Daily Archives: March 27, 2017

After years of negotiations, Canyon Lake Property Owners Association (CLPOA) and Elisnore Valley Water Municipal District (EVMWD) entered into a Fifth Amendment to the Lake Lease on March 10, 2017.

What does this mean for Canyon Lake? For one, the Lake Lease that would have expired on December 31, 2022 doesnt expire now until December 31, 2066. With the Fifth Amendment in effect, it also gives CLPOA a unilateral option to extend the Lease another 44 years after 2066 and on the same conditions and terms as are now in effect.

It also means that the Lake Lease payments that were being adjusted every year according to the cost of water will now be adjusted on a yearly basis based on the Consumer Price Index. Additionally, CLPOAs Lake Lease payments will never increase more than four percent per year. The minimum increase will be one percent per year.

CLPOA feels this is a fair and stable payment schedule and projects that it will save CLPOA millions of dollars just over the next 10 years alone. How does this benefit EVMWD? EVMWD gets the benefit of having a predictable and stable revenue stream from the Lake.

During the negotiations, EVMWD was insisting that CLPOA agrees to an onerous indemnity provision that would require CLPOA to indemnify EVMWD for all loss related to the Lake, even if the loss was EVMWDs fault. With the Fifth Amendment in effect, EVMWD is responsible for its mistakes, CLPOA is responsible for its mistakes, as well as those of its members and third parties.

Prior to the Fifth Amendment, there was no mechanism in the Lake Lease to prevent disputes between CLPOA and EMVWD from spiraling out of control. With the Fifth Amendment to the Lake Lease, there are now mechanisms in place to help head off any disputes that may arise between CLPOA and EVMWD. Specifically, there will now be an Interface Committee, comprised of CLPOA Board Members and EVMWD Board Members, who will meet as necessary to discuss any dispute between the parties that may arise. If the dispute persists, the dispute must then go to mediation, before a neutral third party, to see if the parties can voluntarily resolve the dispute. If mediation doesnt work, the dispute is submitted to streamlined arbitration, so it is resolved as quickly and efficiently as possible.

The section of the Lake north of the north causeway, where the river feeds into the lake, is known as Section 26 of the Lake. This section was governed by a separate lease agreement between CLPOA and EVMWD. EVMWD had the ability to grant rights of use to Section 26 to others, under certain conditions. Now, with the Fifth Amendment to the Lake Lease in effect, Section 26 will be governed by the same Lake Lease; however, some special provisions will apply.

EVMWD is permitted to install fencing or other access control devices around Section 26 to prevent visitors from using this portion of the Lake. Section 26 will remain open to CLPOA and its members for the same uses that were previously in effect.

Prior to the Fifth Amendment, there were no requirements with respect to CLPOAs insurance of the Lake. With the Fifth Amendment in effect, CLPOA is required to maintain general liability insurance on the Lake, with EVMWD as an additional named insured, at amounts reasonable to cover any anticipated losses.

According to CLPOA, the current amount is $2MM per occurrence/$2MM in the aggregate. CLPOA and EVMWD have agreed to review the insurance limits on a periodic basis to see if any increase is needed. With this insurance in place, it will help to prevent any disputes between CLPOA and EVMWD.

Is the litigation between CLPOA and EVMWD over? Not all of it. The Tax Case (Riverside Superior Court Case No. RIC 1504034) which is now on appeal (Court of Appeal Case No. CIV NO. E065705) will be dismissed; however, the Declaratory Relief Case (Riverside Superior Court Case No. 1503428) is still pending.

The reason why the Declaratory Relief Case is still pending is because there are still a few important issues, which were not the subject of the Fifth Amendment, that need to be resolved. Both parties are seeking a definitive determination as to where the border of the Lake and shorezone actually lies. The parties also want to come to create a uniform process for future encroachments into the Lake/onto the shorezone, which involves all the necessary stakeholders (CLPOA, CLPOAs Members and EVMWD).

CLPOA wants to be sure that everyone is on the same page in terms of what improvements are being maintained in the Lake/on the shorezone. Currently, there is no standard process between the stakeholders as to what improvements are being maintained, which could lead to inconsistent rights and obligations between CLPOA and EVMWD as to the improvements and property involved. CLPOA wants to change that so that everything is as fair, consistent and predictable as possible. CLPOA says they are committed to cooperating with EVMWD to resolve these remaining issues.

A spokesperson for CLPOA said This truly is a monumental step forward. We are very pleased that hard work from both sides, and the patience and participation of CLPOAs members, has produced this durable and lasting agreement, which will preserve the special character of the Canyon Lake community for decades to come.

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CLPOA enters into Fifth Amendment to Lake Lease | The Friday Flyer - The Friday Flyer

Up to four agencies are investigating the 2015 pepper spraying of Amber Swink in a seven-point restraint chair by then Montgomery County Sheriffs Office Sgt. Judith Sealey, court documents confirmed.

Now, attorneys defending against Swinks federal civil lawsuit told a judge they would face an impossible decision if Sealey and other Montgomery County Jail leaders give depositions while still facing possible criminal charges.

Since there currently is an ongoing federal investigation as well as a local investigation, county attorneys Anne Jagielski and Joseph Saks wrote in a motion filed in Daytons U.S. District Court, defendants are placed with an impossible decision: to invoke their Fifth Amendment privilege against self-incrimination and waive their opportunity to defend themselves in the civil lawsuit or waive the Fifth Amendment privilege and potentially face criminal charges based on their own testimony.

EARLIER: Dayton police investigating pepper spraying incident

Neither U.S. District Court Judge Walter Rice nor Magistrate Judge Michael Newman have ruled on the defendants motion to stay just the discovery portion of the case, according to the docket.

The motion also shows Montgomery County Sheriff Phil Plummer was subpoenaed to testify in a federal grand jury in Cincinnati in October 2016.

The document also confirmed that jail personnel have been investigated by U.S. Dept. of Justices civil rights division, the U.S. Attorneys Office, the Federal Bureau of Investigation and the Dayton police department.

EARLIER: Sheriffs office sued over Amber Swink incident

Due to the secrecy of criminal investigations, the specifics of any of the pending investigations are unknown, county attorneys wrote, citing Plummers discussions with government officials. It is apparent they are investigating Judith Sealey and the Sheriffs Office as a whole for pending criminal charges.

Sealey, who was promoted to captain early in 2016, was placed on administrative leave in October until the investigations were complete. Sheriffs office representatives declined to comment for this article.

Last month, U.S. Attorney for the Southern District of Ohio Benjamin Glassman wouldnt confirm nor deny a federal investigation into Sealeys actions, but he did say his office coordinates and collaborates with law enforcement agencies to best use resources.

RELATED: Justice in the Jail project: 15 recent lawsuits against area jails

That is, in my opinion, one of the most important roles of the United States Attorneys Office, Glassman said, is that federal government is here to investigate other law enforcement agencies because were not a local player.

The video of Sealey blasting Swink on Nov. 15, 2015 for a second time that night in jail only surfaced when attorney Doug Brannon filed the civil lawsuit. Brannon said he asked the sheriffs office for the video and they couldnt provide it.

The sheriffs office has never been able to locate the video in its computer systems, and Plummer alleged it was stolen property.

RELATED: Sheriff says missing Swink video an isolated incident

It also appears that the Department of Justice is investigating the alleged (destruction) of records relating to said incident, involving, as Plaintiff also alleges in her amended complaint, all of the Sheriff defendants, the motion states.

The documents cites a March 6, 2017, affidavit from Plummer that says the FBI has interviewed jail supervisors and employees regarding electronic services.

Swinks attorney said his client testified in January in a Montgomery County grand jury and that the process is continuing.

At least some evidence has been presented to a grand jury, Brannon said. I dont think the grand jury has reached an opinion or a verdict.

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Swinks suit names as defendants the Montgomery County Board of Commissioners, Plummer, Sealey, Capt. Chuck Crosby, then-Major Scott Landis and other John and/or Jane Does.

Brannon said no one knows when indictments may come, but that as far as the defendants motion goes: Theyre trying to impede the civil case under the auspices of the criminal investigations.

The scenario of a criminal probe holding up a civil case is similar in some ways to the federal wrongful death lawsuit brought by the family of John Crawford III against Beavercreek police and Walmart.

MORE: Glassman says change in administration wont affect Crawford case

Rice repeatedly has allowed the delay of depositions of Beavercreek police officers Sean Williams and Sgt. David Darkow related to Crawfords Aug. 5, 2014, death at the hands of police, citing the possibility of federal criminal charges. That federal investigation turned 30 months old Friday and has not been resolved.

I do commit that whatever the disposition, Glassman said in February. I will let you know publicly and promptly as soon as we have it.

The Swink lawsuit is one of eight active civil actions filed against jail employees alleging misconduct.

MORE: Crawford cases still unresolved

County attorneys argued that Brannons case is not prejudiced by delaying sheriffs office depositions, but the defense may suffer.

The trier of fact in civil actions can draw a negative inference from a defendant failing to testify in a civil proceeding, as such an inference does not violate the Fifth Amendment or Due Process, the attorneys wrote.

This case has received national media attention, and therefore, the general public is likely interested in the outcome of the litigation. The public has a right to see that justice is served, and a stay in discovery would further ensure the integrity of the litigation.

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Multiple agencies probe jail pepper-spraying, grand juries convene - MyDaytonDailyNews