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Bikeway case sent to Ohio Supreme Court

Justices to announce decision on hearing appeal in 3 to 6 months

YOUNGSTOWN — The Ohio Supreme Court is likely to decide in three to six months whether to hear an appeal of a decision in the Mill Creek MetroParks bikeway eminent domain case involving Diane Less of Angels for Animals.

If the court hears the case and rules in favor of Less, it could impact the way park districts across the state acquire rights of way to build recreational trails such as bike trails, officials have said.

The MetroParks board appealed an April decision from a panel of appellate court judges from central Ohio. The panel stated that the MetroParks board did not give a legal reason for acquiring the right of way on land Less and a company called Green Valley Wood Products own in Smith Township.

Earlier this week, an attorney for Less filed a response to the appeal, saying the state’s top court should not hear the appeal because it relates only to a narrow issue and is not a “matter of great public or general interest.”

The filing also argues that the type of land acquisition the MetroParks wants is not allowed under Ohio law because the statue only allows for parks to acquire land for use as “forest reserves and the conservation of natural resources of the state, including streams, lakes, submerged lands, and swamplands.”

The statue does not allow a park district to use eminent domain for a “bikeway solely dedicated to public transportation and recreational purposes,” Less’ lawyer states.

The MetroParks board has never provided any “specificity, mention or reference to any purpose for any conversion into forest reserves or for the conservation of natural resources of the state,” states attorney Carl James of Youngstown.

The Fourth District appellate judges were assigned to the case by the Ohio Supreme Court. The panel, in Circleville, in April ordered that the Less case be sent back to two judges in Mahoning County Common Pleas Court who ruled in favor of the MetroParks. It ordered the judges to dismiss the MetroParks’ civil suits that seek acquisition of the property.

According to a page on the Ohio Supreme Court website, the court usually decides within three to six months from this point in a case whether it will hear or decline to hear the appeal.

Less’ filing states that the MetroParks wants to acquire about 2.5 acres along the western edge of her property. Green Valley Wood Products Inc., also party to the appeal, owns two parcels of land the MetroParks wants to acquire.

Less has a permanent easement on the Green Valley property that is “the only access from certain of (Less’) property to state Route 165, the primary public road,” the filing states.

Less is a founder of Angels for Animals, West South Range Road, Canfield, which provides an animal shelter, veterinary care and other services. She is one of several property owners fighting the MetroParks’ efforts to acquire rights of way to build the proposed final phase of the MetroParks Greenway in southern Mahoning County starting at Western Reserve Road and ending at the Columbiana County line.

The 10.6-mile first two phases start at the Mahoning County line in Austintown and continue to Western Reserve Road in Canfield Township.

In the May 25 appeal filing by the MetroParks, its lawyer stated that Mill Creek MetroParks is “is one of many Ohio public park districts” that operate under a specific Ohio law that governs acquisition of property for park use.

“This case presents the court with the opportunity to clarify that parks boards in Ohio acting under (state law) may continue to appropriate land for recreational trails as this court and (another court) have previously held.” Its filing states that the decision the Ohio Supreme Court may issue in this case “will affect all park boards in Ohio.”

The right of way owned by Less is one of 13 parcels the MetroParks seeks to use to complete the third and final 6.4-mile phase of the MetroParks bikeway in southern Mahoning County.

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