A hearing on the status of the case is scheduled for Feb. 12, and depositions are being scheduled for the case to move forward, officials said.
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Blue Rock filed the lawsuit in federal court in December 2017, claiming the city’s contractor, Badger Construction Co., damaged the former Fulmer’s building on Main Street when they demolished the old Kmart building at the end of 2016 and early 2017.
Blue Rock asserts the city offered to buy the building at a “distressed price” following the demolition work and, when the offer was rejected, the city cited Blue Rock for building code violations as a result of the damages, according to the lawsuit.
Magistrate Judge Sharon L. Ovington recommended dismissing three counts in the suit while proceeding on one count in which Blue Rock claims rights against seizure of property in the Fourth and Fourteenth Amendments were violated.
Blue Rock claims the city knew prior to demolition that the building could be damaged and because the city has not made repairs, “the city’s intentional and knowing conduct advances more than a mere negligence claim … it support a plausible claim that the city was the moving force behind plaintiffs’ Fourth Amendment injury,” Ovington’s report reads.
The city’s attorney, Dawn Frick, argues that Blue Rock’s claims of Fourth Amendment rights violations “goes beyond what they are designed to safeguard.”
“Negligence requires breach of a duty and damages proximately flowing therefrom … The duty in this instance was found in the Xenia-Badger contract. Plaintiffs were not parties to that contract and, therefore, lack standing,” Frick’s objection reads.
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Frick could not be reached for comment. City officials declined to comment on the ongoing legal battle.
Blue Rock’s attorney Joseph Miller has requested oral arguments to be heard in federal court.
“We remain confident that the court will vindicate Blue Rock’s constitutional rights. The city continues to pay attorneys and allow the damages to my client to accrue,” Miller said in a phone interview on Thursday.
The city’s plans to redevelop the site into a mix-use retail and dining center, which include a new street to be located where the former Fulmer’s building stands, appear to be on-hold until the case is resolved.
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