Village ends appeals process — Courts side with Struewings
- Published: July 3, 2014
A panel of three Ohio appeals court judges last month sided unanimously with Ken and Betheen Struewing in their case against the Village over rights to Village water and sewer services. Village Council announced the ruling, written May 2, at last week’s regular meeting, when Council President Karen Wintrow also announced that the Village would not pursue a second appeal in the lawsuit against the Village that has lasted five years.
The case over the Struewings’ rights to tap Village water and sewer service for their property outside village limits on Hyde Road has been in litigation since 2009. The Struewings hold an easement for service to the property, which they purchased from former Village Manager Howard Kahoe, and which the Village claims is illegitimate. A Greene County trial magistrate ruled in favor of the Struewings in 2012, followed by a second favorable ruling from Greene County Common Pleas Court judge later that year. The second district’s decision is the third ruling in favor of the Struewings.
Throughout the process, the Village has spent $144,000 in Village solicitors’ fees, and without solid assurance from their attorneys of success if they appealed again, the Village decided to cut its losses and “move on,” Council President Karen Wintrow said in an interview last week.
In a press release Council said it was “disappointed” in the higher court’s decision, which “means that the current owners of the Kahoe property may have multiple tap-ins to the Village’s sanitary sewer and water lines as the property develops, in direct conflict with Village policy to not extend utilities outside the corporate limits.”
In the press release, Council states that it fought the case partly because the Kahoe easement appeared to be a case of “self dealing,” as the easement was prepared by Kahoe to benefit Kahoe.
“The timing of the easement was suspect also in that even though the sewer line was completed across the Kahoe property in 1963, Kahoe did not cause the written deed of easement to be prepared, signed or recorded until 11 years later, the very day after he attended his last meeting as Village Manager.”
Struewing did not intend to develop the Kahoe property at the time he requested the taps, he said, because he values the principle of building from within the village first. But after what he perceives as the hardship the Village has caused him since 1995, when he proposed a residential development on a property inside Village limits, adjacent to the Kahoe farm, he now looks at the Kahoe plot differently.
“I had no intentions of developing it at the time, and though it’s still not likely, it’s now in the realm of possibilities,” Struewing said in an interview this week.
According to the Miami Township zoning regulations, Struewing’s 34-acre property, zoned residential R1B, could support about 85 homes if roads were installed, according to a figure Struewing was asked to provide to the courts. Those are homes that could utilize Village services, such as parks, police and other community amenities, but not be beholden to Village taxes. And with the advantage of Village water and sewer service, residents would no longer be limited to wells and septic systems, which necessitate a much lower density than what the Kahoe property could now support, Wintrow said in an interview this week. (Residential zones in the township are limited to one home per acre, but if municipal sewer and water are available, the township allows a minimum lot size of 10,000 square feet, according to Miami Township Zoning Inspector Richard Zopf.)
In addition, Wintrow said, if there are homes located close to but not inside the village, the demand for infill development, which generates tax revenue for the municipality, could go down, thereby denying the village a means of increasing its residential tax base.
“It’s a growth and development philosophy that recognizes that community utility services have a value beyond simply the product itself,” Wintrow said. “It’s important to protect our utilities, our borders and our tax base — extending utilities outside our borders is not long-term viable for the village.”
Protecting village borders may be the growth philosophy now, but when the Kahoe easement was granted in 1974, in exchange for allowing the Village to install public water and sewer mains across his property (and thereby support residential growth in the southeast corner of the village), providing utility taps was a common form of compensation, according to the Second District’s decision. And according to Struewing, the fact that utility lines run in a zig-zag pattern across several properties outside village limits and south of Hyde Road is an indication that the village at the time intended for growth to occur at the southern edge of town, Struewing said this week.
According to the appeals court’s decision, Ohio’s self-dealing laws do not apply when the services are necessary for the municipality, they are unobtainable elsewhere for the same or lower cost, the transaction is commensurate with others of similar nature, and the transaction is transparent and objective — all stipulations the courts found this case met.
In the conclusion, the decision states: “Based upon the facts presented in this matter it is apparent that Howard Kahoe was not self-dealing in this case. Council was aware that easements were necessary to keep the cost of the South Side Sewer Project down to a manageable level. Further it was customary for easements to be given to the Village in return for tap-ins. Moreover, it was necessary that part of the Kahoe property be used for the project. Finally, the easement was prepared and filed by the Village Solicitor.”
The appeals court also upheld the magistrate’s ruling entitling the Struewings to $10,000 in compensation for a well they had to dig to provide water to a home they were renovating on the Kahoe property. (The home, now owned by Dorothy and Mark Roosevelt, is currently connected to Village water because of a threat of groundwater contamination from nearby YSI).
At a recent Village Council meeting, Wintrow stated that the conflict between the Village and the Struewings was “not personal.” But to Ken Struewing, the conflict has had an extremely personal effect on him and his family, he said this week. But through it all, he said, he remains faithful to Yellow Springs because of deep generational connection to the families whose homes he and his family have built in the area for over 50 years.
The complete decision by the Second District court can be viewed at http://www.supremecourt.ohio.gov/rod/docs/pdf/2/2014/2014-ohio-1864.pdf .