Alexander Local Sch. Dist. Bd. of Educ. v. Vill. of Albany, 16CA19

• Decision Date: 16 November 2017
• Docket Number: No. 16CA19,16CA19
• Citation: 2017 Ohio 8704,101 N.E.3d 21
• Parties: ALEXANDER LOCAL SCHOOL DISTRICT BOARD OF EDUCATION, Plaintiff–Appellant, v. VILLAGE OF ALBANY, Ohio, Defendant–Appellee.
• Court: Ohio Court of Appeals

101 N.E.3d 21

2017 Ohio 8704

ALEXANDER LOCAL SCHOOL DISTRICT BOARD OF EDUCATION, Plaintiff–Appellant,

v.VILLAGE OF ALBANY, Ohio, Defendant–Appellee.

No. 16CA19

Court of Appeals of Ohio, Fourth District, Athens County.

DATE JOURNALIZED: November 16, 2017

Christopher L. McCloskey, Tarik Kershah, and Desmond J. Cullimore, Columbus, Ohio, for Appellant.

Lawrence E. Barbiere, Mason, Ohio, Robert R. Rittenhouse, Athens, Ohio, and Scott Robe, Athens, Ohio, for Appellee.

DECISION AND JUDGMENT ENTRY

PER CURIAM.

{¶ 1} This is an appeal from an Athens County Common Pleas Court judgment that dismissed the complaint filed by Alexander Local School District Board of Education, plaintiff below and appellant herein, against the Village of Albany, Ohio, defendant below and appellee herein. Appellant assigns the following errors for review:

FIRST ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN DETERMINING THAT THE PHRASE ‘NEW SCHOOL FACILITY’ WAS NOT AMBIGUOUS AND OPEN TO OTHER REASONABLE INTERPRETATIONS."

SECOND ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN DETERMINING THAT THE SCHOOL BOARD'S AMENDED COMPLAINT DID NOT ASSERT SUFFICIENT FACTS TO STATE ANY CAUSE OF ACTION."

THIRD ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN ITS RELIANCE ON SLIFE V. KUNDTZ PROPERTIES, INC. TO SUPPORT ITS GRANT OF THE VILLAGE'S MOTION TO DISMISS."

{¶ 2} This appeal arises out of appellant's 2015 application to connect its newly-designed Wellness Center to appellee's sewer system. According to the complaint, in 2015 appellee denied appellant's application to connect its newly-designed Wellness Center to appellee's sewer system. Appellee asserted that a 2010 village ordinance prohibited the issuance of sewer taps outside the village unless the property served by the tap is annexed into the village. The village mayor drafted a letter to inform appellant that appellee "will not accept the application for the tap at the Wellness Center as you * * * have been told many [sic] the District must annex into the village before any tap will be approved. You have been provided with a copy of the ordinance that pertains to this. The village will not accept the application or its fee until the District annexs [sic] into the village."

{¶ 3} Appellant subsequently filed an amended complaint against appellee that asserted four claims for relief: (1) a declaratory judgment that requested the trial court to declare the parties' rights and obligations created pursuant to a 2004 village resolution, written communications, and subsequently-enacted ordinances; (2) the breach of an agreement to allow the district to connect the Wellness Center to the sewer system and enacting ordinances that conflict with the agreement; (3) a request that the court to issue an injunction to prohibit appellee from imposing conditions for service that are contrary to, or that impair appellant's rights, under the sewer agreement; and (4) a writ of mandamus to order appellee to permit appellant to connect the Wellness Center to the sewer system without requiring appellant to annex, and further ordering appellee to issue a letter to the Ohio Environmental Protection Agency (EPA) in order to facilitate appellant obtaining approval for the Wellness Center project.

{¶ 4} Appellant premised its complaint upon an allegation that a 2004 resolution created a sewer services agreement between the parties. As background, appellant's complaint asserted that in 2004, it renovated and added onto its Ayers Road school facility. Appellant alleged that part of the project included constructing a sanitary sewer line that, for the first time, enabled it to discharge sanitary sewage from the school facility into appellee's sewer system. Appellant claimed that in the 2004 resolution, appellee agreed to provide it with a sewer tap, located on Rossiter Road, for appellant's school facility and authorized appellant to connect its sewer line to the tap and to discharge sewage into appellee's system. Appellee further averred that it paid appellee $95,000 for the sewer tap and that appellee authorized it to discharge flow through the tap in the amount of 111 Equivalent Dwelling Units (EDUs). Appellant attached the 2004 resolution to its complaint, as well as written communications between appellant and appellee concerning appellant's right to tap into the village sewer system and the amount of EDUs.

{¶ 5} The 2004 resolution states:

A resolution authorizing the Alexander School District to connect into the Albany waste water treatment system and to begin discharging waste water flow into the said system, but requiring all issues relating to the tap fee and other matters raised in Village correspondence dated March 26, 2004, to the engineer for the Alexander School District, to be resolved within 60 days of the date of connection, which 60 days is to commence not later than August 30, 2004.

Be it resolved by the Council of the Village of Albany, State of Ohio:

Section 1. The Alexander School District is hereby authorized to connect its new school facility located in Alexander Township, Section 33, on Ayers Road, into the Albany Waste Water Treatment System and to begin discharging waste water flow into the said system.

Section 2. The above approval and authorization shall expire 60 days following the date of connection/commencement of flow. The said 60 days shall commence not later than August 30, 2004. Within the said 60 days the said Alexander School District shall cause all requirements of the Village of Albany to be complied with, and all issues relating to tap fee and other matters raised in Village correspondence dated March 26, 2004, (a copy of which is attached) to Mr. James F. Barry III, P.E. C.F. Bird & R.J. Bull Inc., engineer for the Alexander School District, shall be resolved to the satisfaction of the Village of Albany.

Section 3. The above authorization is contingent upon the Alexander School District shall bear [sic] all expense of constructing, replacing, and maintaining the sewer line to the sewer tap, provided however, that the Village may at any time be permitted to take complete ownership of any such line. For purposes hereof, and for purposes of any extension of the sewer line to adjacent or other properties, the Alexander School District shall agree to grant such easements for sewer line and pumping purposes as may be necessary therefor as determined by the Village.¹

{¶ 6} Appellant's complaint also incorporated a May 13, 2004 letter from the village mayor to the school superintendent, which states that appellant

is approved for physical connection to the Albany Waste Water Treatment collection system. The School District may therefore cause its contractor to tap into the Village sewer line on Rossiter Road in accordance with the plans and specifications of the Albany Waste Water Treatment Project, copies of which your Engineer and your contractor have.

This letter is specifically for authorization to cause physical tap in to the sewer line. Authorization for use of that tap and hook in is not here given, but rather is held in abeyance pending resolution of the Tap Fee to be charged by the Village to the School District. It is anticipated that the Village will determine the Tap Fee to be charged shortly, but this will need to be resolved prior to the School District's commencement of usage. * * * *

The School District will otherwise need to comply, with respect to the sewer line it constructed, with the terms of the April 8, 2004 Letter to Neil Pratt * * *.

{¶ 7} Also attached to appellant's complaint is a June 30, 2004 letter that explains appellee's calculation of the Equivalent Dwelling Units (EDUs) for the school. The letter states that the village engineer expected the school to create 22,200 gallons per day of sewage, which equals 111 EDUs per day. Appellant additionally attached copies of documents evidencing its payment of $95,000 to appellee, as well as copies of recent sewer bills.

{¶ 8} Appellee filed a motion to dismiss appellant's amended complaint and alleged that appellant's complaint fails to state a claim upon which relief can be granted. In particular, appellee asserted that the complaint is based upon the assertion that the 2004 resolution granted appellant the right to tap the Wellness Center into appellee's sewer system. Appellee contended, however, that the plain and unambiguous language of the resolution does not give appellant the right to connect the Wellness Center to the sewer system, and thus, all of its claims must fail.

{¶ 9} Appellee argued that appellant's claims for relief are all premised upon its supposition that the Wellness Center falls within the terms of the 2004 resolution that permitted appellant to connect its "new school facility" to the sewer system. Appellee argued that appellant's Wellness Center, constructed more than ten years from the date of the resolution, does not constitute part of appellant's "new school facility" as contemplated in the 2004 resolution. Instead, appellee claimed that the phrase "new school facility" clearly and unambiguously authorized appellant to connect only "the School that had newly been renovated in 2004." Appellee also asserted that the resolution used the verb "located" in the past tense to manifest its intention that the resolution only authorized appellant "to connect its new school facility, as it existed as of the date the resolution was passed, to [appellee]'s sewer system." Appellee further contended that the Wellness Center does not constitute a "school facility" because appellant alleged that the Wellness Center would also serve the community, as well as students. Appellee thus argued that even if the resolution represents a contract or an agreement between the parties, appellant could prove no set of facts to show that it has any right to connect the Wellness Center to appellee's sewer system.

{¶ 10} Additionally, appellee asserted that the trial court should reject appellant's request to consider additional written documents when...