The bankrupt owner of Crossings Mall in Elkview is suing the West Virginia Department of Transportation alleging the state owns the right of way to the mall and therefore should have been responsible for repairing its access bridge, which washed out during the June 2016 flood.
Tara Retail Group's lawsuit, filed last week in Kanawha County Circuit Court, says the agency has "a legal duty and responsibility" to repair the right of way, including the bridge that provides access to the mall.
The lawsuit cites a May 17, 1988 office memo reportedly from the Department of Highways which notes in part that: "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 to the developer."
But, according to the lawsuit, despite the department's desire to abandon the right of way, the Federal Highway Administration refused to grant such approval.
Tara Retail Group, headed by developer Bill Abruzzino, filed for Chapter 11 bankruptcy earlier this year. In April, a federal bankruptcy judge authorized the mall owner to get post-petition financing to reconstruct the bridge. The bridge's contractor, David Alvarez, of Applied Construction solutions, agreed to pay for the bridge's construction upfront in exchange of being a priority creditor in the bankruptcy case. The new bridge opened late last month, providing public access to the mall for the first time since the flood.
The lawsuit alleges that the DOT's refusal to repair the bridge "constitutes a taking of Tara's property under the Fifth Amendment" and that the corporation is entitled to compensation.
Kanawha Commission President Kent Carper said the question of the right of way is something the courts will have to decide. He noted that the commission is not listed as a defendant and said it shouldn't be.
Carper said the problem with the situation from the beginning has been that those involved wanted to fight about who was responsible and no one wanted to fix the bridge.
"I'm glad the bridge is up and people have their jobs back," he said.
A Department of Transportation spokeswoman declined to comment Tuesday.
Reach Lori Kersey at lori.kersey@wvgazettemail.com, 304-348-1240 or follow @LoriKerseyWV on Twitter.