CHAGRIN FALLS – River Walk developer Robert Vitt found himself out of the frying pan and into the fire this week when one lawsuit against him was resolved as another was filed.
A jury trial set for Sept. 10 in Cuyahoga County Common Pleas Court, brought against Mr. Vitt and his development companies by Terry and David Mitchell, was cancelled Aug. 21 after a settlement was reached between the parties.
The Mitchells filed their suit in April 2011 claiming their West Cottage Street home was rendered uninhabitable after Mr. Vitt and his Silver Leaf development companies cleared the hill below the house, which destabilized the slope and caused the foundation and the walls to crack open.
A second lawsuit has been filed by adjoining neighbors of the Mitchells over the same concern. The plaintiffs are Patricia Weingart, Jim Weingart, Valerie Bertsch, Donald Bertsch and Erin Manley.
Attorney Thomas Merriman, representing the Mitchells, said Monday he was not at liberty to discuss the monetary outcome of that settlement “because the language is still being worked out.”
“I can tell you the Mitchells are happy, and the settlement is substantial,” he said. “This is a good outcome for the Mitchells, who can now move on with their lives.”
The couple was forced to move out of the home in spring 2011, when an engineer inspected it and deemed it unsafe. That was followed by a village inspection in which the structure was found to be unstable and its demolition ordered.
The couple was faced with paying for the tear down, but the village agreed to hold off enforcing the order until the lawsuit was settled. Under terms of the settlement, the developer, his development companies and River Walk will acquire the Mitchell property and demolish the home at their expense, Mr. Merriman said.
Joseph McCafferty, attorney for Mr. Vitt and Silver Leaf, did not respond to a telephone call requesting comment.
While the village was never brought into the lawsuit because of immunity provisions in the law, Mr. Merriman said it was remiss in not enforcing its hillside regulations in terms of a variance, which allowed the developer to clear a portion of, but not the entire, slope.
According to Mr. Merriman, the village did not have an engineer’s approved slope retention plan, which was a condition of the variance and in opposition to its ordinance. The hillside remained vacant more than 15 days before construction.
“The village has not received any communication about the outcome of the lawsuit of filing of other suits,” Village Administrator Benjamin Himes said Monday, adding that Mr. Vitt has not requested permits to proceed with the second phase of the development.
That phase and permits for a hillside retention structure for that part of the development are pending. The retention plan must be approved by the village’s engineering firm, CT Consultants, before the second-phase permit will be issued.
Mr. Merriman’s firm also is representing the four plaintiffs in the second lawsuit against Mr. Vitt and his Silver Leaf development companies, as well as River Walk at Chagrin Falls and the development companies’ engineers, Professional Service Industries (PSI) of Valley View.
The lawsuit claims the developer and his engineering firm studied only the River Walk property soils and conditions without considering what impact it could have surrounding properties. The developer knew the “project was a complex, high-risk engineering endeavor with the potential to destabilize the slope of the hillside and cause damage” to surrounding properties.
The developer “relied upon inadequate” soil testing and “unusable groundwater data,” “false assumptions and incomplete data” and “chose not to conduct a proper global slop stability analysis,” according to the suit.
The lawsuit states the project moved forward with “aggressive excavation” eight feet or more from the plaintiffs’ properties and, once cleared, the hillside remained exposed without erosion controls from the end of 2010 into 2011.
The suit also notes the development companies continued their work at River Walk after the village retained a geotetechnical engineer to review the PSI report and issued its own report “highly critical” of the development company. Criticism included failing to gather meaningful information and conducting meaningless tests.
According to the lawsuit, the development companies protested the village’s request for additional testing for possible damage to surrounding properties, stating it would “impact the viability of this project.”
When a second “impartial” geotechnical engineering study was conducted, it also concluded the development company and its engineering firm did not do enough testing and analysis on the hillside or consider possible risks posed by the project on neighboring “uphill properties” or the danger of structural damage should the slope move, the suit states.
In addition, the lawsuit claims PSI should have known when it was retained that more information should have been gathered to assess the impact of the work on the hillside “within required professional standards to conduct a global slope stability analysis.”
The plaintiffs have requested a jury trial and ask for compensatory and punitive damages, as well as attorneys’ fees, costs and pre- and post-judgment expenses, and any other relief the court finds appropriate.