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Robert A. Goering, Treasurer v. Chriscon Builders Ltd

October 28, 2011

ROBERT A. GOERING, TREASURER HAMILTON COUNTY, OHIO, PLAINTIFF,
v.
CHRISCON BUILDERS LTD., DEFENDANT/THIRD-PARTY PLAINTIFF-APPELLANT
AND STATE OF OHIO, EX REL. CHRISCON BUILDERS, LTD., RELATOR,
v.
HAMILTON COUNTY ENGINEER, HAMILTON COUNTY PUBLIC WORKS, CITY OF CINCINNATI, HAMILTON COUNTY COMMISSIONERS, HAMILTON COUNTY REGIONAL PLANNING COMMISSION AND HAMILTON COUNTY RURAL ZONING COMMISSION, THIRD-PARTY DEFENDANTS-APPELLEES.



Civil Appeal From: Hamilton County Court of Common Pleas Judgment Appealed TRIAL NO. A-0504836

The opinion of the court was delivered by: Sylvia S. Hendon, Judge.

Cite as Goering v. Chriscon Builders, Ltd.,

OPINION.

From Is: Affirmed

Please note: This case has been removed from the accelerated calendar.

{¶1} Defendant/third-party plaintiff-appellant Chriscon Builders, Ltd., ("Chriscon") has appealed from the trial court's Civ.R. 41(B)(2) dismissal of its mandamus action.

{¶2} This cause of action originated in June of 2005 when the Hamilton County Treasurer filed a complaint against Chriscon seeking payment for delinquent taxes and foreclosure of the property known as Auditor's No. 590-11-446. This property was owned by Chriscon and was located in the Bilamy Creek Subdivision, which had been developed by Chriscon. Chriscon denied all allegations in the complaint, and it filed a third-party complaint raising claims against various county defendants and the Metropolitan Sewer District of Greater Cincinnati. Chriscon later filed an amended third-party complaint that additionally named the City of Cincinnati as a defendant and that included a petition for a writ of mandamus.

{¶3} Upon motion by the county defendants, the trial court granted judgment on the pleadings to the defendants on all claims contained in Chriscon's complaint. But Chriscon's petition for a writ of mandamus proceeded to a bench trial. At the close of Chriscon's case-in-chief, the defendants moved for directed verdicts under Civ.R. 50. The trial court converted the motions into ones for dismissal pursuant to Civ.R. 41(B)(2), and it granted the motions.

Statement of Facts

{¶4} Chriscon, run by its sole member, Amy Christian, is the owner of a development known as the Bilamy Creek Subdivision. Chriscon acquired its interest in the subdivision from its predecessor company, Chriscon Investments, Inc.

The land upon which the Bilamy Creek Subdivision is located was first purchased by Amy Christian in 1990. Christian had plans to develop a subdivision on the property, and she contacted Craig Jarvis, an engineer with Jarvis and Associates, to develop a residential subdivision design. The subdivision was located in a 69-acre watershed, and its design was required to comply with applicable drainage standards. Jarvis submitted a plan for a detention basin that complied with a drainage standard, in industry terms, of ten-year pre-construction and 25-year post-construction.

{¶5} This drainage plan was submitted to the Hamilton County Planning Commission, the Metropolitan Sewer District of Greater Cincinnati, and the Hamilton County Department of Public Works. Jarvis' plan was not accepted as originally proposed. After revision, a plan was eventually approved that proposed construction of a detention basin meeting a drainage standard of two-year preconstruction and 50-year post-construction. This plan included the drainage of offsite water through the basin, and it placed the basin in an existing streambed. The final plan complied with a more rigorous standard than initially proposed, and it involved a detention basin with a much larger capacity. It also resulted in a reduction in building lots in the subdivision from 14 to 12.

{¶6} Chriscon built the approved detention basin on its property. The detention basin functioned well for the first two years, but it then began to suffer from silting problems and become clogged with debris. In 1997, Christian extensively cleaned out the basin. Following the cleaning, the basin continued to suffer from silting and sedimentation problems. The basin has not been cleaned since Christian cleaned it in 1997. According to Christian, the extensive silt and debris problems suffered by the detention basin were caused by new upstream developments and by a street improvement project in Parkview Heights, a neighboring subdivision.

{ΒΆ7} As a result of the silting and clogging, the detention basin has been damaged, and Chriscon has not been able to turn over control of the subdivision to ...


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