YOUNGSTOWN — Mill Creek MetroParks has asked the 7th District Court of Appeals to allow its effort to acquire a right-of-way for the third phase of its bikeway to proceed, despite an appeal filed by the property owners.

The MetroParks board has filed a motion asking the Youngstown-based appeals panel to deny the request of Diane Less of South Range Road in Green Township and Green Valley Wood Products to stay the proceedings in Mahoning County Common Pleas Court pending the outcome of their appeal.

The MetroParks also asked the appeals court to dismiss the appeal by Less and Green Valley Wood Products.

The filing states the ruling by Judge Maureen Sweeney that Less and Green Valley Wood Products have appealed can not be acted upon yet — and won’t be until Sweeney approves the dollar amount Less and Green Valley Wood Products should be paid for the right-of-way.

VOCAL CRITIC

Less, who is 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 the horse trail at her farm and a family cemetery.

In a filing in August, the MetroParks asked for the appeal to be dismissed.

The appeal by Less and Green Valley Wood Products argues that the MetroParks failed to provide a notice that the property owners had a right to appeal the MetroParks’ decision to its appointing authority, who is Mahoning County Probate Court Judge Robert Rusu. Their appeal also argues that the Ohio laws the MetroParks cited do not authorize eminent domain to be used for a bikeway.

The MetroParks’ filing explains that Less is holder of a “nonpossessory easement that permits her to utilize Green Valley Property to access her land.” It adds that the MetroParks efforts to acquire a right-of-way on Less’s property does not affect her easement.

According to the Investopedia website, a person with a nonpossessory interest in land “has clear-cut rights in regard to the use of a property, (but) he or she does not hold title to the property.”

The MetroParks’ filing states that the purpose of trying to acquire a right-of-way on Less’s and Green Valley’s land is to extend the MetroParks’ 10.6-mile existing bikeway that was built in 2001 and 2011, known as Phases I and II. The bikeway is on a former railroad corridor. The new section will be 6.4 miles long.

The MetroParks board approved a resolution in 2018 resolving that its members “deem it necessary and in the best interest that the MetroParks be and hereby are authorized to complete Phase III of the bikeway project.”

The MetroParks commissioned a feasibility study in 1996, prior to construction of Phases I and II, that determined that the best option to construct Phase III was along the same former railroad corridor as Phases I and II.

NO TERMS

The 2018 resolution authorized MetroParks representatives to acquire the rights-of-way for the project, including using eminent domain to “appropriate such property” through legal proceedings filed in Mahoning County Common Pleas Court.

Less and Green Valley “were unable to agree on the terms” during negotiations for the right-of-way, the filing states. Less then sought to have the the legal proceedings the MetroParks filed in common pleas court dismissed on the grounds that the MetroParks lacked the authority to acquire the right-of-way on her property.

Sweeney disagreed.

“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,” Sweeney ruled.

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 nonelected 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’s bill tracker.