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Magistrate: New law can’t stop eminent domain

YOUNGSTOWN — A Mahoning County Common Pleas Court magistrate has dismissed the attempt by a Green Township farmer to stop the Mill Creek MetroParks from trying to acquire a right-of-way on his property to build the final phase of the MetroParks Bikeway.

Specifically, Michael and Barbara Cameron, whose farm near Washingtonville Road includes a 3,400-foot-long former railroad bed, asked Magistrate James Melone to dismiss the right-of-way action on the grounds that the state budget bill signed by Gov. Mike DeWine June 30 contained a provision banning use of eminent domain to build recreational trails in Mahoning County.

Melone works for Judge Anthony D’Apolito of Mahoning County Common Pleas Court.

Melone’s ruling this month is that state law requires new laws such as the state budget bill be applied starting with the date they were enacted — and not retroactively “unless they are expressly made retroactive.”

Melone’s ruling states that the Ohio “General Assembly’s failure to clearly enunciate retroactivity ends the analysis, and (new law) may be applied only prospectively.”

Melone cited a 2003 Youngstown-based Seventh District Court of Appeals ruling in refusing to apply the new law to the Cameron case because the case is “still pending and the (taking of the property) has not yet occurred.”

The case has no trial date but has a telephone conference set for 9 a.m. Wednesday.

Melone earlier ruled on several other motions in the case. For example, he ruled that the Camerons can present testimony at trial on availability of information on criminal activity on or near the Mill Creek MetroParks Bikeway and other hike and bike paths, but Melone will have to decide on a case-by-case basis, should the matter go to trial, on whether specific examples of crime or statistics will be allowed.

EMINENT DOMAIN

A purpose of an eminent domain case is to determine the fair market value for property a public entity wants to acquire.

The Cameron property is a 65-foot-wide, 3,400-foot-long piece of land that passes through the 158-acre farm just east of Salem. The MetroParks wants to acquire the right of way as part of its plan to complete the last 6.4 miles of its bikeway. The 6.4-mile section would be from Western Reserve Road near Canfield to the Columbiana County line in southern Mahoning County. The MetroParks wants to use the former railroad bed for most of the new segment.

The Camerons are one of multiple property owners who own land along the former railroad bed who have argued that the new law prevents the MetroParks from acquiring a right of way on their property for a recreational trail.

Magistrate Tim Welsh and Judge R. Scott Krichbaum of Mahoning County Common Pleas Court ruled in August that the eminent domain case of Green Township property owner Thomas Hough cannot be reopened as a result of the new state law.

Hough’s case was resolved at trial with the MetroParks being ordered to pay $6,000 more for the right of way on Hough’s former railroad bed than the MetroParks originally offered. The jury ordered the MetroParks to pay Hough $62,975 for the right of way on a one mile stretch of former railroad bed and $6,000 for a smaller parcel.

Hough and his attorney, Molly Johnson, have since appealed that ruling to the Seventh District Court of Appeals, and a panel of judges from the Fourth District Court of Appeals in Circleville have been assigned to the case.

Melone’s ruling in the Cameron case states that a 2003 appeals court ruling indicated that the General Assembly “is prohibited from retroactively applying substantive laws that affect substantive rights, as opposed to remedial laws which they can apply retroactively.”

But before even considering the question of whether the state budget bill affected substantive rights, Melone had to find that the General Assembly clearly expressed its desire for the law to be retroactive — which it did not, Melone stated.

Melone’s ruling concluded that “the newly enacted (budget bill) does not apply in this case. Had the General Assembly intended the legislation to apply here, it surely would have clearly enunciated its intent for the legislation to be applied retroactively.”

erunyan@vindy.com

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