Court favors Struewings
- Published: April 26, 2012
Last week a Greene County Common Pleas Court magistrate ruled in favor of Ken and Betheen Struewing in their case against the Village over property rights. The decision orders the Village to allow the Struewings at least two Village utility taps for their property at the corner of Spillan and Hyde Roads and to compensate the property owners for the cost of a well they installed on the property last year.
After a long night of executive sessions at the Village Council meeting Monday, Council voted to file objections to the magistrate’s decision, according to Village Manager Laura Curliss on Tuesday. Though she declined to describe the nature of the objections, the deadline for filing with the court is this Friday, April 20, after which Judge Michael Buckwalter will choose to either adopt the decision as is or modify it based on the objections.
The ruling is the first in the case, which Village attorneys indicated during the hearing last summer they could appeal if the decision was not in their favor.
Ken Struewing said on Monday that the affirmative ruling was good news, but that he was waiting for a response from Village attorneys.
The Struewings filed the case against the Village in 2009, after the Village denied their request for a water and sewer tap for their 42-acre property located just outside Village limits. The Village justified the denial citing its policy not to extend municipal utilities beyond its borders. But the Struewing property is unique in that its former owner, former Village Manager Howard Kahoe, granted the Village an easement in 1963 to run public sewer lines across the property to serve the southern end of the village. In exchange, according to an easement agreement signed in 1974 by both Kahoe and Village officials, the Village agreed to furnish at least two Village utility taps to the property.
In its defense, the Village claimed that the easement agreement was invalid because the Village had no record of having approved the easement. The Village also claimed that former manager Kahoe had written the easement in his own favor in a case of self-dealing.
But in his ruling, dated April 6, Magistrate Raymond Dundes states that there is a lack of evidence to show that the easement was invalid. First, 50 years of Council minutes show that Village Council never approved any of the easement documents, so the absence of a recorded approval of Kahoe’s easement is not unusual. Second, because it was common practice for the Village to compensate property owners with utility taps in exchange for utility easements, and none was ever demonstrated for Kahoe, the taps are still owed. And third, the defense failed to show evidence that Kahoe, who was described by a former Council member as honest and dedicated to the Village, drafted the easement illegally.
“Based upon the facts presented in this matter it is apparent that Howard Kahoe was not self-dealing in this case,” the decision reads. “The Village cannot reap the benefit of the Easement, but deny its obligation to perform under its terms. Defendant posits many claims to convince this Court that the Easement is invalid, but has not persuaded this Court that a deal is not a deal,” the decision later reads.
Ultimately, the decision upholds the validity of the Kahoe easement. According to the terms of the easement, the property is allowed one free water and sewer tap for each of the two parcels (the Struewing property is divided into two parcels) and the “right to make further taps shall be allowed when charges are paid that are commensurate with similar charges levied elsewhere in the Village…” While the News has formerly reported that the Struewing property could be developed using Village utility lines, bank appraisers have advised that due to the current real estate market, the most valuable use of the property is to resell it.
In addition to validating the easement, the magistrate’s decision entitles the Struewings to the $10,244 cost they bore from a water well installation two years ago. The well was necessary because the Village denied the tap the Struewings needed to sell a home on the property to the family of Antioch College President Mark Roosevelt. The decision also orders the Village to pay the post-judgement interest that accrues from the time of judgement until court costs are fully paid.
To date, the Village has spent $73,200 on legal defense for the case, according to Curliss.