The opinion
[Cite as Niedziewcki v. Swancreek Water Dist., 2018-Ohio-2865.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
FULTON COUNTY
John Niedziewcki, et al. Court of Appeals No. F-17-004
Appellees Trial Court No. 15CV000237
v.
Swancreek Water District DECISION AND JUDGMENT
Appellant Decided: July 20, 2018
*****
Daniel P. McQuade, for appellees.
Maria Mariano Guthrie and Bobbie Corley O’Keefe, for appellant.
*****
PIETRYKOWSKI, J.
{¶ 1} This is an appeal from the judgment of the Fulton County Court of Common
Pleas, which granted summary judgment in favor of appellees, John Niedzwiecki and 113
other property owners, on their administrative appeal from appellant’s, Swancreek Water
District, determinations that it was necessary to construct a city water extension project
and to assess the property owners for the planning expenses of the project. For the
reasons that follow, we reverse.
I. Facts and Procedural Background
{¶ 2} The Swancreek Water District (“District”) is a political subdivision formed
in 1997 under R.C. Chapter 6119 to provide water services to the residents of Swancreek
Township. The District is governed by a five-person Board of Trustees (“Board”).
{¶ 3} In January 2011, the Board was first presented with information that the
residents of the Peaceful Valley Association would eventually need water. No action was
taken at that time. Separately, in August 2011, a resident, Shawn Shinaberry, requested
to have the water main extended down County Road EF. At the time, the water main
stopped on County Road EF between County Roads 2 and 3, and Shinaberry would have
liked to have it extended to his property on County Road EF between County Roads 3
and 4. Shinaberry requested a survey so that he could gauge community interest, but he
did not make progress getting responses and the issue was not pursued.
{¶ 4} In the fall of 2012, the Board heard from another resident of County Road
EF between County Roads 3 and 4 that was interested in getting water to his property.
By December 2012, Shinaberry presented the petition that he was working on, that
indicated 16 residents were in favor of having the water main extended, three were
against, and four were undecided. No action was taken at that time.
2.
{¶ 5} In January 2014, the Board began discussing a new project that would tie up
loose ends on County Roads E and EF, and that would loop two water systems. On
February 26, 2014, the Board adopted Resolution 2014-13, which anticipated a waterline
project for County Road EF and Peaceful Valley (“Project”). The Board worked to
define the project area throughout the spring of 2014, and on April 23, 2014, adopted
Resolution 2014-21, which authorized the engineering firm Arcadis to prepare plans,
specifications, profiles, and estimates of cost for the Project. On May 16, 2014, a special
meeting was held at which the Board advanced $50,000 from the general operating fund
to pay for the preliminary designs from Arcadis. On August 27, 2014, the preliminary
designs were presented to the board. The proposed design would cost approximately
$3,566,000.
{¶ 6} Special meetings were held on November 18, 19, and 20, 2014, to present
the Project to the residents within the project area. At the meetings, the Board provided a
Frequently Asked Questions form that explained the details of the Project. $1,000,000 of
the Project was to be funded by the District through rate increases, fees, and other
charges, which represented the cost of the portion of the Project that would benefit all of
the residents within the District by virtue of looping the two systems together. The
remaining amount was to be financed at a one percent interest rate through the Ohio
Water Development Authority, and the cost would be divided evenly amongst the 213
3.
affected parcels, for an estimated assessment of $11,831. That amount would be payable
up to 30 years, resulting in a semi-annual property tax assessment of $229.
{¶ 7} Also included in the Frequently Asked Questions form was a description of
why the District was considering the Project:
There is a need for the water throughout the project and a need to tie
in stub/dead end water lines and loop the system to maintain the integrity of
the water system. Looping the system provides greater service reliability,
better water quality and, when system repairs are necessary, it typically
results in fewer service disruptions.
The Frequently Asked Questions form also contained the typical benefits of a potable
waterline project:
A. Clean, reliable potable water
B. Increased property value
C. Fire hydrants / fire protection
D. Decreased homeowners insurance premiums
E. Less electricity and usage because no well / pump
F. No well maintenance needs.
{¶ 8} At the meetings, several of the residents expressed opposition to the Project.
Some of those opposed raised concerns regarding the quality of the Toledo water that
would be provided. Sharon Niedzwiecki stated that she owned three parcels in the area
4.
and could not afford to pay for three assessments. Others agreed that they also could not
afford the Project. Residents from Scenic Circle stated that they have a pond and do not
need the water. On the other hand, a couple of residents at the meetings indicated that
they were in favor of the Project.
{¶ 9} Following the special meetings, some residents continued to express their
concerns at the regular Board meetings. In January 2015, the Board decided to send out a
survey to the owners of parcels in the project area to determine their support for the
Project. The results of this survey were 39 in favor, 105 against, and 72 that did not
respond. A second survey was sent out to those who did not respond, with the updated
results being 49 in favor, 123 against, 5 that had questions, and 40 that did not respond.
{¶ 10} On March 19, 2015, the Board held a special meeting to go over the survey
results. It was noted that while the majority were against the Project, there still existed a
need or want in the areas. The Board also discussed the benefits of looping the system.
{¶ 11} Thereafter, the Board continued to hold regular meetings at which residents
expressed support or opposition to the Project. During this time, an ethical issue arose
regarding whether two of the trustees could vote on the Project because they owned
property in the project area. A subsequent opinion from the Ohio Ethics Commission
clarified that because the trustees would share in the costs and benefits of the large-scale
public works project in the same manner as all of the other residents, they were entitled to
vote on the Project.
5.
{¶ 12} On July 9, 2015, the Board enacted Resolution 2015-24 to publish a
“Notice of Pendency” of the passage of a resolution of necessity to obtain planning funds
for the Project. The notice stated, in part:
Notice of the pendency of the passage of a resolution of necessity to
plan and construct a water resource project and to levy an assessment for
planning of a water resource project and to maintain and operate the same
on behalf of the Swancreek Water District, and of the proposed
determination of the necessity of the construction of such project hereafter
described.
A public meeting for the purposes of hearing objections to, and endorsements of, the
Project was scheduled for July 29, 2015.
{¶ 13} At the July 29, 2015 meeting, everyone was given three minutes to speak.
Some residents were in favor of the Project, citing the need for reliable water service, and
problems, or potential problems, with wells. Most residents, however, were against the
Project. Those opposed frequently referenced that they did not need the water, and that
the cost was overly burdensome. In addition, many raised concerns with the quality of
the water from Toledo. The residents suggested that there were other ways for those
without water to obtain it, such as having a pond, or building a cistern or reservoir and
hauling in water.
6.
{¶ 14} At the next regular meeting, on August 13, 2015, the Board enacted, by a
4-1 vote, Resolution 2015-29 to declare the necessity to construct the Project.1 The
resolution stated, in relevant part:
WHEREAS, residents of the area have requested central water
services; and
WHEREAS, residents located within the Road 3 & Peaceful Valley
Project area have requested that the District construct a waterline
improvements project to service them; and
WHEREAS, the District must obtain funds to prepare plans,
specifications, estimates of cost, tentative assessments, and a plan of
financing for the Road 3 & Peaceful Valley Project to serve the District;
NOW, THEREFORE, BE IT RESOLVED by the Board of Trustees
of the Swancreek Water District:
***
Section Two: That the Board of Trustees of the District conducted a
hearing on the 29th day of July, 2015, and all persons whose properties are
proposed to be assessed were able to provide testimony and any other
1
Immediately after the vote, it became clear that one of the trustees did not understand
what his vote entailed. The Board noted that it could not amend its vote, but it could vote
to rescind the resolution. A motion to rescind the resolution was defeated by a 3-2 vote.
7.
evidence in support of or against said project and the passage of said
Resolution; and
Section Three: That having heard such testimony and reviewed such
evidence, the Board hereby finds and declares it necessary for the
preservation and promotion of the public health, safety and welfare to
construct the Road 3 & Peaceful Valley Project and to maintain and operate
the same on behalf of the District.
{¶ 15} The Project was again discussed at the regular meeting held on August 27,
2015. The minutes from that meeting reflect Trustee Brunner’s explanation of his
purpose for wanting to go through with the Project: “[T]here was not one reason for
doing this project there are a multitude of reasons and all of them together make it work.
* * * There are a lot of benefits to looping; there are health concerns, etc. I am looking
down the line in the future, not at the right now. The cost is just going to go up the more
we wait.”
{¶ 16} On September 10, 2015, the Board passed, by a 3-2 vote, Resolution 2015-
35 to publish the “Notice of Pendency” of the passage of a resolution of assessment to
plan the Project. The notice stated, in part:
Notice of the pendency of the passage of a resolution of assessment
to plan and construct a water resource project and to levy a planning
assessment for planning of a water resource project and to maintain and
8.
operate the same on behalf of the Swancreek Water District, and of the
proposed determination of the necessity of the construction of such project
hereafter described.
{¶ 17} A special meeting regarding the assessment of the planning costs was held
on October 1, 2015. Once again, everyone present at the meeting was given three
minutes to speak. The vast majority of the people at the meeting were opposed to the
project, citing concerns over the cost, lack of need, and the quality of the Toledo water
being provided.
{¶ 18} At the next regular meeting, on October 8, 2015, the Board, by a 3-2 vote,
enacted Resolution 2015-38 for an assessment under R.C. 6119.58 for the planning of the
Project. The resolution referenced that the Board had previously adopted Resolution
2015-29 declaring the necessity of the Project, and further resolved:
1) That the estimated planning cost of the project has been
ascertained and all planning assessments have been adjusted accordingly, as
required by R.C. 6119.58, as set forth in Exhibit A which is attached hereto
and incorporated herein; and
2) That the Board of Trustees of the Swancreek Water District
hereby deems it necessary and advisable to assess, at a rate of Eight
Hundred Twenty Seven dollars and Ninety Eight cents ($827.98) per parcel
identified on Exhibit A in accordance with R.C. 6119.58
9.
{¶ 19} In voicing his opposition to the Project and Resolution 2015-38, Trustee
Lange stated that it was not right for current water customers to pay for the new project,
and that looping the system to prevent the need to flush the lines was not cost effective.
Trustee Fuzinski also opposed the resolution because the Project was too costly. Trustee
Brunner, on the other hand, stated that one could not put a value on not shutting down a
town if there was an issue because looping was not done. During the public forum,
Trustee Brunner addressed the question of why the project should proceed even though
the majority of residents do not want or need the water. Brunner explained that the Board
has to look at the township as a whole, and that planning for the future and the township’s
infrastructure is a job the Board has to consider.
{¶ 20} On November 6, 2015, appellees filed their administrative appeal in the
trial court, in which they also sought an injunction to prevent appellant from levying
assessments against appellees’ property, and an injunction to prevent appellant from
purchasing Toledo water. Appellees alleged that Resolutions 2015-29 and 2015-38 were
unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the
preponderance of substantial, reliable, and probative evidence. In particular, appellees
alleged, inter alia, that the resolutions and legal notices of the hearings did not comply
with R.C. 6119.58, that the assessments included costs for planning services expended
before the resolution of assessment, that the Board has not determined that the Project is
10.
consistent with Environmental Protection Agency standards, and that the Project is not
conducive to the public health, safety, convenience, or welfare.
{¶ 21} On December 22, 2015, the District moved for summary judgment. The
District argued that the notices and resolutions fully complied with the requirements of
R.C. 6119.58. Further, the District argued that its finding of necessity was supported by
the transcript of the proceedings before the Board, which demonstrated that the Board
engaged in detailed discussions and analysis for several years before passing the
resolution of necessity.
{¶ 22} The next day, on December 23, 2015, appellees moved for an extension of
time to respond to the District’s motion for summary judgment. Concurrently, appellees
filed a motion for consideration of additional evidence under R.C. 2506.03. Appellees
argued that the transcript of the underlying proceedings provided by the District was
insufficient in that appellant “failed to file with the transcript conclusions of fact
supporting the final order, adjudication, or decision.” R.C. 2506.03(A)(5). In particular,
appellees argued that there were no statements of facts supporting the Board’s decision
that the Project was necessary for the preservation and promotion of the public health,
safety and welfare.
{¶ 23} The District opposed appellees’ motion to consider additional evidence.
The District argued that the resolution of necessity contained the required findings of
fact, namely that the Board resolved: “That having heard such testimony and reviewed
11.
such evidence, this Board hereby finds and declares it necessary for the preservation and
promotion of the public health, safety and welfare to construct the Road 3 & Peaceful
Valley Project and to maintain and operate the same on behalf of the District.” The
District further argued that even if the findings in the resolution of necessity were
insufficient under R.C. 2506.03(A)(5), the remainder of the transcript is sufficient to
identify the factual basis for the Board’s decision.
{¶ 24} On February 2, 2016, appellees filed their merit brief in the administrative
appeal. As the first of five assignments of error, appellees argued that the resolution of
necessity was illegal because it did not comply with the requirement in R.C. 6119.011(G)
that the resolution include a finding that the project was consistent with the
comprehensive plan of water management and the standards set by the environmental
protection agency.
{¶ 25} On February 9, 2016, the District filed a combined reply in support of its
motion for summary judgment and opposition to appellees’ merit brief. In its brief, the
District argued that the transcript is complete, and that no additional evidence should be
heard pursuant to R.C. 2506.03. Further, in response to appellees’ first assignment of
error, the District argued that the requirements under R.C. 6119.011(G) apply only to
resolutions “providing for acquiring, operating, leasing, or constructing” a water
management project. The District asserted that the resolutions of necessity and
assessment were for planning purposes only, thus any application of R.C. 6119.011(G)
12.
was premature. It argued that until plans for the Project were completed, it would be
impossible to make a determination that the Project was consistent with a comprehensive
plan of water management or environmental protection agency standards.
{¶ 26} On February 11, 2016, the trial court held a hearing on the various motions
and filings, including appellees’ motion filed the day before for a continuance pursuant to
Civ.R. 56(F) to conduct discovery. Appellees’ discovery request included three
resolutions that were not included with the transcript. Those resolutions pertained to the
creating of a new fund for the Project, advancing $50,000 from the general fund to the
newly created fund for the Project, and approving the agreement with Arcadis for
preliminary design of the Project. In addition, appellees also sought a copy of the
agreement with Arcadis, and documents showing any and all expenses, payments, or
disbursements relating to the Project. Appellees asserted at the hearing that those
documents were needed to demonstrate that the Board expended money prior to passing
the resolution of necessity, and that any money expended prior to the resolution of
necessity rendered the resolutions of necessity and assessment illegal. At the conclusion
of the hearing, the trial court gave the parties 10 days to file briefs regarding whether the
transcript should be supplemented with those documents.
{¶ 27} In the District’s supplemental brief, the District again argued that no
exception existed under R.C. 2506.03, and thus the record must be confined to the
transcript. Further, the District argued that none of the documents requested by appellees
13.
were relevant or necessary to determine the issues presented in the District’s motion for
summary judgment or appellees’ merit brief in the administrative appeal.
{¶ 28} In appellees’ supplemental brief, appellees again argued that the transcript
should be supplemented under R.C. 2506.03(A)(5) because there were no conclusions of
fact. Appellees also argued, for the first time, that the transcript should be supplemented
under R.C. 2506.03(A)(2) because they were not permitted to cross-examine witnesses at
the public hearings. In addition, and separate from their position under R.C. 2506.03,
appellees argued that there exist genuine issues of material fact, which therefore entitled
them to conduct discovery pursuant to Civ.R. 56(F). Those issues of fact included
whether the Project was “necessary” and economically feasible, whether the public notice
regarding the resolution of assessment was statutorily compliant, whether the resolution
of assessment included costs for preliminary designs that were incurred before the
passage of the resolution of necessity, and whether the District failed to make any
revisions to the estimated assessments that are “necessary or just.” Finally, appellees
argued that because they were challenging the constitutionality of R.C. 6119.58 and the
District’s water main extension policy in Resolution 2014-54, they were entitled to offer
additional evidence to support their claims.
{¶ 29} The District was granted leave to file a response to appellees’ supplemental
brief regarding their motion to consider additional evidence. In its response, the District
initially noted that appellees’ supplemental brief exceeded the scope of the court’s order
14.
and raised new arguments for the first time. Thus, the District argued that appellees’
supplemental brief should be stricken. Nonetheless, the District addressed the merits of
appellees’ arguments. In response to appellees’ claim that the transcript should be
supplemented under R.C. 2506.03(A)(2) because appellees were unable to cross-examine
witnesses, the District contended that appellees did not object to the format of the public
hearing, and therefore waived that argument in the administrative appeal. Next, the
District argued again that the transcript should not be supplemented under R.C.
2506.03(A)(5) because it contained sufficient conclusions of fact.
{¶ 30} On June 1, 2016, the trial court granted appellees’ motion to consider
additional evidence. The trial court first found that appellees had waived their right to
cross-examine the witnesses by not objecting at the hearing, and thus appellees were not
entitled to supplement the record under R.C. 2506.03(A)(2). However, the trial court did
find that under R.C. 2506.03(A)(5), the District had failed to file conclusions of fact
supporting the resolutions. In particular, the trial court found that the resolution of
necessity did not contain sufficient findings of fact wherein the Board resolved:
Section Two: That the Board of Trustees of the District conducted a
hearing on the 29th day of July, 2015, and all persons whose properties are
proposed to be assessed were able to provide testimony and any other
evidence in support of or against said project and the passage of said
Resolution; and
15.
Section Three: That having heard such testimony and reviewed such
evidence, the Board hereby finds and declares it necessary for the
preservation and promotion of the public health, safety and welfare to
construct the Road 3 & Peaceful Valley Project and to maintain and operate
the same on behalf of the District.
In addition, the trial court found that the remainder of the transcript likewise did not
contain sufficient conclusions of fact regarding the resolution of necessity. The court
noted that the only factual statements from the trustees pertaining to the necessity of the
Project were from the two trustees who stated that they were opposed to the Project
because of the cost. As to conclusions of fact relative to the resolution of assessment, the
trial court found that the resolution of assessment did not contain any findings of fact, and
did not incorporate the findings of fact from the resolution of necessity. Therefore, the
trial court held that appellees were entitled to supplement the record with any additional
relevant evidence. Finally, in light of its finding under R.C. 2506.03(A)(5), the trial court
denied appellees’ arguments under Civ.R. 56(F) as moot.
{¶ 31} Thereafter, the parties conducted discovery, including taking the
depositions of nine of the property owners and two members of the Board. In addition,
appellees submitted affidavits from Trustee Fuzinski and Laura Johnson. Johnson is the
Director of the National Center for Water Quality Research at Heidelberg University. In
her affidavit, Johnson concluded that the majority of groundwater wells in the project
16.
area contained water that was safe and drinkable, and the water quantity was adequate for
residential use in 85 percent of the wells.
{¶ 32} Following discovery, appellees filed their motion for summary judgment,
and the District filed a supplement to its original motion for summary judgment. In
appellees’ motion they presented six arguments in support. First, they argued that the
resolutions were illegal under the District’s waterline extension policy because the Board
initiated the Project without the required public majority support. Second, they argued
that the resolutions were illegal because they did not include a finding that the Project is
consistent with the water management plan and with the standards set by the
environmental protection agency, as required under R.C. 6119.011(G). Alternatively,
appellees argued that the resolutions were illegal because the District expended funds to
plan the project before passing the resolution of necessity. Third, appellees argued that
the resolution of assessment was illegal because the notice of hearing was deficient under
R.C. 6119.58. Fourth, they argued that the resolutions of necessity and assessment were
arbitrary and capricious because the Board did not consider public records regarding
existing water quality and quantity, and did not consider the residents’ statements that
there was not a need for city water. Fifth, appellees argued that the resolutions were
unsupported by the preponderance of substantial, reliable, and probative evidence.
Finally, appellees argued that the resolutions were unconstitutional because they violated
17.
appellees’ due process rights in that the District committed multiple violations of
statutorily mandated procedures.
{¶ 33} In the District’s supplemental motion for summary judgment, it argued that
the resolutions complied with all of the requirements under R.C. Chapter 6119. Further,
the District argued that the resolution of necessity was supported by five factors:
(1) the initial Shinaberry petition showing a need for the water by
some property owners, and the subsequent surveys which showed a
continued interest by a significant number of property owners even though
the majority were against the project;
(2) the preliminary engineering reports from Arcadis showing that
potential looping of the lines to limit “dead ends” and to reduce flushing of
the lines would be the most efficient method of proceeding and would
provide a better quality of water, as well as providing an additional water
line to service existing customers in Metamora in case of emergencies;
(3) the potential cost savings of including the most amount of
properties on the shortest amount of pipe;
(4) the intent to prevent potential problems that might develop in the
Peaceful Valley area as a result of the septic and water areas for a number
of parcels in that area not meeting minimum state requirements for spacing
of 100 ft.; and
18.
(5) getting the project “shovel ready” so the Water District could be
in a position to apply for state and federal grants to help reduce the costs.
Thus, the District concluded that no genuine issues of material fact existed, and summary
judgment in its favor was appropriate.
{¶ 34} The parties then each filed responses and replies to the motions for
summary judgment.
{¶ 35} On January 17, 2017, the trial court granted summary judgment in favor of
appellees, and vacated the resolutions of necessity and assessment. In its decision, the
trial court found that the resolution of necessity was illegal because it failed to comply
with the requirement in R.C. 6119.011(G) that the Board find that the project is
consistent with the applicable comprehensive plan of water management, and that it is
consistent with environmental protection agency standards. By extension, the trial court
thereby also found the resolution of assessment to be illegal. In addition, the trial court
found that the preponderance of the substantial, reliable, and probative evidence did not
support the District’s finding that the Project was “necessary.” The trial court declined to
address the remainder of appellees’ arguments. Finally, in light of its order vacating the
resolutions of necessity and assessment, the trial court dismissed appellees’ claims for
injunctive relief.
19.
II. Assignments of Error
{¶ 36} The District has timely appealed the trial court’s June 1, 2016, and
January 17, 2017 judgments, assigning four errors for our review:
I. The trial court erred in considering new or additional evidence
under R.C. 2506.03.
II. The trial court erred in permitting Appellees to conduct additional
discovery and present additional evidence and failed to hold an evidentiary
hearing.
III. The trial court erred in granting Appellees’ Motion for Summary
Judgment and denying Appellant’s Motion for Summary Judgment.
IV. The trial court erred in concluding that the finding that the
Resolutions passed by Appellant were illegal.
For ease of discussion, we will address the District’s assignments of error out of order.
III. Analysis
{¶ 37} Review of administrative appeals is governed by R.C. 2506.04, which
provides:
If an appeal is taken in relation to a final order, adjudication, or
decision covered by division (A) of section 2506.01 of the Revised Code,
the court may find that the order, adjudication, or decision is
unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported
20.
by the preponderance of substantial, reliable, and probative evidence on the
whole record. Consistent with its findings, the court may affirm, reverse,
vacate, or modify the order, adjudication, or decision, or remand the cause
to the officer or body appealed from with instructions to enter an order,
adjudication, or decision consistent with the findings or opinion of the
court.
{¶ 38} The Ohio Supreme Court has further explained how appellate review of an
administrative decision by a common pleas court differs from that by a court of appeals:
The common pleas court considers the “whole record,” including
any new or additional evidence admitted under R.C. 2506.03, and
determines whether the administrative order is unconstitutional, illegal,
arbitrary, capricious, unreasonable, or unsupported by the preponderance of
substantial, reliable, and probative evidence.
The standard of review to be applied by the court of appeals in an
R.C. 2506.04 appeal is “more limited in scope.” * * * “This statute grants a
more limited power to the court of appeals to review the judgment of the
common pleas court only on ‘questions of law,’ which does not include the
same extensive power to weigh ‘the preponderance of substantial, reliable
and probative evidence,’ as is granted to the common pleas court.” * * *
“It is incumbent on the trial court to examine the evidence. Such is not the
21.
charge of the appellate court. * * * The fact that the court of appeals, or
this court, might have arrived at a different conclusion than the
administrative agency is immaterial. Appellate courts must not substitute
their judgment for those of an administrative agency or a trial court absent
the approved criteria for doing so.”
***
This court has held that in administrative appeals under R.C.
2506.04, “within the ambit of ‘questions of law’ for appellate court review
would be abuse of discretion by the common pleas court.” (Internal
citations omitted.) Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio
St.3d 142, 147-148, 735 N.E.2d 433 (2000).
A. Whether findings are required under R.C. 6119.011(G)
{¶ 39} In its third assignment of error, the District argues that the trial court erred
when it found that the resolutions of necessity and assessment were illegal because they
failed to contain a finding that the Project was consistent with standards established by
the environmental protection agency as required under R.C. 6119.011(G).
{¶ 40} R.C. 6119.58 provides the procedure for a water district to obtain funds for
the purposes of planning a project. It provides, in pertinent part,
In order to obtain funds for the preparation of plans, specifications,
estimates of cost, tentative assessments, and a plan of financing for any
22.
water resource project or part thereof, the board of trustees of a regional
water and sewer district may levy upon the property in such district to be
benefited by such project assessments apportioned in accordance with one
or more of the methods set forth in section 6119.42 of the Revised Code. *
**
If the board of trustees proposes to obtain funds in accordance with
this section, it shall determine by resolution that it is necessary to construct
the water resource project and to maintain and operate the same on behalf
of the district.
R.C. 6119.011(G) defines “water resource project” as
any waste water facility or water management facility acquired,
constructed, or operated by or leased to a regional water and sewer district
or to be acquired, constructed, or operated by or leased to a regional water
and sewer district under this chapter, or acquired or constructed or to be
acquired or constructed by a political subdivision with a portion of the cost
thereof being paid from a loan or grant from the district under this chapter,
including all buildings and facilities that the district considers necessary for
the operation of the project, together with all property, rights, easements,
and interest that may be required for the operation of the project. Any
water resource project shall be determined by the board of trustees of the
23.
district to be consistent with any applicable comprehensive plan of water
management approved by the director of natural resources or in the process
of preparation by the director and to be not inconsistent with the standards
set for the waters of the state affected thereby by the environmental
protection agency. Any resolution of the board of trustees of the district
providing for acquiring, operating, leasing, or constructing such projects or
for making a loan or grant for such projects shall include a finding by the
board of trustees of the district that those determinations have been made.
{¶ 41} In its decision granting summary judgment to appellees, the trial court
found that the resolution of necessity, and by extension the resolution of assessment,
failed to include a finding that the Project was consistent with the standards set by the
environmental protection agency, and were therefore illegal under R.C. 6119.011(G).
We hold that the trial court’s interpretation is incorrect as a matter of law.
{¶ 42} “The primary goal of statutory construction is to ascertain and give effect
to the legislature’s intent in enacting the statute. To determine legislative intent, we must
first look to the plain language of the statute itself. We apply a statute as it is written
when its meaning is unambiguous and definite. If a statute is unambiguous, it must be
applied in a manner consistent with the plain meaning of the statutory language.”
(Internal citations omitted). Sugarcreek Twp. v. City of Centerville, 133 Ohio St.3d 467,
2012-Ohio-4649, 979 N.E.2d 261, ¶ 19.
24.
{¶ 43} Here, a plain reading of R.C. 6119.011(G) reveals that it requires the
findings of consistency in any resolution “providing for acquiring, operating, leasing, or
constructing such projects.” In this case, the resolution of necessity declared only that it
was necessary to construct the project; it did not provide for the actual construction of the
project. Therefore, the required findings under R.C. 6119.011(G) do not apply to the
resolutions of necessity and assessment at issue here. Furthermore, we agree with the
District that this technical distinction makes sense when considering that it would be
impossible for a board of trustees to find that a project is consistent with environmental
protection agency standards when the final plans for the project have not been prepared.
{¶ 44} Accordingly, the District’s third assignment of error is well-taken.
B. Whether the transcript should have been supplemented under R.C. 2506.03(A)(5)
{¶ 45} As an alternative basis for granting summary judgment, the trial court
found that the Board’s decision was not supported by a preponderance of the substantial,
reliable, and probative evidence. Before we can reach this issue, however, we must
address the threshold matter regarding what evidence the trial court could consider.
{¶ 46} In its first assignment of error, the District argues that the trial court erred
when it allowed appellees to provide additional evidence outside of the transcript.
Relevant here, R.C. 2506.02 requires that,
Within forty days after filing a notice of appeal in relation to a final
order, adjudication, or decision covered by division (A) of section 2506.01
25.
of the Revised Code, the officer or body from which the appeal is taken,
upon the filing of a praecipe by the appellant, shall prepare and file in the
court to which the appeal is taken, a complete transcript of all the original
papers, testimony, and evidence offered, heard, and taken into consideration
in issuing the final order, adjudication, or decision.
Further, R.C. 2506.03(A)(5) provides that the hearing shall be confined to the transcript
unless “[t]he officer or body failed to file with the transcript conclusions of fact
supporting the final order, adjudication, or decision.”
{¶ 47} Ohio courts have accepted conclusions of fact that “were very summary in
nature.” Galli v. City of Columbus, 193 Ohio App.3d 415, 2011-Ohio-1896, 952 N.E.2d
525, ¶ 16 (10th Dist.). In addition, R.C. 2506.03(A)(5) “does not require the conclusions
of fact to take any specific form,” Concerned Richfield Homeowners v. Planning &
Zoning Comm., 9th Dist. Summit No. 25033, 2010-Ohio-4095, ¶ 10, and Ohio courts
have looked to meeting minutes to provide the conclusions of fact. See, e.g., id. at ¶ 12;
Premier Dev., Ltd. v. Poland Twp. Bd. of Zoning Appeals, 7th Dist. Mahoning No. 14
MA 91, 2015-Ohio-2025, ¶ 40; Ziss Bros. Constr. Co., Inc. v. City of Independence
Planning Comm., 8th Dist. Cuyahoga No. 90993, 2008-Ohio-6850, ¶ 27; but see
Brookside Auto Parts, Inc. v. City of Cleveland, 8th Dist. Cuyahoga No. 91721, 2009-
Ohio-967, ¶ 27 (“Considering the ordinary meaning of the words in R.C. 2506.03(A)(5),
we cannot conclude that conclusions of fact are appropriately contained ‘in’ the
26.
transcript. The statute explicitly requires separate conclusions of fact, apart from the
transcript of the hearing.”). The key concern is that parties should be informed of the
reasons for the decision, and courts should have something to review. Shelly Materials v.
Daniels, 2d Dist. Clark No. 2002-CA-13, 2003-Ohio-51, ¶ 23.
{¶ 48} Here, the trial court examined the resolution of necessity, specifically
noting:
Section Two: That the Board of Trustees of the District conducted a
hearing on the 29th day of July, 2015, and all persons whose properties are
proposed to be assessed were able to provide testimony and any other
evidence in support of or against said project and the passage of said
Resolution; and
Section Three: That having heard such testimony and reviewed such
evidence, this Board hereby finds and declares it necessary for the
preservation and promotion of the public health, safety and welfare to
construct the Road 3 & Peaceful Valley Project and to maintain and operate
the same on behalf of the District.
{¶ 49} In this case, Section Three of the resolution of necessity contains the
penultimate finding required by R.C. 6119.58, namely that it is necessary to construct the
Project. Nevertheless, in finding that the transcript did not contain sufficient conclusions
27.
of fact, the trial court reasoned that there were no factual findings to support or explain
the conclusory language contained in the resolution.
{¶ 50} However, the trial court failed to consider the earlier language in the
resolution of necessity, which stated,
WHEREAS, residents of the area have requested central water
services; and
WHEREAS, residents located within the Road 3 & Peaceful Valley
Project area have requested that the District construct a waterline
improvements project to service them; and
WHEREAS, the District must obtain funds to prepare plans,
specifications, estimates of cost, tentative assessments, and a plan of
financing for the Road 3 & Peaceful Valley Project to serve the District.
This “whereas” language contains a factual basis for finding that the Project was
necessary in that residents have requested water services, and have requested that the
Project be constructed. Likewise, the finding in the resolution of assessment that the
resolution of necessity had previously been passed, provides the factual basis for passing
the resolution of assessment. Furthermore, a review of the entire transcript elucidates the
Board’s reasoning for proceeding with the Project. The reasoning includes the requests
by some residents of the project area, the benefits of looping the two systems together—
28.
i.e., better water quality and more reliable service—and the potential cost savings of
doing the Project now as opposed to later.
{¶ 51} Notably, it is a separate question whether the transcript supports the truth
and validity of the Board’s reasons, or whether those reasons are sufficient to justify a
finding of necessity. But for the limited purpose of determining what the Board decided
and why it made that decision, we hold that the transcript contains sufficient conclusions
of fact as set forth in the resolution and the remaining transcript documents. Therefore,
we hold that the trial court erred as a matter of law in allowing appellees to supplement
the transcript under R.C. 2506.03(A)(5).
{¶ 52} Accordingly, the District’s first assignment of error is well-taken.
C. Remaining assignments of error moot
{¶ 53} Because we hold that the trial court erred in allowing appellees to
supplement the record, the District’s second assignment of error, which challenges the
trial court’s failure to hold a hearing on the supplemented evidence, and the District’s
fourth assignment of error, which challenges the trial court’s decision that was based
upon the supplemented evidence, are moot.
{¶ 54} Accordingly, the District’s second and fourth assignments of error are not
well-taken.
29.
IV. Conclusion
{¶ 55} For the foregoing reasons, we find that substantial justice has not been done
the party complaining, and the judgment of the Fulton County Court of Common Pleas is
reversed. This matter is remanded to the trial court for consideration of appellees’
administrative appeal only upon the transcript provided under R.C. 2506.02, and in
accordance with this decision. Appellees are ordered to pay the costs of this appeal
pursuant to App.R. 24.
Judgment reversed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. ____________________________
JUDGE
Thomas J. Osowik, J.
____________________________
James D. Jensen, J. JUDGE
CONCUR.
____________________________
JUDGE
30.