The Ohio Supreme Court will hear an appeal of the decision by visiting judges from central Ohio that found Mill Creek MetroParks did not have authority to use eminent domain to acquire property for the third phase of its bikeway in southern Mahoning County.

The state’s top court issued an entry Wednesday stating that it is accepting the case for review.

The MetroParks’ May 25 notice of appeal contains a 19-page memorandum arguing that the top court should hear the case because the ruling “will affect all parks boards in Ohio.”

A panel of judges from the Circleville-based 4th District Court of Appeals had decided the case on assignment from the Ohio Supreme Court. The panel ruled against the MetroParks and in favor of Green Township property owner Diane Less, co-founder of Angels for Animals of Canfield, which provides an animal shelter, veterinary care and other services.

WHY THIS IS HAPPENING

Less has been fighting the taking of land from her property on South Range Road since the MetroParks filed a lawsuit in Mahoning County Common Pleas Court in March 2019. The MetroParks asked the court to allow it to acquire a permanent easement on Less’s property to complete the 6.4-mile third and final phase of its bikeway.

The third phase is designed to travel from Western Reserve Road in Canfield Township south to the Columbiana County line at Washingtonville. The first two phases run from the county line in Austintown to Western Reserve Road.

Judge John Durkin of Mahoning County Common Pleas Court had ruled against Less in June 2020 when she asked for a ruling in her favor without a trial. Less appealed that to the 7th District Court of Appeals. The panel of appellate judges from Circleville heard the case, reversing Durkin’s decision and a similar one by Judge Maureen Sweeney involving property owner Green Valley Wood Products.

The ruling ordered Durkin and Sweeney to dismiss the eminent domain cases without a trial.

PARK DISTRICT APPEALS

But the MetroParks appealed that decision to the Ohio Supreme Court.

The Circleville panel found the MetroParks did not give a legal reason for acquiring the easement on the Less and Green Valley properties. Less is one of several property owners fighting the MetroParks’ efforts to acquire the property.

In June, the MetroParks asked the Supreme Court to hear the case because the MetroParks “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,” the filing by MetroParks attorneys James Roberts and Elizabeth Farbman of Youngstown states.

The filing argues the appeals panel erred in finding that resolutions the MetroParks board approved in seeking to acquire the property in the Less case did not give a legal reason for acquiring the right of way.

The appeals panel should have found that under Ohio law, a park bikeway “is an expressly permitted use of property, which inherently includes the purpose of conservation,” the filing states.

REACTION

The Vindicator asked Aaron Young, MetroParks executive director, for a comment on the Supreme Court’s decision. Young provided this prepared statement by email:

“We are pleased to learn that the Ohio Supreme Court has decided to accept our appeal of the previous decision in this case. We look forward to the presenting our position in this matter.”

When contacted by phone Wednesday, Less said the idea that public bodies such as the MetroParks can use public funding to hire lawyers to take possession of private property like hers is “just ridiculous. Where do our rights as property owners come in? You’re creating a situation where people get to trespass on our property because the park says it’s OK.”

She said nearby Washingtonville Road would be a good place to put the bike trail instead of on private property. “They have their resurfaced Washingtonville Road now, smooth as glass. They are all riding down the road. They have a better bike trail down Washingtonville Road now than probably most places in the state of Ohio.”

She called the MetroParks “bullies. They’re just a bunch of pushy bullies that they want what they want — and everybody else can go to hell. It’s just wrong,” she said.

She said the bike trail also would “cut me off from my wildlife. Parks are supposed to conserve wildlife.” She said deer currently run through a wooded area on her farm and across farm fields to six acres that would be cut off by the bike trail.

“Now these animals will be confronted by this bike thing,” she said, adding that deer and horses can be injured if they run on pavement because of their hooves.

Less said even if the Ohio Supreme Court rules in favor of the parks, “we’re going back to the beginning again. My case is about them not having the right to take the property. If the court says they do have the right to take the property, then we’re back to an eminent domain fight,” she said.

She noted that farm land values in the area where she lives have risen in recent years to between $17,000 and $19,000 per acre. In the late 1990s when the Angels For Animals land was purchased the price was $6,000 to $10,000 per acre.