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Thursday, February 5th, 2009

Five farmers get $1 million but seek trial for more

By Nancy Allen
Five local farmers suing the state over flooding on their land from the West Bank spillway on Grand Lake have accepted payments from the state totaling more than $1 million.
But the farmers feel the payments are too low and have requested a jury trial in Mercer County Common Pleas Court to try to get more money, their Columbus attorney Bruce Ingram said.
Farmers Leo Post, Richard Baucher, Steve Zumberge, Terry Linn and Jack Minch, who all own farmland along either Beaver Creek or the Wabash River, first filed the case against the Ohio Department of Natural Resources (ODNR) in May 2001. Minch died in August 2005 and his widow, Emily, is now named in the lawsuit.
Court documents show that Post (Post family trust) accepted $332,934 in payments from the state; Baucher, $82,499; Zumberge (Stephen J. and Virginia A. Zumberge trusts), $213,938; Linn, $219,892; and Minch (Minch family trust), $180,954.
Ingram explained that during a condemnation action, the condemnor, here the state, can choose to have the land appraised and make an offer to the defendants based on the appraisal amount. This is what the state did.
The landowners can accept the money, use it as he or she sees fit and still request a jury trial to determine damages. This is what the local landowners did because they feel the state appraised the land too low, Ingram said.
"So if final judgment of the court or jury is more than the state deposited, then the landowner keeps the deposit and gets an additional amount above the deposit that was determined by the court or jury," he said.
But if the court's or the jury's damage amount is less than what the state deposited, then the landowner must reimburse the state, Ingram said.
"Taking the deposit does not mean the landowner is accepting the state's appraisal valuation of the property," he said. "In fact, we believe the state's appraisal is low ... and have asked for a jury trial to determine damages."
Ingram said he and two other attorneys working on the case plan to present evidence as to what they believe the true damages are to their clients' land that floods, which the state wants to purchase as a permanent "flowage easement."
A flowage easement would give the state the right to flood the land at any time for any duration, Ingram said.
The state responded that yes, the state would be able to flood the land at any time but would not officially own the land, according to ODNR spokesperson Beth Ruth. The farmers still would be able to farm the land, she said.
The farmers initially won the case in May 2005 in Mercer County Common Pleas Court, and the state was ordered by visiting judge Lawrence Grey to compensate the farmers for their flooded land. The farmers then won the state's appeal of the case to the 6th District Court of Appeals in Toledo in December 2006. In January 2007, the state decided against appealing the case to the Ohio Supreme Court, and the case came back to Mercer County.
Judge Grey then ruled there had been an illegal taking of the farmers' land by the state, due to flooding from the spillway, and that they were entitled to damages from the state, which were to be determined during a jury trial.
In December, the state filed a court petition to have the farmers' land become a flowage easement and to compensate accordingly. In the farmers' Jan. 9 answer to that petition, the farmers disagreed with the compensation and requested the jury trial to determine the amount.
The farmers say their land floods more regularly and to a greater extent because the 500-foot-long concrete spillway, first opened in 1997, discharges a larger amount of water at a faster rate than the old 39-foot-long spillway build in 1913.
The judge never found fault with the state for the spillway constructing, 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 farmers claimed about 500 acres of their land had been illegally taken.
The state replaced the old spillway because dam inspection regulations said it was in danger of failing due to over-topping. The suit also says that after the new spillway was opened, ODNR discontinued a policy whereby it used to open discharge tubes at the base of the spillway to draw down the lake's water level during winter months and failed to widen Beaver Creek to accept the larger flow from the lake.
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