Friday, November 19th, 2010
By Nancy Allen
Court awards almost $241,000 to farmer
West Bank spillway
  The state has been ordered to pay a farmer almost $241,000 more in compensation following a trial in Mercer County Common Pleas Court concerning flooding caused by the West Bank spillway on Grand Lake.
A Mercer County jury recently decided the Ohio Department of Natural Resources (ODNR) owed Richard and Trish Baucher $240,873 for flooding that damaged their farmland. That's in addition to $82,499 the state already paid the couple after they and four other farmers won a lawsuit in May 2005.
The additional money comes after Baucher and the four other farmers appealed the initial compensation amount, claiming it was much lower than the land value. Trials to determine if the other four farmers will receive additional compensation are scheduled for early next year.
Tom Fusonie, of Columbus law firm Vorys, Sater, Seymour and Pease, said he is pleased with the jury's decision.
"We felt the Bauchers were vindicated in pursuing it to a trial before their peers," Fusonie said. "They have a right to fair and just compensation and what the state was offering was not fair and just for the Bauchers."
The Bauchers and farmers Leo Post, Steve Zumberge, Terry Linn and Emily Minch blame the state for flooding on their land, all located along the Beaver Creek or Wabash River, which receive overflow water from Grand Lake via the spillway.
In 2005, Judge Lawrence Grey agreed with the farmers' argument that their land floods more regularly and to a greater extent because the state's 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 built in 1913. The farmers also won the state's appeal of the case in December 2006.
During condemnation action, the condemnor, here the state, chose to have the land appraised and made an offer to the defendants based on the appraisals. In December 2008, the state paid the five landowners just over $1 million: Leo Post, $332,934; Stephen and Virginia Zumberge, $213,938; Linn, $219,892; Minch, $180,954; and Bauchers, $82,499.
The landowners then requested a jury trial to determine damages because they felt the state appraised the land too low.
The judge never found fault with the state for installing the new spillway, 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.
A separate, yet related case involving 86 landowners suing the state for their flooded land is ongoing in the Ohio Supreme Court. Fusonie's law firm is likewise representing those landowners.
That case was first filed in July 2009 and involves more than 200 parcels of land. Most of the landowners are farmers with land either along the Wabash River or Beaver Creek, some are homeowners and one is a commercial business owner.
The court's seven justices are at a point where they may decide the case based on the written evidence already filed or accept oral arguments and then decide. Fusonie would not speculate when the court would move on that case.
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