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HE~COURT of COMMON PLEAS C ;,': .. ,,. \ ·~· ... '.. JN 'l'HE~COURT OF COMMON PLEAS c ;,': .. GEAUGA COUNTY, OHIO STATE OF OHIO,-exrCI.:_ CASE NO. 01M0771 BETTY D. MONTGOMERY ATTORNEY GENERAL OF OHIO JUDGE FORREST W. BURT Plaintiff, v. JUDGMENT ENTRY HERITAGE DEVELOPMENT COMPANY et. al. Defendants. This matter came before this Court on Plaintiff, State of Ohio's Motion for Preliminary Injunction. In this request, the State of Ohio asked this Court to enjoin Defendants~ Heritage \ ) Development Company and Bainbridge Land Development Company from further activities in the wetlands and streams situated on the 127-acre site located south of State Route 43 in Bainbridge Township, Geauga County. A preliminary injunction hearing was conducted with all parties present on October 22-24, 2001. At that time, the Court heard testimony from witnesses for both sides. On November 23, 2001, both parties submitted post-hearing briefs. Based upon the witnesses' testimony and the evidence presented, this Court finds that Defendants' 127-acre site contains streams and wetlands that are as a matter of law, "waters of the state". In particular, the wetlands identified by the parties as L, N, 0 and R, and stream Bare found to be "waters of the state" pursuant to R.C. 6111.0l(H). Additionally, this Court finds that Defendants have engaged in activities that have impacted the areas in and around the wetlands and stream B on this site. In particular, Defendants have cut trees from wetlands, R, N, 0 and . portions of L, and have caused soils to be placed into stream B. As a result of these impacts this (~ Court finds that it is unrealistic that these wetlands can be restored to pre-impact conditions. Accordingly, this Court finds that Defendants have impacted waters of the state without pnor approval from Ohio Environmental Protection Agency. Therefore, this Court enjoins Defendants from conducting further construction activities in or around the wetlands and stream B on this site until they have obtained the necessary approval from the Ohio Environmental Protection Agency or upon further order of this Court. Further, this Court directs the parties to immediately engage in settlement negotiations to reach an appropriate resolution to this matter and report.back to the Court within the next sixty (60) days. IT IS SO ORDERED /7 .~ltO~ \ JllJDGE FORREST W. BURT /- DATE 7 I c~-. ·~~ K~, f-l.c,. ·u ~ fh(J/Lf-.,w.·-1: 2_ ,,; 6 2 ;...\; rA IN THKCB~t ~Ft=~QM1\10N PLEAS c ffl c ... I L r - ( ~ ~ - t. ...-1 ~ co·URT ~~~-qo~~y ~wiio - ----- ---------- ____ STATE_QF_OIDO,. .EXREL. __ tJ£rilSE--rLK1\f'HHSt&-as_e"N_o._Ql_MJ)77-l_~ ------- -------- ---- - BETTY D. MONTGOMERY, CLERK OF GOURTS ATTORNEY GENERAL OF o:H¥()\UGA cµUNTY JUDGE FORREST w. BURT Plaintiff vs. --S HERITAGE DEVELOPMENT COMPANY, et al. Defendants PERMANENT INJUNCTION CONSENT ORDER The Complaint in the above captioned matter having beea- filed herein, and the Plaintiff, State of Ohio, by its Attorney General Betty D. Montgomery ("Plaintiff'), and J Defendants, Heritage Development Company ("Heritage") and Bainbridge Land Company, LLC ("BLD"), (Heritage and BLD collectively referred to as "Defendants"), having consented to the entry of this Order, hereby agree to t.i.e entry of this Consent Order to resolve the allegations set forth in the Complaint filed by the State of Ohio. This Consent Order i~ not to be construed as an admission of liability by the Defendants for· the allegations stated in the Complaint. NOW THEREFORE, upon consent of the parties hereto, it is hereby ORDERED, ADJUDGED AND DECREED as follows: I. JURISDICTION AND VENUE c I. The Court has jurisdiction over the parties and the subject matter of this case. The Complaint states a claim upon which relief can be granted against Defendant under Chapter 6111 of the Ohio Revised Code ("O.R.C."), and venue is proper in this Court. II. PARTIES 2. The provisions of this Consent Order shall apply to and be binding upon the parties to this action, and Defendants' agents, officers, employees, assigns, successors in interest, any transferee o! buyer of BLD's one hundred and twenty-seven (127) acres of undeveloped real property, or any portions thereof, located along State Route 43 in Bainbridge Township, Geauga County, Ohio which is more fully described on Exhibit "A" attached hereto and made a part hereof (the "Site"), and any person J acting in concert or privity with any of them. (The area for "development" by Defendants is depicted and described on Exhibit "A"). For purpose of this Consent Order, Bert L. Wolstein, individually, is not a participant, but to the extent that he is an officer, agent or member of the Defendants he shall be bound like any other officer, member or agent. III. SATISFACTION OF LAWSUIT AND RESERVATION OF RIGHTS 3. Full compliance with the terms and conditions of this Consent Order shall constitute full satisfaction of all civil liability by Defendants for the claims as alleged by the Plaintiff in the Complaint against Defendants and for any civil claims for 2 violations of Defendants' General NPDES Storm Water Permit #OHR 109514 for the ('' ~ Site through the entry date of this Consent Order. 4. By the filing of this Consent Order, the Complaint of the Plaintiff and the counterclaims of the Defendants are hereby considered to be finally determined. Defendants' counterclaims are voluntarily dismissed with prejudice pursuant to Ohio Civil Rule 41 and this Consent Order shall be a Final Order. Upon the filing of this Consent Order, it shall act as a mutual release, releasing all claims, counterclaims, causes of action, losses and liabilities arising from or relating to this case, including any claims arising under R.C. Chapter 6111 and the rules promulgated thereunder, the Defendants' administrative appeal (Case No. 01- CT-011) and the Defendants' federal suit (Case No. l:OlCV 1901 in the U.S. District Court for the Northern District of Ohio, Eastern Division). 5. Nothing in this Consent Order shall be construed so as to limit the authority of the State of Ohio to take any action authorized by law against Defendants and/or any person to enforce the Consent Order through a contempt action for violations of this Consent Order. Nothing in this Consent Order shall be construed so as to limit the authority of the State of Ohio to seek relief against the Defendants or other appropriate persons for claims or conditions not alleged in the Complaint, including violations which occur after the filing of the Complaint. Similarly, nothing in this Consent Order shall be construed so as to limit the authority of the State of Ohio to undertake any action against any person, including the Defendants, to eliminate or mitigate conditions that may present a threat to the public health, welfare or the environment. Finally, nothing in this Consent 3 Order shall limit the right of the Defendants to any defenses it may have for any such (_) claims above. IV. PERMANENT INJUNCTION 6. Defendants are hereby permanently enjoined and immediately ordered to comply with the requirements of R.C. Chapter 6111 and the rules adopted thereunder, and Defendants' General NPDES Storm Water Permit for the site, except as otherwise provided in this Consent Order. V. INJUNCTIVE RELIEF A. On-Site Mitigation and Work 7. Defendants are enjoined and ordered to maintain and protect the current ) and natural conditions of the remaining wetlands, streams, and upland buffer areas within the conservation easement area on the Site, as depicted in Exhibit B. Exhibit B is hereby made a part of this permanent injunction and fully incorporated herein. No further tree cutting or work shall occur in the unimpacted 0.42 acre portion of wetland "L", which is also depicted on Exhibit B. 8. Defendants are enjoined and ordered to preserve Wetland "A", as depicted in Exhibit B, on the site in accordance with Ohio Administrative Code ("O.A.C.") Rule 3745-1-54(E)(5). 4 9. Defendants are enjoined and ordered to place all areas within the ('.___ _,, conservation easement area, as depicted in Exhibit B, in a conservation easement with deed restrictions. Defendants shall convey to Tinkers Creek Land Conservancy the conservation easement parcel depicted and described in Exhibit B. Defendants shall place deed restrictions on the portion of the wetlands site described in Exhibit B that limit the use of the property in perpetuity to conservation uses only. Additionally, the deed restrictions shall require that the property be maintained in a natural state, specify that trees shall not be removed, herbicide application and vegetation removal can only be conducted upon prior approval of Ohio EPA, and that the wetlands mitigation area and other wetlands on the site not be filled, drained or otherwise converted. The conveyance of the conservation easement for the wetlands to be preserved for mitigation purposes shall occur prior to any filling of wetland in the '· ) development area of the Site. 10. Defendants shall undertake measures for invasive species control in Wetland "G" as specified in Defendants' "Enhancement and Invasive Species Control Plan in Wetland G"; however, in no event shall Defendants use berming or water level manipulation as a means for such control. B. Off-Site Mitigation 11. In accordance with O.A.C. Rule 3745-1-54(E)(5), Defendants are enjoined and ordered to obtain 27.46 acres of preserved wetlands in the Cuyahoga River watershed, known as the Twinsburg Bog Property and the 2.25 acre upland 5 buffer, as depicted and described in Exhibit C. Exhibit C is hereby made part of this (\, '---/ permanent injunction and fully incorporated herein. Defendants shall convey to Tinkers Creek Land Conservancy the parcel depicted and described in Exhibit C.
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