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Saturday, December 3rd, 2011

Landowners win Supreme Court spillway case

By Nancy Allen
The Ohio Supreme Court has ruled in favor of 85 landowners downstream from Grand Lake in what could possibly be one of the largest imminent domain cases in the state.
The high court ruled Thursday Grand Lake's West Bank spillway redesigned in 1997 causes flooding.
"They are all very, very pleased," said Bruce Ingram, one of the Columbus attorneys representing the landowners. "We're very pleased the Supreme Court recognized the state of Ohio can't continually flood our clients' property without paying them compensation."
In its 7-0 ruling, the court ordered the Ohio Department of Natural Resources to file separate condemnation actions for each of the landowners. Trials in Mercer County Common Pleas Court will determine how much compensation the landowners will be paid, Ingram said.
Thursday's decision followed oral arguments heard in the case on Sept. 20.
The state is expected to begin filing condemnation actions in early 2012 that will result in about 50 trials, Ingram said.
Ingram said he did not know how much money his clients may receive, but added it would be "very, very expensive for the state of Ohio."
Most of the landowners are farmers who own 91 parcels totaling more than 2,500 acres downstream from the state-owned and operated spillway. Some of the landowners are married or are family members who own land together.
Five other farmland owners who filed a separate case against the state in 2001 collectively were awarded $5.6 million due to flood damage caused by the spillway.
The 85 landowners argued that since ODNR replaced the 39-foot spillway built in 1913 with the new, 500-foot spillway, their land has been subject to repeated flooding that is more frequent, more severe, lasts longer and is more damaging to their ability to use their land for agriculture or other purposes.
The group filed the original action in the Ohio Supreme Court in July 2009 seeking a writ of mandamus that would compel the state to compensate them for their losses under Ohio's eminent domain laws.
In their ruling, the high court held that although lawsuits alleging a physical or regulatory taking of real property must generally be brought within four years of the injurious conduct, that statue of limitations does not apply when the conduct is of a continuing nature and the conduct causes recurring damage to another's property.
The High Court's decision calls into question whether the state may reassess its hands off policy on the spillway. After the new spillway was opened, the state discontinued a drawdown policy whereby the lake's water level was lowered to minimize flooding. The new spillway has two tubes at its base designed for such purposes, according to court documents.
The landowner's primary expert, engineer Pressley Campbell, testified that the flooding would have been "highly unlikely, if not impossible" without the new spillway and the state's subsequent failure to manage the level.  
"I'm not sure there is a set (lake drawdown) policy, but right now we are reviewing the decision and evaluating how to proceed based on the order of the court," said ODNR spokeswoman Laura Jones on Friday. "We're going to look at all aspects which will bring (the state) closer to looking at the overall management of the lake level."
The state had argued the case should be dismissed because the four-year statute of limitations had expired.
The spillway releases overflow water from Grand Lake into Beaver Creek, which empties into the Wabash River. The state replaced the spillway because a dam study showed it was in danger of overtopping.
Ingram said this may be the largest case of its type in the state's history.
"I'm not aware of any case that has more landowners or more acreage involved in an imminent domain case involving flooding," he said. "It's big."
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