Toxic Dirt Case Revived

LANSING — The Michigan Court of Appeals recently overturned a Kent County Circuit Court ruling in a case involving the alleged dumping of toxic soils at the former city-owned Monroe Water Filtration plant.

The judicial panel ruled that the lower court erred when it dismissed a complaint from William Tingley III and two other plaintiffs against the developers, attorneys and financial backer of The Boardwalk, a mixed-use renovation of the former Berkey & Gay factory at

940 Monroe Ave. NW

The trial court decided in April 2002 that the plaintiffs were not the “real parties of interest” in the case and could not bring their lawsuit forward under Michigan law and dismissed the plaintiffs’ action. The lower court held that only a corporation or the public could file the complaint, through the Attorney General’s office, and not individuals.

But the appellate justices disagreed.

“The act, however, expressly permits an individual to bring a civil action to remedy violations of the act and does not restrict the ability to sue to only those persons whose individual interests are harmed,” read the appellate court opinion.

The justices cited Public Act 451 of 1994 as the basis for their ruling, which states, “A person who has an interest that is or may be affected by a civil or administrative action commenced under this part has a right to intervene in that action.”

For Tingley, general manager of Proto-CAM Inc., a machine-tooling business at

1009 Ottawa Ave. NW

, it means another day in court in the complicated 5-year-old legal case.

“The COA decision puts our hazardous waste complaint against the city and The Boardwalk back on track. The case is before Judge (James) Redford of the Kent County Circuit Court, and he has already reviewed the case and denied the defendants’ various motions for dismissal,” said Tingley.

When Redford denied those motions last January he also ruled that the plaintiffs might have suffered greater harm than the general public would have from the alleged soil transfer. Proto-CAM is located just east of The Boardwalk.

The higher court also reversed the circuit court’s decision that Tingley was unlawfully practicing law on behalf of his co-plaintiffs — William Q. Tingley, his father, and Daniel Bradley.

But the appellate court also upheld a handful of the lower court’s rulings, including the trial court’s awarding of sanctions to former Grand Rapids Mayor John Logie and to the city of Grand Rapids. The plaintiffs named both as co-defendants.

The latest appeals court ruling marked the second time in less than a year that it ruled against the lower court. Last July, the panel decided the wrong judge heard a suit brought by the plaintiffs three years ago — a case that the appellate court said the circuit court wrongly dismissed.

The plaintiffs allege that the defendants illegally took 26,000 cubic yards of contaminated soil from the construction site to the filtration plant at

1430 Monroe Ave. NW

in 2000. But the defendants say they mistakenly removed soil from the site and then transferred it back to the site once they realized what had occurred.

Robert F. Wardrop II, William J. Fisher II, Todd R. Dickinson, Wardrop & Wardrop PC, Dickinson Wright PLLC, Fisher & Dickinson PC, 900 Monroe LLC, 940 Monroe LLC, Pioneer Inc., the city, Logie, Dykema Excavators Inc., and Fifth Third Bancorp were named by the plaintiffs as defendants in the appellate suit.

A date in Redford’s court hasn’t been set yet, but Tingley said the discovery process is underway.    

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