Bd. of Comm'rs for Trumbull Cnty. v. Vill. of Lordstown
| Decision Date | 01 August 2014 |
| Docket Number | CASE NO. 4:09CV0249 |
| Parties | BOARD OF COMMISSIONERS FOR TRUMBULL COUNTY, OHIO, Plaintiff, v. VILLAGE OF LORDSTOWN, OHIO, et al., Defendants. |
| Court | U.S. District Court — Northern District of Ohio |
MEMORANDUM OF OPINION AND ORDER
[Resolving ECF Nos. 40, 46, 72, and 77]
Pending are Defendant City of Warren's Motion for Summary Judgment (ECF No. 40), Plaintiff's Motion for Summary Judgment Against the City of Warren (ECF No. 46), Plaintiff's Modified Motion for Summary Judgment Against the Village of Lordstown, Ohio (ECF No. 72), and Defendant Village of Lordstown, Ohio's Motion for Summary Judgment (ECF No. 77). The Court has been advised, having reviewed the record, the parties' briefs and certificates, and the applicable law.1 The Court has also considered the oral arguments of counsel offered during themotion hearing held on the record. For the reasons provided below, the City's motion and the Village's motion are granted and Plaintiff's motions against the City and the Village are denied.
This is a dispute over whom may provide sanitary sewer service in a particular area of the Village of Lordstown.
Plaintiff, the Commissioners for Trumbull County, Ohio passed resolutions in the 1950s: establishing Lordstown Sewer District No. 1 for the Township of Lordstown; approving a general plan for a sewerage improvement system for the district; and instructing the County Sanitary Engineer to prepare detail plans for construction of the improvement.
In 1964, the County approved detail plans for the 36-inch trunk sewer line known as the Lordstown Interceptor Sewer ("LIS"). In the mid-1960s, the County constructed the LIS to bisect the Township and serve as the backbone of a sewer improvement sufficient to meet the Township's long-term needs. The purpose of passing the resolutions in the 1950s was to serve the Township community and the then new General Motors ("GM") Assembly plant, with a prediction that population would increase from an estimated 1365 residents in 1964 to an estimated 8750 residents by 1975, after the improvement was completed with extensions to serve the entire service area. The LIS traverses diagonally thru Lordstown, basically bisecting the Village, starting from GM's plant and running north/northeast to the point where it leaves the Village and connects to a large sewer main owned by the City.
In 1972, the Commissioners then passed a resolution consolidating Lordstown Sewer District No. 1 and approximately 16 other surrounding small sewer districts, including the Mud Creek Sewer District, into a large sewer district, known as the Trumbull County Metropolitan Sewer District ("MSD"), whose boundaries included all of the Township. ECF No. 67-40; ECF No. 49 at PageID #: 2986-88. As of April 2010, the MSD had approximately 10,300 residential and commercial customer accounts. ECF No. 50 at PageID #: 3300. GM's Lordstown Assembly Plant is the largest customer of the County's MSD, accounting for 15-20% of the annual revenue.
In 1975, the Township incorporated as the Village of Lordstown. In 1977, the Village adopted the County's subdivision regulations for construction of new sewer lines, including therein a section stating the County's authority and jurisdiction over the design, review, construction, inspection, and enforcement of all public sewers within the Village.
The County and the Village were parties to an agreement, by which they adopted counterpart ordinances to divide responsibilities for construction of sewer extensions, stating therein that the County's Sanitary Engineer had authority over the design, construction, inspection and maintenance of all sewer lines in the Village, and that a sewer extension agreement had to be executed for each project. The Village and the County entered into 16 separate private sewer extension agreements between 1984 and 2007, pursuant to which they agreed to terms and conditions for the construction and subsequent operations and maintenance ("O&M") of extensions to be connected to the County's LIS. See ECF No. 67-6 and 67-7. Each extension agreement restated the County's authority and transferred ownership to the County upon completion of the project.
In May 2003, the Village's Solicitor sent a letter to the County Sanitary Engineer stating that the private extension agreement is a "form agreement[ ]" that "exists by mandate" between the Commissioners and the Village. ECF No. 67-9 at PageID #: 1758 (underlining in original).
The County and the City of Warren entered into an agreement in December 1998,2pursuant to which the City agreed to accept for treatment wastewater from the Lordstown portion of the County's MSD, delivered via the LIS collection system with an expiration date of December 31, 2017. ECF No. 46-8. The 1998 Agreement contains three (3) primary provisions: 1) that "[t]he City will accept and receive into its sewerage system, and will treat and dispose of, the sewage from within said Warren-Champion and Lordstown sewer subdistricts" (ECF No. 46-8 at PageID #: 1056, ¶ 2); 2) that the agreement "may be extended" beyond the areas delineated as comprising the sewer districts (ECF No. 46-8 at PageID #: 1056, ¶ 4); and 3) sewage flows "may be increased, provided both parties agree that existing service is not impaired" (ECF No. 46-8 at PageID #: 1056, ¶ 5).
The County's MSD is indebted under a USDA loan program for three completed or pending capital sewer projects with a total outstanding balance, as of February 2010, of approximately $3.4 million. ECF No. 46-17.3 The County is also subject to a judicial consent order, dated January 12, 2007 (ECF No. 46-16), which mandates construction of sewers to stopunsanitary conditions in nine areas located inside the County's MSD, totaling an estimated $50-$55 million in future capital costs. ECF No. 50 at PageID #: 3290-92.
The Eastgate Regional Council of Governments ("ERCOG") is the Ohio EPA-designated agency with jurisdiction over centralized wastewater planning in Mahoning and Trumbull Counties. With the consent of the County, the Village and the City, the ERCOG General Policy Board passed a Resolution, dated July 31, 2006, to change the designated destination for transport of sewage from the southern part of the Village's East Side Sanitary Sewer Project ("ESSP") area from Mahoning County's Meander wastewater treatment plant to the City's treatment plant. ECF No. 67-48.
After some preliminary meetings between County officials and Village officials that raised concerns for the Village officials, the Village enacted an ordinance creating its own sewer district in June, 2007. ECF No. 67-24. The Village subsequently paid for the necessary work to plan and design the ESSP, let out the construction contracts, pay for it, operate it, and collect the sewer rents. ECF No. 77-2 at PageID #: 3530, ¶ 4.
The Village employed the engineering firm of CT Consultants to prepare a report entitled "Preliminary Engineering Report - Sewering the Eastside of the Village of Lordstown," dated February 2007. The report proposed extensions to serve the last unsewered part of the east side of the Village, to be connected to the County's LIS where its crosses Highland Avenue. Plaintiff's Exhibit 31 with oversized "Exhibit III" to the Deposition of Rex Fee; see Plaintiff's Notice of Manual Filing (ECF No. 68). It was submitted to the Ohio Environmental Protection Agency ("Ohio EPA") in late February 2007. While the Village did not provide a copy of thereport to the County before sending it to Ohio EPA, the Village did consult with the County's Health Department regarding the ESSP. ECF No. 67-3 at PageID #: 1615. On June 8, 2007, CT Consultants submitted to Ohio EPA a permit-to-install (PTI) application and engineering drawings for the Village's proposed construction of the ESSP. ECF No. 67-22. The Village did not disclose its application to the County, nor did it provide the County a copy in conjunction with, or after, its submittal to Ohio EPA. ECF No. 67-3 at PageID #: 1617. The Village did not disclose in its application that it did not present the engineering plans to the County for its approval. ECF No. 67-3 at PageID #: 1617. The application submitted to Ohio EPA modified the Village's preliminary engineering plans by proposing (1) a direct connection of the new extension lines to a sewer main of the City rather than to the County's LIS, (2) boring under the Ohio Turnpike to construct extension lines to serve the Imperial Mobile Home Park, and (3) approximately 9,400 feet of new extension lines designed to serve GM's Lordstown Assembly Plant.4 Compare Plaintiff's Exhibit 31 with oversized "Exhibit III" to the Deposition of Rex Fee with ECF No. 67-22 (). Thereafter, the Village obtained construction approval from the Ohio EPA for the ESSP. ECF No. 67-23.
The Village constructed the ESSP at a cost exceeding $11,800,000. It obtained loans of approximately $10,800.00 to pay for the project. ECF No. 77-2 at PageID #: 3530, ¶ 4. The ESSP provides sewer service to the relatively few customers in the disputed area. As of April 2010, there were approximately 300 connections in the ESSP, including a mobile home park.5 ECF No. 50 at PageID #: 3300.
While still a party to the 1998 Agreement it has with the County, the City entered into a 2007 treatment contract with the Village agreeing to accept effluent and sewage for treatment from the new lines constructed by the Village in the same geographical area from which the City had already agreed to accept wastewater for treatment delivered to the City from the County's LIS sewerage system. ECF No. 46-6. And in 2009, the City and the Village entered into a second contract for the City to provide O&M services to the Village for the new sewer lines...
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