The city of El Dorado has opted out of joining an effort by Union County to condemn a private drive within city limits.
The section of Griffith that runs alongside Mellor Park Mall between North West and Jefferson avenues has long been thought to be a public street.
However, that section of Griffith is a private drive and the westernmost section, which is adjacent to the north side of the mall and Walgreens, has been in poor condition for a number of years.
Over the past three years, the street and questions and concerns about who is responsible for maintaining it has particularly become the source of push-and-pull between the city, Union County and owners of the mall property, Dr. Surendra Agarwal and son Sajal -- who own Mellor Park Mall through holding companies Multi-State and Tri-State, based in Effingham, Illinois.
In 2020, the city -- working to address complaints from area residents about large potholes; a rough, uneven surface; damage to vehicles; and a sub-surface drainage problem along that portion of Griffith Street -- attempted to work out a deal with the Agarwals to repair the street and drainage infrastructure in the area.
The effort followed a lawsuit the property owners filed against the city in 2019.
According to the court filing, Multi-State Holdings contended that the city has an "apparent, implied easement traversing Mellor Park's property for the purpose of public stormwater drainage and should therefore be responsible for and undertake immediately the repair and maintenance of the storm drainage pipe."
In 1984, the city and the former mall owners, Doyle and Josephine Rogers, reached a license agreement to extend Griffith Street to Jefferson Avenue "to relieve the heavy traffic across the mall parking lot."
But the land was never officially deeded to the city, city officials have said.
"It's not city property," former Mayor Veronica Smith-Creer said in 2020. "It's something that, especially here lately, has been a situation that we get a lot of calls on, a lot of complaints about. There's nothing we can do."
Smith-Creer added that city officials searched for but could not find records or documents confirming if the city had ever accepted that section of Griffith.
Since the property is listed as a private drive, the city cannot maintain it, she explained.
Former Mayor Mike Dumas, now a member of the Union County Quorum Court, also weighed in on the matter in 2020, saying that during the terms of his mayoral predecessor, Larry Combs, his own city administration and subsequent mayors, the city assumed the responsibility of maintaining the surface of Griffith Street.
He also said the street was never formally dedicated to the city and he pointed to ongoing "friction" about the drainage infrastructure underneath the street.
"Because taxpayer money has been spent in the past, the city should maintain the street. We have always done that," Dumas explained.
In an answer to the 2019 lawsuit, former City Attorney Henry Kinslow denied that the city has "any apparent, implied easement."
"The problem has been developing for decades, and yet the [Multi-State Holdings] has allowed said problem to fester until it has created a crisis and is demanding the taxpayers of El Dorado to fix same," the response read.
Kinslow said that the city was willing to repair the street surface if the Agarwals paid for the drainage work underneath the street.
The El Dorado City Council authorized Smith-Creer and Kinslow to take a proposal to Multi-State and Tri-State that would call for the city and property owners to team up to repair that section of Griffith.
Per the proposal, the property owners were asked to build a sub-base and replace the storm water drainage pipe that extends east from a drop inlet, just west of Hobby Lobby.
After the the completion of the work and an inspection conducted and approved by the city, the property owners would turn the right-of-way -- 25 feet in both directions from the center line of the street -- over to the city.
The city would have then repaired and overlaid the street and accepted it into its street inventory for maintenance, meaning that the property owners would have relinquished ownership of the infrastructure or a permanent easement to the city.
However, negotiations broke down.
As the city awaited a response from the Agarwals, Union County Judge Mike Loftin gave the go-ahead for county street crews to repair the large potholes on Griffith near North West Avenue.
The work was done as a temporary fix at the request of the El Dorado-Union County Chamber of Commerce, Loftin said at the time.
The county did not discuss the repairs with the city beforehand.
Area residents welcomed the short-term repairs and while city officials said they understood the move by the county, the work stalled negotiations with the Agarwals.
Now, Union County is looking to condemn that section of Griffith Street, Mayor Paul Choate said.
During an El Dorado Water and Public Works Board meeting Feb. 15, Choate told the board, which is made up of city council members, that Loftin informed him of the county's plans for Griffith and laid out three options for the city: the county could pursue the action itself, the city could partner with the county in the action or take the lead on efforts to condemn the street.
Choate said he told Loftin he would bring the matter before the city council for discussion.
Council Member Willie McGhee asked Choate for a recommendation or an opinion on the matter and after some pressing, Choate said, "Well, he started this and I think the simplest way to look at this is ... how does (the Department of Public Works) feel about it?"
Council Member Judy Ward asked what a condemnation action would entail and Choate said that if the property is condemned by the county or the city, the applicable governing body would take possession and ownership of that section of Griffith, as well as responsibility for maintaining it.
In 2020, Loftin said the county did not plan any permanent repairs for the street, adding that the city typically takes on such work for streets that are within city limits.
The street, however, falls under the purview of the county, as do all public, surface streets within Union County.
City council members expressed concern about the potential costs of getting involved in the legal action.
"Just looking at it, I think that bill is going to be excessive. If everyone will remember back to when that very first started, Mr. Kinslow had a deal in place. He had been working with the owner's son and, basically, had an agreement reached," Council Member Vance Williamson said.
"And the county went and paved the road or filled some potholes in and so that agreement fell apart. Nothing against the county or anything like that but I don't want to be involved in it, financially," Williamson continued.
Ward pointed to the drainage issue and Robert Edmonds, director of public works, said that if the city were taking on the surface road only, then city officials could re-start negotiations with the property owners or pursue condemnation.
"The problem is the sub-surface drainage that's under the street," Edmonds said.
He said the area includes a storm drainage pipe that is six feet in diameter and approximately five feet long.
"That's failed and that's going to have to be replaced before the street's rebuilt, so you're probably looking at a $250,000, $300,000 drainage project before you build the street back," Edmonds explained.
He also said a spring water issue at the base of the south ingress/egress for Dairy Queen must also be addressed before construction could be begin.
Council Member Dianne Hammond made a motion to allow the county to pursue the matter, saying, "Judge Loftin started this so let him continue it and handle it himself because if you get too many people involved in it, it causes problems."
Condemnation versus seizure
Council Member Frank Hash seconded Hammond's motion and said he was not sure about the meaning of condemnation versus the seizure of the property.
"It's adverse possession. You're just condemning the corridor ... You're condemning it for the right of way," Edmonds explained.
Hash noted that when the city condemns a property, the city does not "necessarily become owner of the property."
Edmonds said the matter equates to eminent domain and Hash said there are more legalities involved with taking possession of a right of way than with condemning a property.
McGhee said the discussion stresses the need to "have a legal person at our meetings."
Council Member George Calloway Jr. agreed, asking, "Is there any reason we cannot have our lawyer here at our meetings?"
Ward said she would reach out to City Attorney Robert Rushing and ask him to attend the water and public works board meetings.
She also noted that the city would not have any legal obligations if the county moved forward with the condemnation process.
Moreover, Choate pointed out that the matter involves a storm drainage issue and that Rushing represents the city and local attorney Brian Ratcliff represents the El Dorado Water Utilities.
Loftin declined to comment on the matter, saying that he will release further information as the details are hammered out.