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Niedziewcki v. Swancreek Water District

Court of Appeals of Ohio, Sixth District, Fulton

July 20, 2018

John Niedziewcki, et al. Appellees
Swancreek Water District Appellant

          Trial Court No. 15CV000237

          Daniel P. McQuade, for appellees.

          Maria Mariano Guthrie and Bobbie Corley O'Keefe, for appellant.


          PIETRYKOWSKI, J.

         {¶ 1} This is an appeal from the judgment of the Fulton County Court of Common Pleas, which granted summary judgment in favor of appellees, John Niedzwiecki and 113 other property owners, on their administrative appeal from appellant's, Swancreek Water District, determinations that it was necessary to construct a city water extension project and to assess the property owners for the planning expenses of the project. For the reasons that follow, we reverse.

         I. Facts and Procedural Background

         {¶ 2} The Swancreek Water District ("District") is a political subdivision formed in 1997 under R.C. Chapter 6119 to provide water services to the residents of Swancreek Township. The District is governed by a five-person Board of Trustees ("Board").

         {¶ 3} In January 2011, the Board was first presented with information that the residents of the Peaceful Valley Association would eventually need water. No action was taken at that time. Separately, in August 2011, a resident, Shawn Shinaberry, requested to have the water main extended down County Road EF. At the time, the water main stopped on County Road EF between County Roads 2 and 3, and Shinaberry would have liked to have it extended to his property on County Road EF between County Roads 3 and 4. Shinaberry requested a survey so that he could gauge community interest, but he did not make progress getting responses and the issue was not pursued.

         {¶ 4} In the fall of 2012, the Board heard from another resident of County Road EF between County Roads 3 and 4 that was interested in getting water to his property. By December 2012, Shinaberry presented the petition that he was working on, that indicated 16 residents were in favor of having the water main extended, three were against, and four were undecided. No action was taken at that time.

         {¶ 5} In January 2014, the Board began discussing a new project that would tie up loose ends on County Roads E and EF, and that would loop two water systems. On February 26, 2014, the Board adopted Resolution 2014-13, which anticipated a waterline project for County Road EF and Peaceful Valley ("Project"). The Board worked to define the project area throughout the spring of 2014, and on April 23, 2014, adopted Resolution 2014-21, which authorized the engineering firm Arcadis to prepare plans, specifications, profiles, and estimates of cost for the Project. On May 16, 2014, a special meeting was held at which the Board advanced $50, 000 from the general operating fund to pay for the preliminary designs from Arcadis. On August 27, 2014, the preliminary designs were presented to the board. The proposed design would cost approximately $3, 566, 000.

         {¶ 6} Special meetings were held on November 18, 19, and 20, 2014, to present the Project to the residents within the project area. At the meetings, the Board provided a Frequently Asked Questions form that explained the details of the Project. $1, 000, 000 of the Project was to be funded by the District through rate increases, fees, and other charges, which represented the cost of the portion of the Project that would benefit all of the residents within the District by virtue of looping the two systems together. The remaining amount was to be financed at a one percent interest rate through the Ohio Water Development Authority, and the cost would be divided evenly amongst the 213 affected parcels, for an estimated assessment of $11, 831. That amount would be payable up to 30 years, resulting in a semi-annual property tax assessment of $229.

         {¶ 7} Also included in the Frequently Asked Questions form was a description of why the District was considering the Project:

There is a need for the water throughout the project and a need to tie in stub/dead end water lines and loop the system to maintain the integrity of the water system. Looping the system provides greater service reliability, better water quality and, when system repairs are necessary, it typically results in fewer service disruptions.

         The Frequently Asked Questions form also contained the typical benefits of a potable waterline project:

A. Clean, reliable potable water
B. Increased property value
C. Fire hydrants / fire protection
D. Decreased homeowners insurance premiums
E. Less electricity and usage because no well / pump
F. No well maintenance needs.

         {¶ 8} At the meetings, several of the residents expressed opposition to the Project. Some of those opposed raised concerns regarding the quality of the Toledo water that would be provided. Sharon Niedzwiecki stated that she owned three parcels in the area and could not afford to pay for three assessments. Others agreed that they also could not afford the Project. Residents from Scenic Circle stated that they have a pond and do not need the water. On the other hand, a couple of residents at the meetings indicated that they were in favor of the Project.

         {¶ 9} Following the special meetings, some residents continued to express their concerns at the regular Board meetings. In January 2015, the Board decided to send out a survey to the owners of parcels in the project area to determine their support for the Project. The results of this survey were 39 in favor, 105 against, and 72 that did not respond. A second survey was sent out to those who did not respond, with the updated results being 49 in favor, 123 against, 5 that had questions, and 40 that did not respond.

         {¶ 10} On March 19, 2015, the Board held a special meeting to go over the survey results. It was noted that while the majority were against the Project, there still existed a need or want in the areas. The Board also discussed the benefits of looping the system.

         {¶ 11} Thereafter, the Board continued to hold regular meetings at which residents expressed support or opposition to the Project. During this time, an ethical issue arose regarding whether two of the trustees could vote on the Project because they owned property in the project area. A subsequent opinion from the Ohio Ethics Commission clarified that because the trustees would share in the costs and benefits of the large-scale public works project in the same manner as all of the other residents, they were entitled to vote on the Project.

         {¶ 12} On July 9, 2015, the Board enacted Resolution 2015-24 to publish a "Notice of Pendency" of the passage of a resolution of necessity to obtain planning funds for the Project. The notice stated, in part:

Notice of the pendency of the passage of a resolution of necessity to plan and construct a water resource project and to levy an assessment for planning of a water resource project and to maintain and operate the same on behalf of the Swancreek Water District, and of the proposed determination of the necessity of the construction of such project hereafter described.

         A public meeting for the purposes of hearing objections to, and endorsements of, the Project was scheduled for July 29, 2015.

         {¶ 13} At the July 29, 2015 meeting, everyone was given three minutes to speak. Some residents were in favor of the Project, citing the need for reliable water service, and problems, or potential problems, with wells. Most residents, however, were against the Project. Those opposed frequently referenced that they did not need the water, and that the cost was overly burdensome. In addition, many raised concerns with the quality of the water from Toledo. The residents suggested that there were other ways for those without water to obtain it, such as having a pond, or building a cistern or reservoir and hauling in water.

         {¶ 14} At the next regular meeting, on August 13, 2015, the Board enacted, by a 4-1 vote, Resolution 2015-29 to declare the necessity to construct the Project.[1] The resolution stated, in relevant part:

WHEREAS, residents of the area have requested central water services; and
WHEREAS, residents located within the Road 3 & Peaceful Valley Project area have requested that the District construct a waterline improvements project to service them; and
WHEREAS, the District must obtain funds to prepare plans, specifications, estimates of cost, tentative assessments, and a plan of financing for the Road 3 & Peaceful Valley Project to serve the District;
NOW, THEREFORE, BE IT RESOLVED by the Board of Trustees of the Swancreek Water District:
* * *
Section Two: That the Board of Trustees of the District conducted a hearing on the 29th day of July, 2015, and all persons whose properties are proposed to be assessed were able to provide testimony and any other evidence in support of or against said project and the passage of said Resolution; and
Section Three: That having heard such testimony and reviewed such evidence, the Board hereby finds and declares it necessary for the preservation and promotion of the public health, safety and welfare to construct the Road 3 & Peaceful Valley Project and to maintain and operate the same on behalf of the District.

         {¶ 15} The Project was again discussed at the regular meeting held on August 27, 2015. The minutes from that meeting reflect Trustee Brunner's explanation of his purpose for wanting to go through with the Project: "[T]here was not one reason for doing this project there are a multitude of reasons and all of them together make it work. * * * There are a lot of benefits to looping; there are health concerns, etc. I am ...

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