State v. Wash. Cnty. Bd. of Cnty. Comm'rs

2021 Ohio 1970

STATE OF OHIO, ON BEHALF OF THE OHIO ENVIRONMENTAL

PROTECTION AGENCY, Plaintiff-Appellee, v. WASHINGTON COUNTY BOARD OF COUNTY COMMISSIONERS, Defendant-Appellee, v. DEVOLA AGAINST SEWERING HOMES, Intervenor-Appellant.

Case No. 20CA13

COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY

May 11, 2021

DECISION AND JUDGMENT ENTRY

APPEARANCES:

Gregory J. DeGulis, McMahon DeGulis LLP, Cleveland Ohio, for Appellant-Intervenor.

Dave Yost, Ohio Attorney General, Amber Wootton Hertlein and Nicole Candelora-Norman, Assistant Attorneys General, Environmental Enforcement Section, Columbus, Ohio, for Plaintiff-Appellee.

Nicole Tipton Coil, Washington County Prosecuting Attorney, Marietta, Ohio, for Defendant-Appellee.¹

PER CURIAM.

{¶1} This is an appeal from a Washington County Common Pleas Court judgment entry denying Intervenor-Appellant, Devola Against Sewering Homes' (hereinafter "DASH"), motion to intervene in the underlying matter. On appeal, DASH raises a single assignment of error which contends that the trial court erred in denying its motion to intervene. However, because we have concluded that the trial court did not abuse its discretion in denying DASH's motion, we find no merit to the sole assignment of error raised on appeal. Accordingly, the assignment of error is overruled and the judgment of the trial court is affirmed.

FACTS

{¶2} This matter began in 2009 when the Washington County Board of Health notified the Ohio Environmental Protection Agency (hereinafter "OEPA") that the drinking water in the Devola area contained an elevated level of nitrates, rendering the water unsafe. OEPA conducted an investigation and determined that outdated, and in some cases failing, septic systems in the Devola area were the cause of the high nitrate levels. As a result, the Director of the OEPA entered into agreed Final Findings and Orders with the Putnam County Water Association (hereinafter "PCWA") on October 5, 2010, which required PCWA to submit a general plan that contained at least three different options that would address the elevated nitrate levels. It appears from the record that after additional testing continued to indicate elevated nitrate levels, the Director of the OEPA further issued Director's Final Findings and Orders on September 12, 2012, which required that the Washington County Commissioners, within twelve months, "submit to Ohio EPA for approval a general plan for sewage improvements or other methods of abating pollution and correcting the unsanitary conditions, pursuant to ORC Chapter 6111." R.C. Chapter 6111 governs "Water Pollution Control" and provides in R.C. 6111.03(H)(2) that the director of environmental protection may issue orders to prevent, control or abate water pollution by such means that include requiring the construction of new disposal systems.

{¶3} It appears that the PCWA initially elected to address the nitrate problem by installing a reverse osmosis system, which the OEPA approved. The installation of the system was completed in 2014 at a cost of $2.5 million and it appears that the use of the system reduced the nitrate levels in the drinking water within limits to below the maximum limit of 10 mg/L. It appears from the record, however, that water quality sampling of the ground water revealed there were still elevated nitrate levels even after installation of the reverse osmosis system.

{¶4} It further appears that the Washington County Commissioners initially elected to submit a plan to install a sewer system to service the Devola area but failed to submit the plan as required by January 18, 2015. Because of the Commissioners' continued failure to comply with the 2012 order, the OEPA filed an enforcement action in the Washington County Court of Common Pleas on March 2, 2018. The trial court granted partial summary judgment in favor of OEPA on November 30, 2018, ordering the Washington County Commissioners to comply with the 2012 order. Since that time, the Commissioners have proceeded with plans to design and construct a sewer system in the Devola area and have entered into a contract in excess of $500,000 for the design and construction of the sewer project.

{¶5} However, on March 18, 2020, nearly sixteen months after the partial grant of summary judgment, DASH filed a motion to intervene in the enforcement action pursuant to Civ.R. 24. DASH describes itself as "an unincorporated non-profit association under Ohio law" that was "formed to protect the 500+ Devola, Ohio residents from the anticipated installation of sanitary sewers." The stated purpose of DASH's motion to intervene was to invalidate the 2012 Director's order and thus prevent enforcement of it in the Washington County Court of Common Pleas. In its motion, DASH contended that it met the requirements for both intervention of right and permissive intervention as set forth in Civ.R. 24, which governs motions to intervene. The trial court issued a three-page decision denying DASH's motion to intervene on April 16, 2020. The trial court determined that in addition to failing to meet the requirements for intervention, DASH's motion was untimely filed.

{¶6} It is from the trial court's April 16, 2020, order denying its motion to intervene that DASH now brings its appeal, setting forth a single assignment of error for our review.

ASSIGNMENT OF ERROR

I. THE TRIAL COURT ERRED IN DENYING APPELLANT- INTERVENOR'S MOTION TO INTERVENE.

{¶7} In its sole assignment of error, DASH contends that the trial court erred in denying its motion to intervene in the underlying matter. DASH contends that the issue presented on appeal is "[w]hether in its Order denying Appellant Intervenor's Motion to Intervene, the Trial Court abused its discretion when the Trial Court failed to consider the unusual circumstances in denying the motion." The State counters by arguing that DASH failed to establish any unusual circumstances that would justify intervention and also that the trial court properly denied DASH's motion as untimely under Civ.R. 24. We begin by considering the proper standard of review that must be employed when addressing a trial court's decision on a motion to intervene.

Standard of Review

{¶8} The parties agree that a trial court's grant or denial of a motion to intervene should be reviewed under an abuse of discretion. This Court noted in a prior case involving the review of a trial court's decision on a motion to intervene as follows:

When reviewing a trial court's decision on a motion to intervene, we must apply an abuse of discretion standard of review. Widder & Widder v. Kutnick (1996), 113 Ohio App.3d 616, 624, 681 N.E.2d 977, 981; In re Stapler (1995), 107 Ohio App.3d 528, 531, 669 N.E.2d 77, 79; Young v. Equitec Real Estate Investors Fund (1995), 100 Ohio App.3d 136, 138, 652 N.E.2d 234, 235. See also, Thomas v. Cook Drilling Co. (1997), 79 Ohio St.3d 547, 549, 684 N.E.2d 75, 77. An abuse of discretion connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. In re Jane Doe 1 (1991), 57 Ohio St.3d 135, 566 N.E.2d 1181; and Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140. When applying the abuse of discretion standard, a reviewing court is not free to merely substitute its judgment for that of the trial court. In re Jane Doe 1; Berk v. Matthews (1990), 53 Ohio St.3d 161, 559 N.E.2d 1301 citing Buckles v. Buckles (1988), 46 Ohio App.3d 102, 546 N.E.2d 950.

Brown v. Gallia County Bureau of Vital Statistics, 4th Dist. Gallia No. 97CA12, 1997 WL 802648, *3; see also Johnson v. Adullam Ministries/Pastor Forte, 4th Dist. Athens No. 99CA48, 2000 WL 343791, *4.

{¶9} However, this Court has also noted as follows regarding the applicable standard of review for intervention of right, as opposed to permissive intervention:

The standard of review for a trial court's decision to deny a Civ.R. 24(A) motion for intervention as of right is less settled. "Ohio courts of appeals have * * * routinely held that appellate review of trial court decisions respecting applications for intervention of right is limited to the deferential abuse of discretion standard." Klein and Darling, Ohio Civil Practice (Supp. 2009) Section 24:4 (footnote omitted). However, "[s]everal court of appeals decisions have expressed concern about the propriety of applying that standard[,]" and Klein and Darling suggest that appellate courts review Civ.R. 24(A) motions under a "more searching scope of appellate review[.]" Id. They note that some recent court of appeals decisions have applied de novo review for at least some aspects of intervention of right. Id. See In re Young, Stark App. No.2008CA00134, 2008-Ohio-5435; In re M.N., Wayne App. No. 07CA0088, 2008-Ohio-3049; and In re Guardianship of Chambers, Sandusky App. No. S-07-014, 2007-Ohio-6881.

In re Adoption of S.R.N.E., 4th Dist. Adams No. 09CA885, 2009-Ohio-6959, ¶ 7. Importantly, this Court more recently noted in In re. C.M., 4th Dist. Athens No. 17CA7, 2017-Ohio-9037, fn. 2 that "[t]he Supreme Court of Ohio has since clarified that the abuse-of-discretion standard governs both Civ.R. 24(A) and (B) decisions." Citing State ex rel. Merrill v. Ohio Dept. of Nat. Resources, 130 Ohio St.3d 30, 2011-Ohio-4612, 955 N.E.2d 935, ¶ 41.

Applicable Law

{¶10} Civ.R. 24 governs both Intervention of Right and Permissive Intervention and provides, in pertinent part, as follows:

(A) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of this state confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction that is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

(B) Permissive

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