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Judge again favors Vienna homeowner in sewer assessment case
By Ed Runyan
WARREN
For the second time in several months, a local judge has ruled in favor of a property owner who fought against paying a sewer assessment on the grounds that it was unfair.
Judge Thomas Gysegem of Warren Municipal Court ruled in December on behalf of Barbara George, 67, of Mary Ellen Drive in Vienna Township, who was charged with a misdemeanor offense by the Trumbull County Board of Health for not paying for a sewer-line extension near a house she owns on Warren-Sharon Road in Howland Township.
In 2008, Universal Development of Liberty extended a sewer line near the Old Avalon Golf Course on Warren-Sharon Road east under state Route 11 and into its Avalon Creek apartment complex on the other side of Route 11.
State law says George must tie into the sewer line because it runs past her house, but George argued in 2009, when the matter first came up, that the fees — $65,000 for the Howland home and another one nearby in Vienna Township — were unfair.
She said it’s unfair because she’s being forced to pay for improvements that do not benefit her enough to justify the cost. She also told The Vindicator in 2009 that she didn’t have the money to pay the sewer costs. “I don’t have a dollar in the bank. I am on Social Security and disability,” she said. The two homes are valued at about $130,000 combined.
In his judgment entry, Judge Gysegem wrote that he was finding George not guilty of the charge “as the origin of the tie-in requirement emanated from an extension of a sewer line by a private residence. To find otherwise would constitute an impermissible nonpublic taking under the Constitution.”
He added the case demonstrates that “the time for remedial legislative action is long past due” to avoid similar situations in the future.
Judge Gysegem was not available to further explain his reasons for the decision, but it’s not the first time officials have argued that it’s unfair to force property owners to spend large sums of money to tie into a sewer line against their will.
A magistrate in county common pleas court issued a decision this summer that still can be overturned or modified by Judge W. Wyatt McKay that said residents of the Sable Creek neighborhood in Mineral Ridge and on King-Graves Road in Vienna don’t have to pay for sewers installed in their neighborhoods because they were not properly notified of them.
Atty. Frank Bodor, who represented the property owners, said the law requiring property owners to tie into sewers constructed by a private developer is unconstitutional for “vagueness and lack of due process.”
Jim Brutz, an assistant county prosecutor who represents the county’s sanitary engineer’s office, said this week the Sable Creek dispute and one involving a property owner on Belmont Avenue in Liberty just north of Tibbetts-Wick Road indicate that the sanitary engineer’s office should make a greater effort in the future to ensure property owners are notified of impending sewer costs.
“There is a problem. I grant them that,” Brutz said, adding that the sanitary engineer’s office, which has some oversight in these types of projects, is trying to put new safeguards into effect.
“All we do is review the plans to make sure it’s sound, because when it’s done, we own it,” Brutz said of such projects. “Our obligation is to make sure the system meets our requirements.”
One thing the sanitary engineer’s office is working on now is “suggestions to the private developer” for how to avoid losing court cases involving sewer lines they have installed.
In the case of Barbara George, her refusal to pay for the sewer lines and tie into the sewer system means lost reimbursement to the developer, not the sanitary engineer’s office.
The sanitary engineer’s office operates the sewer line, so it’s losing George as a customer, but the county isn’t suffering any other financial loss as a result of her failure to tie in.
Though the cost to George is more than $50,000 for two properties, an average property owner forced to tie into a sewer by a contractor has only about 100 feet of frontage, which costs around $4,000, plus another $2,000 to $3,000 for tie-in costs, Brutz said. The $4,000 goes to the contractor. The tie in costs are paid to the county.
State Rep. Sean O’Brien of Brookfield, D-63rd, said he has been working with the director of the Ohio Environmental Protection Agency, Scott Nally, in recent months and expects legislation to be forthcoming in the next few months to address it.
He said he doesn’t know what form it will take, but it might have notification procedures in it and could possibly allow a resident to opt out of a sewer project.
He added that there is Republican support for the idea. “I think we’ll have a bipartisan bill that will address it,” he said.
State Sen. Capri Cafaro of Liberty, D-32nd, said she also believes there’s enough of a problem to look into it further to see if something can be done.
“It’s a perfect opportunity to address it,” she said. “I think it’s a discussion worth having.”
With sewer projects that involve a petition being circulated by property owners, who then learn the cost before the project begins, “at least there’s a process there,” Cafaro said.