CHARLESTON, W.Va. — The state Department of Transportation is being sued by the bankrupt Tara Retail Group over financial responsibility for the Crossings Mall culvert bridge.
“Their argument is going to be the state technically owns the property: ‘They knew about it and they let us put it in,'” said Kanawha County Commision President Kent Carper, who is an informed observer in the ongoing Crossings Mall proceedings because of the county’s interest in having a healthy business climate.
MORE: Read the lawsuit over the bridge at Crossings Mall
After a year of fighting in court, Crossings Mall just reopened in late July after a new bridge was built. The culvert bridge that led to the mall property was destroyed in the flooding of summer 2016.
Tara Retail Group, which owns the property, filed for Chapter 11 bankruptcy this past Jan. 24.
The managing member of Tara Retail Group is Bill Abruzzino, who is also the managing member in the bankruptcy case of the related Emerald Coast Realty, which owns the La Quinta Inn and Suites at Crossings Mall.
Abruzzino is also a manager of Mountain Blue Hotel Group, which is the defendant in a lawsuit over a $15 million investment in a Morgantown hotel. That lawsuit has made news because Senator Joe Manchin and longtime aide Larry Puccio are listed as investors in the hotel, although they’ve denied the investment.
At Crossings Mall, over the year that the bridge remained washed away, businesses were dormant and an estimated 500 people were put out of work. The two largest tenants are Kmart and Kroger.
Reconstruction finally began this past spring after a financing agreement was reached in bankruptcy court.
Bridge contractor David Alvarez of Applied Construction Solutions agreed to front the costs of construction in exchange for priority status as a creditor. The estimated cost was $1,112,664, which included interest and legal expenses for the contractor.
MORE: Read the motion to approve financing to rebuild the bridge at Crossings Mall.
The lawsuit that was filed June 23 in Kanawha Circuit Court is an attempt by Tara Retail Group to make the Department of Transportation responsible for repaying the contractor.
DOH is the owner of the right-of-way where the bridge is constructed.
The lawsuit names the Department of Transportation, the Division of Highways and Tom Smith in his capacity as Secretary of Transportation. Highways spokeswoman Carrie Jones said the agency had no comment about the lawsuit.
Some of the claims in the lawsuit go back 30 years. Abruzzino and his wife Rebecca bought the property at Elkview to develop Crossings Mall on Dec. 10, 1988.
“That whole thing is such a sordid tale. You have to go back over 20 years ago when the original culvert corrugated pipe thing was put in the creek,” Carper said.
Carper added, “That original culvert never should have been put in the creek to begin with. For lack of a better word it was an orifice. It restricted the flow. It couldn’t handle a flood. It needed a real bridge.”
The lawsuit cites — and includes as an exhibit — a May 17, 1988 memorandum from the state Department of Highways that discusses the possibility of liability for the agency.
The Department of Highways is the owner (noncontrolled access right of way) of that particular portion of land abutting the southern limits of the development known as “The Crossings of Elkview” … It is our recommendation that the area occupied by the structure and the north approach be declared “excess land” and offered for sale at public auction. This effectively would remove the maintenance responsibility from the Department of Highways for the developer. This should not be done until the culvert design has been approved.
Tara says it tried to get the Highways department to pay for reconstruction of the bridge following its destruction in last summer’s flooding. The company also claims that lack of access to Crossings Mall and its businesses led to Tara’s bankruptcy, which is ongoing.
Tara claims to be entitled to compensation because, it contends, the Highways actions constitute a taking of its property.
“As a result of Tara’s impaired access to its property constituting The Crossings, Tara has incurred and continues to incur, monetary damages including, but not necessarily limited to, its loss of property, lost profits, lost rents and substantial costs and expenses that Tara has incurred and will continue to incur, to repair and reconstruct The Crossings Access Road pursuant to the Bankruptcy Court Order.”
The case has been assigned to Judge Jennifer Bailey with an anticipated trial date of January 2018.
As the lawsuit and bankruptcy proceed, Carper says there’s still potential at Crossings Mall.
“There’s been a lot of money putting Humpty Dumpty together back there. It is viable. It’s location, location, location. It’s busy and viable,” Carper said.
He gave Abruzzino credit — despite the current troubles — for having the vision to develop the property in the first place.
“The Crossings Mall location is a tremendous location,” Carper said. “He and others had the insight to put it there.”