Court case puts city on hot seat By Katie Deska
Mary and Philip Penberthy, who own a home on four acres off of Hamlin Road between Crestline and Fieldcrest in Rochester Hills, are months into their stay at a hotel with their teenage son while they battle the city of Rochester Hills in Oakland County’s Sixth Circuit Court over damages to their home, which the Penberthy’s estimate exceed $250,000, in addition to the loss of valuable antiques, many of which have been hazardously soiled by sewage and mold. During the city’s summer road construction project to widen Hamlin Road, devastating and haphazard mistakes were made by employees of Kaltz Excavating and Diponio Contracting, the family alleges, leading to a ruptured sewage line and water main that dumped sewage into the Penberthy’s home on two occasions, and flooded their garage with water on a third occasion. In response to the incidents, the family’s attorney, Adam Cohen, requested a halt to the road work, but was met with opposition from the city, which wanted to move forward with the project. Rochester Hills agreed to provide the family with accommodations at a hotel, as well as storage service. After ripping out portions of the soiled house in the process of making the home habitable again, the Penberthy’s ran out of personal funds and requested money from the city to pay for damages they consider to be the city’s fault. On Monday, November 2, circuit court judge Martha Anderson rejected a motion, made by Cohen on behalf of the Penberthys, requesting that the city set up an unlimited escrow account, with $100,000 initially, to fund the Penberthy’s home repairs. Anderson stated, “The defendant’s motion is denied for failing to present this court with any legal authority to support the relief requested.” John Staran, attorney for the city of Rochester Hills, said the problems began when “The gas company, (Consumers Energy), hired a contractor, (Kaltz Excavating), who went out there and moved the gas line. The gas company’s contractor ended up piercing the Penberthy’s 52
City manager Blaine Wing sworn in laine Wing, Rochester’s newly hired city manager, was sworn in Monday, November 9, during the Rochester city council meeting. Acting city manager Nik Banda is once again economic and community development director and deputy city manager for the city. A Sterling Heights-native, Wing comes to Rochester from Des Plaines, Illinois, where he was the director of human resources for the city, with a population of approximately 59,000, since February of 2014. Prior to that, for six years, Wing was assistant village manager for The Village of Oak Brook, a suburb of Chicago. With a population of just under 8,000, and the headquarters of many major corporations, Oak Brook has many similarities as a municipality to Rochester. He also worked for Flossmoor and Cary, two villages in the state of Illinois. This spring, Banda stepped in as interim city manager after Jaymes Vettraino announced his resignation from the position to accept an academic position at Rochester College, as the college's first director of the Center for Social Entrepreneurship. In late August, city council voted 7-0 in favor of offering employment to Wing, over a selection of other candidates. Council drafted a contract the following month, and met their goal, which was to have a new city manager hired by autumn.
B
private sewer lead,” which is located in a right-of-way easement that borders the now-widened Hamlin road, causing sewage to “back up through their plumbing, and through their basement floor drain, and backed up through their bathtub and the kitchen sink.” After a second sewage backup in the Penberthy’s basement, “it was discovered that Kaltz made a faulty repair to the sewer lead they damaged,” said Staran. The third problem involves a different party, contractor Diponio. While doing excavation, workers hit a water line, which filled up ditches, and when the water was being pumped by the contractor out of the ditches, it flowed onto the Penberthy’s property and into their garage, sullying the goods that were being stored there after the sewage mishap. A portion of the Penberthy’s property, a 30-foot wide easement where the accidents occurred, runs the length of the family’s front yard and was acquired by the city through eminent domain for approximately $8,100 in the spring of 2015. “The city of Rochester Hills filed the condemnation action in Oakland County Circuit Court to acquire a portion of the Penberthy’s front yard without the Penberthy’s consent, and that’s the city’s legal right,” in terms of eminent domain, said Cohen. “But, the quid pro quo for the taking is that
the city has to pay for all the consequences of its acquisition. They seem to lose sight of that when it comes time to pay the compensation.” “The city’s position is that we’re trying to help (the Penberthys), but the city is not responsible or liable for negligent acts of other contractors,” said Staran. Mayor Bryan Barnett, on Wednesday, November 4, said he lives about a quarter-mile from the Penberthy’s home and that he has met with the Penberthys several times over the course of the construction, “at the beginning of the road project, during negotiations, and once during court (for the eminent domain case).” But, with regard to the recent turn of events, he said, “The city is trying to find a solution here… I haven’t personally met with them recently… This is a matter that’s being handled by their legal team and our legal team.” When asked if the city had paid the contractors already, Barnett said, “I think there’s still some bonding that hasn’t been completed. I don’t know the answer to that question.” The Penberthys and Cohen aren’t giving up. “The court said it lacked legal authority to establish an interim emergency escrow to fund repairs to my client’s home,” Cohen said. “Although the effect of that ruling
DOWNTOWN
will delay justice, when this is said and done, the city will be held responsible and have to pay.”
Condos approved for Rochester Hills The Rochester Hills City Council on Monday, November 9, unanimously approved a site plan for Brampton Parc Condominiums, consisting of six two-unit duplexes on 2.93 acres between Hamlin and School roads, east of John R. Road, which was recommended for approval by the city's planning commission. Brampton Parc condos will line a cul-de-sac, and range from 1,250 to 2,100 square feet, starting at $350,000, with various interior floor plans. "I anticipate all the units being owner-occupied," said developer Jim Polyzois. "The people I've spoken with are looking to buy." Each of the twelve units will be single story, with the option of a finished basement and/or a finished attic area. Each is designed with a private backyard porch, which can be uncovered or enclosed, and a two-car recessed garage, "to enhance the pedestrian, human element of the house," said Rochester Hills Planning Manager Sara Roediger. "The applicant worked with (the city) to modify that." Council voted 7-0 to approve the site plan.
Tienken Road finally re-opens to drivers Tienken Road between Brewster and Livernois, opened to drivers on Monday, November 2. However, while the crews finish minor restoration work behind the curb, “there will be intermittent lane closures for probably a couple weeks,” said Craig Bryson of the Road Commission for Oakland County (RCOC). The stretch of between Brewster and Livernois was a major resurfacing project, and part of a larger Tienken Road project that began in fall of 2014 and continued into the road construction season of 2015, which included adding a continuous left-turn lane on Tienken between Livernois and Rochester roads, and building a roundabout at Livernois and Tienken. 12.15