In its answer to a lawsuit brought by the owner of Crossings Mall, the West Virginia Department of Transportation argues that Tara Retail had an obligation to repair its washed-out bridge and that it acknowledged that responsibility.
The state Department of Transportation has filed a motion to dismiss the lawsuit brought by Tara Retail Group, the bankrupt owner of Crossings Mall.
Tara's lawsuit, filed last week in Kanawha County Circuit Court, alleges the state owns the right of way to the mall and therefore should have been responsible for repairing its access bridge.
The corporation, 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.
DOT's motion to dismiss the lawsuit argues that Tara Retail applied to the DOT and received encroachment permits that require the company to repair the bridge that connects the mall to County Route 45. The encroachment permits are meant to give private property owners or tenants permission to encroach on the department's right of way, the motion says.
"The mere issuance of a permit by DOH to encroach or intrude upon DOH's right of way does not shift ownership or maintenance of the encroachment to DOH but merely gives the private property owner or tenant a legal means to obtain a suitable access and creates a legal duty for the property owner or tenant to maintain and repair such access," the motion says.
The encroachment permits allow Tara to build an access to County Route 45 and requires the corporation to maintain its access to the route, the Department of Transportation is arguing.
DOT's motion also says that in January 2016, six months before the June flood that washed out the bridge, Tara told its lender that the bridge needed to be replaced and sought funds to do the replacement.
"If Tara knew that its private culvert bridge needed to be replaced in January 2016 and it truly believed that DOH was responsible for replacing Tara's bridge why did Tara not petition this Court before the historic June 2016 flood for the relief that is now seeks rather than wait for its private culvert bridge to be destroyed, its access to be eliminated, families to be displaced, and commerce to be irreparably disrupted in the Kanawha Valley?
"The answers are quite simple - Tara knew that it and it alone had the mandatory, non-delegable duty to construct, maintain and repair its approach and private bridge that connects to County Route 45," the motion says.
The DOT also argues that Tara Retail is taking inconsistent positions in other court proceedings.
Tara's lawsuit names the state Department of Transportation, division of highways and Thomas Smith, the commissioner of highways and secretary of transportation.
Reach Lori Kersey at lori.kersey@wvgazettemail.com, 304-348-1240 or follow @LoriKerseyWV on Twitter.