One Neighborhood Condominium Assn. v. Columbus Dept. of Pub. Util., Div. of Water

[Cite as One Neighborhood Condominium Assn. v. Columbus Dept. of Pub. Util., Div. of Water, 2017-Ohio-
4195.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
One Neighborhood Condominium :
Association,
:
Plaintiff-Appellant,
v. : No. 16AP-653
(C.P.C. No. 15CV-5194)
The City of Columbus, :
Department of Public Utilities, (REGULAR CALENDAR)
Division of Water, :
Defendant-Appellee. :
D E C I S I O N
Rendered on June 8, 2017
On Brief: Brunner Quinn, and Rick L. Brunner, for
appellant. Argued: Rick L. Brunner.
On brief: Richard C. Pfeiffer, Jr., City Attorney, Westley
Phillips and Sarah L. Harrell, for appellee. Argued: Westley
Phillips.
APPEAL from the Franklin County Court of Common Pleas
TYACK, P.J.
{¶ 1} Appellant, One Neighborhood Condominium Association ("One
Neighborhood"), appeals from the September 16, 2016 decision and entry of the Franklin
County Court of Common Pleas affirming the decision of appellee, City of Columbus,
Department of Public Utilities ("city"), denying One Neighborhood's request for a water
bill adjustment. For the reasons that follow, we affirm the judgment of the court of
common pleas.
{¶ 2} One Neighborhood is a condominium complex located between N. 4th
Street and N. 5th Street and bordered by Gay Street in downtown Columbus, Ohio. The
case arises from an exceptionally large water bill One Neighborhood received for the
No. 16AP-653 2
months of May, June, and July of 2014. One Neighborhood disputed the charges and
requested a hearing to contest the billing.
{¶ 3} Art Curatti, Management Analyst II, for the city, presided over the hearing
on March 9, 2015. Curatti issued a written decision on April 3, 2015. Curatti made the
following findings in his letter:
It was really never determined whether or not the irrigation
system was connected to both water lines for these
addresses; but the spikes and drops in consumption began at
the same time for both 56 N. 4th Street and 81 N. 5th Street.
There were no disputes of how much water went through the
meter. The question still remains why the consumption was
so high for those three months. One Neighborhood
Condominium Association could not explain to me what
happened out at this property and the Division of Water
could not provide an explanation of what took place either.
The plumbing and service lines are the property owner's
responsibility; and in this case, the cause of the spikes and
drops in consumption was never determined.
Your requests for these adjustments are denied and the
balance of your water bills must stand.
(Apr. 3, 2015 letter from Curatti to One Neighborhood.)
{¶ 4} Upon receipt of the Curatti letter, One Neighborhood wrote to the city
requesting the issuance of a final appealable order from the Administrator of the Division
of Water or in the alternative to consider One Neighborhood's letter as a notice of appeal
from the April 3, 2015 Curatti letter. On May 20, 2015, Richard C. Westerfield,
Administrator of the Division of Water wrote to counsel for One Neighborhood stating
that he adopted Currati's decision in the matter, and that the May 20, 2015 letter
constituted a final appealable order of the city. (May 20, 2015 letter from Westerfield to
One Neighborhood.) The letter also stated that the order was appealable under R.C.
Chapter 2506. Id.
{¶ 5} One Neighborhood then filed a notice of appeal from the May 20, 2015
decision to the Franklin County Court of Common Pleas pursuant to R.C. 2506.01. The
transcript of proceedings was filed with the court on August 11, 2015, as well as an agreed
No. 16AP-653 3
correction to the record on August 17, 2015. On August 26, 2015, One Neighborhood filed
an affidavit pursuant to R.C. 2506.03(A)(2) and (5) claiming deficiencies in the record
and seeking to admit additional evidence. The same day, the city filed a motion to strike
the affidavit.
{¶ 6} After reviewing the entire certified record and the affidavit submitted by
Andrew Wall, the court of common pleas denied One Neighborhood's request for a
hearing in common pleas court. It found that One Neighborhood received adequate due
process in the hearing. The court found there was evidence in the record of an
underground leak on the property in the irrigation system. The court noted that One
Neighborhood had the irrigation system shut off after receiving the high bill at issue in
this case. The court noted that representatives of One Neighborhood then replaced six
feet of line in the irrigation system. The court found that the meters at issue in the matter
were functioning properly based on the testimony of One Neighborhood's expert, Steven
West, and Mark Bowen, supervisor of commercial meter repair for the city, who testified
that a new meter was installed on March 20, 2014, and that the meter always tested
accurately. The court noted that One Neighborhood was unable to say how many units
were in the properties or how many tenants resided there. Thus, the court found that
there was no way to monitor or substantiate the interior and exterior usage of the tenants.
{¶ 7} Based upon its review of the evidence, the common pleas court found that
the decision of the Division of Water was supported by a preponderance of the
substantial, reliable, and probative evidence in the record and affirmed the decision to
deny the request for an adjustment of the water bill.
{¶ 8} One Neighborhood appealed from the judgment of the court of common
pleas, pursuant to R.C. 2506.04, assigning the following as error:
[I.] The trial court erred as a matter of law in applying
Krumm v. Upper Arlington City C0uncil, Franklin App. No.
05AP-802, 2006 Ohio 2829, concerning zoning appeals, in
determining its standard of review and holding that the City
of Columbus, Department of Public Utilities, Division of
Water's decision must be presumed to be valid, because
utility service such as water service is inherently deemed
under the law to be subject to constitutional protections,
much different from land use zoning determinations.
No. 16AP-653 4
[II.] The trial court erred in finding as a matter of law that
submitting a form for the investigation of a leak to the City of
Columbus, Department of Public Utilities, Division of Water,
that could lead to an examination of charges for sewage
services but not water services, was relevant to a review of
the Division's determination under R.C. 2506.04.
[III.] The trial court erred as a matter of law in determining
that document from the administrator of the City of
Columbus, Department of Public Utilities, Division of Water
that included language that it was a "final order" and that set
forth a statement of R.C. 2506 appeal rights, was only a
"courtesy" and that the final appealable order under R.C.
2506.01 and 2506.04 was a prior letter from the Division's
hearing officer that did not express finality or include any
statement of appeal rights.
[IV.] The trial court abused its discretion and erred as a
matter of law in denying the presentation of additional
evidence pursuant to R.C. 2506.03 in the form of an affidavit
of Andrew Wall when it found it "totally lacking" yet failed to
rule on Appellee's motion to strike it.
[V.] The trial court erred as a matter of law in failing to apply
the standard of review found in R.C. 2506.04 when it
affirmed the decision and final order of the City of
Columbus, Department of Public Utilities, Division of Water.
{¶ 9} In its first assignment of error, One Neighborhood contends that the court
of common pleas applied the wrong standard of review. The trial court cited Krumm v.
Upper Arlington City Council, 10th Dist. No. 05AP-802, 2006-Ohio-2829, for the
proposition that the court of common pleas "must give due deference to the agency's
resolution of evidentiary conflicts," and that "[a] [zoning] board's decision * * * is
presumed to be valid, and the burden is upon the party contesting the board's
determination to prove otherwise."
{¶ 10} One Neighborhood argues that the standard set forth in Krumm is limited
to zoning board appeals, and that a different standard applies to an appeal from a decision
of the Division of Water for the city of Columbus. One Neighborhood asserts that it has a
property interest in receiving water service and is therefore entitled to certain due process
protections.
No. 16AP-653 5
{¶ 11} R.C. 2506.04 sets forth the roles of the common pleas and appellate courts
in reviewing administrative decisions. That provision provides, in relevant part, as
follows:
[T]he court may find that the order, adjudication, or decision
is unconstitutional, illegal, arbitrary, capricious,
unreasonable, or unsupported by the preponderance of
substantial, reliable, and probative evidence on the whole
record. Consistent with its findings, the court may affirm,
reverse, vacate, or modify the order, adjudication, or
decision, or remand the cause * * *. The judgment of the
court may be appealed by any party on questions of law as
provided in the Rules of Appellate Procedure and, to the
extent not in conflict with those rules, Chapter 2505. of the
Revised Code.
{¶ 12} In reviewing the action of the city pursuant to R.C. Chapter 2506, the court
of common pleas is required to examine the entire record, weighing the evidence to
determine whether a preponderance of substantial, reliable, and probative evidence
supports the commission's decision. Meyers v. Columbus, 10th Dist. No. 07AP-958,
2008-Ohio-3521, ¶ 7. The court of common pleas should not substitute its judgment for
that of an administrative board or agency unless the court finds that there is not a
preponderance of reliable, probative and substantial evidence to support the decision.
Kisil v. Sandusky, 12 Ohio St.3d 30, 34 (1984). In Kisil, the Supreme Court of Ohio was
dealing with an appeal from a decision of a zoning board, but spoke generally about the
standard of review prescribed by R.C. 2506.04. The court went on to state that " 'the
Court of Common Pleas must give due deference to the administrative resolution of
evidentiary conflicts. * * * However, the findings of the agency are by no means
conclusive.' " Id. at 35, quoting Univ. of Cincinnati v. Conrad, 63 Ohio St.2d 108, 111
(1980).
{¶ 13} Moreover, it is the party contesting a decision in an appeal under R.C.
2506.04 that bears the burden of showing that the decision is erroneous. Meyers at ¶ 7;
Akron City Sch. Dist. Bd. of Edn. v. Civil Serv. Comm., 9th Dist. No. 26026, 2012-Ohio-
1618, ¶ 7.
{¶ 14} The court of appeals' role in R.C. 2506.04 appeals is limited to reviewing
questions of law, which the court reviews de novo, and determining whether the court of
No. 16AP-653 6
common pleas abused its discretion in applying the law. In Kisil at fn. 4, the court stated
that R.C. Chapter 2506 "grants a more limited power to the court of appeals to review the
judgment of the common pleas court only on 'questions of law,' which does not include
the same extensive power to weigh 'the preponderance of substantial, reliable and
probative evidence,' as is granted to the common pleas court. Within the ambit of
'questions of law' for appellate court review would be abuse of discretion by the common
pleas court."
{¶ 15} Based on our review of the applicable standard of review for appeals from a
final order, adjudication, or decision of a political subdivision, the common pleas court
did not apply the wrong standard of review. The first assignment of error is overruled.
{¶ 16} In its second assignment of error, One Neighborhood argues that the court
of common pleas erred in finding the failure to submit a leak investigation form was
relevant to the review of the decision by the city. One Neighborhood contends that
submission of such a form would not have led to a lowered water bill because submission
of this form does not affect water rates, only sewer rates.
{¶ 17} In summarizing the evidence that was presented at the hearing, the
common pleas court stated that One Neighborhood never submitted a leak investigation
form to the city as requested in a conversation between One Neighborhood's property
manager and the division of water. (Sept. 16, 2016 Decision and Entry Affirming the
Decision of the city of Columbus at 2.) The common pleas court found that "[One
Neighborhood's] failure to submit a leak investigation form to [the city] as requested
resulted in the fact that no inspection of the leak was done by [the city]." Id. at 9.
{¶ 18} The common pleas court did not find that the failure to submit a leak
investigation form was a determining factor in its decision. Rather, the court simply noted
the fact that no leak inspection was ever conducted by the city because One Neighborhood
never requested one.
{¶ 19} Curatti found that: "The question still remains why the consumption was
so high for those three months. One Neighborhood Condominium Association could not
explain to me what happened out at this property and the Division of Water could not
provide an explanation of what took place either." (Apr. 3, 2015 letter from Curatti to One
Neighborhood.) The fact that no leak inspection was conducted merely corroborates the
No. 16AP-653 7
finding of Curatti that no one could explain what happened at the property to result in
such a large water bill. There was no error of law by the court of common pleas in noting
this fact.
{¶ 20} The second assignment of error is overruled.
{¶ 21} In its third assignment of error, One Neighborhood asserts that the trial
court erred in determining that the April 3, 2015 Curatti letter was a final order and the
May 20, 2015 letter from the Administrator of the Division of Water was a courtesy to One
Neighborhood.
{¶ 22} The hearing officer informed the parties that they would receive a letter
indicating his final decision and that, if they were not happy with that decision, they had a
right to appeal it in court. After receiving the Curatti letter, One Neighborhood requested
another order from the division of water, and the division complied with the request by
issuing the May 20, 2015 letter adopting the decision of Curatti.
{¶ 23} Regardless of which letter served as a final order, One Neighborhood timely
appealed from both decisions. The Administrator of the Division of Water adopted the
Curatti letter, including its findings of fact. The court of common pleas found that this
was done as a courtesy after One Neighborhood requested such an order. One
Neighborhood cannot complain about the letter that was issued by the Administrator of
the Division of Water after One Neighborhood was the party who asked the city to provide
the response. One Neighborhood has demonstrated no prejudice by the city's responding
to the request for a letter from the administrator by issuing a letter adopting the decision
of Curatti.
{¶ 24} The third assignment of error is overruled.
{¶ 25} In its fourth assignment of error, One Neighborhood argues that the court
of common pleas erred in denying its request to present additional evidence in the form of
the affidavit of Andrew Wall.
{¶ 26} One Neighborhood filed an affidavit with accompanying exhibits on
August 26, 2015 in conjunction with its appellate brief before the court of common pleas.
One Neighborhood asserted that the additional evidence was necessary because the
Administrator of the Division of Water did not have the transcript of the proceedings to
review when he made the decision to adopt the Curatti decision. The Wall affidavit
No. 16AP-653 8
consisted largely of additional argument and characterization of the evidence that was
submitted at the hearing.
{¶ 27} The city filed a motion to strike the affidavit asserting there were no
deficiencies in the record since a transcript of the hearing and additional items including
exhibits were also filed with the court of common pleas.
{¶ 28} The court of common pleas never explicitly ruled on the motion to strike.
Rather, in its decision and entry affirming the decision of the city, the court stated that it
was not going to grant an additional hearing before the court because it had reviewed the
affidavit filed by Wall, and found it to be lacking. (Decision at 7.)
{¶ 29} A common pleas court may consider additional evidence in an
administrative appeal if any of the circumstances in R.C. 2506.03(A)(1) to (5) applies.
State ex rel. Chagrin Falls v. Geauga Cty. Bd. of Commrs., 96 Ohio St.3d 400, 403, 2002-
Ohio-4906, ¶ 13.
{¶ 30} R.C. 2506.03 provides, in relevant part:
(A) The hearing of an appeal taken in relation to a final
order, adjudication, or decision covered by division (A) of
section 2506.01 of the Revised Code shall proceed as in the
trial of a civil action, but the court shall be confined to the
transcript filed under section 2506.02 of the Revised Code
unless it appears, on the face of that transcript or by affidavit
filed by the appellant, that one of the following applies:
(1) The transcript does not contain a report of all evidence
admitted or proffered by the appellant.
(2) The appellant was not permitted to appear and be heard
in person, or by the appellant's attorney, in opposition to the
final order, adjudication, or decision , and to do any of the
following:
(a) Present the appellant's position, arguments, and
contentions;
(b) Offer and examine witnesses and present evidence in
support;
(c) Cross-examine witnesses purporting to refute the
appellant's position, arguments, and contentions;
No. 16AP-653 9
(d) Offer evidence to refute evidence and testimony offered
in opposition to the appellant's position, arguments, and
contentions;
(e) Proffer any such evidence into the record, if the
admission of it is denied by the officer or body appealed
from.
(3) The testimony adduced was not given under oath.
(4) The appellant was unable to present evidence by reason
of a lack of the power of subpoena by the officer or body
appealed from, or the refusal, after request, of that officer or
body to afford the appellant opportunity to use the power of
subpoena when possessed by the officer or body.
(5) The officer or body failed to file with the transcript
conclusions of fact supporting the final order, adjudication,
or decision .
(B) If any circumstance described in divisions (A)(1) to (5) of
this section applies, the court shall hear the appeal upon the
transcript and additional evidence as may be introduced by
any party. At the hearing, any party may call, as if on cross-
examination, any witness who previously gave testimony in
opposition to that party.
{¶ 31} Here, One Neighborhood appeared at the hearing with counsel, examined
witnesses, presented evidence, made arguments, and had a full opportunity to present its
case. There was no evidence in the record that One Neighborhood was prevented from
presenting its case before the hearing officer. Additionally, the court of common pleas did
review and consider the affidavit of Wall. It determined that an additional hearing was
not necessary since One Neighborhood had a full opportunity to present its case. The
court did not find the affidavit persuasive or sufficient to establish the need for an
additional hearing. Procedural due process, notice and a right to be heard were satisfied.
{¶ 32} The fourth assignment of error is overruled.
{¶ 33} In its final assignment of error, One Neighborhood argues the court of
common pleas applied the wrong standard of review when it made factual findings that
differed from those of Curatti. One Neighborhood argues that the court of common pleas,
No. 16AP-653 10
acting as an appellate court, drew conclusions from the whole record and found different
facts than the Division of Water. In so doing, One Neighborhood contends it went beyond
its jurisdiction and abused its discretion.
{¶ 34} The court of common pleas is charged with reviewing the record and
engaging in a limited weighing of the evidence to determine if there exists a
preponderance of reliable, probative, and substantial evidence to support the city's
decision. Meyers at ¶ 7.
{¶ 35} Here, the primary factual issue was with the finding by Curatti that "[t]here
were no disputes of how much water went through the meter." (Curatti letter.) One
Neighborhood contrasts this with the expert opinion of Steven S. West of American Leak
Detection, who opined: "It is our opinion that the high water bills are not due to a leak or
consumption through the meter." (Sept. 9, 2014 letter from Steven S. West.)
{¶ 36} The court of common pleas stated that:
The meters at issue in this case were functioning properly.
This proper functioning is supported by West's testimony
and the testimony of Mark Bowen who stated that a new
meter was installed on March 20, 2014, and that the meter
always tested accurate.
(Decision and Entry at 9.)
{¶ 37} We have reviewed the transcript of the proceedings and note the following:
MR. WEST: So you're saying that your test confirmed what I
found?
MR. BOWEN: Yeah. That the meter always did test accurate.
MR. WEST: Yeah, Yeah. And my delta was less than 15
percent.
(Tr. at 56-57.)
{¶ 38} The court of common pleas found reliable, probative, and substantial
evidence from both parties that the meters were functioning properly. Therefore, it was
reasonable to infer from that evidence that the water passed through the meter in the
amounts reflected on the bill.
No. 16AP-653 11
{¶ 39} We can find no abuse of discretion in the trial court's review of the evidence.
{¶ 40} The fifth assignment of error is overruled.
{¶ 41} Based on the foregoing, the five assignments of error are overruled, and the
judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
KLATT & LUPER SCHUSTER JJ., concur.
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