Four years ago, the Northeast Ohio Regional Sewer District came up with a plan to try to stave off flooding in its 56 communities. It would collect about $35 million a year from property owners to fund work such as shoring up river banks and clearing out decades of debris from the streams that eventually work their way into Lake Erie. The fees would be based on how much of each property is impermeable -- covered by parking lots, building roofs and the like.
But eight of those communities, including Beachwood and Strongsville, are challenging that plan. And they have the 8th District Court of Appeals on their side. It ruled that the sewer district only has the right to collect fees for wastewater – and that does not include storm water.
In grilling John Nalbandian the communities’ attorney, Chief Justice Maureen O’Connor was among high court judges who seemed struggle with that exclusion.
“You have storm water that is coming from the sky onto your roof, down your driveway and goes into a stream," O'Connor said. "It doesn’t touch your septic system, it doesn’t touch your sewer system. It is not contaminated with sewage or industrial waste."
“Which is why the statute makes it clear that waste water is that storm water when it’s mixed with waste," Nalbandian said.
“I don’t see it as having to mean that—that is has to be mixed with water -- or, with waste," O'Connor said.
Beyond a lot of questions over the meaning of the word “and” in a state law written 40 years ago, some of the justices pressed Nalbandian with questions about geography and authority.
How, asked Justice William O’Neill, can a regional problem be dealt with if no one has regional authority? He zeroed in on Beachwood, whose storm water runoff has become its neighbors’ problem.
“Is it the 8th District’s position, therefore, that the rain water that starts in Beachwood is not Beachwood’s problem after it leaves Beachwood?” O'Neill asked.
“No, your honor. All of the local communities manage and deal with storm water and storm sewers," Nalbandian said. "Their storm sewers take their storm water into the rivers, into the streams, into the water courses that are part of the storm system."
“Into the adjoining communities?” O'Neill said.
“In some cases, yes," Nalbandian answered.
“In all cases," O'Neill said. "There’s certainly no pipe that goes from Beachwood to Lake Erie, is there?”
“I don’t believe there is, your honor," Nalbandian replied.
But Nalbandian wasn’t the only one getting a grilling.
Justice Judith French pressed the sewer district’s attorney, Mark Wallach, on whether the fee amounts to taxation without representation.
“To get to the heart of my concern, I see no limits on your authority given the way you’ve described it," French said.
“Your honor, there are two kinds of limits," Wallach said. "One kind of limit is the political process. All the members of the sewer district board have been appointed there by elected officials.”
“So they’re appointed by elected officials, but not elected officials themselves," French said.
“Well, actually some of them are also elected officials," Wallach said.
Wallach acknowledged, though, that the board itself is not elected. Still, he said it is watched by the press and the public -- and by the courts if its decisions are out of line.
Another justice, Terrance O’Donnell, pressed Wallach on who else is taking a regional approach to Northeast Ohio’s big flooding problem. The answer is no one.
Chief Justice O’Connor asked Beachwood’s attorney, John Nalbandian, about the same issue. He agreed with Wallach, but said that’s a product of the law that the justices should uphold.
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“Certainly, Your Honor, there are flooding issues in Northeast Ohio just like there are in the rest of Ohio," Nalbandian said.
“Well, I understand that. But they’re trying to do something about it," O'Connor said. "That’s what this whole case is about.”
“The motive may be pure. I’m not saying it’s not. I’m just saying the statute has to be clear about who can do this and what entities are able and have the explicit power to do this.”
And Beachwood and seven other communities contend no such explicit powers exist under Ohio law.
The high court sets no dates for when it will issue a decision. Until it does, the money collected under the program so far will remain in escrow.
