Ohio AG sues Miami Valley housing developer for polluted waterway

Source: http://www.daytondailynews.com, September 4, 2011
By: Mark Gokavi

Developer failed to obtain proper permits, caused sediment runoff.

One of the Miami Valley’s affluent subdivisions — with some homes selling for more than $800,000 — could face millions of dollars in fines for building the development without proper construction permits.

The Ohio Attorney General’s office Monday filed a lawsuit against the Clemens Development Co. for allegedly engaging in construction activities without the necessary permits, and which resulted in pollution to the nearby Little Sugar Creek, a tributary that flows into the Little Miami River.

Attorney General Mike DeWine filed the lawsuit in Greene County Court of Common Pleas at the request of Ohio Environmental Protection Agency Director Scott J. Nally. The suit notes developer Richard M. Clemens could face fines in the tens of millions of dollars for failing the past five years to following procedures at Highview Terrace, his subdivision just north of Bellbrook.

Clemens, who lives in Bellbrook, admits heavy rains caused some sediment-laden storm water to run into the creek, but that it is a minor issue and the projected fines are exaggerated.

“The (hilly) topography of the ground makes it very difficult during construction to keep all the sediment from running. It’s a very tough site,” Clemens said.

“There’s no tens of millions of dollars in jeopardy. It’s $15,000 is what the penalty is that they’ve said is due to them.”

The attorney general’s office said sediment-laden storm water from the construction site has gone into Little Sugar Creek and that Clemens has ignored at least seven notices of violations between 2007 and 2010, has not operated with a permit since 2008 and did not show up at a meeting to discuss the issues.

“We’re kind of where push comes to shove,” said Dale Vitale, chief of the environmental enforcement section in the attorney general’s office.

“When the EPA runs out of ways to try to make things work short of litigation, then they’re last resort is to refer the case to us.”

Clemens said settlement meetings repeatedly have been scheduled and canceled, once because a Dayton-area EPA official had a family issue.

The EPA said sediment can affect water quality, but in this case is not dangerous. The lawsuit seeks many remedies, including ensuring the development adheres to code, fines are paid and future home owners are informed of the situation.

Clemens said the situation started after a 2-inch rain years ago when runoff from a nearby unfinished subdivision by Ernst Development Co. — Traditions at Sugar Creek — came through his development and into the creek.

Ohio EPA spokeswoman Heather Lauer confirmed Clemens’ sequence of events, but added that Clemens also was found to be in violation.

Lauer provided an April 2010 settlement that showed Ernst paid the EPA $8,000 in fines.

Clemens said he’s developed 300 lots in Greene County in the last 20 years and has never had EPA issues.

“For me, it’s principle. It’s such a minor (thing),” Clemens said, citing the persistent environmental issues at Grand Lake St. Marys, which he said scuttled a planned development. “Isn’t there bigger things out there?”

Vitale said the situation at Highview Terrace was substantial enough to reach litigation. The complaint for injunctive relief and civil penalties filed in the Greene County Court of Common Pleas seeks fines in excess of $25,000.

“They’ve gone a long time in violation of the law, and that’s just something we’re going to have to work out in the course of the negotiations,” Vitale said. “They’ve had plenty of opportunity to fix this short of having to talk to us.”

Highview Terrace features luxury homes listed between $600,000 and $800,000. Clemens said 10 out of about 115 lots have been sold and the seventh home is being constructed. He said the site is fine and has green vegetation to prevent future sediment runoff.

Clemens’ attorney, Dave Montgomery, said settlement talks will continue to find middle ground.

“Any lawsuit should be taken seriously,” Montgomery said. “I am optimistic that this will get relatively quickly and amicably resolved.”

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