nuisance issues that damaged the bar's business. The case, which is scheduled for trial in December, now begins the long process of discovery as the two lawsuits are set to drag on for more than a year.

The city has triumphed in a third lawsuit filed in 2016. Two women purchased city land off Hickory Street in 2008 and then began building homes. They alleged that the city should have disclosed the tunnel project, which they say has been disruptive and damaging to their property values, before it was announced at a public meeting in 2013.

All claims have been voluntarily dismissed in that case after a county judge ruled in favor of the city, which defended the victory from an appeal in November.

 

Reach Doug Livingston at dlivingston@thebeaconjournal.com or 330-996-3792.