YOUR INFORMATION NEWSLETTER FROM
NORTHFIELD CENTER TOWNSHIP TRUSTEE
PAUL G. BUESCHER
~ KEEPING NCT RESIDENTS INFORMED SINCE 2005 ~
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#485 THURSDAY MAY 11, 2017
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PROSECUTOR’S OFFICE CLARIFIES
FLOODING RESPONSIBILITIES
As a result of the ongoing flooding issues in our Township and the number of requests that the “Township do something about it”, I posed several related questions to the Summit County Prosecutor’s Office to ascertain once and for all what, if any, responsibilities fall within the authority of the Board of Trustees. We always knew what restrictions we faced but I wanted clarification and verification on those restrictions and the law(s) with which they were based upon. Northfield Center resident and attorney, Gene Lim also wanted to know this information and fellow Trustee, John Romanik, wanted verification on what he discovered during his relentless investigative work on this subject. Assistant Prosecuting Attorney, Pete Nischt, spelled things out very clearly in his following May10th emailed response:
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Mr. Buescher,
I’ve had a chance to go over your question about whether or not Townships are allowed to use public money/equipment to maintain or repair ditches on private property. There are a multiple sources of authority on why the Township is not allowed to do this.
I. Township Trustees may not use public resources to benefit private individuals absent a power expressly granted to them under the Ohio Revised Code
First, as we have previously established, absent a power expressly granted to Townships in the Ohio Revised Code, a Township is not permitted to use public funds to benefit private entities, and there are AG’s opinions saying that those who authorize such payments can be held personally responsible for doing so.
II. Townships are not responsible for the construction, maintenance or repair of ditches under the Ohio Revised Code
Second, you mentioned that a constituent was wondering if the answer would be different if the Township assessed the property owner for the work it performed on the ditch. As you will see below, the answer does not change because this work is still not within the purview of the Township.
As you pointed out, the Ohio Auditor’s Township Manual says explicitly that townships can’t use their equipment to repair private ditches. At the top of page H-2, the answer to question two (“May township equipment be used to repair drainage or private ditches?”) simply reads “No.” The reason for this is that the Ohio Revised Code was amended in the 1981 to delegate the authority/obligation to do this kind of work to the Board of County Commissioners (or in our case, the County Executive and Council) and to a lesser degree, the County Engineer. To reiterate this point, the answer to question one at the top of page H-2 says that Townships aren’t even allowed to construct their own ditches anymore due to the repeal of Chapters 6139 and 6141 of the ORC. I have attached the most recent version of the Auditor’s Township Handbook so that you may provide it to any constituent with questions.
Additionally, Ohio Revised Code Section 6131.04 lays out a petitioning process whereby private individuals can petition the County Executive and County Engineer to do this sort of work on their properties. Please note that these individuals will be assessed for the work that is done on their property under this section.
Finally, AG’s Opinion 2010-027, which cites both controlling court cases and previous AG’s opinions, states that “A review of R.C. Chapter 6131 discloses that a township has no duty or responsibility under that chapter to repair or maintain privately constructed underground storm water drainage facilities…” and that “the entire system of ditch legislation, as we now have it, proceeds on the theory, that those who are to be benefited in some substantial way, and those alone, shall bear the burden of providing the drainage.” It goes on to reiterate what I think we’ve established by now, saying that “it is well established that a township has no express or implied authority to construct, repair, or maintain storm water drainage facilities ‘to carry off surplus water except to the extent incidental to and necessary in the improvement of a township road.'”
To summarize all of this, I found a GREAT newsletter put out by the Ohio Township Association in March/April of 2004 that deals directly with this issue and provides in chronological order the steps a private individual can take to remedy the situation. See attached!
So, at this point, we have the Ohio Auditor, the Ohio Attorney General, the Ohio Supreme Court, the County Prosecutor, the County Engineer, the Ohio Revised Code and the Ohio Township Association all saying the same thing, which is that Northfield Center Township has no responsibility or authority to correct private drainage problems or to enter on to private property and expend public funds to clean and maintain private ditches.
I would say, as I think John Galonski and Heidi Swindell have already said, that the best course of action would be for someone raising these issues to follow the steps laid out by the Ohio Township Association, eventually filing a private lawsuit if they have to.
III. NCT cannot hide behind the guise of immunity under 2744 to get away with performing this work.
As a post script, I’d also like to briefly address your constituent’s assertion that Northfield Center Township should go ahead and repair the ditches anyway because they will be shielded by liability for doing so under Section 2744. While government immunity is a strong defense, it does have its limits.
Section 2744.03(A)(2) reads that “The political subdivision is immune from liability if the conduct of the employee involved, other than negligent conduct, that gave rise to the claim of liability was required by law or authorized by law, or if the conduct of the employee involved that gave rise to the claim of liability was necessary or essential to the exercise of powers of the political subdivision or employee.
As we have established above, Northfield Center Township is not “authorized by law” to perform ditch repairs on private property. I would also argue that this ditch repair is not “necessary or essential to the exercise of powers” of Northfield Center Township, as it does not have the power to do this type of work in the first place.
Furthermore, Section 2744.03(A)(6) reads that “… the employee is immune from liability unless… The employee’s acts or omissions were manifestly outside the scope of the employee’s employment or official responsibilities.”
As we have already established, since Northfield Center Township is not authorized to perform ditch repairs on private property, one could easily argue in court that trespassing on to private property to perform work that one is not authorized to perform is outside the scope of that individual’s employment by the Township.
Please let me know if you have any further questions!
Pete
Pete Nischt
Assistant Prosecuting Attorney
O: (330) 643-8659
TRUSTEE ROMANIK SHARES MORE
INFORMATION ON STORM WATER
This spring on Sunday, March 26th and Wednesday, April 19th our area experienced some severe downpours that brought with it many complaints from residents, including emailed photos showing their flooded yards. After the first deluge, I went to the County Engineer’s website to see if there was any new information that we as Trustees did not already know about the policies and legalities regarding stormwater.
On the Engineer’s website, I read a brochure titled “Roadside Ditches in Summit County” and it encapsulates the responsibilities of both the County and property owners as it pertains to stormwater. I was intrigued by some of the statements made in the pamphlet and I posed several questions in an email to Heidi Swindell, Director of Government Relations for the Summit County Engineer. Ms. Swindell was very prompt in her reply and the following are excerpts from the brochure, my questions to the County and the County’s responses:
Mr. Romanik,
Thanks again for your thoughtful questions. I ran these by Mr. Brubaker and the Prosecutor as well.
Brochure: “The responsibility for the maintenance and improvement of drains, ditches, and water-courses, except county ditches established after August 23, 1957, rests entirely upon the land owners affected and benefited. It is not the obligation of the County Engineer to maintain or improve the storm drainage facilities across any individual’s property for either agricultural purposes or developed properties.”
Question: The statement “except county ditches established after August 23, 1957” is confusing. I did not think that the county was responsible for the maintenance of any county ditches.
Response: That statement is correct, unfortunately after 1957 Summit County did not re-establish any of the ditches. Other counties did and placed a maintenance fee on the affected property owners so they do have the maintenance responsibility for the ditches. Since we don’t have any county ditches created or re-established after 1957, Summit County currently does not have the funding for maintenance of the old county ditches. Note though that we do maintain drainage systems in subdivisions where property owners pay assessments for the maintenance of those facilities, which are technically ditches under Chapter 6137 of the ORC.
Brochure: “When an individual purchases property, the principle of “Caveat Emptor”, or “let the buyer beware”, is the purchaser’s best guideline. Land ownership has many potential and real benefits, but also comes with certain liabilities. Storm drainage facilities fall under the liability category of property ownership. Storm drainage channels cannot be closed, obstructed or altered in any way which would reduce the capacity for conveying storm water across private property.” “An owner may be liable for upstream property damage for the obstruction of the flow of water within the storm drainage channels crossing his property.”
Questions: If a land owner in Summit County cannot close, obstruct or alter storm drainage channels which would reduce their capacity, what is the legal procedure to correct such a violation? If the storm drainage facilities (county ditches) are a liability of the property owner, who has the jurisdiction to enforce an infraction? Would any reparations for property damage be the result of a private lawsuit? Or would the county be involved?
Response: Currently under the ORC the only legal procedure is for an affected property owner to file lawsuit against the neighbor creating damage by having a obstructing waterway. Reparations for damage and mandating an obstruction be removed would be up to the courts. However, in most drainage cases it is difficult to identify a single cause of ditch failure. The County would not be involved. Summit Soil and Water currently has limited enforcement power where someone has purposely blocked a stream that is subject to a riparian setback. I do not think Northfield Center has adopted the riparian legislation though, but I am not positive. Fallen trees and naturally occurring obstructions wouldn’t be counted. (Note: Northfield Center has adopted the County’s riparian setback legislation) If there was a successful ditch petition, the County would then be authorized to remove obstructions in the applicable waterway. Obviously you are familiar with the trouble we are running into getting the seed money to proceed with ditch petitions. With a stormwater utility program we intend to develop rules that would give the County authority to enforce regulations, such as having property owners keep waterway clear of obstructions and debris. As it stands now, we do not have any enforcement mechanisms for this.
I hope that helps. Please let me know if you need anything else from our office.
-Heidi
At our May 1st Trustees’ meeting, we invited a representative from the Engineer’s office to join us to hear some of the resident’s complaints and comments and to give the County’s point of view. After hearing some of the residents speak, Mr. Joe Paradise, a Professional Engineer with Summit County, reiterated many of the responses given above by Ms. Swindell. In short, before there can be any progress, there needs to be a revenue stream for these projects in the form of an assessed ditch petition for affected property owners, or the proposed stormwater utility program for Summit County communities.
The next day, the Trustees attended a dinner hosted by the Engineer’s office at Gambitta’s Party Center in our township which included Trustees from all of the Summit County townships as well as Summit County Council members and many of the engineers that we deal with on a routine basis. During Summit County Engineer Al Brubaker’s presentation, his PowerPoint images showed some of our very own resident’s stormwater photos that have been submitted to his office. While discussing the proposed stormwater utility program, Trustee Buescher asked if the residents would have a say in whether we “opt in” to the program or not. Mr. Buescher described the monthly fee as a “tax”. Mr. Brubaker replied that under the Ohio Revised Code, the program would be instituted as a utility, therefore charging the residents a “fee” as opposed to a “tax”. The decision to “opt in” and charge the residents this proposed “fee” would be at the discretion of the three Trustees. The initial monthly cost per household would start at $4.00 with some credits available and higher fees for commercial properties. On the plus side, all of the money collected from Northfield Center would be used for Northfield Center. It is not known at this time what amount would be sufficient to tackle some of the our township’s stormwater problems, but to just develop a plan for any given project will likely cost several hundred thousand dollars.
I wrote this synopsis to let our residents know that your stormwater and flooding problems are not falling on deaf ears. As Trustees, we cannot directly solve these problems. That responsibility was taken away from us a long time ago by the State of Ohio. What we are trying to do is find the best avenue to get these issues addressed. The County’s stormwater utility program is still in the development stages. It was suggested by a guest at the Engineer’s dinner that a large contingent from Northfield Center should attend the next County Council meeting to direct their attention to these problems. In any case, it is a top priority of Trustee Buescher and myself to keep these issues moving forward.
John J. Romanik
Trustee Vice-Chair
Northfield Center Township
MOSQUITO AND TICK SEASON BEGINS
Summit County Public Health: Mosquito and tick season has officially begun in Summit County and Summit County Public Health, along with the Ohio Department of Health would like to remind residents to take every precaution to eliminate the risk for mosquito bites that can carry West Nile virus and Zika virus and tick bites that can transmit Lyme Disease. In Ohio ticks are most active from April through September and mosquitoes are most active from May through October according to the Ohio Department of Health.
MOSQUITOES:
Summit County has the type of mosquitoes that transmits West Nile virus. The primary mosquito species that transmits Zika virus is not known to be established in Summit County. However, a “cousin” of the mosquito that may transmit Zika virus is found in Ohio.
“It is very important to remember that there are simple precautions you can take while traveling and at home to help prevent mosquito borne diseases”, said Dr. Marguerite Erme, Medical Director, Summit County Public Health.
Mosquitoes can be indoors or outdoors and some species will bite during the day and others bite at dusk and dawn. Tips to avoid mosquito bites include:
· Wear light colored long-sleeved shirts, long pants, shoes and socks.
· Stay in places with air conditioning or that use window and door screens to keep mosquitoes outside. · Make sure screens in windows or doors are in good repair.
· Sleep under a mosquito bed net if you are overseas or outside and are not able to protect yourself from mosquito bites.
· Use Environmental Protection Agency (EPA)-registered insect repellents. All EPA-registered insect repellents are evaluated for effectiveness.
o Always follow the product label instructions
o Reapply insect repellent as directed.
o Do not spray repellent on the skin under clothing.
o If you are also using sunscreen, apply sunscreen before applying insect repellent.
It is important to eliminate possible mosquito breeding grounds around your home to help protect yourself:
· Get rid of standing water around your property.
· Empty containers that may hold water such as buckets, flower pots and birdbaths.
· Make sure all gutters are clean.
· Keep children’s wading pools empty and on their side when not in use.
TICKS:
Summit County currently has the Blacklegged ticks that transmit Lyme Disease. It is important to for residents to take precautions to prevent the spread of tick borne diseases. Here are some tips to help you avoid tick bites:
· Avoid wooded areas with high grass and brush, stay in the middle of trails.
· Use EPA – registered tick repellent and follow the directions on the label.
· Wear long pants and tuck them into your socks.
· Wear light colored clothing; it makes it easier to see ticks.
· Perform tick checks, including the places ticks like to hide: your hair, under your arms, behind the knees and in your belly button.
· Check your pets and kids after they have been outside in areas where ticks may live. If you find a tick on you or your family follow these steps to remove the tick:
· Use fine-tipped tweezers to grasp the tick as close to the skins surface as possible.
· Pull upwards with even pressure. DO NOT twist or jerk the tick, which can cause the mouth parts to break off and remain in the skin. If this happens remove the mouth parts with tweezers.
· After the tick is removed, clean the bite area and your hands with rubbing alcohol, or soap and water.
· Dispose of a live tick by submersing it in alcohol, placing it in a sealed container/bag, wrapping it tightly in tape or flushing it down the toilet. Never crush a tick with your fingers.
· If you remove a tick from your body, please watch for fever, rash, muscle or joint pain or other symptoms. If you experience any of these symptoms contact your healthcare provider. For more information/resources on the prevention of tick and mosquito borne diseases go to http://www.scphoh.org , https://www.odh.ohio.gov/ or http://www.cdc.gov.
May 10, 2017
Contact: Dr. Marguerite Erme, Medical Director, Summit County Public Health
(330) 812-3865
QUESTIONS & ANSWERS
Q >>> – First off, thanks for sharing the [flood] information! Secondly, I live in Rolling Brook development. When Brandywine Creek was backed up a couple weeks ago, the small creek running through the development was backed up as well. I heard a couple basements were flooded because sump pumps couldn’t keep up. It seems that Brandywine Creek is a bottleneck. Is there any plan to widen the creek? Just wondering…
A >>> – There are no plans whatsoever to widen Brandywine Creek. Besides, what good would it do unless it was both widened and deepened all the way to Brandywine Falls? Let’s be perfectly honest here. Wetlands function as nature’s sponges – They absorb and then slowly release heavy rainfall and minimize any potential flooding. The problem here is that most, if not all of Rolling Brooke, was built on a wetland. Under today’s standards, your development would probably not have been allowed to be built. Remember that soccer stadium that was proposed next to Rolling Brooke? Even though the stadium proposal fell apart because of hidden taxes, it was eventually revealed in the “Route 8 Corridor Study” that the remaining wetlands and riparian areas would have prohibited the building of the stadium in the first place.
YOUR GENERAL COMMENTS
NOTE – If you would like your name to appear under your
Comments, please type the word “Signed” next to your name
As you well know I am not a Northfield Center resident. But I have to say this was very informative and well written. Well Done !
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Paul, I am a former member of Twinsburg’s Environmental Commission, a Commission that you started when you lived here. Your latest article on flooding brought back many memories on our fight against the City’s environmental destruction. I still have a copy of an article you wrote in the Twinsburg Bulletin on September 11, 1997. It was titled “Witness Environmental Charade In Twinsburg”.
I know you have many readers so I would like to share two quotes in that article you wrote that I feel are relevant to your current flooding issues.
“Throughout the city, streets are routinely named for natural areas that have been forever destroyed. Great Blue Herons no longer roost at Heron Cove nor do Mallards visit the filled wetland of Mallard Cove.”
“It’s no wonder then that developers have and continue to enjoy a seemingly free rein to manipulate the hydrology and topography of our city for their own pleasure. All this at the expense of our increasingly burdened infrastructure. This madness has got to cease!”
It seems that this fight will never end my friend. All one can do is keep on fighting and with conviction loudly state, when necessary, WE TOLD YOU SO!
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Thanks for the great information. You have obviously been closely connected with following these issues.
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Well stated. Nature will always win.
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Thank you for this e-mail. I live on Butternut Lane. There is a house on this street that is not lived in. The owners cut down all the trees on the property this year. It looks like a war zone in that yard. I have noticed small amount of water collecting between that house and the house next door during heavy rains. Trees help to store water. Just like wetlands hold a lot water.
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When we built our homes in the Skyhaven subdivision we were not aware that it was once a swamp. Actually, we were told it used to be Welcome Airport. Our area was not zoned a flood plane so we weren’t under the impression there was a problem. Our builders were given the “grade” our drainage ditch was to be in order to allow the water to run down the cul-de-sac and out to the retention pond. The drainage ditch that was to carry the water away to the retention pond was either not graded properly and/or had become over grown which did not allow for the water to move properly. In order for the situation to be corrected, county crews had to encroach on private land. After many years of deliberation, the owner of that property allowed crews access. Our driveways were cut and culvert pipe replaced at the expense of each homeowner, while the public culvert was regraded and cleared to the retention pond. After all was said and done, it did nothing to alleviate the problem. The development was either not planned correctly or the plans for the development where not followed correctly. Regardless, when you build a home, you are paying a contractor to do their jobs correctly. Our contractor used the exact specs they were given. Our contractor, in turn, relied on the County Engineers to provide them with accurate information. Someone did not do their job properly and now the homeowners are the ones holding the bag.
In addition to flooding, our ditches almost always have standing water which provides a wonderful habitat for mosquitos. When we first moved in, the County sprayed for mosquitos every Monday evening, which allowed for us to be outdoors. The past few years, the County has stopped spraying for mosquitos which has made it unbearable to have any type of outside function much less basic day to day outdoor activities. We have experienced mosquito problems as early as March. The past two years we had minnows in our ditch until the end of last summer when we had a draught and the culverts finally dried out.
No one has had to rebuild their home. Some have had to redo their basements and in many instances, insurance has not covered their losses. What would you have them do; foreclose on their homes? Even then, the bank would sell it to someone else and the cycle would continue. Or perhaps level all the houses at the bottom of the “hill” and return it to its natural habitat? And at whose expense?
Signed
Kim Pelsoczi
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Hi Paul, Hats off to you for your extremely thorough discussion of the flooding problem here in Northfield Center Township and the surrounding area. It is truly a shame that a great part of this discussion will fall on deaf ears, as evidenced by your prior attempt to get the Dorwick property owners involved.
There is no doubt in my mind that, because of this discussion, you will be the target of many disgruntled “victims” who have nowhere else to turn and as a result will take it out on you. I really don’t know how you tolerate the total BS which you put up with and know it is not for the paltry stipend you receive as a trustee! I am going to take the liberty of comparing you to our President Donald Trump who obviously did not want the job for the money, but to Make America Great Again and look at the disgusting abuse that he and his family receive.
Regarding this flooding problem, there are three powerful sayings that apply to this situation, “Don’t mess with Mother Nature”, “It is what it is” and “Stupid is as stupid does”. Unfortunately, over the years, too many “experts” have messed with Mother Nature, leaving the problem for the next person in charge, and look where we are now. The other two sayings are self-explanatory. Please keep up your tremendous work on behalf of the township.
Signed,
Henry Harff
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Best put the word out, The IRS Scam calls have started in the neighborhood. We received a Robocall this AM An I apparently better watch out for the IRS cops because they now have warrant for my arrest.
It basically tells you that unless you call them back , they will be coming for my butt. The numbers I been called by so far are Perez E., 626-737-9678 and Rodriguez V, 626-618-2090 .
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Thank you,
Paul G. Buescher
Northfield Center Twp. Trustee – Chairman
330-467-9451
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