[Cite as Atwood Regional Water & Sewer Dist. v. Smith, 2017-Ohio-206.]


                                      COURT OF APPEALS
                                 TUSCARAWAS COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT



ATWOOD REGIONAL WATER &                                   JUDGES:
SEWER DISTRICT                                            Hon. W. Scott Gwin, P. J.
                                                          Hon. John W. Wise, J.
        Plaintiff-Appellee                                Hon. Craig R. Baldwin, J.

-vs-                                                      Case No. 2016 AP 05 0026

MATTHEW P. SMITH, et al.
                                                          OPINION
        Defendants-Appellants




CHARACTER OF PROCEEDING:                              Civil Appeal from the Court of Common
                                                      Pleas, Case No. 2015 CV 06 0364


JUDGMENT:                                             Affirmed in Part; Reversed in Part
                                                      and Remanded


DATE OF JUDGMENT ENTRY:                               January 17, 2017



APPEARANCES:

For Plaintiff-Appellee                                For Defendants-Appellants

D. BRAD ZIMMERMAN                                     THOMAS H. HISRICH
FRANK J. ROSE                                         121 West Fourth Street
MICHAEL R. PUTERBAUGH                                 Dover, Ohio 44622
FITZPATRICK, ZIMMERMAN & ROSE
140 Fair Avenue, NW                                   MICHAEL BRAUNSTEIN
Post Office Box 1014                                  CLINTON P. STAHLER
New Philadelphia, Ohio 44663                          MATTHEW L. STRAYER
                                                      GOLDMAN & BRAUNSTEIN
                                                      500 South Front Street, Suite 1200
                                                      Columbus, Ohio 43215
Tuscarawas County, Case No. 2016 AP 05 0026                                              2

Wise, J.

       {¶1}   Defendants-Appellants Matthew P. Smith, Tammy S. Smith, Georgia M.

Gregory, Wayne Gregory, Richard Romer and Janet B. Romer appeal the April 11, 2016,

Judgment Entry entered by the Tuscarawas County Court of Common Pleas, finding in

favor of Plaintiff-Appellee Atwood Regional Water & Sewer District on its Cross-Claim and

Petition for Appropriation.

                                   PROCEDURAL HISTORY

       {¶2}   This action was originally commenced by Marathon Pipeline LLC filing its

Verified Petition for Appropriation of Easement in Real Property on June 22, 2015, against

Matthew P. Smith, Tammy S. Smith, Georgia M. Gregory, Janet B. Romer, Richard

Romer, Leonard Goldstock, Mary Ann Goldstock, Wayne Gregory, Atwood Regional

Water and Sewer District, and others.

       {¶3}   On August 24, 2015, the Defendant Atwood Regional Water & Sewer

District filed a Cross-Claim against Georgia and Wayne Gregory, Richard and Janet

Romer, and Matthew and Tammy Smith (Landowner Defendants).

       {¶4}   On September 25, 2015, the Landowner Defendants filed an answer to

Defendant Atwood Regional Water & Sewer District’s Third Party Cross-Claim and

Petition for Appropriation. Marathon Pipeline LLC voluntarily dismissed its Verified

Petition for Appropriation of Easement in Real Property on October 29, 2015.

       {¶5}   This case proceeded as Atwood Regional Water & Sewer District, Cross-

Claim Appellees, hereinafter referred to as Plaintiff-Appellee herein, versus Matthew P.

Smith, et al, Cross-Claim Appellants, hereinafter referred to as Defendants-Appellants

herein. This appeal was filed under the above caption for the ease of identification of the
Tuscarawas County, Case No. 2016 AP 05 0026                                             3


parties in this appeal, all of which proceedings were filed under the same case number

originally styled as Marathon Pipeline LLC vs. Matthew P, Smith et al., Case No.

2015CV060364.

                           STATEMENT OF THE FACTS AND CASE

       {¶6}   This case involves the taking of private lands for a public purpose under

R.C. §6119.011(A).

       {¶7}   Plaintiff-Appellee Atwood Regional Water & Sewer District runs sanitary

sewer systems in Tuscarawas and Carroll counties. (T. at 6-7). In 2014, Appellee, through

its board and superintendent, Larry Lloyd, determined that it needed property to properly

dispose of sewage sludge. (T at 8). Previously, Appellee had been dumping this sludge

on another nearby farm for over 30 years, but that arrangement was no longer working.

Appellee was having trouble coordinating its disposal around the farm's planting

schedule, and Appellee had to coordinate and pay for transportation of the sludge over

public roads. (T. at 7).

       {¶8}   Defendants-Appellants Matthew P. and Tammy S. Smith, Richard and

Janet Romer, and Wayne and Georgia Gregory are joint owners of 112 acres of vacant

land located on New Cumberland Road, Warren Township, Tuscarawas County, Ohio.

Appellants also own an adjacent parcel that is separated by a waterway. (T. at 39-40).

Appellants purchased said property for investment and devoted part of it to farmland,

timber growth, and recreational purposes.

       {¶9}   Appellants' property was the closest to the sewage plant, and it had no road

which needed to be crossed by Appellee in dumping sludge. (T. at 8).
Tuscarawas County, Case No. 2016 AP 05 0026                                                   4


        {¶10} Pursuant to statute, an offer was made to Appellants in 2014 to purchase

the subject parcel. (T. at 10). There was no response.

        {¶11} On or about May 18, 2015, Plaintiff-Appellee, through the Board for the

Atwood Regional Water & Sewer District passed a Resolution declared by necessity for

acquiring property for use as a sludge disposal site and approving the acquisition from

Defendants-Appellants of 112 acres of land. Pursuant to the Resolution, Defendants-

Appellants were notified of Plaintiff-Appellee's intention to appropriate all 112 acres of

land.

        {¶12} Negotiations for acquisition were not successful and Plaintiff- Appellee filed

its answer and cross-claim to appropriate the lands of Defendant-Appellants on August

24, 2015.

        {¶13} Between the time this case was commenced in June, 2015, and the

necessity hearing in October, 2015, Appellants sold an easement for a pipeline cutting

through the property to the original Plaintiff, Marathon Pipeline, LLC. (T. at 44). As a result,

Marathon withdrew from this case, and the parties were realigned.

        {¶14} In their Answer, filed September 25, 2015, Defendants-Appellants opposed

Plaintiff-Appellee's request for appropriation, asserted that Plaintiff-Appellee had not

demonstrated the requisite necessity for this appropriation, and included a request for

non-binding mediation and a jury demand.

        {¶15} On October 30, 2015, the matter came on for an evidentiary hearing for the

determination of necessity of the appropriation of Defendants-Appellants' land.

        {¶16} At the necessity hearing, Mr. Lloyd testified that the dumping of the sludge

on the neighboring property, rather than transporting it elsewhere, would save the
Tuscarawas County, Case No. 2016 AP 05 0026                                                  5


Appellee 83 percent of disposal costs. (T. at 6-8). Mr. Lloyd admitted that a portion of the

acreage may not be used for sludge disposal purposes at this time because it is wooded,

sloped, and landlocked. Mr. Lloyd estimated that 85 of the 112 acres were ready presently

for sludge disposal. (T. at 30). He stated that Appellee decided to request an appropriation

of the entire property in fairness to Appellants so that they would not be left with a smaller,

sloped, landlocked parcel. (T. at 31).

       {¶17} The parcel in question is part of a reclaimed strip mine. It is mostly tillable,

but a portion of the acreage that slopes to a creek is wooded. (T. at 30, 50).

       {¶18} Appellants' expert, Donald Dummermuth, testified that another process

could be used to dispose of the sludge by Appellee. (T. at 61-64). However, Mr.

Dummermuth admitted that he knew none of the specifics of Appellee's operation. Mr.

Dummermuth also admitted that he had worked as an engineer on other local sanitary

sewage projects over the past 20 years and had encouraged the same method being

proposed by Atwood in the instant case. (T. at 66).

       {¶19} After the evidence was presented, briefs were filed by Plaintiff-Appellee on

November 12, 2015, and on behalf of Defendants-Appellants on November 13, 2015.

       {¶20} On April 11, 2016, the trial court entered judgment wherein it made

numerous findings of law and fact, including findings that Plaintiff-Appellee's request for

the appropriation of the entire 112 acres is for a public use (Finding of Fact 15); that

Plaintiff-Appellee's decision to appropriate the subject property for disposal of the sewage

sludge through land application was reasonable and was not an abuse of discretion

(Finding of fact 16); and upon review of the relevant evidence in law, the trial court found
Tuscarawas County, Case No. 2016 AP 05 0026                                              6


that the requested taking of the subject property was necessary and for a public use, an

appropriation of the subject property was proper, and thus the appropriation was proper.

      {¶21} It is from this judgment entry Appellants appeal, raising the following

assignments of error:

                                   ASSIGNMENTS OF ERROR

      {¶22} “I. THE TRIAL COURT ERRED IN APPROVING AN APPROPRIATION OF

112 ACRES, WHERE EVEN THE APPROPRIATING AUTHORITY CONCEDED THAT

ONLY 85 ACRES COULD BE USED FOR A PURPORTED PUBLIC PURPOSE.

      {¶23} “II. THE TRIAL COURT ERRED IN FINDING THAT THE REQUESTED

TAKING WAS NECESSARY, WHERE FROM THE EVIDENCE, IT WAS UNKNOWN

WHETHER THE PURPORTED PUBLIC USE WAS A LEGALLY PERMITTED USE, AND

WHERE IT WAS UNKNOWN WHEN (IF EVER) SUCH PURPORTED PUBLIC USE

WOULD BEGIN.”

                                               I.

      {¶24} In their First Assignment of Error, Appellants argue that the trial court erred

in granting the appropriation of all 112 acres in this case. We disagree.

      {¶25} More specifically, Appellants argue that Appellee is improperly engaging in

excess condemnation because it only plans on using 85 of the 112 acres for land

application of the sewer sludge.

      {¶26} An excessive taking under Section 10, Article XVIII arises when the

appropriating municipality is actually seeking to take land that it knows will not be used

for the stated public purpose.
Tuscarawas County, Case No. 2016 AP 05 0026                                                    7

       {¶27} In E. Cleveland v. Nau, 124 Ohio St. 433, 179 N.E. 187, syllabus, the

Supreme Court held that “Section 10, article XVIII, of the Ohio Constitution, provides that

a municipality acquiring property for public use may, in furtherance of that use,

appropriate excess lands over that actually to be occupied by the improvement. Under

that article, a municipality is required, not only to define specifically in its legislation the

purpose of the appropriation, but it must also sustain such requirement by proof of its

necessity. While a court may not disturb the reasonable discretion exercised by municipal

authorities, as to the amount of excess property necessary to be appropriated in

furtherance of a public use, it will not sanction an arbitrary and unreasonable taking of

private property in furtherance of the contemplated use.”

       {¶28} The Supreme Court of Ohio cited Cincinnati v. Vester, 281 U.S. 439, 50

S.Ct. 360, 74 L.Ed. 950, as authority for the principle that “under section 10, article XVIII,

of our state Constitution, municipal legislation failing to define the purpose of excess

appropriations in definite and specific terms cannot be sustained, and that, in applying

the Fourteenth Amendment of the Federal Constitution to cases of excess appropriation

of private property, the question, What is a public use? is a judicial one. It follows a fortiori

that the city is required, not only to define specifically the purpose of the appropriation in

its legislation, but it is incumbent upon the city to sustain such requirement by proof of its

necessity, since the power granted to a municipality to appropriate excess property in

furtherance of a public use is only granted when the excess is reasonably needed for that

use.” Nau, 124 Ohio St. at 436–437, 179 N.E. 187. Springfield v. Gross, 164 Ohio App.3d

1, 2005-Ohio-5527, 840 N.E.2d 1123, ¶¶ 16-17 (2nd Dist.).
Tuscarawas County, Case No. 2016 AP 05 0026                                          8


      {¶29} Here, at the evidentiary hearing, the following exchange took place between

the trial court and Atwood’s Superintendent Larry Lloyd:

               THE COURT: Before Mr. Hervey, I just wanted, I didn't catch a

      couple foundation questions. How many acres are in the entire piece of

      property that is sought? ·

               THE WITNESS: There's a hundred and twelve and a few tenths

      acres.

               THE COURT: Okay. And how much of that acreage would be used

      for the land application?

               THE WITNESS: Well, from our evaluation of it, there's about eighty-

      five acres that would be appropriate for this under the systems that we've

      used. There might later on be other things that we could use, but right now,

      about eighty-five acres would be.

               THE COURT: So the balance of that, roughly - twenty-seven give or

      take acres, would be the, what has been referred to as the wetlands, the

      timber properties, or the area--

               THE WITNESS: Yeah, the wood, the wood lot and areas that are too

      steep - -

               THE COURT: Okay.

               THE WITNESS: --to handle that.

               THE COURT: So why would the Atwood Regional Water and Sewer

      District request to appropriate the land they're not going to use?
Tuscarawas County, Case No. 2016 AP 05 0026                                                9


               THE WITNESS: Well the primary reason is that we wanted to not

       have a residual for the, you know, where you couldn't "use, you couldn't get

       to it and so forth. So we just asked to take the entire property-rather than

       part of it.

       {¶30} In its Judgment Entry, the trial court, based on the foregoing, made the

following findings of facts:

               15. Atwood seeks to appropriate the entire property; however,

       Atwood can only use approximately 85 of the 112 acres for land application

       because Atwood cannot put sewage on the wetland or the timber/wooded

       areas of the Subject Property. Atwood intends to spread sewage only on

       the crop land area.

               16. Although Atwood cannot use all of the acres for land application,

       Atwood does not want to leave residual property that would be landlocked

       and would only be accessible by crossing a creek. The land that is unusable

       by Atwood for land application is contiguous to, but separated by a

       waterway, from other land owned by the Landowner Defendants.

       {¶31} Appellants argue that Appellee’s explanation for not wishing to leave a

portion of the parcel landlocked is not a proper justification for excess appropriation.

       {¶32} R.C. §163.09(B) states that, when an answer to such a petition denies the

necessity for the appropriation: “Upon those matters, the burden of proof is upon the

owner. A resolution or ordinance of the governing or controlling body, council, or board

of the agency declaring the necessity for the appropriation shall be prima-facie evidence
Tuscarawas County, Case No. 2016 AP 05 0026                                                 10


of that necessity in the absence of proof showing an abuse of discretion by the agency in

determining that necessity.

       {¶33} Here Appellee Atwood adopted a resolution of necessity for the

appropriation. Thus, under R.C. §163.09(B), the burden of proof fell upon Appellants

landowners to demonstrate that the appropriation was not necessary. In order to find that

there was no necessity for the appropriation, the trial court would have had to determine

that Appellee Atwood abused its discretion. In reviewing the trial court's conclusion that

there was no such abuse of discretion, we are limited to determining whether the decision

was supported by competent and credible evidence. City of Toledo v. Kim's Auto & Truck

Service, Inc., 6th Dist. No. L-02-1318, 2003-Ohio-5604, at ¶ 10; Erie-Ottawa-Sandusky

Regional Airport Authority v. Orris (Sept. 13, 1991), 6th Dist. No. 90-OT-039, at *4.

       {¶34} This Court reviewed the testimony given at the hearing and upon

consideration of the foregoing, we conclude that there was not competent, credible

evidence to support the trial court's finding of necessity as to the additional 27 acres. As

set forth above, Appellee’s witness admitted that Atwood only needs and plans on using

85 of the 112 acres for application of sewer sludge. The only reason it gave for taking the

additional 27 acres was to not leave an orphaned piece of property which would be land-

locked or inaccessible. Thus, Atwood does not intend to use the entire piece of property

for the stated public purpose, the disposal of sewer sludge, and is seeking excess

property over what is actually necessary to accomplish the stated purpose. Because the

purpose of the appropriation, as stated in Resolution No. 05-18-15, is to acquire property

for us as a sludge disposal site, the city failed to define specifically in its legislation the

purpose of the excess appropriation.
Tuscarawas County, Case No. 2016 AP 05 0026                                             11


       {¶35} We conclude that the city's failure to define the purpose of excess

appropriations in definite and specific terms is fatal to the proposed appropriation of the

excess 27 acres in accordance with Springfield v. Gross, 164 Ohio App.3d 1, 2005-Ohio-

5527, 840 N.E.2d 1123, Cincinnati v. Vester, 281 U.S. 439, 50 S.Ct. 360, 74 L.Ed. 950

and East Cleveland v. Nau, 124 Ohio St. 433, 179 N.E. 187 (1931). We therefore find that

the additional 27 acres amounted to an excess taking.

       {¶36} Appellants’ First Assignment of Error is sustained.

                                                II.

       {¶37} In their Second Assignment of Error, Appellants argue that the trial court

erred in finding that the taking was necessary. We disagree.

       {¶38} Based on disposition of Appellant’s first assignment of error, we will only be

reviewing the finding of necessity as it applies to the remaining 85 acres.

       {¶39} Appellants argue that because Appellee had not yet sought approval from

the Environmental Protection Agency, the claimed necessity is only speculative and that

Appellee cannot know that the public purpose will be achieved within a reasonable time

pursuant to R.C. §163.59(B).

       {¶40} Appellant cites no case law for its proposition that Appellee was required to

obtain EPA approval prior to commencing an appropriation action.

       {¶41} Upon review, this Court finds the Ninth District Court of Appeals in

Wadsworth v. Yannerilla, 170 Ohio App.3d 264, 2006-Ohio-6477, addressed this same

issue, wherein it held:

              This court concludes that Wadsworth was well within its

       constitutional authority to begin taking steps to appropriate land that it
Tuscarawas County, Case No. 2016 AP 05 0026                                                12


       deemed necessary to achieve its public purpose prior to obtaining OEPA

       approval for the well site. To conclude otherwise would result in the

       unnecessary handcuffing and stalling of an appropriating agency's

       exercise of its constitutional power.

       {¶42} The Yannerilla court also found that Wadsworth had met the

“reasonableness” requirements:

              R.C. 163.59(B) requires that the appropriation be for a “defined

       public purpose that is to be achieved in a defined and reasonable period of

       time.” (Emphasis added). To this court, it appears that the Revised Code

       contemplates reasonably prospective projects. In fact, a “public agency may

       ‘provide for not only its present but also its prospective necessities' ‘if it is

       not more than may in good faith be presumed necessary for future use

       within a reasonable time.’ ” Columbus City School Dist. Bd. of Edn. v.

       Holding Corp. of Ohio (1971), 29 Ohio App.2d 114, 124, 58 O.O.2d 165,

       278 N.E.2d 693, quoting 29A Corpus Juris Secundum 386, Section 92.

       {¶43} Based on the foregoing, we do not find that the trial court erred in making a

finding of necessity in this matter.
Tuscarawas County, Case No. 2016 AP 05 0026                                          13


      {¶44} Appellants’ Second Assignment of Error is overruled.

      {¶45} For the foregoing reasons, the judgment of the Court of Common Pleas,

Tuscarawas County, Ohio, is affirmed in part, reversed in part and remanded to the trial

court to amend its judgment entry to reflect the appropriation of only the 85 acres this

Court finds was supported by a finding of necessity.


By: Wise, J.

Gwin, P. J., and

Baldwin, J., concur.




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