State must deposit flooding funds for landowners

The Third District Court of Appeals last week ordered the state to deposit money into accounts for landowners to cover flood damage caused by the West Bank spillway.

The ruling doesn't specify if the landowners will immediately receive the money for partial jury settlements or if the deposits will remain in a fund to be distributed at a later date.

More than 50 lawsuits have been filed since 2009 by local landowners who claim the state "took" their property due to increased flooding caused by the spillway on Grand Lake, which was built by the Ohio Department of Natural Resources.

A case filed by Janet and Wayne Doner was closed after a jury in 2013 awarded the family $1.9 million. That award was never appealed by ODNR.

Mercer County Common Pleas Court juries also awarded appropriations in two other cases involving Chad Knapke and the Mark Knapke Trust.

The Mark Knapke Trust last year was awarded $293,000. In March, Mercer County Common Pleas Judge Jeffery Ingraham ordered ODNR to deposit $84,500 with the court as an initial stipend. The state agency paid the deposit by the April deadline but immediately filed an appeal asking for an exemption from paying the "good-faith estimates" into accounts for landowners based on original appraisals.

Ingraham also has ordered a deposit of $162,000 made by ODNR by June 21 on behalf of Chad Knapke, who had been awarded $482,000. That deposit has not yet been completed, court documents show.

Also in 2013, Stanley Ebbing was awarded $765,000, but the case and all others remain pending due to appeals filed by ODNR, which is seeking to present new evidence to juries regarding the actual taking of the land. The state contends the "taking" of the land is less expensive than the High Court or landowners believe it to be.

The cases of Mark Knapke and Stanley Ebbing will be heard before the Third District Court of Appeals on Tuesday, court records show.

Tom Fusonie, an attorney representing the landowners, said he doesn't yet know how or when the deposits will be disbursed. He believes the action required of ODNR by the appeals court is overdue.

"ODNR has been called to account by the Third District Court of Appeals for violating yet another constitutional right of the landowners, this time to deposit money, which ODNR admits is owed for a flowage easement," Fusonie said. "The court of appeals flatly rejected ODNR's claim that it did not have to make the deposits, calling it not only unreasonable but 'absurd.' " 

Mike Williams, an attorney for the state, could not be reached for comment. Bethany McCorkle, a spokeswoman for ODNR, said the state is reviewing the decision to force the payment of deposits.

"We are working to determine the next course of action," she said. "At this time it would be premature to say anything more."

Fusonie said it's time ODNR complies with court orders.

"ODNR  must now make the deposits that should have been made when the condemnation cases were filed. Our clients demand that ODNR and the director immediately comply with the order and deposit the amounts due in every appropriation action pending in Mercer County," he said. 

The appeals court stated in the recent ruling the state should have paid the landowners prior to the "taking" of their land.

"Therefore, compensation or deposits by ODNR were overdue by the time the state filed the appropriation proceedings, and ODNR had a clear legal duty to make deposits," the appeals court noted.   

Last month, ODNR officials appeared before the Ohio Supreme Court after landowners requested the agency be held in contempt for allegedly stalling over paying appropriations. The Supreme Court did not find the state in contempt after the agency assured the High Court it was prepared to move forward quickly with all the cases and claimed it has funds available to make the payments.