Ohio Supreme Court finds ODNR in contempt of court over Mercer County land compensation

(Updated Dec. 5, 2:40 p.m.)
COLUMBUS — The Ohio Supreme Court has found the Ohio Department of Natural Resources in contempt of court for failing to act timely in appraising and compensating land owners in Mercer County, for land damaged by a 1997 widening of the spillway along Grand Lake St. Marys.

The 5-2 decision comes a day after legal counsel for the landowners presented their case to the high court, and asked for a specific timeline for completing appraisals and making appropriations.

Voting for contempt were justices Maureen O’Conner, Paul Pfeifer, Terrence O’Donnell, Eve Belfance, and Yvette McGee Brown. Dissenting were justices Lundberg Stratton and Judith Lanzinger.

The supreme court ordered the appropriations process a little more than a year ago, on Dec. 1, for the taking of property, most of it farmland. The order of contempt requires ODNR to complete all appraisals within 90 days and to file appropriation cases on the same parcels within 120 days.

ODNR also is required to issue declaratory judgments on 20 other parcels, in which the department said involve flooding above the 2003 flood level. The judgments will be used in determining the legal rights of those property owners, and must be filed in the Mercer County Common Pleas Court within 30 days.

(Dec. 4) Mercer County landowners allege ODNR is in contempt of court, as they await compensation
COLUMBUS — Legal counsel representing land owners in Mercer County whose land has flooded due to the 1997 widening of the spillway at Grand Lake St. Marys asked the Ohio Supreme Court Tuesday, to take action against the Ohio Department of Natural Resources over perceived delays in compensating private land owners for the taking of their land.

The Ohio Supreme Court on Dec. 1 issued a writ of mandamus ordering the Ohio Department of Natural Resources to commence appropriation proceedings to compensate owners of land west of the lake for a “taking” of their property through “increased overflows from the lake into Beaver Creek.”

Some 87 landowners are involved in the claim, and so far none have seen compensation for the damages to their land. About eight appraisals have been completed, ODNR’s legal counsel Michael Stokes said during Tuesday’s hearing.

The process

Stokes said the first step is to complete surveys of the affected land, which he expects will be complete with all cases filed by the end of 2013, possibly as early as April under an “aggressive” schedule.

About 20 surveys have not yet been done, which Stokes said is because there is a “legal” question of whether those properties are in the flooded area, and to what extent.

Stokes said the appraisal process takes time, and is difficult because of a scarcity of qualified land appraisers who are willing to take on the project. ODNR is working with four or five appraisal firms, but justices questioned why appraisals have taken so long.

“Almost every farmer in Mercer County could tell you what the value of the land taken is, but it’s going to take you two years to figure it out?” asked Justice Paul Pfeifer, a past dairy farmer.

The appraisals must follow statutory law, but Pfeifer likened the time taken so far to “fiddling around,” expressing doubt that banks or other businesses would tolerate such delays to get an appraisal done.

Pfeifer and Stokes agreed there is good reason to get the appraisals and compensation done soon, because land values are rapidly increasing, even as deliberation on this case continues. The result could be a greater cost to the state, once compensation is finally awarded.

Bruce Ingram, legal counsel with Vorys law office of Columbus, who is representing the land owners, said there are 130-plus qualified land appraisers who could help appraise the property, and disputed claims about the difficulty of getting a value for the land.

“Any county auditor could appraise 97 parcels of property in a matter of weeks,” Ingram said.

Almost settled

He said that in late 2012, ODNR and the land owners were close to reaching a settlement on the land — especially the farmable portion — for which farmers were offered about $5,000 an acre. The parties were within a “whisker” of settlement, Ingram said, but negotiations fell short and the offer from the state was removed.

Justices were critical of the progress to date and asked repeatedly for timelines and whether there might be ways to expedite compensation.

In his final plea, Ingram asked justices to set a 30-90 day requirement for appraisals to be complete and that funds be deposited once an appraisal is complete.

He also asked that an additional visiting judge be appointed to the common pleas court, which will try each land owner’s case. And he asked that a fiscal fine be levied against the state for fees related to his clients’ motion that ODNR is in contempt of court

“Only under the compulsion of this court will ODNR fulfill this court’s writ of mandamus,” Ingram insisted.

The judges agreed to make a decision “under advisement,” which sources close to the case said could take several months. However, three of the justices are expected to be replaced by the end of the year, which potentially could expedite a decision.

About the Author

Chris Kick lives in Wooster, Ohio. An American FFA Degree recipient, he holds a bachelor’s in creative writing from Ashland University. He spends his free time on his grandparents’ farms in Wayne and Holmes counties. More Stories by Chris Kick

One Comment

  1. Retired JD Farmer says:

    This is outrageous! The ODNR Director and his lawyers should spend some time cooling their heels in jail for this dilatory conduct. I spent 35 years as a lawyer and whenever I came up against a state agency, there was always some sob-story/song-and-dance about they didn’t know this or that or had to get “clearance” from higher-ups, so let’s kick the can down the road for a year or two. BALDERDASH! These Ohio farmers and landowners are getting screwed; they had their land taken from them without just compensation. I guess the US and Ohio Constitutions don’t count anymore.

    When are we going to hold people in the State accountable for their lack of action? These farmers deserve to get paid.

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