Ruling on Mill Creek bike trail hits bump
2 appeal decision that lets park system proceed with possible property takeover
YOUNGSTOWN — Diane M. Less has appealed a Mahoning County Common Pleas Court ruling that refused to dismiss the legal action filed by Mill Creek MetroParks, which wants the court to allow it to appropriate some of Less’s land for the third phase of its bikeway.
Less, of South Range Road in Salem, and Green Valley Wood Products of Lisbon filed an appeal Tuesday with the 7th District Court of Appeals arguing the July 22 decision of Judge Maureen Sweeney of Mahoning County Common Pleas Court was incorrect in a number of ways.
Less, who is known to Mahoning Valley residents as director of Angels for Animals in Canfield, has been a vocal critic of the MetroParks’ efforts to acquire the right-of-way on her Green Township property.
In June 2019, she said the right-of-way would cut her off from her horse trail at her farm and a family cemetery.
“My dad bought the farm in 1920. Next year it will be 100 years. It’s not fair someone can take property you make your livelihood on and take it, so somebody can ride a bike on it. Mill Creek MetroParks is using everyone’s tax dollars to put a bike trail through my property and ruin other farms in Green Township. I and other property owners must still pay taxes on it and deal with the potential lawsuits and the trouble it may bring,” said Less.
“When a bike trail is put in, everybody else now has a thoroughfare through your property, and they can use it anytime they want to. It is not protected; it is not fenced off; it is not closed at night.”
The MetroParks project would add 6.5 miles of trail in Mahoning County. The new section would run from Western Reserve Road in Canfield Township to High Street in Washingtonville at the Columbiana County line.
State. Rep. Don Manning, R-New Middletown, testified in February before the State and Local Government committee on legislation he introduced, House Bill 476, that would restrict the use of eminent domain by non-elected government entities for recreational trails.
Manning, who died at age 54 of a heart attack in March, proposed the legislation because of the concerns of people such as Less. The bill is pending in the House State and Local Government Committee and had its third hearing June 9, according to the Greater Ohio Policy Center “Bill tracker.”
Judge Sweeney’s decision denied summary judgment to Less and Green Valley Wood Products. Summary judgment is a ruling without trial on a matter that is obvious enough that “reasonable minds can come to but one conclusion.”
Less and Valley Wood Products sought to have the MetroParks’ attempt to acquire a right-of-way on her property dismissed without trial.
But the judge ruled that the MetroParks’ filings indicated facts “showing genuine issues for trial,” meaning the case will continue to a trial if necessary — not end now.
The MetroParks showed that its request to acquire the right-of-way “is authorized” by Ohio law, and the MetroParks did comply with the Ohio laws that govern such acquisitions.
Attorneys for Less and Valley Wood Products “failed to support with evidence their allegations that (the MetroParks) did not act in good faith,” the judge ruled.
“This court finds that (the MetroParks) is authorized to (acquire) property in order to expand the existing bikeway and complete Phase III of the project to create a recreational trail along its preferred path, the former railroad corridor,” Judge Sweeney ruled.
She continued that the resolution the MetroParks board approved Sept. 10, 2018, “determined that (the MetroParks) found it necessary and in the best public interest to complete Phase III of its Bikeway project.”
Such a resolution is considered evidence that such a project is necessary “barring proof showing that the agency abused its discretion in making the determination.”
The law then “places the burden of proof on the property owner to prove that the (acquiring) agency abused its discretion” in deciding to acquire the right-of-way. Less and Valley Wood Products failed to prove an abuse of discretion, she ruled. They also “offered no proof” of fraud or bad faith.
Judge Sweeney ordered that the case proceed to a jury, if necessary, to determine the compensation to be paid to Less and Valley Wood Products in exchange for the right-of-way.
The appeal is likely to postpone any further action in the MetroParks’ action to acquire the right-of-way.
In the appeal, Less and Valley Wood Products argued that the MetroParks failed to provide a notice that the property owners had a right to appeal the MetroParks’ decision to its appointing authority. They also argued that the Ohio laws cited do not authorize eminent domain to be used for a bikeway.
The appeal was filed by attorney Carl G. James of Youngstown.