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Cove resident files suit

Seeks damages in dam breach

POSTED: March 30, 2014 12:06 a.m.
 

CUMMING — While engineers are still laying the groundwork for repairing a Lake Lanier cove, a lawsuit has been filed to seeking damages from the May 19 breach of Lake Alice dam.

Gregory Scott Lindy, who lives on a Timber Lake Trail property along the damaged cove, has filed a lawsuit against a host of individuals and entities, including the Mashburn family, which owned the dam and the city of Cumming, which owned a portion of the water in the dam.

Also being sued is the Sembler Family Partnership, which developed the nearby Cumming Town Center, as well as up to 10 contractors, subcontractors and entities, which were involved in the project.

Lindy’s attorney, Donald D.J. Stack, contends in the suit that the defendants have “not contained the earthen dam, eroded soil, silt, sediment, vegetation, debris, trash and other pollutants” from entering the cove or Lake Alice property.

Since the dam break, the city has worked to add vegetation to the area to prevent further clouding of the water and the Mashburn family has added turbidity curtains to prevent more silt sliding into the cove when it rains.

While both efforts have helped, neither has completely stopped more sediment from entering the cove.

According to the suit, Lindy is “damaged by his property value loss and injury and by the injury to his peace, happiness and feelings resulting from defendants’ repeated trespass.

“Plaintiff is specially damaged by his property value losses, by his annoyance, aggravation and inconvenience, by his loss of use and enjoyment and by his lawsuit expenditures including attorney’s fees, resulting from the defendants’ maintenance of the nuisance,” the suit continued.

In August, Lindy sent an ante litem notice to the city asking for at least $1 million for himself and each of the other homeowners on the cove. That was in addition to stopping the ongoing sediment and pollutant discharges. The suit was filed Jan. 31.

The city and Mashburn family have each responded to the suit, filing motions to dismiss. Both cite, among other reasons, that Lindy doesn’t own the directly impacted property.

In its response, filed March 13 by City Attorney Dana Miles, Cumming notes that, “The U.S. Army Corps of Engineers owns the shoreline and water of Lake Lanier, and has issued plaintiff a shoreline use permit license to use the shoreline and water and to place personal property thereon.”

The Mashburn family filed a response March 24, asking for a motion to dismiss the case and deferring responsibility for the breach to the city of Cumming and Sembler.

In the Mashburn response, family attorney Michael Carvalho said the city’s “storm sewer system discharged and continues to discharge excessive amounts of sediment and stormwater from its municipal storm sewer system into what used to be Lake Alice.

“Sembler engaged in development and/or construction activities within the Lake Alice watershed, including but not limited to development of Cumming Town Center, which discharges stormwater into Lake Alice,” the response continues.

“Based upon information and belief, defendant Sembler’s development and/or construction activities resulted in excessive discharges of sediment into Lake Alice.”

Carvalho further maintains, much like the cove homeowners, that the city’s failure to maintain its municipal storm-sewer system has and continues to cause damage to the family’s property.

Lindy’s attorney will have about a month to respond before the court will review the matter.

In the meantime, Carvalho said final designs for a weir will be submitted to the state Environmental Protection Division shortly.

A weir is a barrier that forms an obstruction smaller than most dams, pooling water behind it while also allowing it to flow steadily over the top. It will replace the family’s dam.

All parties involved in the process, including the Georgia Department of Natural Resources Environmental Protection Division,  have agreed that’s the best course of action.

Once the structure is in place, the city has agreed to dredge the cove’s water to remove sediment from the breach.

 

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