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Village of Albany v. Butler

Court of Appeals of Ohio, Tenth District

February 22, 2018

The Village of Albany, Ohio, Appellant-Appellant,
v.
Craig Butler, Director of the Environmental Protection Agency and Alexander Local School District, Appellees-Appellees.

         APPEAL from the Environmental Review Appeals Commission ERAC No. 16-6876

          On brief: Lavelle and Associates, and Robert R. Rittenhouse; Robe Law Office, and Scott M. Robe, for appellant. Argued: Robert R. Rittenhouse.

          On brief: Michael DeWine, Attorney General, and Nicole Candelora-Norman, for appellee Craig Butler, Director of Environmental Protection Agency. Argued: Nicole Candelora-Norman.

          On brief: Bricker & Eckler LLP, Christopher L. McCloskey, Christine Rideout Schirra, Desmond J. Cullimore, and Tarik M. Kershah, for appellee Alexander Local School District. Argued: Desmond J. Cullimore.

          DECISION

          DORRIAN, J.

         {¶ 1} Appellant, the Village of Albany, Ohio ("Village"), appeals from an order of the Environmental Review Appeals Commission of Ohio ("ERAC") granting a motion to dismiss for lack of standing filed by appellee Alexander Local School District ("School District") in an appeal to ERAC from a permit-to-install ("PTI") issued by appellee Craig Butler, Director ("Director") of the Ohio Environmental Protection Agency ("OEPA"). For the reasons that follow, we affirm.

          I. Facts and Procedural History

         {¶ 2} The Village is located in Athens County, Ohio; pursuant to an intergovernmental agreement between the Village and Athens County, the Village agreed to provide wastewater treatment service to an area defined as the Greater Albany Service Area, which included properties outside the Village's corporate limits. The School District is located in part in Athens County, and a portion of the School District's property is located outside the corporate limits of the Village but within the Greater Albany Service Area. In 2004, the Village enacted sewer use regulations providing, in relevant part, that no private sewage disposal system could be constructed in the area within the jurisdiction of the Village unless no public sanitary sewer was available. The regulations further provided that if a public sanitary sewer became available to a property served by a private sewage disposal system, a connection would be made to the public sanitary sewer and the private sewage system would be abandoned. Also in 2004, the School District undertook renovations at a facility on Ayers Road and, as part of the renovations, the Village and the School District entered into an agreement to extend public sewer lines and install a public sewer tap at that location.

         {¶ 3} In 2010, the Village enacted an ordinance providing that public sewer taps would not be provided outside the Village unless the property served by the tap was annexed into the Village.

         {¶ 4} In 2015, the School District began planning construction of a wellness center at its Ayers Road facility. The School District submitted an initial PTI application to OEPA on August 12, 2015 indicating that the new wellness center would connect to the public sanitary sewer system. The Village advised the School District and OEPA that it would not permit the School District to connect the wellness center to the public sanitary sewer unless the property was annexed into the Village. The School District then filed an amended PTI application with OEPA on February 22, 2016, seeking to install an on-site sewage treatment system for the wellness center incorporating a septic tank and leach field. On April 13, 2016, the Director granted the School District a PTI for the on-site sewage treatment system.

         {¶ 5} The Village filed a notice of appeal of the PTI with ERAC on May 12, 2016. On November 14, 2016, the School District filed a motion to dismiss the appeal for lack of standing. ERAC heard oral argument on the motion on February 15, 2017. On March 22, 2017, ERAC issued a ruling granting the School District's motion to dismiss, based on its conclusion that the Village failed to establish that it was aggrieved or adversely affected by the Director's issuance of the PTI.

         II. Assignment of Error

         {¶ 6} The Village appeals and assigns the following single assignment of error for our review:

The Environmental Review Appeals Commission erred in determined [sic] that the Appellant lacked standing in bringing its appeal.

         III. ...


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