Judges find in favor of ODNR in MWCD appeals case
September 9, 2008
Judges of the 5th District Court of Appeals have reversed a decision of the lower court that holds jurisdiction over the Muskingum Watershed Conservancy District (MWCD) and permitted assessments on property owned by the Ohio Department of Natural Resources (ODNR).
The appeals court ruled that the Ohio Revised Code does not unambiguously waive the state's sovereign immunity from conservancy assessments, so that properties owned by the ODNR - a department of state government - are not subject to assessments levied by a conservancy district, said James J. Pringle, legal counsel to the MWCD.
"The MWCD appreciates the careful and thoughtful consideration that the judges of the appeals court took in reaching this decision," Pringle said. "The court's decision will be reviewed with the MWCD Board of Directors for a decision as to any further action by the district."
The ODNR is one of eight property owners that filed appeals to their projected assessments to be levied by the MWCD, according to Pringle. Nearly 500,000 parcels of property in the watershed - an 18-county region that drains to the Muskingum River, the state's largest wholly-contained watershed - are subject to the assessment, which could begin as early as next year. The MWCD projects that around $10 million annually will be generated by the assessment, with nearly 95 percent of the property owners paying the minimum assessment of $12 per year.
The MWCD estimates that ODNR would have paid a total of about $39,000 per year in assessments for the land it owns in various counties in the watershed, Pringle said.
"The legal issues applicable to the ODNR appeal do not apply to the other pending appeals," Pringle said.
In August, judges of the appeals court dismissed a case filed by a Stark County attorney on behalf of his mother that claimed the Conservancy Court - the common pleas court that holds jurisdiction over the MWCD - violated the state's open meetings law. The decision filed by the appeals court denied attorney William Walker's claim and held that the Conservancy Court had the right to confer in private as part of the deliberation process. The Conservancy Court consists of one common pleas court judge from each of the 18 counties of jurisdiction in the MWCD region.
Oral arguments in five other consolidated cases also were held in August before the appeals court and decisions are pending in those cases.
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.
Arguments in the eighth case, filed by the Tripodi Family Trust for property located in Tuscarawas County, were held earlier this summer and a decision also is pending in that case.
Assessments are provided for in Ohio's conservancy district laws and the MWCD has not levied an assessment in its 75-year history. 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 the 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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