Drew Whiting is well known in Erie as the CEO of the Erie Downtown Development Corp., a business-backed group that has invested more than $100 million to transform the city's urban core.

But Whiting, who was hired last July, is also an Erie business owner. He's the controlling partner of Tenth and State LLC, which has been working to develop a Five Iron golf simulator franchise on the southwest corner of the intersection of West Tenth and State streets.

Owners had planned to open by mid-April, but missed that deadline because of flooding in the basement of the building. Whiting blames the city's ongoing streetscape improvement project and says the city not only failed to respond to his concerns, but also retaliated by refusing to issue an occupancy permit after he complained.

Five Iron eventually opened in late May, but Whiting says the delay cost the business more than $100,000, including lost profits, wasted marketing expenses, additional debt service costs and the cost of hiring three employees before they were needed.

On Friday, Tenth and State LLC and Swing Project Erie LLC, two entities controlled by Whiting and his partner, Chase Rogan, filed a federal lawsuit in the Western District of Pennsylvania, naming as defendants the City of Erie; Erie Water Works; city building inspector Scott Heitzenrater; Andy Zimmerman, manager of the city's bureau of code enforcement; and Jason Sayers, director of public works.

The lawsuit, which claims retaliation in violation of the First Amendment, was filed under the Civil Rights Act of 1983, which provides a cause for action for the "deprivation of any rights, privileges, or immunities secured by the Constitution and the laws” of the United States.

What the lawsuit claims

The lawsuit, filed by Erie lawyer John Mizner, makes the connection between the building's flooded basement and the city's ongoing streetscape project on State Street that includes new sidewalks, trees and drainage systems.

The lawsuit highlights several events that are reported to have taken place this past October when construction workers removed underground synthetic liners from around the storm sewer systems.

According to the lawsuit, Sayers, who was city engineer at the time, included several flaws in his design for the streetscape project and failed to recognize that the plaintiff's building had a basement.

The lawsuit also says that the soil cells, which are considered stormwater holding facilities, violate the city's own stormwater management ordinance, which restricts the placement of such facilities within 25 feet of a building.

According to the lawsuit, a small amount of water was observed on the building's basement wall shortly after the new sidewalk and soil cells were installed in October.

While that water delayed the electrical work for about a month, the lawsuit claims conditions deteriorated after a significant rainfall in February prompted "large amounts of water" to enter the basement in an area with no history of water problems.

An independent lab determined the water flowing into the basement was most likely runoff from the streets. Tenth and State reported that finding to the city and waited for its response.

Todd Bruno, a field supervisor for the city, replied that the city planned no further action and to contact the city solicitor with other questions.

The lawsuit includes excerpts from Whiting's emails, including one to the city solicitor's office. It read, in part: "If Mr. Bruno’s email directing me to counsel doesn’t look enough like deferred acknowledgement of responsibility, additional testing, which I’m also paying for, should serve as additional confirmation in short order."

On March 5, less than a week after that exchange, Tenth and State was informed that a building occupancy permit could not be issued because the sidewalk leading up to the building's main State Street entrance was "excessively sloped in violation of the applicable code."

But who was to blame for that "excessive slope?"

According to the lawsuit, "This was the very sidewalk which the City itself had installed, only five months before, without any input or control by Tenth and State as to their specifications or slope."

Erie Water Works is also a defendant

A smaller portion of the lawsuit is devoted to Tenth and State's claims against Erie Water Works.

Although testing suggested that floodwaters came from the streets and not from the water supply, the lawsuit notes that Erie Water Works performed limited excavation of the sidewalk to expand the water lines serving the building.

According to the lawsuit: "During that work, water could be visually observed flowing into the open areas of excavation from the surrounding soil.

"Moreover, when Erie Water Works turned off water to the area for the purpose of installing the new piping to the building, the water flowing into the open excavation noticeably decreased."

Unconstitutional retaliation?

The language of the lawsuit, the content of emails that support the case and interviews with the Erie Times-News all seem to speak to Whiting's frustration.

The lawsuit began by quoting Mayor Joe Schember's published comments in the Erie Times-News, writing that he has worked "to support transformational projects throughout Erie."

Tenth and State contend the city's handling of its problems suggest otherwise.

According to the lawsuit, "Mere weeks before Plaintiff Swing Project Erie was set to open to the public, after months and millions of dollars spent renovating a building on a highly-visible corner in downtown Erie, it was side-tracked twice: first by the negligent misdirection of water into its basement, and second, by retaliation by city employees after the Plaintiffs dared to ask the City for help resolving the issue."

Taking the mayor to task

In the introduction to the lawsuit, Tenth and State concludes: "No one doubts the Mayor's commitment to economic development and job creation. Unfortunately, either Mayor Schember’s aspiration 'to support transformational projects throughout Erie' does not bear the weight to hold his own team accountable to carry out this directive, or he has failed to make his staff understand what it means in the first place."

In an interview with the Erie Times-News, Mizner didn't back away from laying blame at Schember's feet.

"Mayor Schember's claim about having a 'team' committed to improve the quality of life for businesses is not borne out in reality," Mizner said. "Erie Insurance and its corporate partners have done an incredible job of transforming Erie's downtown. But they cannot be expected to do it all. So, it is deeply troubling that when others invest their private dollars to continue the transformation, and the city causes them significant economic harm."

'They will do it to anyone'

Whiting was quick to stress in an interview that he filed a legal action as a private business owner, not as the leader of a highly visible organization that has led Erie's revitalization efforts.

Inevitably, though, the lawsuit seems likely to affect the relationship between the city and one of its most visible developers. Whiting said he spoke in advance about his plans to file a lawsuit with Tim NeCastro, who is both CEO of Erie Insurance and president of the EDDC's board of directors.

In an email to the Erie Times-News, Whiting explained his rationale for filing the lawsuit, which seeks in excess of $75,000

"My concern here is less about dollars lost in my own business and more the precedent that is being set if we let this stand," he said.

Whiting said he hopes the lawsuit will help the city become more responsive to the needs of businesses in the future.

"I view it as if they are willing to screw with me, they will do it to anybody. And I might be the last person you want to screw with," he said. "My goal is to make sure you don't have the opportunity to do this again."

In email correspondence with the city, Whiting made his concerns clear.

"I can be very reasonable and forgiving when I perceive good faith on the other side. This is not good faith," he wrote. "This is the classic bureaucratic approach —short-term decision making motivated by self-preservation. Unfortunately, this approach always ends up far more costly to taxpayers, than an action-driven accountability-based approach."

An attempted settlement

Whiting said he informed Schember during a meeting in April that Tenth and State would likely file a lawsuit if the two parties couldn't come to a resolution.

More recently, Whiting said Tenth and State reached out to Travelers Insurance, the city's insurance carrier, presenting the company with its requested settlement. Whiting said the proposed settlement was for more than $100,000.

Contacted Monday, Schember said he was unable to comment on lawsuits.

However he wrote, "since I’ve been mayor, my team and I have always been supportive of new and existing businesses in the City of Erie. We are committed to being pro-business with a focus on growing the local economy.”

Original Article by: Jim Martin at jmartin@timesnews.com.