THE STATE EX REL. VOLECK ET AL., APPELLANTS, v. VILLAGE OF POWHATAN POINT, APPELLEE.
No. 2010-0449
Supreme Court of Ohio
Submitted November 16, 2010—Decided November 24, 2010.
[Cite as State ex rel. Voleck v. Powhatan Point, 127 Ohio St.3d 299, 2010-Ohio-5679.]
{1 1} This is an appeal from a judgment denying a writ of mandamus to compel appellee, village of Powhatan Point, to provide visually clean and chemically pure water to appellants, village residents John and Virginia Voleck. Because the Volecks failed to establish their entitlement to the requested extraordinary relief, we affirm the judgment denying the writ.
Facts
{1 2} The Volecks live in the village of Powhatan Point, Belmont County, Ohio, and they pay the village to supply water to their home. According to the Volecks, the water is visually dirty, contains an unacceptable level of contaminants, and smells. The Volecks complained about the water, and the village reimbursed them for some water filters, which did not remedy the problem.
{1 3} In 2006, the Volecks complained to the Ohio Environmental Protection Agency (“EPA“) about sediment, i.e., sand or gravel, in their water line. After investigation, the state EPA determined the village water supply to be in compliance with both state and federal standards and so took no enforcement action against the village. No one else using the same water main as the Volecks had complained to the village. A Belmont County Water Department test done in December 2007 indicated that water tested at the tap-in location for the water main contained iron and manganese at levels within the suggested federal EPA standards, whereas water inside the Volecks’ home had much higher levels. The village concluded that the problem was in the Volecks’ lateral line between the main water source and their water filter, which is the residents’ own responsibili
{1 4} The Volecks hired Valiant Roxby, an engineer, to test their water in 2007 through 2009. Roxby concluded that the water in the Volecks’ residence was “visually dirty and contaminated, undrinkable and unsuitable for use.” He also found that the water had levels of iron and manganese that exceeded the federal EPA‘s secondary standards. According to Roxby, the source of the contamination was outside the Volecks’ household water pipes and was likely caused by acid mine drainage leaching into the village‘s well field.
{1 5} In November 2008, the Volecks filed a petition in the Court of Appeals for Belmont County for a writ of mandamus to compel Powhatan Point to provide “visually-clean and chemically-pure water” to them. The village filed an answer, and the parties submitted motions for summary judgment. The Volecks argued that their mandamus claim is premised upon the village‘s “contractual duty when failing to provide clean and pure drinking water to a customer‘s home” and that “their claim is one in contract.” In February 2010, the court of appeals granted the village‘s motion and denied the writ. State ex rel. Voleck v. Powhatan Point, Belmont App. No. 08-BE-33, 2010-Ohio-615, 2010 WL 617488, ¶ 11-12.
{1 6} This cause is now before the court upon the Volecks’ appeal as of right.
Legal Analysis
{1 7} The Volecks request a writ of mandamus to compel the village to provide visually clean and chemically pure water to them. Mandamus will not issue when the relators have an adequate remedy in the ordinary course of law. State ex rel. Natl. Emps. Network Alliance, Inc. v. Ryan, 125 Ohio St.3d 11, 2010-Ohio-578, 925 N.E.2d 947, ¶ 1;
{1 8} The federal Safe Drinking Water Act establishes a national safe drinking-water program developed by the federal EPA through primary and secondary drinking-water standards for specific contaminants and enforced concurrently by federal and state regulatory authorities. See generally Ohio Environmental Law Handbook (5th Ed.2004) 117. See
{1 9} Under
{1 10} Following the investigation of the complaint, the director of environmental protection may enter an order as may be necessary, request the attorney general to commence appropriate legal proceedings, dismiss the complaint, or commence a hearing before taking action.
{1 11} In July 2006, the Volecks complained to the Ohio EPA about sand or gravel in their water line. Following an investigation, the state EPA determined that their water was safe, and no enforcement action was taken against the village. Insofar as the Volecks challenge the failure of the director of environmental protection to take action on their complaint or attempt to raise a separate claim concerning the purity of their water, their exclusive remedy is through the comprehensive procedure set forth in
{1 12} In Cincinnati ex rel. Crotty v. Cincinnati (1977), 50 Ohio St.2d 27, 4 O.O.3d 83, 361 N.E.2d 1340, we reached a similar conclusion. In that case, city taxpayers and water users had filed an action in a common pleas court challenging the action of the director of environmental protection to add fluoride to the city‘s drinking water. We held that the common pleas court lacked jurisdiction over the case because the pertinent provisions in
{1 13} Nevertheless, the Volecks claim that they are not relegated to the exclusive administrative procedure specified in
{1 14} Assuming, arguendo, that the Volecks’ mandamus claim could be construed as outside of and not barred by the administrative procedure set forth in
{1 15} The Volecks assert that their mandamus claim is premised on breach of contract and
{1 16} But the Volecks assert that their mandamus action is appropriate because the village‘s duty arises not only in contract but also as a result of law. “Underlying public duties having their basis in law may be compelled by a writ of mandamus,” and a “breach of contract action is not a plain and adequate remedy
{1 17} Nevertheless, in each of the cases cited, legislation supplied the requisite legal duty that supported the mandamus claim. See V Cos., 81 Ohio St.3d at 474, 692 N.E.2d 198 (
{1 18} The Volecks claim that
{1 19} Finally, for the Volecks’ claim that the village‘s purported breach of contract to provide water to them constitutes an unconstitutional taking, it is true that mandamus is the appropriate action to compel public authorities to institute appropriation proceedings when an involuntary taking of private property is alleged. State ex rel. Gilbert v. Cincinnati, 125 Ohio St.3d 385, 2010-Ohio-1473, 928 N.E.2d 706, ¶ 14. The Volecks, however, disclaim any entitlement to an appropriation proceeding to compensate them for an alleged taking. Thus, they are not entitled to a writ of mandamus for the claimed taking.
Conclusion
{1 20} Therefore, based on the foregoing, the Volecks have not established their entitlement to the requested extraordinary relief in mandamus. They have not established a clear legal duty on the part of the village to provide them with water of better quality than that required by the Safe Drinking Water Act, and they have an adequate remedy in the ordinary course of law by either the administrative procedure set forth in
Judgment affirmed.
BROWN, C.J., and PFEIFER, LUNDBERG STRATTON, O‘CONNOR, O‘DONNELL, LANZINGER, and CUPP, JJ., concur.
Baker, Dublikar, Beck, Wiley & Mathews, James F. Mathews, and Melissa Day, for appellee.