Crescent-News.com - Lawsuit dropped against city

By TODD HELBERG

An individual's lawsuit against Defiance City Hall concerning installation of a water system device has been dismissed.

Frederick Hoffman, 600 Holgate Ave., had filed the suit in Defiance County Common Pleas Court on Dec. 8, 2006, asking that City Hall comply with Environmental Protection Agency regulations concerning the installation of backflow preventers. Numerous property owners in Defiance were sent letters stating that such devices -- which eliminate the possibility that water can backflow into the city's system when pressure levels drop -- had to be installed.

But Hoffman, who received a letter for his business (Rick's Wrecker Service, 1071 Holgate), contested the order. He argued that, according to state law, the devices are only required for certain businesses, such as hospitals, chemical plants and car washes.

Hoffman called the requirement cited in the letters "arbitrary and expensive." Although his expense would have been less than $1,000, he said collectively the requirement would have cost affected city water customers much more.

Nevertheless, Hoffman's attorney, James Hitchcock of Defiance, recently asked that the lawsuit be dismissed. However, because the lawsuit was "dismissed without prejudice," it can be refiled.

Hoffman said a major reason the suit was dismissed was it suggested that a judge "should write the rules for the city." He believed this was not going to happen.

For the city's part, Defiance law director David Williams said the suit filed by Hitchcock didn't demonstrate that the plaintiff was entitled to relief.

"The Ohio Rules of Civil Procedure require a complaint to set forth a 'short and plain statement' of the plaintiff's claim demonstrating that the plaintiff is entitled to relief," said Williams. "The complaint ... did not, in my judgment, comply with this requirement. Even after wading through page after page of material, I couldn't see where the 'complaint' alleged anything that would entitle Mr. Hoffman to legal relief."

Williams said he filed two motions, rather than answering the complaint.

"One asked that all of the irrelevant material be stricken from the complaint," he explained. "The other asked that the entire action be dismissed because the complaint, assuming every word of it to be true, failed to demonstrate that Mr. Hoffman was entitled to legal relief."

According to Williams, Judge Joseph Schmenk did not rule on either motion, but "he did suggest at a pretrial conference that he was inclined to grant one or both of them."

While the case has been dismissed, Hoffman said he isn't sure whether he will refile.

He recently attended a city council water committee meeting in which the backflow preventer issue was discussed. And, he said two councilman (Steve Hubbard and Gary Butler) questioned whether regulations require backflow preventers to be installed.

Hoffman said he was sent a letter by City Hall several years ago about the backflow preventer requirement, indicating that he had a specified time to install one or have his water shut off. Although Hoffman did not install a preventer, his water was never shut off, he said.

However, he says he has a non-testable double check valve.

Hoffman added that other businesses sent letters also did not install backflow preventers.

City Hall had announced a concerted effort in April 2002 to make sure backflow preventers were installed not only in commercial properties, but residential properties as well. These were required when any improvements were made to the home.

But city officials have put the backflow issue on hold while they review a related ordinance.

City council's water committee discussed the issue this month and plans to bring it up again during a meeting on Feb. 19 in the city service building, 631 Perry St.

"We are currently -- through the water committee -- reviewing the backflow ordinance and our policy related to that," said city water superintendent Richard Kipp. "We were getting started on reviewing the ordinance last spring, but because of the lawsuit we put things on hold. We're not taking further action on it until we have a chance to review the ordinance."