YOUNGSTOWN — The “necessity” hearing the Ohio Supreme Court ordered two judges to conduct in the dispute over whether Mill Creek MetroParks can acquire land owned by Diane Less of Smith Township will take place Nov. 29, 30 and Dec. 1.

When Magistrate Dennis Sarisky has his hearing in Mahoning County Common Pleas Court, he will hear testimony from individuals — such as Mahoning County Engineer Pat Ginnetti — before he decides whether there is a necessity for the MetroParks to extend its bikeway through Less’s land.

Attorney Carl James, who represents Less, mentioned Ginnetti in an Aug. 23 pretrial memorandum he filed in common pleas court in which he discussed the issues Sarisky will hear during the hearing. The MetroParks presumably will file a similar document in coming weeks.

The memorandum states Ginnetti “will testify to the existence of bikeways along public roads including but not limited to bikeways established by (the MetroParks) on its own property” that are only 10 feet wide, “not the 66 feet” the MetroParks wants to take from Less.

On reason for the Less reference to public roads is Less’ argument that the MetroParks should use an “existing bikeway on Washingtonville Road” less than 1 mile from the 66-foot-wide property the MetroParks wants to acquire from Less, who lives on state Route 165 in Green Township.

Washingtonville Road runs north and south just to the east of Less’ property. The MetroParks wants to acquire 2.5 acres of the western edge of Less’ land.

“The Washingtonville Road bikeway could easily be expanded along the right of way of Washingtonville Road without the excessive cost and destruction to the value and utility of lands of the defendant and her neighbors,” the Less filing states.

As of last December, the Eastgate Regional Council of Governments website contained a “bike suitability” map for Mahoning and Trumbull counties showing Washingtonville Road being “easy” for bike riding.

Also last December, an Ohio Department of Transportation map of state and national bike routes showed a route along Washingtonville Road, also known as County Road 95, that starts just north of Western Reserve Road in Canfield and travels south all the way to Marietta and west to Xenia and then back north in various directions. That route also connects a short distance north of Washingtonville Road with a national bike route.

Other expected witnesses at the Nov. 28-Dec. 1 hearing are James Kinnick, director of Eastgate; Aaron Young, MetroParks executive director; and Gery Noirot, deputy director of the Ohio Department of Transportation District 4, according to the Less filing.

CONTINUING BATTLE

The filing is part of the continuing battle between Less and the MetroParks over whether the MetroParks can use eminent domain to acquire the former railroad bed Less owns to build the third phase of the MetroParks Bikeway.

The 6.4-mile phase would travel from Western Reserve Road in Canfield Township south to the village of Washingtonville at the Columbiana County line. Other individuals who own parts of the former railroad bed would also have to provide a permanent easement on the property for the trail to follow that path.

The litigation involving Less and the MetroParks has gone through three levels of courts so far — the county common pleas court, the 7th District Court of Appeals and then the Ohio Supreme Court, which in July sent the case back to the common pleas court to hold the “necessity” hearing.

The state’s top court said Judge Maureen Sweeney and her magistrate, Sarisky, and Judge John Durkin and his magistrate, Dominic DeLaurentis, failed to hold a necessity hearing when they first ruled on the eminent domain issue within a month of each other in 2020.

In both cases, the judges ruled against a request by Less to stop the eminent domain case without need of a trial. The Durkin case involved Less. The other case involved Green Valley Wood Products, a company adjacent to Less’ property. James, the attorney, has been involved with both cases.

The Less and Green Valley Wood Products cases in common pleas court both favored the MetroParks, saying the MetroParks had the authority to use eminent domain to obtain the land. The Ohio Supreme Court did not rule in favor of either party, saying the matter had to return to common pleas court for the two judges to have a necessity hearing to hear testimony on whether there is a necessity for the taking of the land of Less and Green Valley Wood for the extension of the bike trail.

The high court ruled that it did not have jurisdiction to decide the matter, ruling that a common pleas court judge must hold a hearing to determine the necessity for the MetroParks to take land — before the issue is considered a “final, appealable order.”

The case in Durkin’s court currently has no hearings planned, only a reference to “notes” for Oct. 2, 2023.

DeLaurentis said the note means he will check on the status of the Sweeney case after its necessity hearing. Then he and Judge Durkin will decide what course of action to take in their case.

According to the MetroParks web site, the “MetroParks Bikeway opened in 2000″ and is an 11-mile paved trail (that) offers a variety of scenery and experiences for hikers, skaters, and bicyclists.” It adds that the “Bikeway is one section of the proposed 100-mile Great Ohio Lake to River Greenway, a developing corridor that will allow trail users to travel from Lake Erie to the Ohio River.”