YOUNGSTOWN — Judge John Durkin of Mahoning County Common Pleas Court has consolidated the Diane Less litigation over the Mill Creek MetroParks wanting to acquire some of her land for the bike trail with several other affected property owners, but the MetroParks says that is an error.

The litigation over the proposed 6.4-mile extension of the Mill Creek MetroParks Bikeway began about five years ago and involved about 10 property owners who own parts of the 6.4-mile former railroad bed in Green Township in southern Mahoning County.

The best known property owner among them is Less. Her litigation went to the Ohio Supreme Court, which ruled in July that litigation involving her should return to Mahoning County Common Pleas Court, where it began.

There, Judges Durkin and Maureen Sweeney were ordered to hold “necessity” hearings to determine whether there is a need for the MetroParks to use eminent domain to obtain a permanent easement on property owned by Less and the company Green Valley Wood Products for the bikeway.

Durkin ruled Oct. 11 that he was going to consolidate the Less and Green Valley cases with seven other similar bike-trail cases under a case being handled by common pleas court Magistrate Jim Melone, who works for Judge Anthony D’Apolito. That case involves property owner Michael Cameron, who is also in litigation with the MetroParks over the proposed bikeway extension.

Durkin, who is the court’s administrative judge, ruled that the cases would be consolidated because he found that “each case involves a common question of law or fact.”

Durkin ordered that all eight cases should have a “necessity hearing” as ordered by the Ohio Supreme Court in the Less and Green Valley cases. There they can “determine any and all matters related to the MetroParks’ “right” to appropriate the land from the property owners, “the inability of the parties to agree, or the necessity for” taking the land.

Durkin canceled all other pending hearings in the separate cases and ordered the parties to have a joint hearing to get the process started.

Melone held a telephone conference with the litigants in the eight cases Oct. 18, asking them to research the requirements for the “necessity hearing” and hold a second telephone conference Dec. 1.

But on the same day, the MetroParks filed a motion asking that Judge Durkin reconsider his decision to consolidate the cases, stating that it appears Durkin “may be applying the Less decision more broadly than what the Ohio Supreme Court and the Ohio General Assembly intended.”

The MetroParks filing, submitted by attorney Elizabeth Farbman, states that the intent of consolidation is to “prevent inconsistent decisions” among the eight cases. But if the cases remain consolidated, the issue of compensation to the property owners should be done separately.

Farbman’s filing states that some of the cases that are now consolidated should not get a necessity hearing because some of them do not meet the requirements for a necessity hearing, which is that the land owner filed an answer to the lawsuits filed by the MetroParks and that the landowners “specifically deny” that the MetroParks has the right to acquire the property.

In three cases — the Less and Green Valley cases and one involving Green Township — these things were done.

The MetroParks filing stated that the remaining cases did not qualify because the landowners answered with “general denials, not specific denials,” which are required under Ohio law, “or waived the right to a necessity hearing.”

The filing asks that the case involving Cameron, two involving property owner Elizabeth Chahine, one involving Edward Schlegel and one involving Thomas Hough be removed from the consolidation.

It also asks the court to “hold in abeyance this court’s consolidation order” regarding the Hough case because it currently is involved in an appeal to the Ohio Supreme Court. Hough is a Green Township property owner whose case involved a June 2021 hearing held before Magistrate Tim Welsh, who works for common pleas court Judge R. Scott Krichbaum.

In that case, a jury awarded Hough $68,975 as compensation for the former railroad bed property he owns that the MetroParks wants for the bikeway. An appeals court in September ordered that the proceedings at the common pleas court level be vacated and the case returned to Welsh and Krichbaum for a necessity hearing.