County loses sewer cases

WARREN – An assistant county prosecutor says adverse decisions in two sewer line cases are leading to formal appeals that could challenge the constitutionality of state law on how the extension of sewer lines are paid.

The county was on the losing end in both cases.

Neither decision disputes the law that forces homeowners near a new sewer line to tie into the line, whether they have a functional septic system or not. The decisions only take issue with they way the improvements were financed.

Attorney James Brutz – who provides legal representation for the Sanitary Engineer’s Office – said that today or Tuesday he will appeal a decision by Trumbull County Common Pleas Judge W. Wyatt McKay earlier this month that found in favor of Gregory and Kathy Schultz, who sued county commissioners after they were ordered to tie three parcels they own on state Route 193 in Vienna into sewer lines within the Little Squaw Creek Interceptor Project.

On May 7, 2010, the Sanitary Engineer’s Office wrote the couple, demanding $48,765 for reimbursements for the project. The couple was given 90 days, until Aug. 6, 2010, to come up with the money and connect to the line.

If they didn’t meet the deadline, the reimbursement would be recalculated to include 20 years worth of interest on the money, driving the cost up to $76,852. The couple came up with the financing for the $48,765, but were unable to meet the deadline until they paid the $76,852.

The county’s Health Department filed criminal charges and the dispute between the couple and the county grew until the lawsuit was filed, claiming the reimbursements the county was talking about are really de facto assessments and unconstitutional takings in violation of public policy, due process and the Schultzes’ equal protection rights.

McKay found that ”no language contained in (state law) authorizes the collection of 20 years worth of interest from the Schultzes. The judge called it ”absolutely unreasonable.”

”The court further agrees that the Board of Trumbull County commissioners, by and through the Sanitary Engineer and its agents, have deprived the plaintiffs of their due process and equal protection rights through an attempted unconstitutional taking under color of law, in clear violation of public policy,” McKay wrote.

In the other case, Brutz has filed objections to a ruling by a magistrate in a 2004 case by 34 property owners who said they weren’t properly notified of similar projects in the Sable Creek area of Mineral Ridge and land off King Graves Road in Vienna.

The ruling states property owners, even though some must pay tap-in fees, don’t have to pay for either sewer project because they weren’t notified properly.

That case was heard a year ago and in a recent decision by Magistrate Beth Anne Aurilio, the county was described as a ”middle man” between the entity that builds the sewer and the property owners who are forced to tie into the line.

The objections filed by Brutz will be heard later – also by McKay, who can modify some of the findings after hearing arguments.

Aurilio found that the contractor putting in the lines notified homeowners 17 months after the project was completed and some of his costs even included legal fees that he paid out for legal battles with homeowners during the run of the project.

The ruling also says the Sanitary Engineer’s Office failed to sufficiently review the construction costs, and again the homeowners were deprived of due process. County commissioners, who used federal grant money to pay for part of the project, failed to hold a public hearing, passed no resolution and didn’t properly notify, the ruling states.

Brutz said that homeowners can only put the costs of the improvement on their tax assessments and pay over a long period of time if the commissioners are petitioned for the upgrades.

”Well, I don’t see the county acting as a private developer. But basically this is a health concern. It’s not a development issue. Ninety percent of these improvements are put in by private people, or developers. They’re not going to extend the lines if they get sued,” Brutz said.