Lawsuit claims Xenia cited investor for building damaged by city

The owners of the former Fulmer’s grocery store in Xenia have filed suit against the city, claiming the demolition of the old Kmart building damaged what is now an exterior wall of the Fulmer’s building.

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The lawsuit was filed Dec. 6 in the U. S. District Court for the Southern District of Ohio. Blue Rock Investments LLC and Boymel Family LLC are being represented by Columbus-based attorney Joseph Miller, from the law firm of Vorys Sayer Seymour and Pease LLP.

The 53-page lawsuit alleges that in tearing down the former Kmart building, the city damaged the wall that separated Kmart from the former Fulmer’s store.

“The City’s demolition undermined the Fulmer’s Building’s foundation and left holes in the Fulmer’s Building’s exterior wall,” the suit claims. “As a direct result of the negligent demolition, the cold winter air froze water in the building’s fire suppression system, burst pipes, and caused thousands of dollars of damage,” according to the lawsuit.

RELATED: Ex-Kmart building demolition paves way for $5M development

The suit further claims that the city tried to buy the Fulmer’s building “at a distressed price,” and when that effort failed, the city issued citations against Blue Rock Investments for zoning code violations because of the damaged wall.

“Thereafter, the city’s fire department issued citations against Blue Rock stemming from the damage to the fire suppression system caused by the city’s demolition,” according to the lawsuit.

When contacted to get the city’s response, City Spokesman Lee Warren issued a brief statement.

“To my knowledge, the city law department has not reviewed it in its entirety but when it does will respond accordingly via the proper legal channels. It’s also important to note however, that per current procedure, the city does not opine on pending legal litigation.”

The city’s redevelopment plans call for reconfiguring the downtown area, including creating a new street that would require all or part of the Fulmer’s building to be removed, according to the lawsuit.

Blue Rock is seeking relief in unspecified “compensatory and punitive damages,” plus attorney fees and any other actions deemed by the court to be just and appropriate.

Miller said his clients are still calculating the costs for repairs to restore the building, but it’s expected to cost several hundred thousands of dollars.

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“Since they continue to deny any liability and are using the city’s powers against us, we had to file this lawsuit,” Miller said.

The Kmart store on West Main Street in Xenia closed in 2014, resulting in the loss of 57 jobs, according to a Jan. 21, 2014 article by this news organization. It was part of the company’s efforts to reduce operating costs, and another store in northeast Ohio was shuttered around the same time, according to the article.

The store was built in the 1970s and was part of the city’s redevelopment following the deadly 1974 tornado. Even before Kmart’s closure and subsequent demolition, the city was working to partner with investors to bring new development to the 5.6-acre site, which city officials view as key to revitalizing the downtown area.

When demolition work began in November 2016, Warren, the city’s spokesman, called the project “the dawn of a new day in Xenia,” as potential redevelopment, with a mix of retailers and restaurants, was on the horizon.

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