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Magistrate sets in motion combined Mill Creek bike-trail case

Staff photos / Ed Runyan ... Attorney Carl James talks to Magistrate James Melone on Wednesday during a pretrial hearing in Mahoning County Common Pleas Court regarding eight civil suits filed by the Mill Creek MetroParks over the use of eminent domain to acquire property to build the final phase of the MetroParks bikeway in Green Township. James represents property owner Diane Less. Around him are attorneys representing other property owners involved in the litigation.

YOUNGSTOWN — Magistrate James Melone was on the bench for a pretrial hearing Wednesday involving seven attorneys representing the Mill Creek MetroParks and property owners over the proposed building of the final phase of the MetroParks bikeway.

The litigation is over whether the MetroParks can use eminent domain to acquire rights of way on a former railroad bed in Green Township that the property owners own. The cases are about five years old, partly because of appeals, including one that went to the Ohio Supreme Court.

Judge John Durkin of Mahoning County Common Pleas Court ruled Oct. 11 that the case involving property owner Diane Less was being consolidated with seven other similar bike-trail cases under a case being handled by Melone, who works for Judge Anthony D’Apolito.

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 case. 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’s ruling prompted a request from the MetroParks for him to reconsider the consolidation, citing complications that will cause. Judge Durkin is expected to rule on that issue in the coming days, but Melone met with the attorneys for the eight cases Wednesday to try to work out the details so that the cases can be tried together.

After an hourlong discussion in the courtroom, Melone resolved to keep the cases consolidated and tried at the same time, pending Judge Durkin’s ruling.

A way to do that is to allow all of the parties to file a motion asking to amend their answer to the lawsuits the MetroParks filed against the property owners. If the magistrate allows them to amend their answer, it would allow all of the parties to deny that the MetroParks’ has the right to take the property or the necessity for the the MetroParks to use their property for the bike trail.

The fact that not all of the property owners denied the MetroParks’ right to take the property or had a necessity to take the property was discussed as a hurdle to the cases all being handled in one civil trial.

Melone is giving the property owners 14 days to file their request to amend their answer and 14 days after that for the MetroParks to respond to those filings, then another seven days for the property owners to file a response to that.

During the hearing, some of the attorneys remarked that the eight cases should be resolved as efficiently as possible to prevent their clients from having to continue to pay more legal fees.

The parties seemed to agree that whatever decision is reached in common pleas court would probably be appealed, possibly to the Ohio Supreme Court again, increasing the amount of time and expense.

Melone made the attorneys aware that because he was declared the winner of the election for Struthers Municipal Court judge last month, he will no longer handle this case after Dec. 31. His replacement as magistrate, attorney Scott Fowler, attended the hearing to listen to the discussion.

A complaint has been filed in the 7th District Court of appeals, however, on behalf of 28 voters in the Struthers Municipal Court jurisdiction asking that the results of the election be overturned on the grounds that there “was improper, irregular and illegal conduct” in the election.

Melone’s opponent in the election is the current judge, Jennifer Ciccone, who lost the election by about 10%. It is not known whether the complaint will prevent Melone from taking office as judge Jan. 1.

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