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Judge considers Struewing suit

“It’s an interesting case,” was one of the last statements made by Greene County Magistrate Raymond Dundes at the close of the trial between the Village of Yellow Springs and Miami Township property owners Ken and Betheen Struewing. The trial over Village utility access rights to the Struewings’ property on the south end of the town began Thursday, July 21, and went through the following morning at the Greene County courthouse. Attorneys for both sides agreed to allow three weeks for written briefs and rebuttal by the end of August, after which the magistrate said he will make a decision “as soon as possible while the case is still fresh in my mind.”

The Struewings initiated the lawsuit against the Village in 2009 after the Village denied their request to tap into Village water and sanitary sewer for their 42-acre property known as the Kahoe farm, located at the corner of Hyde and Spillan roads, just outside the Village limits. At the heart of last week’s bench trial was the predicament both the Village and the Struewings face because of an easement document drawn up by former Village Manager Howard Kahoe that clearly gives the Struewings municipal sewer and water access, but which the Village says it never approved. Eight witnesses testified both in the courtroom and in absentia, including former Village Council members, a former Village manager, a Village record keeper and a Greene County title officer. And both attorneys entered much evidence in the form of Village Council minutes and property maps from the periods of time when the sewer line was installed on the Struewings’ property in 1963, and when the easement authorizing the line was drafted in 1974.

The Struewings’ lawyer Arthur Hollencamp argued that the Struewings purchased the 42 acres partly in order to refurbish and resell the two homes on the property. But Struewing has been unable to service one of the two homes with water — the second home, now owned by Mark and Dorothy Roosevelt, has been granted a water tap-in — after several attempts to dig a new well on the property failed potability tests, and Greene County prohibits properties with municipal water access from installing leach fields. It is unjust, Hollencamp said, to leave the Struewings with no sewer access for a preexisting house. Either the easement is validated and the property receives Village utilities, or the easement is invalidated and the Struewings get the option of installing a leach field, he said.

In addition, according to Hollencamp’s logic, the Village routinely issues easements for utility lines that cross private property, and often compensate property owners for allowing the easements across their land. Yet, the Village can find no easement for the line that runs across the Struewings’ property other than the one in question, which therefore, must be authentic, Hollencamp implied during the trial. If the easement isn’t authentic, then the Village is accusing its former manager and its attorney of fraud, which requires “clear and convincing evidence” to be proven in a court of law, which Hollencamp said was not possible in this case.

But Village attorney Terence Fague, arguing for Village Solicitor John Chambers, based his case on the fact that the Village had no knowledge or record that the easement was ever approved by Council. The facts that the easement was produced by Kahoe for a property that Kahoe owned at the time, and filed 11 years after the utility line was installed, makes it unusual. The fact that Village Council has no record in the meeting minutes of having seen or approved it and the fact that it allows in exchange for the easement not just one water and sewer tap but unlimited water and sewer taps, makes it suspect.

In particular, at the time of the easement’s filing, the Village had denied utility tap rights to at least two parties whose properties were located just outside the Village and attempted to draft a policy of not extending utility access to properties outside the Village boundaries. The likelihood of the Village allowing unlimited taps to a property outside the Village limits at that time would have been quite low, and Kahoe would have known that, Fague argued.

“The deal that Kahoe gave himself was a sweetheart deal that increased the value of his property,” Fague argued, adding that the property is in Miami Township, and its future residents would be “enjoying the advantage of Village utilities” while paying its taxes to the Township. “What was done [in the easement] in 1974 is improper and illegal, and the Village is not bound by its terms.”

However, Hollencamp countered, the easement is signed by not just Kahoe, but also a Greene County notary and Philip Aultman, then Village Solicitor, who knew about the Village’s policies at the time and whose reputation, like Kahoe’s, was highly regarded, witnesses Paul Webb (former Council member) and Bruce Rickenbach (former Village manager) both testified. The likelihood of both public servants colluding against the Village’s interests is very low, Hollencamp argued. He also stated in his closing argument that it was unreasonable to argue that Kahoe had acted in his own self interest because “he died without getting the advantage of his dealings,” he said, referring to the fact that Kahoe never accessed Village water or sewer for his property.

Hollencamp then called property owner Ken Struewing to the stand and spent several hours questioning him about his intent as a property owner. In addition to the 42-acre Kahoe farm, Struewing owns two adjacent properties inside the Village boundaries on which he proposed mixed-use development plans. The plat, which had two egresses, was denied twice by Village planners, who said it needed a third egress. Struewing purchased the Kahoe farm so he could install a third egress, he said, adding that he did not intend to develop the Kahoe property. In fact, in response to Hollencamp’s questions, Struewing acknowledged that according to his bank’s appraisers, demand for speculative building is currently so low that the “best and highest use” for the Kahoe farm is to hold it until it can be resold. In addition, Struewing stated, developing the Kahoe farm would lower the value of the homes he had originally proposed for the plat inside the Village limits.

Upon cross examination, Fague brought out the point that, according to Struewing’s testimony, the Struewings purchased the 42-acre Kahoe property in 2005 for $585,000 and sold one of the homes on six acres for $580,000, countering the argument that Struewing was in danger of losing the entire value of his investment.

At the trial’s closing on Friday, Magistrate Dundes offered to accept briefs from both sides until Aug. 15, after which he would allow two weeks for responses from both sides. A decision will be rendered as quickly as possible after that, he said. According to Chambers, if the sides do not accept the magistrate’s decision, they could appeal to a Greene County judge.

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