Bacak v. Ventling

[Cite as Bacak v. Ventling, 2016-Ohio-4737.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

TRUMBULL COUNTY, OHIO

JOE BACAK, et al., : OPINION

Cross-Appellees, :
CASE NO. 2015-T-0029
- vs - :

TRUMBULL COUNTY BOARD OF :
COMMISSIONERS, et al.,
:
Defendants,
:
GARY P. VENTLING,
:
Cross-Appellant.
:

Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2004 CV
02140.

Judgment: Affirmed.

Frank R. Bodor, 157 Porter Street, N.E., Warren, OH 44483 (For Cross-Appellees).

Thomas C. Nader, 5000 East Market Street, #33, Warren, OH 44484 (For Cross-
Appellant).

CYNTHIA WESTCOTT RICE, P.J.

{¶1} Cross-appellant, Gary Ventling (hereafter “appellant”), appeals the

judgment of the Trumbull County Court of Common Pleas, following a trial to the

magistrate, in favor of appellees, Joe Bacak, et al., and against appellant and the

Trumbull County Board of Commissioners, declaring R.C. 307.73, regarding private
contracts for the construction of sewer lines, to be unconstitutional. Appellant appealed

the trial court’s finding that R.C. 307.73 is unconstitutional as applied to appellees;

however, he did not appeal the trial court’s additional finding that the statute is

unconstitutional on its face. At issue is whether the trial court’s declaration that R.C.

307.73 is unconstitutional on its face includes the finding that the statute is

unconstitutional as applied to appellees. Because we hold that it does, we affirm.

{¶2} Plaintiffs-appellees, Joe Bacak and some nine other individuals, are

property owners and residents of Trumbull County, who formed an association known

as “C.A.U.S.E.,” which stands for Citizens Against Unconstitutional Sewer Extensions.

Appellees referred to themselves in the trial court as the “Sablecreek Plaintiffs” in order

to distinguish themselves from other similarly-situated groups included in C.A.U.S.E.

Appellees reside on St. Mary’s Drive in Mineral Ridge, Ohio, and were ordered by the

Trumbull County Commissioners to tie into a new sewer extension on St. Mary’s Drive

and to reimburse appellant, who constructed the extension, for the costs of its

construction.

{¶3} In their Complaint, filed August 26, 2004, appellees requested declaratory

judgment and injunctive relief against the commissioners and appellant, alleging that

R.C. 307.73, which authorizes private sewer construction projects, is unconstitutional in

that it violates procedural due process.

{¶4} The case proceeded to trial before the magistrate. As fully explained

below, the trial court entered judgment in favor of appellees and against the

commissioners and appellant. The commissioners and appellant filed separate appeals

in this court. Subsequently, the commissioners dismissed their appeal and appellant’s

appeal is the only appeal remaining before us.

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 {¶5} Appellees had previously installed septic systems to service their homes

due to the unavailability of a sewer system in their area.

{¶6} On August 30, 2001, appellant, who lives on St. Mary’s Drive, and the

commissioners entered a “Private Agreement for Extension of Sanitary Sewer” for the

extension of a sanitary sewer on St. Mary’s Drive pursuant to R.C. 307.73. On

September 13, 2001, the commissioners enacted a resolution to enter said agreement.

{¶7} According to the agreement, the commissioners gave appellant

permission to construct the sewer extension to his property. Appellant agreed to pay for

the preparation of plans and specifications for the project and for construction of the

sewer line. Further, the agreement provided that “[i]f and when any abutting property * *

* desires to tap into or connect to said improvements, a connection charge will be

charged the owner of said abutting property based on the pro rata costs as computed

from the * * * cost statement which shall be reimbursed to [appellant] * * *.”

{¶8} Appellant did not advertise for or take any bids on this project, as such is

not required by R.C. 307.73. Instead, he hired the engineering firm of Lynn, Kittinger, &

Noble to prepare the plans and specifications. He also hired Ady & Sons Construction

to construct the sewer extension.

{¶9} Appellant began construction of the project on May 9, 2002. He

completed the sewer extension on November 13, 2002, and the Trumbull County

Sanitary Engineer’s Office issued a certificate of completion on that date. One week

later, on November 21, 2002, appellant submitted a cost statement to the Sanitary

Engineer’s Office for approval. The original estimated cost of the project was $61,000,

but the cost statement submitted by appellant was $103,460, which was $42,460, or

41%, over the original estimate.

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 {¶10} Prior to completion of the project, neither the commissioners nor appellant

ever sent any letters or other form of written notice to appellees notifying them of the

existence of the private sewer extension agreement or that appellees would be

responsible for paying their pro rata share of the cost. Rather, for the first time, on April

7, 2004, 17 months after completion of the project, appellant filed a copy of the

commissioners’ resolution to enter the private sewer extension agreement with the

Trumbull County Auditor.

{¶11} On December 13, 2003, the Trumbull County Health Department sent

letters to appellees advising them that they were required to abandon their own septic

systems and to tap into the new sewer extension. Appellees were also advised by

these letters that when they tapped-in, they would have to pay to the county their total

pro rata share of appellant’s costs for the sewer extension in one lump sum. However,

the notice did not provide them with an exact or even an approximate amount of their

cost.

{¶12} Jay Walton, Senior Environmental Engineer with the Trumbull County

Sanitary Engineer’s Office, testified he has the sole authority and discretion to approve

the statement of costs submitted by individuals, such as appellant, with respect to

private sewer construction projects. This includes reviewing the statement of costs and

determining which, if any, of the submitted costs should be approved for reimbursement

by the other abutting property owners. Walton’s decision is final and not subject to any

objection, hearing, or appeal. He testified that a property owner who tapped into the

sewer extension would have to pay whatever amount he determined and would have no

say in the matter.

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 {¶13} Walton found $29,281 of the $103,460 cost statement to be improper and

approved the total cost of the sewer extension project as $74,179, which was still

$14,000 over the original $61,000 cost estimate. The property owners on St. Mary’s

Drive were never sent any notice as to the approved cost. The first time any owner

would have discovered the cost of the tap-in would be when the property owner came to

the Board of Health in response to the Board’s letter advising them that they were

required to tap into the sewer extension and to pay their share of appellant’s costs.

{¶14} Thomas Holloway, Trumbull County Sanitary Engineer at the time the

subject project was approved, testified that, pursuant to R.C. 307.73, Walton has full

discretion in determining the amount property owners who tap into a sewer extension

will be required to pay. He said that whatever amount Walton determined the final cost

to be, the property owner tapping into the extension is required to pay it and has no

appeal from Walton’s decision. Under that procedure, the property owner is not given

notice of the cost or an opportunity to object to it. He said there is an alternative

procedure for a sewer construction project provided for at R.C. Chapter 6117. Under

these provisions, the commissioners put the project out for bid and the improvement is

ultimately paid for by an assessment. He said that, pursuant to Chapter 6117, the

affected property owners are given notice of the preliminary assessment. Further, under

that statute, property owners have the right to file objections, the right to a hearing, and

the right to appeal the commissioners’ decision to the Probate Court.

{¶15} The magistrate issued her decision on July 2, 2013, in favor of appellees

and against appellant and the commissioners. The magistrate decided that R.C. 307.73

is unconstitutional as applied in that it violated appellees’ procedural due process rights.

The magistrate found that because appellees did not have proper notice under R.C.

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307.73 and because appellees were required by Ohio Adm. Code 3701-29-02 to tie into

the new sewer line, R.C. 307.73 is unconstitutional as applied to appellees and, thus,

they were not required to pay the prorated cost of the sewer improvement project. The

commissioners and appellant filed objections to the magistrate’s decision. The trial

court, by its judgment filed on February 6, 2015, overruled the objections; modified the

magistrate’s decision by also finding R.C. 307.73 to be unconstitutional on its face; and

adopted the magistrate’s decision as modified.

{¶16} The commissioners appealed the trial court’s judgment to this court on

March 5, 2015. That appeal was assigned Case No. 2015-T-0019. On March 16, 2015,

appellant filed a separate appeal, which was assigned Case No. 2015-T-0029. This

court sua sponte consolidated the two appeals on April 17, 2015. On that same date,

the commissioners filed a notice of dismissal of their appeal (Case No. 2015-T-0019).

This court construed that notice as a motion to dismiss, and granted that motion on

June 8, 2015. The dismissal of the commissioners’ appeal left only appellant’s appeal.

{¶17} Appellant asserts six assignments of error. Because the third through

sixth assigned errors are interrelated, they are considered together. They allege:

{¶18} “[3.] The Trial Court’s Decision That Revised Code Section 307.73 is

Unconstitutional as applied to the Sablecreek Plaintiffs is error.

{¶19} “[4.] The Trial Court erred in finding that the Appellees did not have the

Required Notice Pursuant to Revised Code Section 307.73.

{¶20} “[5.] The Trial Court Erred in finding that Separate Sablecreek Plaintiffs

Michael and Joanne Hanysh did not have constructive notice of the private extension

agreement.

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 {¶21} “[6.] The Trial Court erred in concluding that the Sablecreek

Plaintiffs/Appellees did not have Actual Notice of the Ventling Private Extension

Agreement.”

{¶22} “On appeal, a trial court’s adoption of a magistrate’s decision will not be

overruled unless the trial court abused its discretion in adopting the decision.” Brown v.

Gabram, 11th Dist. Geuaga No. 2004-G-2605, 2005-Ohio-6416, ¶11. Accord In the

Matter of Gibbs, 11th Dist. Lake No. 97-L-067, 1998 Ohio App. LEXIS 997, *12 (Mar.

13, 1998) (an appellate review of the trial court’s decision under Civ.R. 53 is limited to a

determination of whether the court abused its discretion in adopting the magistrate’s

decision). The term “abuse of discretion” is one of art, “connoting judgment exercised by

a court, which does not comport with reason or the record.” Gaul v. Gaul, 11th Dist.

Ashtabula No. 2009-A-0011, 2010-Ohio-2156, ¶24, citing State v. Ferranto, 112 Ohio

St. 667, 676-678 (1925).

{¶23} R.C. 307.73, entitled, “Contract for private construction of * * * sewer

lines,” provides that a board of county commissioners may, upon application by any

individual or private entity, authorize such individual/entity to construct sewer lines

under the board’s supervision.

{¶24} R.C. 307.73 also provides that the board of commissioners shall collect

and return to such individual/entity a prorated share of the cost of such improvement

when such improvement is tapped into by a nonparticipant in the original cost, i.e., an

abutting property owner who did not pay any part of the original cost. The prorated

share is based on the front footage of improvement to the nonparticipant, and shall not

exceed the amount the nonparticipant would have paid if he had participated in said

project.

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 {¶25} R.C. 307.73 also provides that a copy of the commissioners’ resolution

granting permission to construct sewer lines and authorizing the collection of a prorated

share shall be filed by the applicant (here, appellant) with the county auditor, who shall

keep an index of all such resolutions. The filing of such resolution constitutes

constructive notice thereof. Significantly, R.C. 307.73 provides that “[n]o nonparticipant

shall be required to pay the prorated share of the cost of such improvement permitted

by resolution without such notice.”

{¶26} Further, pursuant to R.C. 3701.34, the Ohio Department of Health is given

the authority to establish sanitary sewer regulations of general application throughout

the state. Pursuant to this authority, the health department established a policy

requiring the elimination of individual septic systems and connection to a sanitary

sewerage system when such a system becomes accessible. Ohio Adm. Code 3701-29-

02 provides:

{¶27} (L) No household sewage disposal system shall be installed,
maintained, or operated on property accessible to a sanitary
sewerage system.

{¶28} (M) Whenever a sanitary sewerage system becomes accessible to
the property, a household sewage disposal system shall be
abandoned and the house sewer directly connected to the
sewerage system.

{¶29} The Supreme Court of Ohio upheld the constitutionality of Ohio Adm.

Code 3701-29-02 in DeMoise v. Dowell, 10 Ohio St.3d 92 (1984). In DeMoise, the

Court held that local health boards possess “the authority to require that whenever a

sanitary sewerage system becomes accessible to a property, the household sewage

disposal system shall be abandoned and the house sewer directly connected to the

sewerage system.” Id. at syllabus. The Court held the connection “requirement bears a

8
real and substantial relationship to the public health, is not unreasonable or arbitrary,

and does not constitute a deprivation of due process of law.” Id.

{¶30} While the Ohio Supreme Court found Ohio Adm. Code 3701-29-02

(requiring connection to an accessible public sewer) to be constitutional in DeMoise, the

Court did not address the constitutionality of R.C. 307.73 (providing for private sewer

construction agreements) in that case.

{¶31} “It is well settled that an enactment of the General Assembly is entitled to

a strong presumption of constitutionality.” State v. Cowan, 103 Ohio St.3d 144, 2004-

Ohio-4777, ¶7. “Therefore, challenged legislation will not be invalidated unless the

challenger establishes the unconstitutional nature of the statute beyond a reasonable

doubt.” Cowan, supra.

{¶32} There are two different ways of challenging a statute on constitutional

grounds: 1) by arguing that it is unconstitutional on its face, or 2) by arguing that it is

unconstitutional as applied to a particular set of facts. Cleveland Gear Co. v. Limbach,

35 Ohio St.3d 229, 231 (1988). “An as applied challenge asserts that a statute is

unconstitutional as applied to the challenger’s particular conduct.” Kruppa v. Warren,

11th Dist. Trumbull No. 2009-T-0017, 2009-Ohio-4927, ¶12. In contrast, a facial

challenge asserts the statute is unconstitutional in “all of its applications.” Id.

{¶33} The Supreme Court of Ohio in State v. Mateo, 57 Ohio St.3d 50, 52

(1991), discussed the requirements of procedural due process, as follows:

{¶34} The United States Supreme Court has stated that the essence of
due process is notice and an opportunity to be heard: “For more
than a century the central meaning of procedural due process has
been clear: ‘Parties whose rights are to be affected are entitled to
be heard; and in order that they may enjoy that right they must first
be notified.’ * * * [Citations omitted.] It is equally fundamental that
the right to notice and an opportunity to be heard ‘must be granted

9
 at a meaningful time and in a meaningful manner.’ (Emphasis
added.) Armstrong v. Manzo, 380 U.S. 545, 552 [1965].” Fuentes
v. Shevin, 407 U.S. 67, 80 (1972). See also Mathews v. Eldridge,
424 U.S. 319, 333 (1976). “As a general rule, due process requires
that the government give notice and an opportunity to be heard
before taking an individual’s liberty or property.” (Emphasis sic.)
United States v. 141st Street Corp., 911 F.2d 870, 874 (2d
Cir.1990). * * * “Due process of law involves only the essential
rights of notice, hearing or opportunity to be heard before a
competent tribunal. * * *” State v. Luff, 117 Ohio St. 102 (1927),
paragraph four of the syllabus. See also State v. Edwards, 157
Ohio St. 175, 178 (1952), paragraph one of the syllabus.

{¶35} The trial court, in addition to finding that R.C. 307.73 is facially

unconstitutional, expressly found, at p. 11 of its judgment entry, that “R.C. 307.73, as

applied under the facts of the Sablecreek Plaintiffs [i.e., appellees], is unconstitutional[.]”

(Emphasis added.) Further, appellant does not challenge on appeal the trial court’s

finding that R.C. 307.73 is facially unconstitutional.

{¶36} Since appellant appeals only the trial court’s as-applied finding and does

not appeal the court’s facial finding, the trial court’s conclusion that the statute is

unconstitutional on its face stands. As such, the statute is unconstitutional in all of its

applications, Kruppa, supra, including its application to appellees.

{¶37} Because appellant did not appeal the trial court’s finding that R.C. 307.73

is unconstitutional on its face, there is nothing for us to consider and we therefore

uphold this finding. In any event, the trial court’s record fully supports this finding. The

trial court demonstrated in its judgment the lack of procedural due process in R.C.

307.73 by way of a chart. That graphic contrasted the lack of due process in R.C.

307.73 with the multiple layers of due process in R.C. Chapter 6117, which sets forth an

alternative method for constructing sewers by the county commissioners. Under

Chapter 6117, the commissioners are authorized to construct sewers and to assess the

10
costs against the affected property owners. The trial court noted that under R.C.

6117.06, the sanitary engineer is required to prepare plans and cost estimates in a

“tentative assessment” for “the information of property owners” prior to any levy. Notice

must be mailed to all affected property owners prior to adoption of the resolution. The

statute provides for objections to the project in general, the tentative assessment, and

the physical boundaries. A hearing must then be held on any objections after notice to

all affected property owners of the hearing, which includes details of the project. A

property owner can file objections up to five days after the hearing. Under R.C.

6117.09, a property owner can also appeal to the Probate Court.

{¶38} In contrast to R.C. Chapter 6117, the trial court noted on its graphic that

under R.C. 307.73, the filing of the commissioners’ resolution adopting a private sewer

construction agreement with the county auditor constitutes constructive notice to

affected property owners, but there is no time requirement as to when the resolution

must be filed. Further, pursuant to this statute, affected property owners are only

entitled to notice of the resolution itself; the statute does not require that the total or

even the estimated cost of the project be included in the notice. R.C. 307.73 does not

require any oversight of the private contractor’s costs. Property owners are not entitled

to review any costs and there is no provision for objections. There is no provision for

any affected property owner to be heard or for any judicial review of the decision of the

Sanitary Engineer’s Office regarding the amount abutting property owners must pay in

order to reimburse the individual/private entity that constructed the sewer.

{¶39} Thus, the trial court’s comparison demonstrates that R.C. 6117, et seq.,

provides due process protections for affected property owners, while R.C. 307.73 is

devoid of due process.

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 {¶40} The trial court found there are no circumstances in which the statute can

provide procedural due process protections. The court found there is no way to

challenge appellant’s unreasonable charges as there are no meaningful due process

rights built into R.C. 307.73 The court stated, “[T]he landowner in Trumbull County is

getting nailed with unfounded and unreasonable charges because R.C. 307.73 simply

does not provide the protection necessary to contest these matters. Additionally, the

constructive notice requirement of R.C. 307.73 does not provide the landowner with

sufficient information in a timely manner to know the actual costs to challenge any

unreasonable costs that are charged.” The court stated: “R.C. 307.73, by providing no

safeguards or even minimal due process, leaves innocent landowners with no choice

but to tap in and pay whatever costs are charged or be criminally prosecuted by the

Board of Health.” In addition, the trial court found “the lack of judicial oversight” is “a

continuation of the affront to the right of due process present in R.C. 307.73.”

{¶41} The trial court noted the total lack of procedural due process is best

summed up by Jay Walton of the Trumbull County Sanitary Engineer’s Office. When

asked as to how the taxpayers are to be “protected from a contractor who * * *

overcharges in a case like this,” Walton answered, “Jeez. I don’t know what to say. I

guess there is no protection.”

{¶42} While the trial court’s facial finding includes the finding that R.C. 307.73 is

unconstitutional as applied to appellees, the record supports such finding. Although

R.C. 307.73 provides that the filing of the resolution with the county auditor constitutes

constructive notice, here, the resolution was not filed by appellant with the county

auditor until 17 months after completion of the sewer project. Although appellant

correctly argues that R.C. 307.73 does not provide an express time limit by which an

12
applicant must file a copy of the commissioners’ resolution, in order for the resolution to

constitute constructive notice, it must pre-date the work for which the resolution is

providing notice. Mateo, supra. Because appellant did not file the resolution until 17

months after completion of the project, it was too late for appellees to effectively

challenge the project or its costs. Thus, the “constructive notice” provided to appellees

pursuant to R.C. 307.73 was not meaningful and did not satisfy procedural due process.

{¶43} Moreover, R.C. 307.73 does not require that any reference to the cost of

the project be included in the resolution, and appellees were not given any advance

notice regarding the cost of the project, not even the original estimated cost of the

project. However, without such notice, appellees could not possibly have known

whether there was any need for them to object to the project or to the costs submitted

by appellant.

{¶44} Appellant argues that because appellees, Michael Hanysh and Joanne

Hanysh, bought their property in August 2004 (four months after appellant filed the

commissioners’ resolution), the Hanyshes had constructive notice of the project.

However, this argument misses the point. As successors in interest to the prior owners,

the Hanyshes had the right to assert appellant’s failure to provide notice and an

opportunity to be heard to their predecessors.

{¶45} Next, appellant argues that even if appellees did not have constructive

notice pursuant to R.C. 307.73, they had actual notice of the project because the sewer

extension project would have required construction equipment to be near appellees’

properties. In Edgar v. Hines, 35 Ohio App.3d 23 (12th Dist.1987), the Twelfth District

held that, “[a]lthough R.C. 307.73 provides that constructive notice, as set forth in the

statute, is a prerequisite to obtaining reimbursement for private construction of a sewer

13
line, actual notice to the concerned property owners is also sufficient.” Id. at paragraph

three of the syllabus. In Edgar, supra, the appellate court held that if the property

owner had actual notice of the cost of construction of the sewer, constructive notice is

not necessary. Id. at 25.

{¶46} Appellant argues that because appellees were in a position to see this

installation, they had actual notice of the project and, thus, constructive notice was not

necessary. However, the magistrate rejected this argument, finding that, although

appellees had actual notice of the installation of the sewer extension near their homes,

they did not have actual notice as to the required tie-in or the cost associated therewith.

The magistrate also found that the newspaper articles referenced by appellant as

evidence of actual notice merely addressed the residents’ objections to the general

concept of sewer tie-in requirements and that these articles were not evidence that

appellees had actual notice of the cost of the project.

{¶47} Significantly, appellant concedes that any knowledge appellees acquired

took place after the commissioners’ resolution approving the sewer extension was

adopted and after construction of the project had already begun. There is no evidence

in this record that, before the project was approved by the commissioners and

construction had begun, appellees knew (1) of the sewer extension agreement between

the commissioners and appellant, (2) the commissioners’ resolution approving that

agreement, (3) the cost of the project, or (4) appellees’ pro rata share of the costs.

Thus, the presence of construction equipment did not provide actual notice of the cost

of the project.

{¶48} Further, the magistrate found that the lack of procedural due process in

R.C. 307.73 prevented appellees from being able to assert legitimate challenges to

14
unreasonable costs submitted by appellant for reimbursement. From the original cost

statement submitted by appellant in the amount of $103,460, Walton determined that

several of the cost items (totaling $29,281) were obviously improper and subtracted

them, including a $10,573 charge for unsubstantiated “miscellaneous” items; $15,975 in

interest charged by appellant’s engineering firm, Ady & Sons, due to appellant’s failure

to timely pay that firm’s bills on the project; and $2,555 for charges that were

attributable to appellant’s own home. Further, the magistrate found the fact that

appellant sought reimbursement for such obviously improper charges made the other

charges in his bill all the more suspect.

{¶49} The magistrate also found that many other costs were improper and

unreasonable and should have been – but were not - subtracted by Walton from the

$74,179 final approved cost of the project. These included an unexplained $12,000

charge for rock excavation; $6,960 in attorney fees (which appellant was ordered to pay

a non-party who successfully sued appellant in an unrelated action for trespass on his

property); $2,985 (which was assessed against appellant personally in that trespass

action for his failure to comply with the settlement agreement requiring appellant to

repair the damage he caused to the plaintiff’s property); and $7,500 in attorney fees

(which appellant’s own attorney charged him for defending him in that trespass action).

The court found it was improper and unreasonable for appellant to pass these cost

items on to the taxpayers and for the Sanitary Engineer’s Office to approve these costs

without appropriate review and oversight. In addition, the magistrate found the invoice

submitted by appellant’s construction firm in the amount of $46,759, which was nearly

double their original proposal with no legitimate substantiation, was unreasonable. The

magistrate found that Walton essentially approved any cost submitted by appellant’s

15
construction firm without requiring any documentation to show the cost was reasonable

or necessary.

{¶50} The trial court was appalled at the near complete lack of oversight by the

Sanitary Engineer’s Office through its agent, Walton, of appellant’s statement of costs.

Walton admitted he approved obviously suspect cost items without requiring any

substantiation or explanation. He even approved costs that were unrelated to the

project and costs that were caused by appellant’s improper conduct. Incredibly, Walton

said he still planned to charge the taxpayers several substantial cost items submitted by

appellant even after Walton acknowledged they were improper and wrong.

{¶51} To make matters worse, although the sewer extension agreement

required appellant to provide a “certified notarized cost statement” within 90 days of

completion of the project, he never certified the accuracy of his cost statement. After

the project was completed, Walton wrote two letters to appellant in May and June 2003,

demanding the certification. Walton told appellant that without the certification, the

sewer extension agreement would become void and he would lose his right to any

reimbursement. Despite these demands and warnings, appellant never provided the

required certification. Even more incredible, Walton said he ultimately decided to

overlook this omission and to simply pass the charges on to the taxpayers without the

certification.

{¶52} We therefore uphold the trial court’s finding that R.C. 307.73 is

unconstitutional on its face. Since appellant did not appeal that finding, his argument

that the trial court erred in finding R.C. 307.73 unconstitutional as applied lacks merit.

{¶53} Appellant’s third, fourth, fifth, and sixth assignments of error are overruled.

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 {¶54} Appellant’s first and second assigned errors are related and thus

considered together. They allege:

{¶55} “[1.] The Trial Court’s Order that Appellees have the right to tap into the

Sablecreek Sanitary Sewer Line at no cost is an unconstitutional taking.

{¶56} “[2.] The Appropriate Remedy to be awarded Appellees is that the

Sablecreek Sanitary Sewer Lines Are Not Available and that Appellees Are Not

Required to Tap into the Sanitary Sewer Lines.”

{¶57} The Ohio Constitution states that “private property shall ever be held

inviolate, but subservient to the public welfare. * * * Where private property shall be

taken for public use, a compensation therefore shall first be made in money * * * and

such compensation shall be assessed by a jury * * *.” State ex rel. OTR v. City of

Columbus, 76 Ohio St.3d 203, 206 (1996), quoting Section 19, Article I, Ohio

Constitution. A taking occurs when a landowner experiences a substantial or

unreasonable interference with property. OTR, supra. That interference may involve an

actual physical taking of real property or it may include the deprivation of an intangible

interest in the premises. Id.

{¶58} Appellant argues the trial court’s judgment interfered with his property right

to reimbursement in the sewer extension agreement, resulting in a taking. In support,

he cites Stop The Beach Renourishment v. Florida Dept. of Environmental Protection,

560 U.S. 702 (2010). However, his reliance on this case is misplaced. In Stop the

Beach, the Supreme Court stated, “The takings clause only protects property rights as

they are established under state law * * *.” Stop The Beach at 732. Appellant’s claimed

property right to reimbursement is based on a statute that violates procedural due

17
process. Because R.C. 307.73 is unconstitutional, appellant’s taking claim fails

because it is not based on a valid state law.

{¶59} In any event, even if R.C. 307.73 was constitutional, it provides that

property owners who tap into the sewer line are not required to pay the prorated share

of the cost of the project if the applicant fails to provide constructive notice of the

project. Thus, constructive notice is a prerequisite to reimbursement. Edgar, supra, at

paragraph three of the syllabus. Since appellant did not file the commissioners’ 2001

resolution until April 2004, 17 months after the project was completed, appellant failed

to give the affected property owners constructive notice at a meaningful time and he is

not entitled to reimbursement.

{¶60} Further, appellant argues that, to avoid a taking, the trial court should have

declared the sewer extension to be unavailable and, this way, appellees would have

been allowed to disconnect from the sewer. However, the remedy appellant seeks

would have required the trial court to find that the sewer line is not physically available

to appellees when, in fact, it is. Moreover, appellant’s proposed remedy would violate

Ohio Adm. Code 3701-29-02, which requires that when a sanitary sewerage system

becomes accessible to the property, the house must abandon the household sewage

system and be connected to the sanitary sewerage system. Moreover, appellant’s

proposed remedy would impliedly overrule the Ohio Supreme Court’s decision in

DeMoise, supra. As noted above, the Ohio Supreme Court in that case held that when

a public sewer system is available to a property owner, he must abandon his personal

sewer system and connect to the public system. There is no dispute in this record that

construction of the sewer extension made it available to appellees and thus appellees

are legally bound to tie into it. However, as a result of the due process violations

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discussed herein, the trial court did not abuse its discretion in adopting the magistrate’s

decision that appellees were entitled to tie into the sewer system at no cost.

{¶61} Appellant’s first and second assignments of error are overruled.

{¶62} For the reasons stated in this opinion, the assignments of error lack merit

and are overruled. It is the order and judgment of this court that the judgment of the

Trumbull County Court of Common Pleas is affirmed.

DIANE V. GRENDELL, J.,

COLLEEN MARY O’TOOLE, J.,

concur.

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