Osborne heirs get partial victory

Decision in pollution case reversed

A ruling ordering Mentor developer Jerome T. Osborne Sr.’s heirs to pay the Ohio Treasury a civil penalty of $404,240 plus interest for environmental harm to the Chagrin River’s east branch in Kirtland Hills was reversed Oct. 23 by the 11th District Court of Appeals.

Osborne was first sued by the Ohio Attorney General’s Office in 2012. After he died, the state received permission to substitute the executors of the estate in lieu of the defendant.

After a nonjury civil trial in Lake County Common Pleas Court last year, Judge Richard L. Collins found Osborne Co. Ltd. guilty of creating a public nuisance by polluting the East Branch without a permit. From May 2001 to July 2007, Osborne’s employees operated a track hoe on 24 separate occasions to dispose of sand, gravel and rock in the river.

On May 10, Osborne family attorneys appeared before a three-judge panel of the 11th District Court of Appeals to challenge the ruling.

Osborne was first sued by the Ohio Attorney General’s Office in 2012. After he died, the state received permission to substitute the executors of the estate in lieu of the defendant.

“... We agree with appellants that it was not a violation of the statutes alleged in the complaint to dredge the East Branch Chagrin River, nor was it a violation of these statutes to fail to obtain permits,” appellate Judge Timothy P. Cannon stated in his 2-1 opinion.

Cannon added that the heirs should not have been held liable for activity outside the scope of the Water Pollution Control Act, which prohibits anyone from placing any sewage, sludge, industrial waste or other waste in a location where they cause pollution of any state waters.

“We have no question, ... that there were violations of numerous statutory and administrative regulations,” Cannon stated. “For whatever reason, however, the state did not charge appellants with violations of these provisions. (The heirs) proceeded to

trial defending the allegations in the complaint. It would be unfair to require them to defend against violations alleged in letters and administrative orders that were not contained in the complaint filed with the trial court.”

The appellate judges voted to remand the matter back to the trial court limiting any civil finding to the violations alleged in the complaint: the discharge of materials into the East Branch as provided in the Water Pollution Control Act.

Besides the penalty, Collins permanently banned the Osborne Co. from discharging any pollution into the East Branch. He also ordered the company to submit a plan to the Ohio EPA to remove the remaining pile in the river.

At trial, Osborne Co. Ltd. attorney Richard Selby II argued there are no statutes that make it illegal to dredge Ohio rivers or engage in construction along Ohio rivers. He also claimed there was no proof that the work harmed the

scenic river.

The judge found that since Osborne oversaw the operation, he knew or should have known about the violations. Collins also found that the employees’ actions resulted in adverse long- and short-term impacts on the river’s water quality.

The appellate court also found that the Lake County judge was correct to hold Osborne’s estate jointly liable along with Osborne Co.

Eleventh District Judge Diane V. Grendell concurred with Cannon’s majority opinion.

Appellate Judge Colleen Mary O’Toole dissented, writing that she would have affirmed the trial court judge’s entire opinion.

“The defendants in this matter are familiar with commercial contracts and dealing with builders and should have known to inquire as to what permits were needed regarding property they did not own or control,” O’Toole stated in her dissenting opinion.