Village lawsuit to soon go to trial
- Published: May 19, 2011
After two years of discussion and official mediation, the legal dispute between the Village of Yellow Springs and a local property owner over the extension of Village water service to a property on Hyde Road has not been resolved. Last month a Greene County judge set a trial date for the case to be heard in Common Pleas court on July 21 and 22.
Miami Township residents Kenneth and Betheen Struewing initiated the complaint against the Village in 2009 after the Village denied a request for water service extension to their 34-acre property, formerly known as the Kahoe farm, which sits just outside village limits at the corner of Hyde and Spillan Roads. The Village denied the request based on its policy not to extend municipal water and sewer service to properties outside the village unless the request is due to a chemical contamination or health concern, according to Village Solicitor John Chambers.
That same year the Struewings presented an easement from 1974 authorizing the extension of a sewer line through their property in exchange for the opportunity to utilize two Village water and sewer taps as well as unlimited additional taps to that property at the property owner’s expense. Though the sewer line had been installed around 1964 to serve the growing residential population south of Allen Street, the easement was not filed until 1974, the same month that then-property owner, Village Manager Howard Kahoe, retired from the Village. It was signed by Kahoe and his wife, Margaret, and a Greene County notary.
The Village contends that it never authorized the easement, particularly with the unusual conditions attached, which according to the lawsuit, the Village claims was fraudulent. But the Struewings believe that the conditions of the easement are binding, especially since the Kahoes appeared to have received no compensation for the Village’s long-time use of a critical sewer line that serves a large portion of the village. In addition, according to Ken Struewing, the Kahoes agreed to provide about 62 percent of the cost to install the sewer line, which Chambers, speaking for the Village this week, denied, saying that the Village paid for the entire project.
While Chambers agreed that the Village does often compensate property owners for easements placed on their land, and there is no record of compensation for the Kahoes, the terms of the Kahoe easement do not follow Village policy. And in the context of the year the easement was recorded, 1974, according to Chambers, Village Council was considering another request for sanitary sewer extension outside the village to the church just west of what is now the Center for Business and Education. Council agreed to provide just one tap-in to the church, but when the church requested unlimited tap-ins, the whole deal fell through, Chambers said.
The Village is willing to offer the Struewings a “fair market rate” for the easement, as Chambers stated in a letter to the News in 2009. And during mediation, the Village has considered the idea of allowing just the two tap-ins. Additionally, if the Struewings were to annex the property, then water extension would be automatic.
“If Mr. Struewing were willing to accept just the [two] tap-in[s], the lawsuit would have been settled,” Chambers said. “But Mr. Struewing wants to enforce all the terms of the easement,” he added, referring to the unlimited additional tap-ins.
According to the case file, the Struewings initially asked for just the two tap-ins, but after the Village denied that request and “forced their hand legally,” Ken said the couple is now asking for the full rights of the easement.
The Village does extend services to 30 customers outside Village limits, mostly for water and three for sewer, according to Village Manager Mark Cundiff. There are at least four areas including Morris Bean, Golden Willow Court and the Outdoor Education Center, all of which had contaminated water supplies, and the Nickoson’s King Street property, which is in Miami Township but surrounded on four sides by Village property. The Kahoe farm is currently served by a well near the YSI contamination plume, which could be at risk for contamination, the Struewings said.
According to Township zoning regulations, if the Struewing property were to be developed, it would technically be allowed one home per acre, or 34 homes. If it were annexed, the density could be even greater. But Ken Struewing said last week that he doesn’t want to annex the Kahoe farm. He already owns eight ½-acre residential lots and a 10-acre parcel located inside village limits directly north of the Kahoe land, which he has tried to develop twice in the past — once as a mixed-density development that the Village denied in the 1990s, and later as a standard residential plat, which was stalled by the housing market decline.
The two parties have one more opportunity to mediate the dispute in early July, before the case goes to trial. So far, the Village has spent about $38,000 on the lawsuit.