JOE BACAK, et al., Cross-Appellees, - vs - TRUMBULL COUNTY BOARD OF COMMISSIONERS, et al., Defendants, GARY P. VENTLING, Cross-Appellant.
CASE NO. 2015-T-0029
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY, OHIO
2016-Ohio-4737
[Cite as Bacak v. Ventling, 2016-Ohio-4737.]
CYNTHIA WESTCOTT RICE, P.J.
Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2004 CV 02140. Judgment: Affirmed.
Frank R. Bodor, 157 Porter Street, N.E.,
Thomas C. Nader, 5000 East Market Street, #33, Warren, OH 44484 (For Cross-Appellant).
CYNTHIA WESTCOTT RICE, P.J.
{1} Cross-appellant, Gary Ventling (hereafter “appellant“), appeals the judgment of the Trumbull County Court of Common Pleas, following a trial to the magistrate, in favor of appellees, Joe Bacak, et al., and against appellant and the Trumbull County Board of Commissioners, declaring
{2} Plaintiffs-appellees, Joe Bacak and some nine other individuals, are property owners and residents of Trumbull County, who formed an association known as “C.A.U.S.E.,” which stands for Citizens
{3} In their Complaint, filed August 26, 2004, appellees requested declaratory judgment and injunctive relief against the commissioners and appellant, alleging that
{4} The case proceeded to trial before the magistrate. As fully explained below, the trial court entered judgment in favor of appellees and against the commissioners and appellant. The commissioners and appellant filed separate appeals in this court. Subsequently, the commissioners dismissed their appeal and appellant‘s appeal is the only appeal remaining before us.
{5} Appellees had previously installed septic systems to service their homes due to the unavailability of a sewer system in their area.
{6} On August 30, 2001, appellant, who lives on St. Mary‘s Drive, and the commissioners entered a “Private Agreement for Extension of Sanitary Sewer” for the extension of a sanitary sewer on St. Mary‘s Drive pursuant to
{7} According to the agreement, the commissioners gave appellant permission to construct the sewer extension to his property. Appellant agreed to pay for the preparation of plans and specifications for the project and for construction of the sewer line. Further, the agreement provided that “[i]f and when any abutting property * * * desires to tap into or connect to said improvements, a connection charge will be charged the owner of said abutting property based on the pro rata costs as computed from the * * * cost statement which shall be reimbursed to [appellant] * * *.”
{8} Appellant did not advertise for or take any bids on this project, as such is not required by
{9} Appellant began construction of the project on May 9, 2002. He completed the sewer extension on November 13, 2002, and the Trumbull County Sanitary Engineer‘s Office issued a certificate of completion on that date. One week later, on November 21, 2002, appellant submitted a cost statement to the Sanitary Engineer‘s Office for approval. The original estimated cost of the project was $61,000, but the cost statement submitted by appellant was $103,460, which was $42,460, or 41%, over the original estimate.
{10} Prior to completion of the project, neither the commissioners nor appellant ever sent any letters or other form of written notice to appellees notifying them of the existence of the private sewer extension agreement or that appellees would be responsible for paying their pro rata share of the cost. Rather, for the first time, on April 7, 2004, 17 months after completion of the project, appellant filed a copy of the commissioners’ resolution to enter the private sewer extension agreement with the Trumbull County Auditor.
{11} On December 13, 2003, the Trumbull County Health Department sent letters to appellees advising them that they
{12} Jay Walton, Senior Environmental Engineer with the Trumbull County Sanitary Engineer‘s Office, testified he has the sole authority and discretion to approve the statement of costs submitted by individuals, such as appellant, with respect to private sewer construction projects. This includes reviewing the statement of costs and determining which, if any, of the submitted costs should be approved for reimbursement by the other abutting property owners. Walton‘s decision is final and not subject to any objection, hearing, or appeal. He testified that a property owner who tapped into the sewer extension would have to pay whatever amount he determined and would have no say in the matter.
{13} Walton found $29,281 of the $103,460 cost statement to be improper and approved the total cost of the sewer extension project as $74,179, which was still $14,000 over the original $61,000 cost estimate. The property owners on St. Mary‘s Drive were never sent any notice as to the approved cost. The first time any owner would have discovered the cost of the tap-in would be when the property owner came to the Board of Health in response to the Board‘s letter advising them that they were required to tap into the sewer extension and to pay their share of appellant‘s costs.
{14} Thomas Holloway, Trumbull County Sanitary Engineer at the time the subject project was approved, testified that, pursuant to
{15} The magistrate issued her decision on July 2, 2013, in favor of appellees and against appellant and the commissioners. The magistrate decided that
{16} The commissioners appealed the trial court‘s judgment to this court on March 5, 2015. That appeal was assigned Case No. 2015-T-0019. On March 16, 2015, appellant filed a separate appeal, which was assigned Case No. 2015-T-0029. This court sua sponte consolidated the two appeals on April 17, 2015. On that same date, the commissioners filed a notice of dismissal of their appeal (Case No. 2015-T-0019). This court construed that notice as a motion to dismiss, and granted that motion on June 8, 2015. The dismissal of the commissioners’ appeal left only appellant‘s appeal.
{17} Appellant asserts six assignments of error. Because the third through sixth assigned errors are interrelated, they are considered together. They allege:
{18} “[3.] The Trial Court‘s Decision That Revised Code Section 307.73 is Unconstitutional as applied to the Sablecreek Plaintiffs is error.
{19} “[4.] The Trial Court erred in finding that the Appellees did not have the Required Notice Pursuant to Revised Code Section 307.73.
{20} “[5.] The Trial Court Erred in finding that Separate Sablecreek Plaintiffs Michael and Joanne Hanysh did not have constructive notice of the private extension agreement.
{21} “[6.] The Trial Court erred in concluding that the Sablecreek Plaintiffs/Appellees did not have Actual Notice of the Ventling Private Extension Agreement.”
{22} “On appeal, a trial court‘s adoption of a magistrate‘s decision will not be overruled unless the trial court abused its discretion in adopting the decision.” Brown v. Gabram, 11th Dist. Geuaga No. 2004-G-2605, 2005-Ohio-6416, 11. Accord In the Matter of Gibbs, 11th Dist. Lake No. 97-L-067, 1998 Ohio App. LEXIS 997, *12 (Mar. 13, 1998) (an appellate review of the trial court‘s decision under Civ.R. 53 is limited to a determination of whether the court abused its discretion in adopting the magistrate‘s decision). The term “abuse of discretion” is one of art, “connoting judgment exercised by a court, which does not comport with reason or the record.” Gaul v. Gaul, 11th Dist. Ashtabula No. 2009-A-0011, 2010-Ohio-2156, 24, citing State v. Ferranto, 112 Ohio St. 667, 676-678 (1925).
{23}
{24}
{25}
{26} Further, pursuant to
{27} (L) No household sewage disposal system shall be installed, maintained, or operated on property accessible to a sanitary sewerage system.
{28} (M) Whenever a sanitary sewerage system becomes accessible to the property, a household sewage disposal system shall be abandoned and the house sewer directly connected to the sewerage system.
{29} The Supreme Court of Ohio upheld the constitutionality of
{30} While the Ohio Supreme Court found
{31} “It is well settled that an enactment of the General Assembly is entitled to a strong presumption of constitutionality.” State v. Cowan, 103 Ohio St. 3d 144, 2004-Ohio-4777, 7. “Therefore, challenged legislation will not be invalidated unless the challenger establishes the unconstitutional nature of the statute beyond a reasonable doubt.” Cowan, supra.
{32} There are two different ways of challenging a statute on constitutional grounds: 1) by arguing that it is unconstitutional on its face, or 2) by arguing that it is unconstitutional as applied to a particular set of facts. Cleveland Gear Co. v. Limbach, 35 Ohio St. 3d 229, 231 (1988). “An as applied challenge asserts that a statute is unconstitutional as applied to the challenger‘s particular conduct.” Kruppa v. Warren, 11th Dist. Trumbull No. 2009-T-0017, 2009-Ohio-4927, 12. In contrast, a facial challenge asserts the statute is unconstitutional in “all of its applications.” Id.
{33} The Supreme Court of Ohio in State v. Mateo, 57 Ohio St. 3d 50, 52 (1991), discussed the requirements of procedural due process, as follows:
{34} The United States Supreme Court has stated that the essence of due process is notice and an opportunity to be heard: “For more than a century the central meaning of procedural due process has been clear: ‘Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.’ * * * [Citations omitted.] It is equally fundamental
that the right to notice and an opportunity to be heard ‘must be granted at a meaningful time and in a meaningful manner.’ (Emphasis added.) Armstrong v. Manzo, 380 U.S. 545, 552 [1965].” Fuentes v. Shevin, 407 U.S. 67, 80 (1972). See also Mathews v. Eldridge, 424 U.S. 319, 333 (1976). “As a general rule, due process requires that the government give notice and an opportunity to be heard before taking an individual‘s liberty or property.” (Emphasis sic.) United States v. 141st Street Corp., 911 F.2d 870, 874 (2d Cir. 1990). * * * “Due process of law involves only the essential rights of notice, hearing or opportunity to be heard before a competent tribunal. * * *” State v. Luff, 117 Ohio St. 102 (1927), paragraph four of the syllabus. See also State v. Edwards, 157 Ohio St. 175, 178 (1952), paragraph one of the syllabus.
{35} The trial court, in addition to finding that
{36} Since appellant appeals only the trial court‘s as-applied finding and does not appeal the court‘s facial finding, the trial court‘s conclusion that the statute is unconstitutional on its face stands. As such, the statute is unconstitutional in all of its applications, Kruppa, supra, including its application to appellees.
{37} Because appellant did not appeal the trial court‘s finding that
{38} In contrast to
{39} Thus, the trial court‘s comparison demonstrates that
{40} The trial court found there are no circumstances in which the statute can provide procedural due process protections. The court found there is no way to challenge appellant‘s unreasonable charges as there are no meaningful due process rights built into
{41} The trial court noted the total lack of procedural due process is best summed up by Jay Walton of the Trumbull County Sanitary Engineer‘s Office. When asked as to how the taxpayers are to be “protected from a contractor who * * * overcharges in a case like this,” Walton answered, “Jeez. I don‘t know what to say. I guess there is no protection.”
{42} While the trial court‘s facial finding includes the finding that
{43} Moreover,
{44} Appellant argues that because appellees, Michael Hanysh and Joanne
{45} Next, appellant argues that even if appellees did not have constructive notice pursuant to
{46} Appellant argues that because appellees were in a position to see this installation, they had actual notice of the project and, thus, constructive notice was not necessary. However, the magistrate rejected this argument, finding that, although appellees had actual notice of the installation of the sewer extension near their homes, they did not have actual notice as to the required tie-in or the cost associated therewith. The magistrate also found that the newspaper articles referenced by appellant as evidence of actual notice merely addressed the residents’ objections to the general concept of sewer tie-in requirements and that these articles were not evidence that appellees had actual notice of the cost of the project.
{47} Significantly, appellant concedes that any knowledge appellees acquired took place after the commissioners’ resolution approving the sewer extension was adopted and after construction of the project had already begun. There is no evidence in this record that, before the project was approved by the commissioners and construction had begun, appellees knew (1) of the sewer extension agreement between the commissioners and appellant, (2) the commissioners’ resolution approving that agreement, (3) the cost of the project, or (4) appellees’ pro rata share of the costs. Thus, the presence of construction equipment did not provide actual notice of the cost of the project.
{48} Further, the magistrate found that the lack of procedural due process in
{49} The magistrate also found that many other costs were improper and unreasonable and should have been - but were not - subtracted by Walton from the $74,179 final approved cost of the project.
{50} The trial court was appalled at the near complete lack of oversight by the Sanitary Engineer‘s Office through its agent, Walton, of appellant‘s statement of costs. Walton admitted he approved obviously suspect cost items without requiring any substantiation or explanation. He even approved costs that were unrelated to the project and costs that were caused by appellant‘s improper conduct. Incredibly, Walton said he still planned to charge the taxpayers several substantial cost items submitted by appellant even after Walton acknowledged they were improper and wrong.
{51} To make matters worse, although the sewer extension agreement required appellant to provide a “certified notarized cost statement” within 90 days of completion of the project, he never certified the accuracy of his cost statement. After the project was completed, Walton wrote two letters to appellant in May and June 2003, demanding the certification. Walton told appellant that without the certification, the sewer extension agreement would become void and he would lose his right to any reimbursement. Despite these demands and warnings, appellant never provided the required certification. Even more incredible, Walton said he ultimately decided to overlook this omission and to simply pass the charges on to the taxpayers without the certification.
{52} We therefore uphold the trial court‘s finding that
{53} Appellant‘s third, fourth, fifth, and sixth assignments of error are overruled.
{54} Appellant‘s first and second assigned errors are related and thus considered together. They allege:
{55} “[1.] The Trial Court‘s Order that Appellees have the right to tap into the Sablecreek Sanitary Sewer Line at no cost is an unconstitutional taking.
{56} “[2.] The Appropriate Remedy to be awarded Appellees is that the Sablecreek Sanitary Sewer Lines Are Not Available and that Appellees Are Not Required to Tap into the Sanitary Sewer Lines.”
{57} The Ohio Constitution states that “private property shall ever be held inviolate, but subservient to the public welfare. * * * Where private property shall be taken for public use, a compensation therefore shall first be made in money * * * and such compensation shall be assessed by a jury * * *.” State ex rel. OTR v. City of Columbus, 76 Ohio St. 3d 203, 206 (1996), quoting Section 19, Article I, Ohio Constitution. A taking occurs when a landowner experiences a substantial or unreasonable interference with property. OTR, supra. That interference may involve an actual physical taking of real property or it may include the deprivation of an intangible interest in the premises. Id.
{58} Appellant argues the trial court‘s judgment interfered with his property right to reimbursement in the sewer extension agreement, resulting in a taking. In support, he cites Stop The Beach Renourishment v. Florida Dept. of Environmental Protection, 560 U.S. 702 (2010). However, his reliance on this case is misplaced. In Stop the Beach, the Supreme Court stated, “The takings clause only protects property rights as they are established under state law * * *.” Stop The Beach at 732. Appellant‘s claimed property right to reimbursement is based on a statute that violates procedural due process. Because
{59} In any event, even if
{60} Further, appellant argues that, to avoid a taking, the trial court should have declared the sewer extension to be unavailable and, this way, appellees would have been allowed to disconnect from the sewer. However, the remedy appellant seeks would have required the trial court to find that the sewer line is not physically available to appellees when, in fact, it is. Moreover, appellant‘s proposed remedy would violate
{61} Appellant‘s first and second assignments of error are overruled.
{62} For the reasons stated in this opinion, the assignments of error lack merit and are overruled. It is the order and judgment of this court that the judgment of the Trumbull County Court of Common Pleas is affirmed.
DIANE V. GRENDELL, J.,
COLLEEN MARY O‘TOOLE, J.,
concur.