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One Neighborhood Condominium Association v. City of Columbus

Court of Appeals of Ohio, Tenth District

June 8, 2017

One Neighborhood Condominium Association, Plaintiff-Appellant,
v.
The City of Columbus, Department of Public Utilities, Division of Water, Defendant-Appellee.

         APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 15CV-5194

          On Brief: Brunner Quinn, and Rick L. Brunner, for appellant. Argued: Rick L. Brunner.

          On brief: Richard C. Pfeiffer, Jr., City Attorney, Westley Phillips and Sarah L. Harrell, for appellee. Argued: Westley Phillips.

          DECISION

          TYACK, P.J.

         {¶ 1} Appellant, One Neighborhood Condominium Association ("One Neighborhood"), appeals from the September 16, 2016 decision and entry of the Franklin County Court of Common Pleas affirming the decision of appellee, City of Columbus, Department of Public Utilities ("city"), denying One Neighborhood's request for a water bill adjustment. For the reasons that follow, we affirm the judgment of the court of common pleas.

         {¶ 2} One Neighborhood is a condominium complex located between N. 4th Street and N. 5th Street and bordered by Gay Street in downtown Columbus, Ohio. The case arises from an exceptionally large water bill One Neighborhood received for the months of May, June, and July of 2014. One Neighborhood disputed the charges and requested a hearing to contest the billing.

         {¶ 3} Art Curatti, Management Analyst II, for the city, presided over the hearing on March 9, 2015. Curatti issued a written decision on April 3, 2015. Curatti made the following findings in his letter:

It was really never determined whether or not the irrigation system was connected to both water lines for these addresses; but the spikes and drops in consumption began at the same time for both 56 N. 4th Street and 81 N. 5th Street. There were no disputes of how much water went through the meter. The question still remains why the consumption was so high for those three months. One Neighborhood Condominium Association could not explain to me what happened out at this property and the Division of Water could not provide an explanation of what took place either.
The plumbing and service lines are the property owner's responsibility; and in this case, the cause of the spikes and drops in consumption was never determined.
Your requests for these adjustments are denied and the balance of your water bills must stand.

(Apr. 3, 2015 letter from Curatti to One Neighborhood.)

         {¶ 4} Upon receipt of the Curatti letter, One Neighborhood wrote to the city requesting the issuance of a final appealable order from the Administrator of the Division of Water or in the alternative to consider One Neighborhood's letter as a notice of appeal from the April 3, 2015 Curatti letter. On May 20, 2015, Richard C. Westerfield, Administrator of the Division of Water wrote to counsel for One Neighborhood stating that he adopted Currati's decision in the matter, and that the May 20, 2015 letter constituted a final appealable order of the city. (May 20, 2015 letter from Westerfield to One Neighborhood.) The letter also stated that the order was appealable under R.C. Chapter 2506. Id.

         {¶ 5} One Neighborhood then filed a notice of appeal from the May 20, 2015 decision to the Franklin County Court of Common Pleas pursuant to R.C. 2506.01. The transcript of proceedings was filed with the court on August 11, 2015, as well as an agreed correction to the record on August 17, 2015. On August 26, 2015, One Neighborhood filed an affidavit pursuant to R.C. 2506.03(A)(2) and (5) claiming deficiencies in the record and seeking to admit additional evidence. The same day, the city filed a motion to strike the affidavit.

         {¶ 6} After reviewing the entire certified record and the affidavit submitted by Andrew Wall, the court of common pleas denied One Neighborhood's request for a hearing in common pleas court. It found that One Neighborhood received adequate due process in the hearing. The court found there was evidence in the record of an underground leak on the property in the irrigation system. The court noted that One Neighborhood had the irrigation system shut off after receiving the high bill at issue in this case. The court noted that representatives of One Neighborhood then replaced six feet of line in the irrigation system. The court found that the meters at issue in the matter were functioning properly based on the testimony of One Neighborhood's expert, Steven West, and Mark Bowen, supervisor of commercial meter repair for the city, who testified that a new meter was installed on March 20, 2014, and that the meter always tested accurately. The court noted that One Neighborhood was unable to say how many units were in the properties or how many tenants resided there. Thus, the court found that there was no way to monitor or substantiate the interior and exterior usage of the tenants.

         {¶ 7} Based upon its review of the evidence, the common pleas court found that the decision of the Division of Water was supported by a preponderance of the substantial, reliable, and probative evidence in the record and affirmed the decision to deny the request for an adjustment of the water bill.

         {¶ 8} One Neighborhood appealed from the judgment of the court of common pleas, pursuant to R.C. 2506.04, assigning the following as error:

[I.] The trial court erred as a matter of law in applying Krumm v. Upper Arlington City C0uncil, Franklin App. No. 05AP-802, 2006 Ohio 2829, concerning zoning appeals, in determining its standard of review and holding that the City of Columbus, Department of Public Utilities, Division of Water's decision must be presumed to be valid, because utility service such as water service is inherently deemed under the law to be subject to constitutional protections, much different from land use zoning determinations.
[II.] The trial court erred in finding as a matter of law that submitting a form for the investigation of a leak to the City of Columbus, Department of Public Utilities, Division of Water, that could lead to an examination of charges for sewage services but not water services, was relevant to a review of the Division's determination under R.C. 2506.04.
[III.] The trial court erred as a matter of law in determining that document from the administrator of the City of Columbus, Department of Public Utilities, Division of Water that included language that it was a "final order" and that set forth a statement of R.C. 2506 appeal rights, was only a "courtesy" and that the final appealable order under R.C. 2506.01 and 2506.04 was a prior letter from the Division's hearing officer that did not express finality or include any statement of appeal rights.
[IV.] The trial court abused its discretion and erred as a matter of law in denying the presentation of additional evidence pursuant to R.C. 2506.03 in the form of an affidavit of Andrew Wall when it found it "totally lacking" yet failed to rule on Appellee's motion to strike it.
[V.] The trial court erred as a matter of law in failing to apply the standard of review found in R.C. 2506.04 when it affirmed the decision and final order of the City of Columbus, Department of Public Utilities, Division of Water.

         {¶ 9} In its first assignment of error, One Neighborhood contends that the court of common pleas applied the wrong standard of review. The trial court cited Krumm v. Upper Arlington City Council, 10th Dist. No. 05AP-802, 2006-Ohio-2829, for the proposition that the court of common pleas "must give due deference to the agency's resolution of evidentiary conflicts, " and that "[a] [zoning] board's decision * * * is presumed to ...


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