Court of Appeals hears cases in MWCD assessment plan
June 23, 2008
The cases of eight property owners objecting to a plan by the Muskingum Watershed Conservancy District (MWCD) to provide for maintenance and rehabilitation of the region's flood-reduction system were presented recently before judges of the 5th District Court of Appeals.
The property owners have appealed decisions of the Conservancy Court to permit the MWCD to levy assessments against their properties as part of the MWCD's plan to maintain reservoirs and participate with the federal government on maintenance and rehabilitation projects for the dams in the Muskingum River Watershed. Assessments are provided for in Ohio's conservancy district laws.
Judges of the appeals court said they will issue decisions in writing for three cases and ordered that the other five appeals be consolidated into one brief and scheduled for argument at a later date.
Arguments were made before the judges in the cases of the Ohio Department of Natural Resources (ODNR) and the Tripodi Family Trust in Tuscarawas County. ODNR attorneys argued that state-owned land should be exempt from assessments such as that proposed by the MWCD. ODNR owns land that is subject to assessment by the MWCD. Attorneys for the MWCD explained that state-owned property is included in the law dealing with conservancy district assessments and that specific exemptions from assessments have been approved by the Ohio General Assembly through the years, with land owned by ODNR not included in those exemptions.
New Philadelphia attorney Joseph Tripodi, representing the Tripodi Family Trust, asserted that the Conservancy Court cannot offer a fair and impartial review of exceptions filed to the MWCD assessment because of the type of duties to be conducted by the Court as outlined in the conservancy district law. Attorneys for the MWCD provided details about the Conservancy Court's responsibilities under the law and noted that the Ohio Supreme Court previously approved the statutory framework of conservancy courts.
Arguments were not heard in a case filed by attorney William Walker of Massillon on behalf of his mother, N. Kathryn Walker, because the Walkers waived their right to present an oral argument. Their case will be decided based on the documents filed with the appeals court, according to the judges.
The five appeals cases to be consolidated into one argument brief and schedule for a hearing later this year are for attorney and property owner David L. Blackwell and property owners Joseph R. Carlisle Jr., the Dean F. Levengood Revocable Trust, Scott Levengood and Anthony B. Zadra. Blackwell, the Levengoods and Zadra own property in Tuscarawas County and Carlisle is a property owner in Carroll County.
The MWCD, a political subdivision of the state of Ohio, was organized in 1933 to develop and implement a plan to reduce flooding and conserve water for public uses in the Muskingum River Watershed. The MWCD is a partner with the U. S. Army Corps of Engineers (USACE) in the operation of the system of dams and reservoirs in the watershed, as the USACE operates the dams and the MWCD manages much of the reservoir areas behind the dams.
The USACE has said that it could spend up to $621 million on maintenance and rehabilitation at four dams - Beach City, Bolivar, Dover and Mohawk - and Zoar levee to address safety concerns over the next several years beginning in 2009. The MWCD will serve as the mandated non-federal local sponsor for the projects, with its share of the total cost ranging from an estimated $93.2 million to $123.1 million. The MWCD has proposed to pay for its share through an assessment of property owners in the watershed according to Ohio law.
Since their original construction, the dams and reservoirs have prevented more than $7 billion worth of potential property damage from flooding, according to the USACE.
The 18 counties wholly or partially contained in the MWCD jurisdiction are Ashland, Belmont, Carroll, Coshocton, Guernsey, Holmes, Harrison, Knox, Licking, Morgan, Muskingum, Noble, Richland, Stark, Summit, Tuscarawas, Wayne and Washington.
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