from the Franklin County Court of Common Pleas C.P.C. No.
Brief: Brunner Quinn, and Rick L. Brunner, for appellant.
Argued: Rick L. Brunner.
brief: Richard C. Pfeiffer, Jr., City Attorney, Westley
Phillips and Sarah L. Harrell, for appellee. Argued: Westley
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
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
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.
[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
[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 ...