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'Muddied' water cited over Briar Hill dam
(by Sue Reid - March 18, 2009)
'Muddied' water cited over Briar Hill dam
By SUE REID
Representatives from Ohio Department of Natural Resources fielded questions Monday from Solon City Council members as well as from the Briarhill Homeowners Association.
ODNR has ordered the dam at the homeowners' 4.5-acre lake to be repaired, replaced or removed due to downstream safety concerns.
Despite nearly two hours of discussion on the issue, the situation has gotten even more "muddied" as a result, homeowners association President Adam Fair said Tuesday.
"They said exactly what we expected them to say and what we have been told for the last eight years. I don't know why this issue has become so complicated," he said.
"I think we've gone a wicked left turn here, and we need to bring this back to the issue on the table, which is the lease," Mr. Fair said.
Solon Law Director David J. Matty had urged the meeting with ODNR following council's last meeting based on a conversation he had with state officials. "I learned that the breech of the dam was not imminent, and I was not convinced that all remedial options have been looked at," he said.
The city has offered to pay two-thirds of the estimated $1.2 million project to replace the dam based on the lake being part of its storm-water-retention system. But the homeowners association has declined to sign an agreement that includes a warranty deed to protect the city's investment.
"For the amount of taxpayer dollars we're talking about, I would not advise moving one step until we have the ODNR" discuss the effects of what action it would take, Mr. Matty said.
Mark B. Ogden, administrator for ODNR's Division of Water, said it's the responsibility of the owners of the dam to make sure it is maintained in a safe manner. There are a variety of things the ODNR can do for dam owners to mitigate public safety, he said.
"You can lower the lake level, but simply lowering it does not solve or meet all our requirements, although it could be a part of the solution," Mr. Ogden said. "It would be more of a temporary fix to alleviate concerns."
He said it's not that the state is unconcerned with the storm-water needs of the city, but its mission is to serve people downstream of the dam to ensure public safety.
Councilman Edward K. Suit asked, "When are you going to start the enforcement procedures that will protect downstream homeowners? I did not receive an answer to my question."
Mr. Ogden said the dam is very deficient and has been for a number of years. "That's why we've written inspection reports," he said. "Right now, it's not in imminent failure, but it could eventually get to the point of deterioration if the right set of circumstances would occur."
"Right now there is absolutely no agreement," Mr. Suit said. "How long will you wait to find out that an agreement has not been reached and nothing has been resolved? They started this in 2001, and it is 2009."
Mr. Ogden said it's always in the best interest of ODNR and the dam owners to "work cooperatively to try to accomplish something."
"Unless there is a circumstance of imminent failure, we are trying to work this out cooperatively," ODNR program manager Rodney Tornes said. However, he said, "The deadlines have not been met. We need to continue to discuss this with our administration and attorney general to see what the next step would be."
Mr. Tornes said the state's discussion with the Briarhill Homeowners Association has been productive, "which is why we've continued to move forward."
Mayor Kevin C. Patton asked Mr. Ogden and Mr. Tornes what the time line is if further action needs to be taken.
The ODNR representatives said it varies greatly. If the time lines set by the Ohio Attorney General's Office are not met, it is subject to the enforcement of the court, they said.
"The concern of the city is that we can't afford to lose future retention," Mr. Patton said regarding storm water. He asked that the city be kept informed of future steps on the part of the state.
He said it would be in everyone's best interest to try to resolve the matter. He said he brought up the idea of a mediator who would sit down with both parties and find a solution.
"We don't need a mediator," Councilwoman Susan A. Drucker said. "Shame on the city if we can't sit down and work this out. We are elected officials, and a mediator is not going to change my mind," she said.
Mr. Ogden said it's the state's understanding that there are some "stumbling blocks."
"We're here to help facilitate movement to have the dam removed or repaired," he said.
City Engineer John J. Busch presented two options that would drain the lake. Those would be in effect only if the city acquires the property and constructs dry basins. "Obviously, with the association's position to maintain the lake, the city would have to acquire the property to construct those options," he said. One option was estimated at $960,000 and the other at $1.9 million.
Mr. Kraus said the cost of property acquisition and possible litigation also would need to be factored in.
Mr. Fair said the first 10 options that engineering firm URS designed for the city to maintain the existing storage capacity and to comply with ODNR's mandate were reviewed and one was chosen. When that one was chosen, which was roughly estimated at $900,000, former Public Works Director William Mooney added the new criteria of not only meeting ODNR standards but also upgrading the storage capacity from the current to the 100-year storm.
"That's when this spiraled out of control" to a $3 million to $4 million project that the council rejected.
Solon Public Works Director James S. Stanek said Tuesday no one can predict imminent danger. "What the city needs to do is to go forward one way or anther, whether it's working something out and taking the alternative, because the storm-water management has to continue," he said.
Mr. Suit asked Mr. Kraus to speak to the residents in the Briarhill area to help them agree on the "one stumbling block, because, as a council, we've bent over backwards."
"We're offering the warranty deed if we can't provide the retention," Mr. Fair said. "If one of the other issues arise, we'll turn it into a detention basin immediately. If we're in violation of the lease for anything besides being able to provide the retention or detention, we would give the city immediate access to drain the lake and use the property as a functioning detention basin as any other detention basin in the City of Solon, until which time we are able to comply with whatever caused that violation," he said.
"We would then ask to fix whatever the situation was and ask to have our lake back again, which would still give them the retention," Mr. Fair said. "I need someone to tell me why this offer is no good."
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