DiCillo v. Geauga Cty. Bd. of Commrs.

[Cite as DiCillo v. Geauga Cty. Bd. of Commrs., 2022-Ohio-333.]

IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY

CHARLES A. DICILLO, CASE NO. 2020-G-0263

Appellee,
Civil Appeal from the
-v- Court of Common Pleas, Probate Division

GEAUGA COUNTY BOARD
OF COMMISSIONERS, Trial Court No. 2019 PC 000504

Appellant.

OPINION

Decided: February 7, 2022
Judgment: Reversed and entered for appellant

Edward A. Proctor, Kim & Associates, 4100 Embassy Parkway, Suite 200, Akron, OH
44333 (For Appellee).

James R. Flaiz, Geauga County Prosecutor, and Susan T. Wieland, Assistant
Prosecutor, Courthouse Annex, 231 Main Street, Chardon, OH 44024 (For Appellant).

THOMAS R. WRIGHT, P.J.

{¶1} Geauga County Board of Commissioners (“Board”) appeals the probate

court’s judgment in favor of Charles A. DiCillo on his statutory appeal from an

improvement resolution (“Resolution”) adopted by the Board on October 29, 2019, under

R.C. Chapter 6117 (“Sewer Districts; County Sewers”). The probate court’s judgment is

reversed, and judgment is entered for the Board.

{¶2} The Board advances the following three assignments of error:
 [1.] The probate court erred when it failed to comply with the
statutory framework regarding an appeal pursuant to Ohio
Revised Code Section 6117.09.

[2.] [T]he probate court erred when it extended orders
affecting the Geauga County Health District and property
owners who failed to effect an appeal.

[3.] The probate court erred in finding that appellee met his
burden regarding the proposed boundary and apportionment
of the project.

{¶3} The subject of this appeal dates back to 2013, when Chardon Township

Board of Trustees (“Trustees”) requested Geauga County Department of Water

Resources (“Water Resources”) test effluent being discharged from a pipe on Henning

Drive, located in the Berkshire Heights Subdivision (“Subdivision”) of Chardon Township.

The test samples contained unacceptable levels of fecal coliform, prompting the Trustees

to submit a written complaint to the Ohio Environmental Protection Agency (“Ohio EPA”),

declaring that the unsanitary conditions of the tested site may be causing harm to the

stream and the Chagrin River.

{¶4} The Subdivision is comprised of five streets—Henning Drive, Howard Drive,

Thwing Road, Olmar Drive, and Helmut Drive—with 113 residences situated on 114

properties. Wastewater treatment for the Subdivision is currently provided by individual

household septic systems, which are either updated on-lot systems or original off-site

discharging systems.

{¶5} The Ohio EPA investigated the conditions in April 2014, finding

unacceptable levels of E. coli in four roadside drainage ditches and a receiving stream of

the East Branch of the Chagrin River. The individual household septic systems were not

tested. The Director of the Ohio EPA informed the Board on August 1, 2014, that “it is

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necessary for the public health and welfare that corrective action, in the form of the

construction, maintenance and operation of sanitary facilities to serve the subdivision, be

undertaken.” The Board voted to execute the Director’s Final Findings and Orders for

abating the public health nuisance on March 17, 2015.

{¶6} The Board initially advocated for individual testing and replacement of the

household systems, which was not accepted by the EPA due to the age of the systems,

average lot size, and soil conditions. Eventually, the EPA accepted the Board’s proposal

of installing sanitary sewer lines for the entire Subdivision. By resolution on August 27,

2019, the Board approved the plans, specifications, estimates of cost, and tentative

assessments for and determining the necessity of constructing sanitary sewers to provide

service to the Subdivision. The Board provided the required notice to the Subdivision

property owners.

{¶7} At a public Board meeting held September 24, 2019, the Director of Water

Resources Steven Oluic presented information regarding the sanitary sewer project. The

estimated cost was $4,523,000.00, to be paid through a funding plan comprised of various

low-interest loans and grants in addition to an assessment against the 113 residential

property owners of the Subdivision. The recommended assessment was $28,000.00 per

household, at an annual cost of $1,245.68 for 30 years. Additionally, each homeowner

will be responsible for the cost of connecting to the sewer line and abandoning the septic

system, estimated at approximately $4,500.00 to $7,500.00 per household, and a bi-

monthly sewer bill of $109.00. Within five days of the meeting, the Board received

numerous written objections from property owners, including from Charles A. DiCillo,

appellee herein.

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 {¶8} On October 29, 2019, the Board denied all objections and passed the

Resolution that determined to proceed with the construction of the Chardon Township

Wastewater Treatment Plant and Sewer Project (“Project”) to provide sanitary sewer

service to all properties in the Subdivision. The Resolution also ratified the plans and

specifications for the Project, the character and termini thereof, the boundaries of the

assessment district, and the tentative assessments and estimated cost for the Project.

{¶9} Only two of the 113 residential property owners within the assessment

district, including Mr. DiCillo, appealed the Resolution to the Probate Division of the

Geauga County Court of Common Pleas. The appeals were brought pursuant to R.C.

6117.09(B) and (C) on the issues of the boundaries and tentative apportionment of the

assessment.

{¶10} The parties stipulated, inter alia, that “Geauga County is under Findings and

Orders from the [Ohio EPA] pursuant to Ohio Revised Code section 6117.09(A) [i.e., ‘The

necessity of the improvement, including the question whether the cost of the improvement

will exceed the benefits resulting therefrom.’].”

{¶11} The two appeals were tried together. See R.C. 6117.16 (the appeals shall

be tried together, but the rights of each person shall be separately determined). Over

multiple days, the probate court heard from both appellants, the former and current

directors of Water Resources, and representatives from the Ohio EPA and the Geauga

County Public Health District (“Health District”). The probate court’s written decision was

issued August 26, 2020, and is substantially the same in each appeal. See also In re:

Chardon Twp. Waste Water Treatment Plant & Sewer Project, 11th Dist. Geauga No.

2020-G-0262 (appeal from Geauga County No. 2019 PC 000503).

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 {¶12} The probate court rendered judgment in favor of Mr. DiCillo, concluding the

Board’s Resolution as applied to him and others similarly situated is arbitrary and

unconstitutional and, as such, void. The court enjoined the Board (1) from including Mr.

DiCillo’s property within the boundaries of the Project; (2) from assessing any portion of

the cost of the Project against Mr. DiCillo; (3) from assessing any connection cost to Mr.

DiCillo, as long as the household septic system serving his property has been individually

tested, is properly functioning, and is not causing a public health nuisance; and (4) from

ordering Mr. DiCillo to connect his premises to the Project under either R.C. 6117.51(C)

or (D). The probate court further enjoined the Board from including any Subdivision

household or residential property as it relates to the boundaries and assessment of the

Project, unless and until the Board conducts an individual test of that specific household

septic system and determines it is actually causing or contributing to a public health

nuisance.

{¶13} The Board’s authority to assess the cost of the Project upon the Subdivision

property owners is derived from the Ohio EPA Director’s Final Findings and Orders, which

was issued pursuant to R.C. 6117.34:

Whenever * * * a board of township trustees makes
complaint, in writing, to the [Ohio EPA] that unsanitary
conditions exist in any county, the agency’s director forthwith
shall inquire into and investigate the conditions complained
of. If, upon investigation of the complaint, the director finds
that it is necessary for the public health and welfare that
sanitary or drainage facilities * * * be acquired or constructed,
maintained, and operated to serve any territory outside
municipal corporations in any county, the director shall notify
the board of county commissioners of the county of that
finding and order that corrective action be taken. The board
shall obey the order and proceed as provided in this chapter
to establish a county sewer district, if required, to provide the
necessary funds, to acquire or construct the facilities, and to
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 maintain and operate the facilities, as required by the order
and in a manner satisfactory to the director. Any part or all of
the cost of the facilities or of the maintenance and operation
of the facilities may be assessed upon the benefited
properties as provided in this chapter.

(Emphasis added.)

{¶14} A property owner’s appeal from, and a probate court’s inquiry into, the

actions of a board of commissioners under R.C. 6117.34 is limited by R.C. 6117.09:

Any owner of property to be assessed or taxed for an
improvement under sections 6117.01 to 6117.45 or sections
6103.01 to 6103.30 of the Revised Code, may appeal to the
probate court from the action of the board of county
commissioners in determining to proceed with the
improvement in regard to any of the following matters:

(A) The necessity of the improvement, including the question
whether the cost of the improvement will exceed the benefits
resulting therefrom;

(B) Boundaries of the assessment district;

(C) The tentative apportionment of the assessment.

Such appeal shall be effected within ten days after the
passage of the resolution to proceed with the improvement.

* * * If the director of environmental protection has made an
order declaring that any improvement is necessary for the
public health and welfare as provided in section 6117.34 or
6103.17 of the Revised Code, no property owner shall have
the right to appeal from the action of the board declaring such
improvement necessary.

(Emphasis added.)

{¶15} Here, the Director of the Ohio EPA made an order declaring that the Project

was necessary for the public health and welfare as provided in R.C. 6117.34. The parties

also stipulated that “Geauga County is under Findings and Orders from the [Ohio EPA]

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pursuant to Ohio Revised Code section 6117.09(A).” Thus, the appeal in this matter was

limited to the boundaries and tentative apportionment of the assessment.

{¶16} Although not contested at the hearings, Mr. DiCillo argues on appeal that

this limitation contravenes an instruction found in R.C. 6117.17, which provides for

“findings of court”:

At the conclusion of the trial provided for in section 6117.15 of
the Revised Code, the probate court * * * shall determine
whether the improvement petitioned for or granted will be
necessary for the public health, convenience, or welfare, or
whether the cost of it will exceed the benefit resulting from
such improvement, or whether the boundaries of the
assessment district should be modified, if the appeal is from
an order establishing the proposed improvement or
dismissing or refusing to grant the prayer of the petition or
establishing the boundaries of the assessment district.

{¶17} This instruction is clearly limited to an appeal from an action of the board of

county commissioners granting or denying a petition for an improvement. It is further

limited, in para materia, by whether the property owner was permitted in the first instance

to place the issue of necessity before the probate court. Here, because the Board was

acting under an order of the Ohio EPA declaring necessity, and not upon a petition for an

improvement, Mr. DiCillo was not permitted to raise the issue of necessity, the probate

court was not permitted to address the issue, and this portion of R.C. 6117.17 is

inapplicable.

{¶18} The probate court, in its entry and at hearings, regularly acknowledged this

limitation upon its appellate review. Under the Board’s first and second assigned errors,

however, the Board argues the probate court exceeded its jurisdiction by framing an

examination of the necessity of the Project in terms of boundary and apportionment of the

assessment. The Board further posits the probate court acted contrary to law by issuing
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orders that impeded the statutory authority of the Ohio EPA and the Health District and

by extending those orders to property owners who did not appeal the Resolution.

{¶19} Issues of jurisdiction and other questions of law are reviewed de novo.

Chapman v. Chapman, 11th Dist. Lake No. 2015-L-039, 2015-Ohio-4833, ¶ 51, citing Yu

v. Zhang, 175 Ohio App.3d 83, 2008-Ohio-400, 885 N.E.2d 278, ¶ 16 (2d Dist.).

{¶20} The legislature has required that the state be divided into health districts,

with the townships and villages in each county combined into a “general health district.”

R.C. 3709.01. Boards of health of a general health district are required to enforce the

rules adopted by the Ohio Department of Health. R.C. 3701.56. Pursuant to the Ohio

Department of Health’s authority to establish rules of general application throughout the

state, “the health department established a policy requiring the elimination of individual

septic systems and connection to a sanitary sewage system when such a system

becomes accessible.” Bacak v. Trumbull Cty. Bd. of Commrs., 2016-Ohio-4737, 57

N.E.3d 1176, ¶ 26 (11th Dist.), citing R.C. 3701.34. “It is well established that local boards

of health have the authority to require that a household sewer be directly connected to a

sanitary sewerage system whenever such a system becomes accessible to the property.”

Clark v. Greene Cty. Combined Health Dist., 108 Ohio St.3d 427, 2006-Ohio-1326, 844

N.E.2d 330, ¶ 17, citing DeMoise v. Dowell, 10 Ohio St.3d 92, 461 N.E.2d 1286 (1984),

syllabus; see also R.C. 6117.51.

{¶21} Moreover, Ohio Adm.Code 3701-29-06(I) provides:

A STS [(household sewage treatment system)] shall not be
sited, permitted, or installed where a sanitary sewerage
system is accessible, unless otherwise excepted by law.
Whenever a sanitary sewerage system becomes accessible
to a dwelling or structure served by a STS, the dwelling and/or
structures shall be connected to the sanitary sewerage
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 system and the STS abandoned in accordance with rule
3701-29-21 of the Administrative Code.

“This authority applies regardless of the manner by which the sewerage system was

constructed. Moreover, such a requirement is not arbitrary or unreasonable and does not

constitute a deprivation of due process of law.” Clark at ¶ 17, citing DeMoise at syllabus.

{¶22} The probate court, in a footnote of its entry, describes the Supreme Court’s

holding in DeMoise, without mention of Clark, as “an apparent preference for the

extension of sanitary sewers over individual household sewage systems * * * [that] does

not apply here because there are household sewage systems with less e-coli levels than

the Ohio EPA permissible limit for the proposed sewage sanitary plant * * * [and

m]oreover, the Ohio Supreme Court, subsequently, reaffirmed that private property rights

are among the most revered in our law and traditions.” The probate court describes a

“constitutional disconnect” between the valid purposes of maintaining clean water and

avoiding public health nuisances and, on the other hand, requiring all homeowners in the

Subdivision to be assessed for the Project, “even though there is no evidence of the actual

source of the effluent or that replacing their individual septic systems with a new sewer

system would resolve the offending effluent situation.” The probate court concludes,

therefore, that the assessment amounts to an unconstitutional taking because, without

individual testing, the Project is based on “unscientific speculation and mere topography.”

{¶23} This analysis reveals the probate court’s extra-jurisdictional examination of

the necessity of the Project. Further, “[t]he legislative delegation of authority, under the

present scheme, does not bear out this contention. Instead, it reflects a broad-based

policy determination that individual household sewage disposal systems are inherently

more dangerous to the public health than sanitary sewerage systems and must be
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replaced when possible.” DeMoise, 10 Ohio St.3d at 95-96; Clark, 2006-Ohio-1326, at ¶

18. “It is not necessary that the board make a case-by-case evaluation of the efficiency

of each septic system. The determination has already been made that septic systems

pose a potential hazard to the public health, and that they are a potential nuisance to be

prevented when possible.” (Emphasis added.) DeMoise at 96; Portage Cty. Commrs. v.

Warren, 11th Dist. Portage No. 91-P-2339, 1992 WL 86519, *1 (Mar. 27, 1992). Perhaps

more importantly, the Supreme Court held—contrary to the probate court’s

determination—that, despite the presence of a property interest in one’s septic system,

the protections afforded by the constitutional takings clause are not absolute:

Almost every exercise of the police power interferes with the
enjoyment of liberty or the acquisition, production or
possession of property. Yet the constitutional provisions
against the taking of property must give way to an exercise of
the police power “ * * * if it bears a real and substantial relation
to the public health, safety, morals or general welfare of the
public and if it is not unreasonable or arbitrary.” Benjamin v.
Columbus, 167 Ohio St. 103, 146 N.E.2d 854 (1957),
paragraph five of the syllabus; Porter v. Oberlin, 1 Ohio St.2d
143, 205 N.E.2d 363 (1965); Downing v. Cook, 69 Ohio St.2d
149, 431 N.E.2d 995 (1982).

Furthermore, this court has repeatedly recognized that
whether an exercise of police power is really and substantially
related to the public health, safety and morals and whether it
is unreasonable or arbitrary are questions initially committed
to the judgment and discretion of the legislative body. The
courts will not invalidate an exercise of the police power
unless the legislative body’s determination on the foregoing
questions appears to be clearly erroneous. Benjamin at
paragraph six of the syllabus; Ohio Edison Co. v. Power Siting
Comm., 56 Ohio St.2d 212, 218, 383 N.E.2d 588 (1978).

DeMoise at 96-97.

{¶24} The probate court’s attempt to distinguish DeMoise because “there are

household sewage systems with less e-coli levels than the Ohio EPA permissible limit for
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the proposed sewage sanitary plant” also ignores the testimony of Dean Stoll, supervisor

in the Division of Surface Water for the Ohio EPA, and of Gerard Morgan, the Geauga

County Administrator and Sanitary Engineer. They explained that the permissible limit of

E. coli for wastewater treatment plants is not the same as the permissible limit for

household septic systems because the former produces high quality effluent and is

discharged into a stream with additional water volume, while the latter is discharged into

either a roadside ditch or into the soil on the lot.

{¶25} The Ohio EPA’s standard for determining when an unsanitary condition

exists for purposes of R.C. 6117.34 is set forth in Ohio Adm.Code 3745-1-04(F), which

provides that all surface waters of the state shall be “[f]ree from public health nuisances

associated with raw or poorly treated sewage[.]” At the time of the trial in this matter, a

public health nuisance shall be deemed to exist when an inspection, conducted by or

under the supervision of the Ohio EPA or a registered sanitarian, documents both (a)

odor, color or other visual manifestations of raw or poorly treated sewage; and, (b) when

five or fewer samples are collected, two or more samples exceed 1,030 E. coli counts per

100 milliliters (“cts/100ml”). At the time of the Ohio EPA’s testing and the Director’s Final

Findings and Orders, the E. coli standard was 576 cts/100ml.

{¶26} Mr. Stoll testified that on two dates in April 2014, five surface water samples

were taken from locations within the Subdivision where there was an odor and visual

evidence of raw sewage—a receiving stream to the East Branch of the Chagrin River and

four drainage ditches. The E. coli results ranged from 1,800 cts/100ml to 1,100,000

cts/100ml, the latter being one of the highest bacteria samples Mr. Stoll’s office has ever

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received. According to Mr. Stoll, these numbers are “indicative of widespread septic

system failure.”

{¶27} The results were sufficient to prompt the Ohio EPA’s finding of a public

health nuisance and provided the agency with authority under R.C. 6117.34 to issue

Findings and Orders requiring the installation of sanitary sewers and, if necessary, a

wastewater treatment plant. See Ohio Adm.Code 3745-1-04(F)(2) (“Paragraph (F)(1) of

this rule may be used by the appropriate authorities to document the existence of

unsanitary conditions as described in section 6117.34 of the Revised Code.”).

{¶28} Once the Ohio EPA declared the Project was necessary for the public health

and welfare, as provided in R.C. 6117.34, the probate court had no jurisdiction on an

appeal from the Board’s subsequent actions to review the Ohio EPA’s determination. The

Board is required to continue with construction of the Project, regardless of the outcome

of these proceedings, because the necessity determination was rendered by the Ohio

EPA; the only question is who will pay for the Project, and how much will they pay. See

also R.C. 6117.23 (if an appeal is prosecuted from the judgment of the court as to

necessity, construction must cease; if an appeal is prosecuted as to the inclusion of any

property in the assessment district or as to the apportionment of the tentative assessment,

construction may continue in accordance with the transcript of the probate court and may

thereafter be adjusted).

{¶29} In essence, despite this limitation, the probate court’s order for additional

testing is in pursuit of a necessity determination for each individual septic system in the

assessment district before the Board may proceed. And, regardless of how an individual

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septic system tests, the property owner will still be required to abandon it and connect to

the sewer line once it is accessible, as outlined in the law stated above.

{¶30} Further, the probate court had no statutory authority to issue any orders with

respect to the property owners who did not appeal the Resolution. See R.C. 6117.09 (the

appeal shall be effected by the property owner within 10 days of the resolution); R.C.

6117.17 (“the probate court shall find separately upon each claim for adjustment of the

apportionment of the tentative assessment”); R.C. 6117.16 (“the rights of each person,

firm, or corporation as to the inclusion of their property in the assessment district or as to

the apportionment of the tentative assessment shall be separately determined by the

court in its verdict”); R.C. 6117.23 (“If an appeal is prosecuted from the judgment of the

court as to the inclusion of any property in the assessment district * * *”); R.C. 6117.24

(“if there is manifest error in such proceedings affecting the right of the plaintiff in such

action, [the court] may set such proceedings aside as to him without affecting the rights

or liabilities of the other parties in interest”).

{¶31} Accordingly, we conclude that the probate court exceeded its jurisdiction,

acted contrary to law, and impeded the statutory enforcement duties of the Ohio EPA and

the Health District by ordering the Board to conduct additional testing, by enjoining the

Board from requiring connection to an available sanitary sewer system unless and until it

is determined the individual septic system is causing a public health nuisance, and by

extending its orders to the property owners in the assessment district who did not appeal

the Resolution.

{¶32} The Board’s first and second assigned errors have merit.

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 {¶33} Under its third assigned error, the Board argues the probate court erred in

ruling in favor of Mr. DiCillo on the issues of the boundaries and tentative apportionment

of the assessment as provided in R.C. 6117.09(B) and (C).

{¶34} If the probate court finds “there is manifest error in such proceedings

affecting the right of the plaintiff in such action, [it] may set such proceedings aside as to

[the plaintiff] without affecting the rights or liabilities of the other parties in interest.” R.C.

6117.24. “[W]ithout finding error the court may correct any gross injustice in the

assessment made by the board of county commissioners.” Id.

{¶35} R.C. 6117.09(B) “permits the Probate Court to look at the boundaries of the

assessment district—that is to determine whether or not certain lots and/or areas will be

benefited by the improvement, and therefore included in or out of the district.” In re

Northgate Special Assessments, 5th Dist. Guernsey Nos. CA-823 to CA-825, 1987 WL

11005, *3 (May 12, 1987). “Legislative bodies in Ohio have broad discretion to decide

where to draw the boundary lines between assessed and non-assessed properties. This

discretionary power will be upheld as long as it is neither arbitrary [nor] fraudulent.”

Hartman v. Bd. of Commrs. of Trumbull Cty, 11th Dist. Trumbull No. 3452, 1985 WL 4946,

*3 (Dec. 31, 1985), citing Schiff v. Columbus, 9 Ohio St.2d 31 (1967).

{¶36} Here, the probate court “[found] that ordering any homeowner who has a

properly functioning household wastewater treatment system to use and tap into a costly

central sewer treatment system, where the source of the effluent is unknown, or where it

is unknown that a household wastewater (septic) treatment system is a source of the

contributing effluent situation, is by definition arbitrary.”

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 {¶37} As stated above, however, the Supreme Court of Ohio has held that “such

a requirement,” by definition, “is not arbitrary or unreasonable and does not constitute a

deprivation of due process of law.” (Emphasis added.) Clark, 108 Ohio St.3d 427, at ¶

17, citing DeMoise, 10 Ohio St.3d 92, at syllabus. Further, the sewer connection

requirement is uniformly applicable within the assessment boundaries and does not

provide for discretionary exemptions. See DeMoise at 97 (distinguishing the arbitrariness

found violative of equal protection in Weber v. Bd. of Health, 148 Ohio St. 389, 74 N.E.2d

331 (1947)).

{¶38} The probate court also expressed that it was “perplex[ed]” with the Board’s

decision not to include within the assessment boundaries two homes on Thwing Road

near the drainage stream and a golf course located on the opposite side of Thwing Road,

which, “likely, provides more effluent than a single family house” within the Subdivision.

{¶39} The Board’s decision in this regard was explained by the testimony of

Gerard Morgan, the Geauga County Administrator and Sanitary Engineer (and former

Director of Water Resources). He testified that the two homes on Thwing Road were not

included in the assessment district “due to the fact that the testing was all done on the

other side of the stream,” and, although the wastewater treatment plant will be located

directly to the east of those homes, the sewer line will not run in front of them for tie-in

purposes. Instead, a pump station will be located on the west side of the stream, which

will force the wastewater to the plant. To provide sewer service to those two homes on

the other side of the stream, Mr. Morgan explained, “would greatly increase the overall

cost of the project.” Mr. Morgan further testified that the wastewater plant will only be

able to handle the capacity of the Subdivision and is not designed for expansion; i.e., if

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later development occurs and requests to tie into the sewer line, the developers would be

charged to upgrade the existing plant or to build an additional plant. Mr. Morgan testified

that the golf course is not connecting to the sewer line at this time. The county purchased

a lot from the golf course owners on which the wastewater plant will be located. Part of

that purchase agreement, in order for the county to negotiate a lower price, is that the golf

course clubhouse will be permitted to tie in at a later date if it chooses and will be

responsible for those costs. Additionally, Mr. Morgan testified, other properties that would

have been included in the assessment district based on topography (e.g., a mobile home

park and a restaurant) are already serviced by existing and properly functioning

wastewater treatment plants, and another subdivision to the west “flows” in the opposite

direction of the stream and the East Branch of the Chagrin River. Mr. Morgan further

stated that the assessment boundaries were chosen based on the locations of the surface

water samples, the topography of the land (“the slopes and the grades in the area”), and

the fact that the majority of the septic systems in the Subdivision are original from the

1950’s and 1960’s—66 off-lot discharging systems, to be exact—which he testified are

all a potential for a public health nuisance.

{¶40} Mr. Morgan additionally testified to negotiations that occurred between the

county and the Ohio EPA prior to the final boundary assessment. The county initially

requested testing the individual systems to determine which ones were failing and

replacing them, rather than constructing a sewer. In Mr. Morgan’s words, the Ohio EPA

informed the county it “would be fruitless and a waste of money” to perform individual

tests because over half of the properties had original, dated systems that, as relayed by

Mr. Morgan, “would probably fail, and most of those would be required to have off-lot

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discharging systems, which require individual NPDS permits through the EPA,” and the

county would “wind up with a sewer system anyway.” When it was determined that the

Ohio EPA would not test the individual lots in the Subdivision, the county then discussed

the possibility of replacing half the systems and, for the remaining lots, utilizing existing

NPDS plants nearby.

{¶41} Dean Stoll, supervisor in the Division of Surface Water for the Ohio EPA,

testified that the agency was not receptive, environmentally, because the county’s

proposal indicated that, “of the systems that had been upgraded in that area since 2002,

70 percent of them had to be upgraded with [off-lot] discharging septic systems due to

small lot size and poor soil,” and the residential systems approved to discharge do not

produce high quality effluent as with a municipal wastewater treatment plant. Eventually,

the county submitted a proposal to abate the nuisance by installing sanitary sewers for

the Subdivision, which the Ohio EPA approved. Mr. Stoll additionally explained that the

standard for E. coli in an approved wastewater treatment plant is 126 cts/100ml for a 30-

day average, while the standard that demonstrates a public health nuisance in stream

concentration, i.e., from household septic systems, is 576 cts/100ml. Mr. Stoll further

opined that the boundaries of the assessment district are justified based on his

department’s testing results and his 28-year experience conducting “thousands of

wastewater treatment plant inspections and investigating many communities with similar

sewage issues.”

{¶42} Dave Sage, the Health District’s Environmental Health Director, testified

that the typical “life expectancy” of a household septic system is between 20-25 years.

His estimate of the number of original off-lot discharging systems in the Subdivision—

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62—differed slightly from Mr. Morgan’s estimate of 66. Mr. Sage testified there is only a

five percent “pass rate” for these systems during point-of-sale inspections conducted by

the department. He also testified that testing each off-lot discharging system would be

impractical. Because they all connect to one common tile line, testing would not

necessarily be indicative of the water quality and functionality of a particular household

system, and sample wells would have to be installed on each of the properties.

{¶43} Steven Oluic, the current Director of Water Resources, testified as to

subsequent testing of the Subdivision the department undertook in January and February

2020, due to the probate court intimating at earlier hearings that the amount of testing

done was insufficient. Water Resources personnel obtained 27 samples of surface water

from drainage ditches along the Henning, Howard, Helmut, Thwing, and Omar roadways,

which were analyzed for fecal coliform by an Ohio EPA certified laboratory. The report

indicates that fecal coliform was present in 20 of the samples, which were located on all

five roadways of the Subdivision. The level of fecal coliform in 5 of those 20 samples (4

located on Henning, and 1 located on Thwing) exceeded the standard of a public health

nuisance under R.C. 3718.011 (i.e., greater than 5,000 colonies per 100 milliliters of

liquid).

{¶44} We conclude the probate court’s finding that the assessment boundaries

are arbitrary is not supported by the evidence or the law. As there is no evidence that the

Board acted unreasonably or unlawfully, the probate court appears to have improperly

substituted its judgment in this regard for that of the Board and must be reversed.

{¶45} Regarding apportionment, R.C. 6117.09(C) “provides for the Probate Court

to look at the proper apportionment of the total assessment as between the various

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property owners based on the cost to the owners compared to the benefit received. This

provision provides for a reapportionment of the various portions of the assessment among

the property owners.” Northgate, 1987 WL 11005, at *3. “‘In order to be entitled to an

injunction against any part of an assessment for the cost of a public improvement against

a lot, the owner thereof has the burden of proving that the lot was not enhanced in value

as a result of the improvement in an amount equal to the amount of the assessment.’”

Wolfe v. City of Avon, 11 Ohio St.3d 81, 84, 463 N.E.2d 1251 (1984), quoting Schiff, 9

Ohio St.2d 31, at paragraph five of the syllabus. “[T]he landowner must offer sufficient

proof of the value of his property before and after the alleged improvement. If the

evidence adduced does not sustain the property owner’s claim of no enhancement of

value, then he fails in his bid for an injunction and the city may proceed to collect the

assessment.” (Citations omitted.) Wolfe at 84; see also Come Sail Away Condominium

Assoc. v. Bd. of Commrs. of Ottawa Cty., 6th Dist. Ottawa No. OT-96-034, 1997 WL

195453, *10 (Apr. 18, 1997) (“The property owner bears the burden to establish that the

assessed cost materially exceeds the benefit to the property.”).

{¶46} Here, the probate court found that “Mr. DiCillo’s property will not benefit from

being tied into the proposed central sewer system. His property is currently served by a

functioning residential wastewater treatment (septic) treatment system [sic]. The cost of

tying into the wastewater treatment plant and sewer project greatly outweighs any benefit

Mr. DiCillo or his property will or would receive from tying into the proposed central sewer

system.” (Emphasis sic.)

{¶47} As of the September 24, 2019 public meeting, the cost of the Project was

estimated at $4,523,000.00. Mr. Morgan testified that one-third of the cost—

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approximately $14,000.00 per lot—will be paid by Water Resources through county funds

and a $300,000.00 grant from Ohio Public Works Commission. The property owners will

be equally assessed the remaining two-thirds of the cost—approximately $28,000.00 per

lot.1 Each household will also be responsible for the cost of connecting to the sewer line

and abandoning the septic system, which is approximated at $4,500.00 to $7,500.00 per

household, and a bi-monthly sewer bill of $109.00. Mr. Morgan further noted that the

county, on numerous occasions, attempted “salary surveys” to obtain grants for the

property owners, but the responses were either insufficient or did not meet the income

requirements. Mr. Stoll also testified that household septic systems need replaced about

every 20 years at substantial up-front costs, thus he does not believe that they are less

expensive than a central wastewater treatment system in the long run.

{¶48} Mr. DiCillo testified that he purchased his home in 1999 for $107,000.00,

with an updated on-lot septic system that was replaced as part of the sale of the house.

He testified that the system is tested every three years and is functioning properly. Mr.

DiCillo presented a map of the Subdivision, on which he marked the properties he

assumes have systems that are not the original from the 1950s, based on his own visual

observation. He also testified, over objection, that it is “the general consensus” of the

Subdivision residents that “we can’t afford this.” Mr. DiCillo testified that the Project will

be a detriment to his property, not a benefit, and that it will cost him approximately

$12,000.00 to connect to the sewer line. He further opined that an acceptable

1. According to an Environmental Assessment Report dated May 2020, the estimated Project cost is
$5,147,182.00, to be financed by a $1 million grant from Ohio Public Works, approximately $500,000.00
from the Ohio Water Development Authority, and an assessment of no more than $33,000.00 to $35,000.00
per household to be paid over 30 years.
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apportionment would be $15,000.00 to $20,000.00, which is approximately what it costs

to replace a household septic system.

{¶49} We acknowledge that an owner of real property is competent to testify about

the market value of that property, even when not qualified as an expert. Smith v. Padgett,

32 Ohio St.3d 344, 347, 513 N.E.2d 737 (1987). Mr. DiCillo did not offer such testimony,

however. He merely testified that he paid $107,000.00 for the property in 1999 and

opined, in conclusory fashion, that the assessment and tie-in cost would exceed any

increase to the value of his property. He provided no opinion as to the present-day market

value of his property or the market value following tie-in to the sanitary sewer system.

See Burton v. City of Middletown, 4 Ohio App.3d 114, 119, 446 N.E.2d 793 (12th

Dist.1982) (holding it was impossible to determine whether the value of the special benefit

conferred did not equal or exceed the amount of the assessment in part because there

was no testimony as to the value of the property before or after the improvement). We

must conclude, therefore, that Mr. DiCillo did not offer sufficient proof of the value of his

property before and after the Project to sustain his claim that the tentative apportionment

of the assessment should be modified.

{¶50} While this court is sympathetic to Mr. DiCillo’s concern that he and other

property owners may face a financial burden as a result of the Project, we conclude that

he did not meet his burden of proof in regard to the Board arbitrarily drawing boundaries

of the assessment district or to the tentative apportionment of the assessment materially

exceeding the benefit to his property. Accordingly, the probate court erred in finding in

favor of Mr. DiCillo under R.C. 6117.09(B) and (C).

{¶51} The Board’s third assigned error is well taken.

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 {¶52} The judgment of the Geauga County Court of Common Pleas, Probate

Division, is reversed. Judgment is hereby entered in favor of Geauga County Board of

Commissioners.

CYNTHIA WESTCOTT RICE, J., concurs,

MATT LYNCH, J., concurs in part and dissents in part, with a Concurring/Dissenting

Opinion.

_____________________________

MATT LYNCH, J., concurs in part and dissents in part, with a Concurring/Dissenting

Opinion.

{¶53} I concur with the majority’s disposition of the second assignment of error

relating to those homeowners who are not parties to this matter since they have no

entitlement to relief where an appeal was not sought. However, I find it necessary to

address the statutory scheme in relation to sanitary sewers and the unchecked power

given to the Ohio EPA in determining when an unsanitary condition exists. I dissent from

the majority’s holding that the appellant should be included within the boundary for

constructing the sanitary sewer, since creating boundaries for all members of a

community based on generalizations and speculation is arbitrary.

{¶54} The general statutory provisions relating to unsanitary conditions and the

construction of sanitary sewer facilities highlight concerns with the power given to the

EPA. Once the EPA receives a complaint requesting the investigation of unsanitary

conditions, it is given extensive authority to issue orders that impact homeowners with

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Case No. 2020-G-0263
limited checks on such power. R.C. 6117.34 requires the EPA to investigate unsanitary

conditions when a complaint is initiated, and, if it determines construction of sanitary

facilities is necessary for public health, the EPA is required to order the board of

commissioners that “corrective action be taken,” which order the board must obey. R.C.

6117.09 mandates that if such an order is made, “no property owner shall have the right

to appeal from the action of the board declaring such improvement necessary.” Thus, the

persons most greatly impacted by the EPA’s decision that there is an unsanitary

condition, and who bear the significant financial burden which comes with such a

decision, are left without the ability to challenge that decision. The EPA essentially acts

as the sole arbiter of conditions warranting construction of a sanitary system, without a

direct remedy for property owners as to this decision. This unchecked power is evident

in the present case where the Board of Commissioners’ attempts to remedy the situation

through a recommendation of individual testing and replacement of household septic

systems was rejected by the EPA and, instead, the plan accepted was the installation of

sanitary sewers for the entire subdivision. While both the local authorities and the

homeowners apparently did not believe constructing a sanitary sewer system was

warranted, the EPA ultimately made the decision as to this issue.

{¶55} The involvement of administrative agencies in the day-to-day lives of

citizens, as well as the power these agencies wield in decision-making and enforcement,

is significant. Unfortunately, such power may be exercised in a manner that is

inconsistent, unfair, and oversteps the bounds of entities that are simply not a coequal

branch of government, whether by overreach of agency power or through statutory

authority allocated to such agencies beyond that which is reasonable.

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Case No. 2020-G-0263
 {¶56} The U.S. Supreme Court in Natl. Fedn. of Indep. Business v. Dept. of Labor,

Occupational Safety & Health Administration, 595 U.S. ___, 142 S.Ct. 661 (2022), has

most recently reaffirmed the principle that the legislature may not abandon its

constitutional responsibilities by the grant of unchecked authority to administrative

agencies:

The nondelegation doctrine ensures democratic
accountability by preventing Congress from intentionally
delegating its legislative powers to unelected officials.
Sometimes lawmakers may be tempted to delegate power to
agencies to “reduc[e] the degree to which they will be held
accountable for unpopular actions.” R. Cass, Delegation
Reconsidered: A Delegation Doctrine for the Modern
Administrative State, 40 Harv. J. L. Pub. Pol’y 147, 154
(2017). But the Constitution imposes some boundaries here.
Gundy [v. United States], 588 U.S. [__, 139 S.Ct. 2116, 2131,
204 L.Ed.2d 522] (GORSUCH, J., dissenting). If Congress
could hand off all its legislative powers to unelected agency
officials, it “would dash the whole scheme” of our Constitution
and enable intrusions into the private lives and freedoms of
Americans by bare edict rather than only with the consent of
their elected representatives. Department of Transportation
v. Association of American Railroads, 575 U.S. 43, 61, 135
S.Ct. 1225, 191 L.Ed.2d 153 (2015) (ALITO, J., concurring);
see also M. McConnell, The President Who Would Not Be
King 326-335 (2020); I. Wurman, Nondelegation at the
Founding, 130 Yale L. J. 1490, 1502 (2021).

Id. at 669 (Gorsuch, J., concurring).

{¶57} This concern with the unchecked power of administrative agencies is not a

new one. Over 65 years ago, it was observed that “[t]he rise of administrative bodies

probably has been the most significant legal trend of the last century[.] * * * They have

become a veritable fourth branch of the Government, which has deranged our three-

branch legal theories * * *.” Fed. Trade Comm. v. Ruberoid Co., 343 U.S. 470, 487, 72

S.Ct. 800, 96 L.Ed. 1081 (1952) (Jackson, J., dissenting) (administrative agencies “have

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begun to have important consequences on personal rights”).

{¶58} Overreach or unchecked power by administrative agencies impacts all

citizens of this country. In City of Arlington, Tex. v. F.C.C., 569 U.S. 290, 313, 315, 133

S.Ct. 1863, 185 L.Ed.2d 941 (2013) (Roberts, J., dissenting), Chief Justice John Roberts

observed that “the danger posed by the growing power of the administrative state cannot

be dismissed,” emphasizing that the administrative state “wields vast power and touches

almost every aspect of daily life.” (Citation omitted.) As he aptly observed, “[t]he Framers

could hardly have envisioned today’s ‘vast and varied federal bureaucracy’ and the

authority administrative agencies now hold over our economic, social, and political

activities.” (Citation omitted.) Id. at 313.

{¶59} While the administrative agencies within our country serve a valid purpose,

their power to act in a role that goes beyond the scope of reasonable authority undercuts

citizens’ rights and expectations to due process and confuses the role of the different

branches of our government. Allowing the EPA to make decisions which require

construction of a sewer system for which a homeowner must pay without the ability to

seek complete judicial review, and to order that the municipal authorities construct such

a sewer, provides it with power beyond that which is reasonable and fair to citizens of an

impacted community.

{¶60} As the United States Supreme Court has clarified, EPA regulations do not

evade judicial review and statutory regulations are not “designed to enable the strong-

arming of regulated parties into ‘voluntary compliance’ without the opportunity for judicial

review.” Sackett v. E.P.A., 566 U.S. 120, 131, 132 S.Ct. 1367, 182 L.Ed.2d 367 (2012).

Where the Ohio EPA’s decision that a sanitary system is necessary requires community

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members to be part of that system without being able to challenge its necessity, there is

an element of “strong-arming” which should be called into question. The fact that property

owners do have a right to appeal the boundaries and assessment for the system does

not fully alleviate this concern since the review is incomplete and provides limited relief to

homeowners.

{¶61} This limited review occurs where those appealing the boundaries of the

sanitary sewer assessment district are grouped with all members of their subdivision

without consideration of their specific circumstances. The majority holds that, as to the

assessment boundaries, the sewer connection requirement is uniformly applicable and

there was evidence of septic system failure throughout the subdivision, thereby justifying

inclusion of appellant within the boundary. This conclusion, which essentially determines

that all individuals living in the same neighborhood or subdivision should be treated the

same, must be questioned. A party is permitted a right to appeal the boundaries of the

assessment district under R.C. 6117.09. The purpose of an appeal questioning the

boundaries, however, is eviscerated if the courts merely determine that the boundaries

are not subject to dispute if there is septic system failure somewhere in the neighborhood

or vicinity. If parties cannot challenge the particulars of their inclusion in the boundary,

the statutory right to appeal this issue has little value. While recognizing that DeMoise v.

Dowell, 10 Ohio St.3d 92, 461 N.E.2d 1286 (1984), does not require a case-by-case

determination, this conclusion is respectfully questioned as, particularly in cases like the

one here, the potential for an unfair or arbitrary result is high. Id. at 96.

{¶62} Furthermore, the justifications provided by the majority in this matter for

including appellant within the boundary are unconvincing. The majority emphasizes

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testimony that “of the systems that had been upgraded in that area since 2002, 70 percent

of them had to be upgraded with [off-lot] discharging septic systems due to small lot size

and poor soil.” Using this statement to justify appellant’s inclusion fails to recognize that

30 percent of lots did not have this issue. This is not an insignificant percentage and

certainly does not demonstrate any problems with the septic system on appellant’s

property. Similarly, the majority also cites to the testimony that half of the systems were

old and dated and would likely fail. However, appellant’s evidence showed that his

system had been installed in 1999 and recent testing showed it was still functioning. It

has been held that R.C. 6117.09(B) “permits the Probate Court to look at the boundaries

of the assessment district—that is to determine whether or not certain lots and/or areas

will be benefited by the improvement, and therefore included in or out of the district.” In

re Northgate Special Assessments, 5th Dist. Guernsey Nos. CA-823 to CA-825, 1987 WL

11005, *3 (May 12, 1987). Here, the benefit to appellant is questionable, given that there

is nothing showing his property lacks a working septic system or will be in need of a new

one in the immediate future. Where a party faces a bill in excess of $30,000 to comply

with the EPA’s determination, use of generalizations to justify that outcome are

reasonably viewed as arbitrary. An “arbitrary” decision is made “without consideration of

or regard for facts [or] circumstances.” Black’s Law Dictionary 125 (10th Ed.2014). In

this case, the consideration of facts is disregarded in favor of generalizations.

{¶63} In addition, the analysis of the evidence relating to the location of the fecal

coliform which exceeded the standard of public health nuisance also does not support

inclusion of appellant in the assessment boundary. The test results demonstrate that

samples in excess of the standard were collected on only two roads in the subdivision,

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Henning and Thwing. Appellant’s property is located on Helmut Drive, where no samples

were taken exceeding the standard, yet is placed in the same grouping with those homes

located on streets where the actual public health nuisance was located. This again is

arbitrary, as the boundary encompassing an entire subdivision is not based on nuisance

but apparent convenience or proximity. The boundary would more reasonably be based

on the data itself and confined to the streets where the nuisance was proven. The

foregoing is particularly true given that “[t]he rights related to property, i.e., to acquire,

use, enjoy, and dispose of property, * * * are among the most revered in our law and

traditions.” Norwood v. Horney, 110 Ohio St.3d 353, 2006-Ohio-3799, 853 N.E.2d 1115,

¶ 34.

{¶64} Without a valid rationale for including all streets in the subdivision instead

of only those impacted, this decision is arbitrary. Deciding boundaries by grouping

together all houses in this subdivision is not consistent with the appellant’s right to appeal

and be afforded due process. I would affirm the judgment of the trial court as to appellant

and determine his property is not included in the boundaries created for the sewer system

installation.

{¶65} For the foregoing reasons, I dissent as to the decision to reverse the lower

court regarding appellant’s property but concur as to those owners who did not appeal.

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