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Northeast Ohio Regional Sewer District v. Bath Township

Court of Appeals of Ohio, Eighth District

September 26, 2013

NORTHEAST OHIO REGIONAL SEWER DISTRICT PLAINTIFF-APPELLEE CROSS-APPELLANT
v.
BATH TOWNSHIP, OHIO, ET AL. DEFENDANTS-APPELLANTS CROSS-APPELLEES

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-714945.

ATTORNEYS FOR APPELLANTS/CROSS-APPELLEES.

For the city of Beachwood, city of Bedford Heights, city of Cleveland Heights, village of Glenwillow, city of Independence, city of Lyndhurst, city of North Royalton, village of Oakwood, city of Olmsted Falls, and city of Strongsville John H. Gibbon City of Cleveland Heights Director of Law, Christopher L. Gibbon Heather R. Baldwin Vlasuk Walter & Haverfield L.L.P. The Tower at Erieview.

For the city of Brecksville David J. Matty City of Brecksville Director of Law Shana A. Samson Justin Whelan Matty, Henrikson & Greve.

For the city of Lyndhurst Paul T. Murphy City of Lyndhurst Director of Law Paul T. Murphy Co., L.P.A.

ATTORNEYS FOR APPELLEE/CROSS-APPELLANT

For N.E.O.R.S.D. Mark I. Wallach Thacker Martinsek L.P.A., James F. Lang Molly A. Drake Matthew J. Kucharson Calfee, Halter & Griswold L.L.P.

Also listed:

For Bath Township, Ohio, et al. Sherri Bevan Walsh Summit County Prosecutor Mary Ann Kovach Michael D. Todd, Marvin D. Evans Summit County Assistant Prosecuting Attorneys.

For the city of Beachwood, et al. Stephen M. O'Bryan Taft, Stettinius & Hollister L.L.P., Rebecca K. Schaltenbrand Ice Miller L.L.P.

For the city of Bedford Kenneth A. Schuman City of Bedford Director of Law, Charles A. Bakula.

For the city of Bedford Heights Ross S. Cirincione Law Director City of Bedford Heights.

For the city of Berea Gregory M. Sponseller.

For the village of Boston Heights Constance A. Hesske, Charles T. Riehl Walter & Haverfield, L.L.P. The Tower at Erieview.

For the city of Brecksville, et al. David J. Matty City of Brecksville Director of Law Justin Whelan Erin Hooper Shana A. Samson Matty, Henrikson & Greve.

For the city of Broadview Heights Vince Ruffa City of Broadview Heights Director of Law Ann C. Oakar Oakar & Ruffa.

For the city of Brook Park Neal M. Jamison City of Brook Park Director of Law Largent, Berry, Preston & Jamison Co.

For the city of Brooklyn Scott Claussen Director of Law City of Brooklyn.

For the village of Brooklyn Heights Jerome E. Dowling Brooklyn Heights Director of Law.

For the city of Cleveland Barbara A. Langhenry Director of Law Catherine Ma Shirley A. Tomasello Assistant Directors of Law Julianne Kurdila City of Cleveland City Hall.

For the city of Cleveland Heights William R. Hanna Walter & Haverfield L.L.P. The Tower at Erieview.

For Columbia Township Dennis Will Lorain County Prosecutor Gerald A. Innes Assistant County Prosecutor.

For the village of Cuyahoga Heights, et al. Jonathan D. Greenberg Cuyahoga Heights Director of Law Aimee W. Lane Walter & Haverfield L.L.P. The Tower at Erieview.

For the city of East Cleveland Ronald K. Riley Director of Law City of East Cleveland.

For the city of Euclid L. Christopher Frey Director of Law City of Euclid.

For the city of Garfield Heights Tim Riley City of Garfield Heights Director of Law.

Kevin P. Weiler Assistant Law Director City of Garfield Heights.

For the village of Glenwillow Stephen M. Klonowski Village of Glenwillow Director of Law Reddy, Grau & Meek.

For the city of Highland Heights Timothy G. Paluf Highland Heights Director of Law.

For the village of Highland Hills Thomas P. O'Donnell Village of Highland Hills Law Director.

For the city of Hudson, et al. R. Todd Hunt City of Hudson City Solicitor Walter & Haverfield The Tower at Erieview.

For the city of Independence Gregory J. O'Brien City of Independence Director of Law Taft, Stettinius & Hollister.

For the city of Lakewood Kevin M. Butler Director of Law City of Lakewood.

For the village of Linndale George T. Simon Grendell & Simon Co., L.P.A.

For the city of Lyndhurst Paul T. Murphy City of Lyndhurst Director of Law Paul T. Murphy Co., L.P.A., David M. Maistros.

For the city of Macedonia, et al. Joseph W. Diemert, Jr. City of Macedonia Law Director Mark V. Guiderti Thomas M. Hanculak Joseph W. Diemert, Jr. & Assoc.

For the city of Maple Heights, et al. John J. Montello City of Maple Heights Law Director Blair N. Melling Melling, Melling & Bell.

For the city of Mayfield Heights L. Bryan Carr The Carr Law Firm.

For Mayfield Village Joseph W. Diemert, Jr. Mayfield Village Director of Law Diane A. Calta Assistant Law Director Joseph W. Diemert, Jr. & Assoc.

For the city of Middleburg Heights Peter H. Hull Law Director City of Middleburg Heights.

For the village of Moreland Hills, et al. Margaret A. Cannon Village of Moreland Hills Director of Law Walter & Haverfield L.L.P., Rebecca K. Schaltenbrand Ice Miller L.L.P.

For the village of Newburgh Heights Luke F. McConville Village of Newburgh Heights Director of Law Waldheger - Coyne.

For the village North Randall Leonard A. Spremulli Village of North Randall Director of Law.

For the city of North Royalton Thomas A. Kelly City of North Royalton Law Director Donna M. Vozar Assistant Law Director City of North Royalton.

For the village of Northfield Bradric T. Bryan Village of Northfield Law Director Goodwin, Bryan & S chill.

For the village of Oakwood Stephen M. Klonowski Village of Oakwood Law Director Reddy, Grau & Meek.

For Olmsted Township Olmsted Township c/o Jim Carr, Trustee.

For Orange Village Stephen L. Byron Orange Village Director of Law Walter & Haverfield L.L.P.

For the city of Parma Timothy G. Dobeck Director of Law City of Parma.

For the city of Parma Heights Marcia E. Hurt C. Anthony Stavole Stavole & Miller.

For the city of Pepper Pike Stephen L. Byron Law Director City of Pepper Pike.

For the village of Richfield, et al. William R. Hanna Village of Richfield Director of Law Charles T. Riehl Walter & Haverfield L.L.P. The Tower at Erieview.

For the city of Richmond Heights R. Todd Hunt City of Richmond Heights Director of Law Walter & Haverfield L.L.P.

For Sagamore Hills Township Jeffrey J. Snell Sagamore Hills Township Director of Law.

For the city of Seven Hills Richard Pignatiello Law Director City of Seven Hills.

For the city of Shaker Heights William M. Ondrey Gruber City of Shaker Heights Director of Law Margaret Anne Cannon City of Shaker Heights.

For the city of Solon David J. Matty Erin Hooper Shana A. Samson Matty, Henrikson & Greve.

For the city of South Euclid Michael P. Lograsso Law Director City of South Euclid.

For the city of Strongsville Kenneth Kraus Law Director City of Strongsville, Daniel J. Kolick Kolick & Kondzer Westlake Centre.

For the city of Twinsburg David M. Maistros Law Director City of Twinsburg.

For the city of University Heights Anthony Coyne Director of Law Kenneth J. Fisher City of University Heights.

For the village of Valley View David A. Lambros Village of Valley View Prosecutor Largent, Berry, Preston & Jamison Co.

For the village of Walton Hills Blair N. Melling Village of Walton Hills Solicitor Melling, Melling & Bell.

For the city of Warrensville Heights Theresa Beasley Law Director Sean P. Ruffin City of Warrensville Heights.

For the city of Willoughby Hills Thomas G. Lobe City of Willoughby Hills Law Director Thomas G. Lobe Co., L.P.A.

For Intervening Property Owners Jordan B. Berns Sheldon Berns Timothy J. Duff Benjamin J. Ockner Gary F. Werner Berns, Ockner & Greenberger.

For Intervenor the Cleveland Metropolitan School District Board of Education Brian E. Ambrosia Adrian D. Thompson Taft, Stettinius & Hollister.

For Intervenors Bishop Richard G. Lennon, et al. Michael E. Cicero Matthew T. Fitzsimmons, III L. James Juliano, Jr. Nicola, Gudbranson & Cooper Republic Bldg., Suite

For Intervenor Cleveland Branch National Association for the Advancement of Colored People William H. Smith William H. Smith & Associates.

For Amici Curiae

For C.O.R.D. JohnB. Albers Eric J. Luckage Albers & Albers.

For N.A.C.W.A., et al. Nathan Gardner-Andrews National Association of Clean Water Agencies.

BEFORE: S. Gallagher, J., Jones, P.J., and Rocco, J.

JOURNAL ENTRY AND OPINION

SEAN C. GALLAGHER, J.

(¶ 1} Defendants-appellants/cross-appellees appeal (1) the trial court's judgment denying their motion to dismiss; (2) the trial court's judgment granting partial summary judgment in favor of plaintiff-appellee/cross-appellant; and (3) the trial court's opinion issued after a bench trial and the supplemental judgment entry.

(¶2} Plaintiff-appellee/cross-appellant cross-appeals from partial findings in the trial court's opinion issued after the bench trial.[1]

I. The Parties

(¶3} Plaintiff-appellee/cross-appellant is the Northeast Ohio Regional Sewer District ("the Sewer District" or "the District").

(¶ 4} Of the 56 member communities in the Sewer District named in the action ("member communities"), 11 appealing communities ("appealing communities") are among the defendants-appellants/cross-appellees that have appeared and litigated in this appeal.[2] Defendants-appellants/cross-appellees also consist of a group of intervening property owners located in the Sewer District (collectively "appellants").[3]

II. Background

(¶5} In 1972, by judgment of the Cuyahoga County Court of Common Pleas and pursuant to R.C. Chapter 6119, the Sewer District was officially organized and declared a political subdivision of the state of Ohio.[4] The necessity for the Sewer District arose from "the increase in the amount of wastewater in the Metropolitan Cleveland area resulting from the increase in population and the expansion of industry * * *." Exhibit A, ¶ 3, 1972 Judgment.

(¶ 6} The Sewer District was formed for "the establishment of a total waste water control system for the collection, treatment and disposal of waste water within and without the District." Id. at ¶ 4. To effectuate that purpose, the Sewer District was charged with, among other things, planning, financing, constructing, operating, and controlling "waste water treatment and disposal facilities, major interceptor sewers, all sewer regulator systems and devices, weirs, retaining basins, storm handling facilities, and all other water pollution control facilities of the District." Id. at ¶ 5(c).

(¶7} The Sewer District's initial plan of operation was amended by various petitions and court orders, culminating in a 1975 court order that constitutes the Sewer District's Charter ("Charter").[5] Under the Charter, the Sewer District

shall have authority pursuant to Chapter 6119 of the Ohio Revised Code to plan, finance, construct, maintain, operate, and regulate local sewerage collection facilities and systems within the District, including both storm and sanitary sewer systems.

Exhibit A, ¶ 5(m), 1975 Judgment.

(¶ 8} Exhibit A to the Charter recognizes the territory to be included in the Sewer District was to include "that portion of Cuyahoga County presently served, or mainly capable of being served by gravity, by sewers leading to the three wastewater treatment plants in the City of Cleveland plus the proposed Cuyahoga Valley Interceptor Sewer." Sewer District membership arose based upon the consenting member communities' need to connect to and use those facilities. The member communities include some from Cuyahoga, Summit, Lorain, and Lake Counties.

(¶ 9} Under the Charter, the plan for operation of the Sewer District entails the construction, operation, and financing of District and local facilities.

The District will plan, finance, construct, operate and control wastewater treatment and disposal facilities, major interceptor sewers, all sewer regulator systems and devices, weirs, retaining basins, storm water handling facilities, and all other water pollution control facilities of the District * *

Exhibit A, ¶ 5(c), 1975 Judgment. The Charter provides the Sewer District's Board of Trustees with authority to determine rates for sewage treatment and disposal in accordance with its terms. Id. at ¶ 5(f).

(¶ 10} With regard to local sewerage collection facilities, the Charter provides:

The District shall not assume ownership of any local sewerage collection facilities and systems nor shall the District assume responsibility or incur any liability for the planning, financing, construction, operation, maintenance, or repair of any local sewerage collection facilities and systems unless * * * specifically provided for in a written agreement between the District and the respective local community.

Id. at 15(m).

(¶ 11} The Charter provides the Sewer District with regulatory authority over "all local sewerage collections facilities and systems in the District, including both storm and sanitary sewer systems." Id. at ¶ 5(m)(l). However, the Sewer District only has the authority to "assume the responsibility for operating, maintaining, and repairing local sewerage collection facilities when requested to do so by a local community and upon mutually agreeable terms." Id. at ¶ 5(m)(2). Likewise, the District is only authorized to construct local sewerage collection facilities and systems "when requested to do so by a local community and upon mutually agreeable terms." Id. at ¶ 5(m)(4). With regard to planning local sewerage collection facilities and systems, the Charter further charged the Sewer District with developing a capital improvement plan:

The District shall develop a detailed integrated capital improvement plan for regional management of wastewater collection and storm drainage designed to identify a capital improvement program for the solution of all inter-community drainage problems (both storm and sanitary) in the District.

Id. at ¶ 5(m)(3).

(¶ 12} For financing local sewerage collection facilities and systems, "[t]he method of financing particular projects shall be agreed to between the District and the respective local communities at the time the project is undertaken by the District." Id. at ¶ 5(m)(5).

III. Facts

(¶13} In January 2010, the Sewer District's Board of Trustees amended the District's Code of Regulations by enacting Title V, "Stormwater Management Code, " which created a "Regional Stormwater Management Program" ("the RSM Program"). Under Title V, the Board defined the scope of its RSM Program, which included "planning, financing, design, improvement, construction, inspection, monitoring, maintenance, operation and regulation" of its own defined "Regional Stormwater System." Title V, Section 5.0501. The definition of "Regional Stormwater System" is expansively written to include the following:

The entire system of watercourses, stormwater conveyance structures, and Stormwater Control Measures in the Sewer District's service area that are owned and/or operated by the Sewer District or over which the Sewer District has right of use for the management of stormwater, including both naturally occurring and constructed facilities. The Regional Stormwater System shall generally include those watercourses, stormwater conveyance structures, and Stormwater Control Measures receiving drainage from three hundred (300) acres of land or more. The Sewer District shall maintain a map of the Regional Stormwater System that shall serve as the official delineation of such system.

Id. at Section 5.0218.

(¶ 14} The stated purpose of Title V is to "establish the Regional Stormwater Management Program through which the District and each Member Community served by the Regional Stormwater Management Program shall work in a cooperative manner to address stormwater management problems." Id. at Section 5.0303. In broad terms, the RSM Program consists of the following:

All activities necessary to operate, maintain, improve, administer, and provide Stormwater Management of the Regional Stormwater System and to facilitate and integrate activities that benefit and improve watershed conditions across the Sewer District's service area.

Id. at Section 5.0219.

(¶ 15} As stated in Title V, the RSM Program was needed because

(a) Flooding is a significant threat to public and private property.
(b) Streambank erosion is a significant threat to public and private property, water quality, wildlife, and aquatic and terrestrial habitats.
(c) Inadequate stormwater management damages the water resources of Northeast Ohio, impairing the ability of these waters to sustain ecological and aquatic systems.
(d) A watershed-based approach to stormwater management is necessary to effectively and efficiently plan, design, construct, and maintain long-term solutions to stormwater problems.
(e) An adequate funding source is necessary to provide a watershed-based approach to stormwater management.
(f) Impervious surface on a given parcel relates to the volume, rate, and/or pollutant loading of stormwater runoff discharged from that parcel.
(g) The measurement of impervious surface that causes stormwater runoff provides an equitable and adequate basis for a system of fees for funding a watershed-based approach to stormwater management.

Id. at Section 5.0301.

(¶ 16} The Sewer District intends to fund projects under the RSM Program through the imposition of a stormwater fee. The fee is based on the square feet of a property's impervious surfaces, which are defined in Title V as follows:

Developed surfaces that either prevent or significantly slow the infiltration of water into the ground compared to the manner that such water entered the ground prior to development, or which cause water to run off in greater quantities or at an increased rate of flow than that present prior to development. Impervious surfaces shall include, without limitation, rooftops, traveled gravel areas, asphalt or concrete paved areas, private access roads, driveways and parking lots, and patio areas.

Id. at Section 5.0210.

(ΒΆ 17} "Based on analysis by the District of impervious surfaces on parcels throughout the District's service area, an impervious surface of three thousand (3, 000) square feet shall be designated as one (1) Equivalent ...


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