Village objects to court ruling in tap-in case
- Published: May 3, 2012
On Friday, April 20, the Village of Yellow Springs filed objections to the first ruling by a Greene County magistrate who decided in favor of Ken and Betheen Struewing in their case against the Village. The magistrate’s ruling was filed in Greene County Common Pleas Court on April 2, and the objections were filed on the deadline exactly 14 business days later.
The Struewings initiated the case in 2009 over the right to connect their property in Miami Township to Village water and sewer service. The objections to the ruling focus on an easement conferring the right to construct a public utility line in exchange for utility access, a document that the Village claims is invalid.
To become final, the magistrate’s decision must be adopted by Judge Michael Buckwalter, who will either adopt the ruling as written or modify the decision based on the objections, according to a court clerk. After the final ruling, which should take place within a month or two, the parties have 30 days to appeal.
The Struewings sued the Village after being denied access to municipal water and sanitary sewer access for their property formerly known as the Kahoe farm, located at the corner of Spillan and Hyde Roads just outside village limits. The Struewings needed the taps to serve a home they had renovated on the property, and they believed they had a right to the taps because of a 1974 easement document promising the owners of the property at least one water and sewer tap, and “unlimited” future taps. The easement agreement was purportedly drafted by former Village Manager Howard Kahoe as compensation for a public sewer line the Village had constructed in 1963 across the property, then owned by the Kahoe family, to serve the southern end of the village.
In his ruling this month, Magistrate Raymond Dundes wrote that there was lack of evidence to show that the easement drafted by Kahoe was invalid. While the Village had no record of having approved the easement, evidence showed that the Village rarely made a formality of adopting its easements. Also according to the ruling, the Village commonly compensated property owners for allowing public easements across their properties, and additionally, the magistrate saw no proof that Kahoe had acted illegally in drafting the easement.
But in the case objections, filed by Village attorneys John Chambers and Terry Fague of Coolidge Wall law firm in Dayton, the Village claims that “the easement is illegal.” According to the Village, by agreeing to the easement, Kahoe, who was Village manager through the 1960s and 70s, violated the Ohio Revised Code by having “an interest in the profits or benefits of a public contract entered into by or for the use of the…government agency…with which he is connected.”
The Village also claims that the easement’s promise of “unlimited additional taps” was not only “highly unusual and in itself evidence of self-enrichment,” but also “unreasonable,” given that there was no evidence to show that the line across the property could sustain unlimited taps. And the fact that only a sewer line runs across the Kahoe property would seem to indicate that there was only need for a sewer easement, not one for water, and the easement therefore would not grant both water and sewer taps in exchange, Village attorneys say.
The defense claims that had the easement been legal, the Village would have formally approved the easement agreement at the time of construction. The sewer project received federal funding, which requires that all easements from property owners be certified prior to the receipt of funds. Yet the Village has no record of having approved the easement either at the time of construction or 15 years later, at the time the easement was signed.
Also according to the objection, because testimony suggests that since the value of the property increased after the sewer line was installed, perhaps the “compensation” to the Kahoes was gotten in the increased value of the property after utility installation. Additionally, according to the objections, the statute of limitations on either objecting to the sewer installation or receiving compensation for it has passed.
After several months of mediation last spring, the case between the Struewings and the Village went to trial in July 2011. The April ruling is the first in the case.