Appeals Court hears cases, issues one decision in MWCD plan
September 4, 2008
The 5th District Court of Appeals has issued a decision in one case and has heard the five remaining cases of some 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.
Judges of the appeals court dismissed a case filed by a Massillon attorney on behalf of his mother that claimed the Conservancy Court that holds jurisdiction over the MWCD violated the state's open meetings law. The decision filed by the 5th District Court of Appeals denied attorney William Walker's claim that the Conservancy Court met illegally in executive session, citing that common pleas courts have the right to confer in private as part of the deliberation process. The Conservancy Court, which consists of one common pleas court judge from each of the 18 counties of jurisdiction in the MWCD region, is a court of common pleas according to Ohio law.
Oral arguments in five other consolidated cases were held recently before the appeals court. A total of eight cases were appealed to the 5th District Court of Appeals.
The five appeals cases 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 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 as the mandated local financial sponsor on maintenance and rehabilitation projects for the dams in the Muskingum River Watershed.
Judges of the appeals court said they will issue decisions in writing for those cases at a later date.
Assessments are provided for in Ohio's conservancy district laws and the MWCD has not levied an assessment in its 75-year history. The plan calls for assessments to be levied on more than 500,000 parcels of property in the Muskingum River Watershed beginning in 2009, with nearly 95 percent of those properties assessed at a rate of $12 per year.
Arguments were made earlier this summer before the appeals court judges in the two other cases, filed by the Ohio Department of Natural Resources (ODNR) and the Tripodi Family Trust in Tuscarawas County. Decisions in those cases also are pending.
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. More details about the MWCD is available at www.mwcd.org.
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