Attorney: County lobbied for law to back up road vacation

The attorney for an Albany area landowner who has been fighting Athens County for years to receive damage payments for two road closures claimed last week that the county first lobbied for a new state law affecting the dispute, and is now trying to invoke that law retroactively.

"œThey're trying to take advantage of a new law, is what it is," charged attorney John P. Lavelle, who represents landowner Richard Jeffers. Lavelle said he believes the new law clearly should not apply to a case already in progress when the law was passed.

Athens County Commissioner Lenny Eliason, who helped get the legislation introduced, said Saturday that as he's not a lawyer, he doesn't know whether the new law, which went into effect in April 2009, can be applied to the legal dispute with Jeffers.

However, Eliason said, he does believe the county should not have to pay Jeffers for its having vacated two roads in 2004 that accessed his property in Alexander Township.

Eliason said Lavelle "has got a theory about this case that I think is completely wrong... What John wants us to do is have a hearing on whether we're going to pay Jeffers money to give his property back."

According to Lavelle, however, that's exactly what the county is required to do, based on rulings from Athens County Common Pleas Judge L. Alan Goldsberry and the 4th District Court of Appeals. (Goldsberry is currently considering a motion to require the county to schedule such a hearing.)

In the meantime, however, Lavelle said, based on court filings in the case, the county's attorney seems to believe he can invoke the new law to deny Jeffers such a hearing.

In his court filings, Lavelle said, the county's attorney, Douglas C. Boatright, "keeps talking about, the law's been changed." Though Boatright doesn't specifically reference which law he's talking about, Lavelle maintained, he must be referring to the legislation enacted last year.

The Athens NEWS could not reach Boatright for comment Friday.

LAST YEAR THE County Commissioners Association of Ohio, at Eliason's urging, successfully lobbied for new legislation applying to county road vacations.

According to Eliason, the new law states clearly that an "appropriations hearing" "“ such as the law requires when a state highway agency seizes private land by eminent domain "“ is not required in the case of county road vacations.

"It says that that (type of) hearing doesn't apply to road vacations," he confirmed.

Asked whether the new law would apply to Jeffers' current legal dispute, despite being passed after the dispute had arisen, Eliason declined to comment on what he called a question for attorneys.

"That's a legal question," Eliason said. "I really don't know."

At stake is a claim by Jeffers that the county owes him damages "“ up to $500,000, in his opinion "“ for having vacated two county roads, Red Lane and Jeffers Road, that provided public road access to property he owns in Alexander Township. The vacations landlocked some parcels, Lavelle said, though Jeffers reportedly still has road access through adjacent property he owns.

The county's opinion is that the road vacation qualified as an improvement, not a "taking," as Jeffers contends, and that therefore Jeffers has no right to a hearing to dispute whatever amount the county wants to pay. (At one point the county reportedly offered to pay a nominal sum, $1,000 according to Lavelle, which he refused.)

The two parties have argued in court filings over whether the county is required to grant Jeffers an "appropriation hearing" "“ essentially the same process used when a landowner disputes the amount the Ohio Department of Transportation wants to pay for a piece of property taken by eminent domain for a highway project.

In Lavelle's deposition of Eliason taken Feb. 15, the commissioner acknowledged that sometime in 2008 or 2009, he started the ball rolling on a piece of state legislation dealing with the compensation of property owners for road vacations.

Eliason, a past president of the County Commissioners Association of Ohio, testified that he approached the staff of the CCAO about pursuing the legislation "because of the ruling that (Common Pleas) Judge (L. Alan) Goldsberry made in this case that was contrary to the prevailing opinion of what the road vacation law read; we thought it needed to be clarified in the Ohio Revised Code, and that they should change the law to make sure that the intent was clear for what the Legislature wanted as far as the road vacations went."

The commissioner said he went to the CCAO staff with the issue sometime while the dispute with Jeffers was already going on, though he could not remember exactly when.

In August 2008, a damages hearing was held in the case before the county commissioners, at which time it was agreed to come back and hold another hearing, which eventually took place in July 2009. Lavelle claimed Friday that "about that same time is when Lenny Eliason started calling the state Legislature."

At some point during this process, Eliason testified at the Feb. 15 deposition, Brad Cole, senior policy analyst for CCAO, showed Eliason some proposed language for a new law. After looking it over, Eliason recalled, he told Cole that if enacted in a law, "I thought it would solve our problems."

When Lavelle asked Eliason whether these "problems" stemmed specifically from the Jeffers case, Boatright objected to the question, and Eliason answered, "No. I thought it would solve a problem of a bad ruling, in my opinion... It was to resolve the Jeffers case." He also recalled that he probably spoke to state Sen. Jimmy Stewart, R-Albany, about the need to change the law.

Lavelle said he's been pushing the county to give his client an appropriations hearing, and keeps running into the same claim "“ the law doesn't require one.

"I've been trying to get this done since last August, and they keep saying, 'Well, the law doesn't say that now,'" he complained.