STATE OF
MICHIGAN
IN THE CIRCUIT
COURT FOR THE COUNTY OF IONIA
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JORDAN LAKE ASSOCIATION, MICHAEL CARY and MARJORIE
LOUGHRIN, husband and wife, NORMA NYMAN, KATHERINE GUY, DOUGLAS MAC DONNELL,
DOUGLAS STOWELL and MARITA STOWELL, husband and wife, THOMAS SINKE and TAMELA
SINKE, husband and wife, and GARY L. CALKINS and JANET A. CALKINS, husband
and wife, Plaintiffs, |
CASE
NO. 05-_________________-CZ HON. |
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vs. |
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IONIA
COUNTY BOARD OF COMMISSIONERS, IONIA COUNTY DRAIN COMMISSIONER JOHN BUSH,
BARRY COUNTY BOARD OF COMMISSIONERS AND BARRY COUNTY DRAIN COMMISSIONER
THOMAS C. DOYLE, Defendants. |
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Eric J. Guerin (P46142) Nyal Deems (P27017) Varnum, Riddering, Schmidt & HowlettLLP Attorneys for Plaintiffs 251 North Rose Street, 4th
Floor Kalamazoo, Michigan 49007 (269) 382-2300 |
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There is no other civil action between these
parties arising out of the same transaction or occurrence as alleged in this
Complaint pending in this Court, nor has any such action been previously filed
and dismissed or transferred after having been assigned to a judge.
COMPLAINT FOR DECLARATORY,
INJUNCTIVE AND RELATED RELIEF
NOW COME Plaintiffs, Jordan Lake Association, Michael Cary and Marjorie Loughrin, husband and wife, Norma Nyman, Katherine Guy, Douglas Mac Donnell, Douglas Stowell and Marita Stowell, husband and wife, Thomas Sinke and Tamela Sinke, husband and wife, and Gary L. Calkins and Janet A. Calkins, husband and wife, by their attorneys, Varnum, Riddering, Schmidt & HowlettLLP, and for their Complaint for Declaratory, Injunctive and Related Relief, stating as follows:
PARTIES / JURISDICTION
1. Plaintiff Jordan Lake Association is a non-profit corporation whose members are riparian homeowners and others with private legal access to Jordan Lake.
2. Plaintiffs Michael Cary and Marjorie Loughrin, husband and wife, are residents of Kent County, Michigan, who own real property located on the shore of Jordan Lake, commonly known as 575 Eagle Pointe Drive, Lake Odessa, Michigan 48849.
3. Plaintiff Norma Nyman is a resident of Barry County, Michigan, who owns real property located on the shore of Jordan Lake, commonly as 575 Eagle Pointe Drive, Lake Odessa, Michigan 48849.
4. Plaintiff Katherine Guy is a resident of Barry County, Michigan, who owns real property located on the shore of Jordan Lake, commonly known as 581 Eagle Pointe Drive, Lake Odessa, Michigan 48849.
5. Plaintiff Douglas Mac Donnell is a resident of Barry County, Michigan, who owns real property located on the shore of Jordan Lake, commonly known as 573 Eagle Pointe Drive, Lake Odessa, Michigan 48849.
6. Plaintiffs Douglas Stowell and Marita Stowell, husband and wife, are residents of Barry County, Michigan, who own real property located on the shore of Jordan Lake, commonly known as 579 Eagle Pointe Drive, Lake Odessa, Michigan 48849.
7. Plaintiffs Thomas Sinke and Tamela Sinke, husband and wife, are residents of Barry County, Michigan, who own real property located on the shore of Jordan Lake, commonly known as 1004 Outland Shores Drive, Lake Odessa, Michigan 48849.
8. Plaintiffs Gary L. Calkins and Janet A. Calkins, husband and wife, are residents of Ingham County, Michigan, who own real property located on the shore of Jordan Lake, commonly known as 346 Grace Drive, Lake Odessa, Michigan 48849.
9. Defendant Ionia County Board of Commissioners is the duly elected governing body of Ionia County, Michigan, a municipal corporation.
10. Defendant John Bush is the duly elected Drain Commissioner for the County of Ionia, who maintains his office at 100 W. Main Street, Ionia, Michigan 48846.
11. Defendant Barry County Board of Commissioners is the duly elected governing body of Barry County, Michigan, a municipal corporation.
12. Defendant Thomas C. Doyle is the duly elected Drain Commissioner for Barry County, Michigan, who maintains his office at 220 W. State Street, Hastings, Michigan 49058.
13. This action concerns Jordan Lake which is located in Odessa Township, Ionia County, and Woodland Township, Barry County, Michigan.
14. Jurisdiction is proper in this Court because Plaintiffs seek enforcement of an Order entered by this Court on March 11, 1958, and because Plaintiffs seek related relief within the exclusive jurisdiction of this Court.
15. Venue is proper in this Court because a portion of Jordan Lake is located in Ionia County, Michigan.
GENERAL ALLEGATIONS
16. On March 11, 1958, pursuant to a joint petition submitted by Barry and Ionia Counties with regard to Jordan Lake, this Court issued an Order of Determination pursuant to the Inland Lake Level Act, now codified at MCL § 324.30701, et seq (the "Order"). That Order directed the establishment and maintenance of a normal water height and level of 811.0 feet above mean sea level ("MSL") during the period from May 15 through October 31 of each year, and a normal water height and level of 810.0 feet above MSL from November 1 through May 14 of each year (hereafter the "Order"). A copy of that Order is attached as Exhibit 1.
17. The Order further provided that the boards of supervisors of Ionia and Barry Counties, or such other appropriate authorized body, were to construct or maintain such dams or embankments, and to employ such additional procedures as necessary for the maintenance of the prescribed normal water heights and levels. See Exhibit 1.
18. Since the Order was issued in 1958, a number of floods have occurred at Jordan Lake, the most recent of which occurred in 1989, 2000 and 2004.
19. The floods of 2000 and 2004 each occurred in May of those years, and resulted in water levels materially in excess of the prescribed summer level of 811.0 feet above MSL, for two weeks or longer.
20. In 2000 and 2004, the flooding of Jordan Lake also resulted in considerable damage to many homes on the lake, with water submerging roads and flooding garages, homes, and other structures, some located in excess of 150 feet from the natural shoreline.
21. The lake levels established by the Order are controlled by a dam under the jurisdiction of one or more of the Defendants. One or more of the Defendants regulates the gates in the dam to control water flow out of Jordan Lake.
22. The Defendants customarily adjust the dam gates on or about April 15 of each year to increase the water level to the summer water level of 811 feet above MSL by May 15 of each year, and customarily readjust the gates at the end of October of each year to lower the water level to the winter level.
23. Plaintiffs are not aware of any policy or practice currently in place to periodically calibrate the water level gauge at the lake for accuracy or otherwise to ensure the accuracy of the gauge.
24. In view of the repeated catastrophic flooding, Plaintiffs believe that additional measures should have been taken, and should now be taken to maintain and control the water level of the Lake, to avoid flooding and substantial property damage, and to prevent endangerment of the public welfare.
25. Establishment and regulation of inland lake levels to prevent the disastrous effects of flooding and flood damage is a proper and intended purpose of the Inland Lake Level Act.
26. Over the past four years, Plaintiffs and other lake residents have worked tirelessly with the Defendant Drain Commissioners of Ionia and Barry Counties to address the flooding problem. Despite those efforts, Defendants have failed and refused to act.
COUNT I – DECLARATORY RELIEF
27. Plaintiffs restate and incorporate by reference the allegations contained in the preceding paragraphs as though fully set forth herein.
28. One or more of the Defendants has informed one or more of the Plaintiffs that Defendants believe the 1958 Court Order does not permit Defendants to make interim adjustments to prevent flooding or otherwise achieve the mandated lake levels for Jordan Lake.
29. The Defendants' interpretation of the Order raises serious and substantial questions regarding the Defendants' obligations and duties pursuant to that Order.
30. The differing interpretations by Plaintiffs and Defendants of the duties and obligations imposed by the Order present an actual controversy which can only be determined by an adjudication in the nature of a declaratory judgment, as provided by law.
31. This Court has continuing jurisdiction with regard to its 1958 Court Order, and also the power to interpret or order a departure from that Order upon a showing that such a departure is necessary for the benefit and welfare of the public.
32. Plaintiffs seek a declaration by this Court that the Defendants have the obligation and duty to ensure that the level of Jordan Lake does not exceed 811 feet MSL.
33. Plaintiffs reserve the right to petition the Court for other necessary and proper relief, including money damages, pursuant to MCR 2.605(F).
COUNT II – INJUNCTIVE RELIEF
34. Plaintiffs restate and incorporate by reference the allegations contained in the preceding paragraphs as though fully set forth herein.
35. Plaintiffs are likely to prevail on the merits of their claims asserted against Defendants in this action.
36. The Defendants' acts and omissions cannot be fully remedied by an award of money damages.
37. Defendants will not be harmed by issuance of the injunctive relief prayed for herein. Conversely, Plaintiffs will suffer irreparable damage if injunctive relief is withheld.
38. There is a strong public interest in enforcing the Order and also in preventing unnecessary flooding, which causes property damage and endangers the public health and safety.
COUNT III - MANDAMUS
39. Plaintiffs restate and incorporate by reference the allegations contained in the preceding paragraphs as though fully set forth herein.
40. The Order imposes a non-discretionary duty and obligation on behalf of the Defendants to undertake measures to ensure that the level of Jordan Lake does not exceed 811 feet MSL.
41. The Defendants have failed to discharge their duties imposed by this Court's Order, as evidenced by the repeated flooding.
42. Plaintiffs are entitled to bring an action in mandamus to compel Defendants to comply with this Court's 1958 Order.
COUNT IV - NUISANCE
43. Plaintiffs restate and incorporate by reference the allegations contained in the preceding paragraphs as though fully set forth herein.
44. Defendants' repeated failure to control the water level of Jordan Lake, as required by the 1958 Court Order, has caused the waters of Jordan Lake to flood Plaintiffs' properties and homes. This flooding has unreasonably interfered with the Plaintiffs' use and enjoyment of their respective properties.
45. The photograph attached as Exhibit 2 shows the flooding damage incurred by Plaintiffs Cary, Loughrin and Mac Donnell in May, 2004. The photograph attached as Exhibit 3 shows the flooding that occurred in the accessory buildings owned by Plaintiffs Cary, Loughrin and Mac Donnell. A street separates the Plaintiffs' homes from their accessory buildings. As Exhibits 2 and 3 clearly depict, the flooding in May, 2004 flooded Plaintiffs Cary, Loughrin and Mac Donnell's properties in their entirety.
46. Exhibit 4 is a photograph of the home of non-party Vernon Baitinger and the flooding that occurred in May, 2004, damaging Baitinger and several of his neighbors.
47. Exhibit 5 is a photograph of the home of Plaintiff Guy and the flooding that occurred in May, 2004, damaging Guy and several of her neighbors.
48. Each of the Plaintiffs referenced above, in addition to many of their neighbors, suffered extensive damages as a result of the flooding in 2000 and again in 2004.
49. The flooding damage incurred by Plaintiffs and their neighbors has unreasonably interfered with the use of and enjoyment of their respective properties.
50. Defendants' failure and refusal to properly maintain the water level of Jordan Lake, as required by the 1958 Court Order, is the proximate cause of the damages suffered by Plaintiffs.
51. Defendants should be obligated to compensate Plaintiffs for the money damages Plaintiffs incurred because of the flooding.
COUNT V – TRESPASS
52. Plaintiffs restate and incorporate by reference the allegations contained in the preceding paragraphs as though fully set forth herein.
53. As a direct and proximate result of the Defendants' failure to control the water level of Jordan Lake, as required by the 1958 Court Order, Defendants have caused water to intrude upon Plaintiffs' land.
54. Defendants caused the water to intrude upon Plaintiffs' properties without Plaintiffs' consent.
55. Defendants' actions have caused Plaintiffs damage, including, but not limited to, diminution in the value of their respective properties and other damages that flow naturally and consequently from these actions.
WHEREFORE, Plaintiffs request that this Honorable Court enter its Order requiring Defendants to:
A. Create, implement, and adhere to a consistent, reliable and satisfactory procedure to enhance control of the water level of Jordan Lake when significant precipitation occurs or is forecast, in order to minimize damage to real and personal property and the public welfare during high water periods;
B. To the extent necessary, amend or depart from the 1958 Court Order to provide for additional maintenance and improvements as set forth below, as necessary for the benefit and welfare of the public;
C. Issue a preliminary injunction and ultimately a permanent injunction that requires Defendants to maintain the water of Jordan Lake between the levels imposed by the 1958 Court Order;
D. Issue its order in mandamus directing Defendants to maintain the water of Jordan Lake between the levels imposed by the 1958 Court Order;
E. Award to Plaintiffs all of their money damages, including incidental and consequential damages; and
F. Award Plaintiffs any other relief deemed just and appropriate.
Respectfully submitted,
VARNUM,
RIDDERING, SCHMIDT & HOWLETTLLP
Attorneys for Plaintiffs
Dated: March _____, 2005 By: _______________________________________
Eric J. Guerin (P46142)
BUSINESS ADDRESS:
251 North Rose Street, 4th Floor
Kalamazoo, MI 49007-3823
(269) 382-2300
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