Thursday, January 25th, 2007
By Nancy Allen
ODNR concedes to local farmers
  The state will not appeal a court decision in favor of five Mercer County farmers who sued the Ohio Department of Natural Resources (ODNR) over farmland flooding caused by the West Bank spillway.
The farmers now are waiting for compensation for their flooded land.
"On behalf of my clients, we are delighted that the state has decided not to expend additional resources in an attempt to appeal the court of appeals decision to the Ohio Supreme Court," the farmers' attorney, Tony Logan of Columbus, said. "The state appears to be willing now through the new administration to sit down and talk not only to our clients, but other interested parties about long-term solutions to the problems incumbent with the (West Bank) spillway."
Logan said the court decision may help future litigants facing a similar situation. He would not speculate about homeowners with lakefront property experiencing flooding, saying his clients' case dealt specifically with flooding below the spillway.
The farmers initially won the case in May 2005 and again won the state's appeal to the Sixth District Court of Appeals in Toledo in December. The state had been deciding whether to appeal that court's decision to the Ohio Supreme Court.
Farmers Leo Post, Richard Baucher, Steve Zumberge, Terry Linn and Emily Minch, who all own farmland along either Beaver Creek or the Wabash River, first filed the case in May 2001.
ODNR spokeswoman Jane Beathard on Wednesday said the state is preparing for the next phase of the farmers' case.
"We are moving forward to the next phase, which is the determination of damages as to be determined by a (jury) trial," Beathard said. "They've taken a really broad, in-depth look at this and decided this is the best course of action."
Beathard said the case would come back to Mercer County Common Pleas Court for a trial to decide how much compensation the farmers would receive for their damaged crops. She could not comment on whether the state would request a change of venue to move the trial out of Mercer County.
However, Logan said there is a chance the case won't go to trial to determine compensation, but instead may be negotiated between the farmers and state.
"With any condemnation case, whether it's a highway or whatever, the government is required to first attempt to negotiate a settlement and only if they cannot reach a resolution would it become something (that is litigated)," he said.
When the case was first heard in Mercer County Common Pleas Court, visiting Judge Lawrence Grey said there had been an illegal taking of their land by the state, due to flooding from the spillway. He also ruled the farmers were entitled to damages from the state and that those damages were to be determined during a jury trial. In their lawsuit, the five farmers claimed about 500 acres of their land had been illegally taken.
The farmers claimed the new 500-foot-long concrete spillway, which first opened in 1997, discharges a larger amount of water at a faster rate than the old 39-foot-long spillway built in 1913.
Grey never found fault with the state for the spillway construction, saying it was done for the greater good to reduce residential flooding. But he also noted it was done at the detriment of farmers downstream and that the state should compensate them.
The state replaced the old 1913 spillway because dam inspection regulations said it was in danger of failing due to overtopping. The suit also says that after the new spillway was opened in 1997, ODNR discontinued a policy whereby it used to open discharge tubes at the base of the spillway to draw down the water level during winter months and failed to widen Beaver Creek to accept the larger flow from the lake.
Excess overflow water from the lake exits the lake via the West Bank spillway and discharges into Beaver Creek, which empties into the Wabash River in Liberty Township.
The state also is being sued by Case Leasing & Rental, owner of Breakaway RecPlex on U.S. 127 in Celina, in the Ohio Court of Claims. That suit was filed in July 2005 and a five-day trial was held this summer in that case. No decision has been made yet.
In that suit, Case Leasing demands an unspecified amount of compensation for damage that occurred to Breakaway during historic flooding in July 2003 following days of persistent, heavy rains. Rainwater overflow exiting Grand Lake via the West Bank spillway flooded Beaver Creek, which lies just to the north of the fitness facility. The entire area around the facility was flooded, as was the inside of the building.
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Mostly cloudy, showers