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Leaky village lawsuit in action



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April 02, 2014 - By Meg Peters

Review Staff Writer

Nancy and Dave Archer of Fairview Street are in the process of suing the village of Lake Orion for water damages to their house that occurred over last summer.

The water damages occurred after the Fairview water main continued to leak water from a break that the village attempted to fix in June.

The Archers have filed a Complaint and Jury Demand against the village, namely against Village Manager Darwin McClary and Department of Public Works Director and the Operator in Charge of the water distribution for the village, Jeff Sears.  

The village has responded to the complaint, and both parties are currently in the discovery process trading information.

The Miller Law Firm P.C. is representing the Archers, and according to the complaint, which was filed February 27, 2014, in Oakland County Circuit Court.

The complaint states three separate counts against the Village of Lake Orion.

Count I is for a Freedom of Information Act violation.

On September 26, 2013, Nancy Archer requested copies of maintenance records regarding the Fairview water main from the past ten years. After the village furnished the maintenance record copies October 1, the Archers submitted a follow-up FOIA request November 27, seeking: all maintenance records for any water main controlled or maintained by the village from January 1, 2003, to the present. Records would include complaints of water main failures, leaks and repairs, the village's files related to those issues, and any internal and external documented communications in association. Also included in the request were calls for resolutions, proposals, exhibits, studies, meeting minutes and notes for any water main issues in the village.

According to the formal complaint, on December 4, 2013 the village extended the response time to the Archer's request by ten business days, to December 10.

The Archers received their requested documents from the village on January 16, 2014.

Included in the village's response were: additional reports on Fairview St. not included in the first FOIA response; correspondence among village individuals including Sears after the first water main break June 12 affecting the Archers; overhead maps of the Fairview water main; village meeting minutes and resolutions; and correspondence from the village's engineering firm Hubbel Roth and Clark, Inc, the consulting engineers selected by the village in August 2013 to replace the water main.

According to the formal complaint, the village's FOIA reproduction did not include any documentation from before June 2013, one of the Archers' stipulations.  

The Archers argue that with all of the information available on repairs made to the Fairview water main before June 2013, the village is intentionally withholding that information, contrary to Michigan FOIA law.

The formal complaint draws a timeline of breaks at the Fairview water main before June 2013, including multiple reported breaks along Fairview. December 5, 2007 a break was reported at 837 Fairview. A break at 843 Fairview was reported June 11, 2008, 837 Fairview reported "a leak considered an old repair" January 17, 2008, 831 Fairview reported a break January 19, 2009, 815 Fairview reported a break Feb 6, 2010, and 841-843 Fairview residents reported a break on April 26, 2013.

The Archers must prove the village officials McClary and Sears acted with "gross negligence" in maintaining the water main in order for their case to be successful.

The water main of Fairview was not included in a comprehensive project back in 1998/1999 which updated segments of the village water main. Sears did not know why Fairview wasn't included, but assumed it was not one of the water mains in the worst conditions at that point.

"We're looking through files trying to find everything, but not everybody documents their personal thoughts and every conversation," Sears said. "I took this position (operator in charge of water distribution) over in August, so I don't have a lot of history here."

Unlike other water mains in the village, the Fairview water main is only four  inches in diameter, with a small section a two inch pipe. Hubbel Roth and Clark recommends at least 8 inches in diameter to maintain the appropriate level of water pressure.

Since the break on June 12, 2013, several other breaks have been reported along the Fairview water main.

A break near 833 Fairview was reported June 21; a break near 843 Fairview was reported September 19, a break near 831 Fairview was reported October 25, "resulting in several cave-ins and overwhelming groundwater" while the village repaired it.

The village was forced to shut down part of Fairview to do so. A break at 833 Fairview was reported January 23, 2014.

Documents released to the Archers quote Sears as saying "with each main break that is repaired, severe degradation of the pipe is apparent and the condition is getting worse."

The Archers intend to prove the village was well aware of the poor condition of the Fairview water main prior to the break that occurred June 12, 2013 flooding the Archers' basement, but that Sears and McClary "demonstrated a willful disregard of the substantial risk that the deteriorated and insufficient water main posed to the health, safety, and property of the adjacent residents, including Plaintiffs," as documented in the formal complaint.

In proving "gross negligence" on behalf of the village, the Archers must demonstrate the village acted with "a substantial lack of concern as to whether Plaintiff's property would be damaged, contrary to Michigan law."

Village Manager McClary did not return phone calls or emails in time for The Review to go to press.

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