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Justices to consider claim centering on spillway, flooding of Mercer County land

Special to the Legal News

Published: September 21, 2011

The Columbus attorney representing Mercer County property owners in a taking claim against the state is hopeful the good will the Supreme Court of Ohio extended last week to landowners along the Lake Erie shoreline courses inland to the state’s largest man-made lake.

Bruce Ingram, partner in the firm Vorys, Sater, Seymour and Pease LLP, said there’s no doubt that the Ohio Department of Natural Resource’s 1997 installation of a wider spillway from the lake into Beaver Creek at the western edge of Grand Lake St. Marys has resulted in the repetitive flooding of 81 creekside properties.

What remains uncertain is whether justices during Tuesday’s arguments will perceive the result as an unauthorized taking by the state.

The Supreme Court last week ruled in favor of Lake Erie beachfront property owners, finding that public access to the shoreline extends to the natural shoreline — not the high-water mark — of privately owned land.

Ingram indicated the court’s rationale behind that ruling is directly linked to the inalienable rights of acquiring, possessing and protecting property as outlined in the Ohio Constitution.

“We’ll see whether the Ohio Supreme Court continues to say ... that it is critically important to protect the rights of property owners,” he said.

According to the court’s summary of the case, the property owners filed in 2009 an original action in the Supreme Court, which sought a writ of mandamus to compel the state to appropriate their land and compensate them for the loss of its use under Ohio’s eminent domain laws.

The owners alleged that since ODNR replaced a former 39-foot-wide spillway with the new 500-foot-wide spillway, their land has been subject to repetitive flooding that is more frequent, severe, long-lasting and damaging to the land along a 10-mile stretch of the creek than before the installation.

Additionally, they argue their ability to use the land for agriculture or other purposes has been hampered by conditions resulting from the spillway widening.

Property owners insist ODNR has refused to act on their demands to correct the problem over the course of years.

Attorneys for ODNR have maintained the property owners missed their opportunity to be awarded damages.

The only conduct by the state that could be the basis for a lawsuit alleging damage to downstream properties is the construction of the wider spillway, a one-time action that was completed in 1997, the state has proposed.

Property owners had four years to file suit, seeking appropriation of their land after the completion of the spillway project or, at the latest, four years after the first major flooding incident in 2003, the state has argued.

Ingram said the state’s argument “shouldn’t fly” with justices.

“Our view is that this is a case of intermittent flooding and that it will clearly reoccur,” he explained.

As such, it took time for the pattern of intermittency to develop. Ingram’s argument appears to obfuscate the state’s straightforward-yet-unyielding four-year limitation.

Their claims do not relate back to the construction of the new spillway, the property owners have maintained, and prior court decisions have held that it can take more than 10 years to establish the long-term effects of changes in the hydraulics of a waterway.

The state, however, is expected to argue the claimants’ evidence is only anecdotal and does not support that the spillway is the primary cause of increases in the frequency or severity of downstream flooding during the years since construction was completed.

The case is State ex rel. Doner v. Logan, case No. 2009-1292.

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