Staff photo / Ed Runyan... Diane Less, local animal advocate, is shown near the driveway of her property on state Route 165 in Green Township. Behind her is her horse, and behind that are two farm fields that she would no longer be able to access from Route 165 if the Mill Creek MetroParks extends its bikeway along a former railroad bed next to a tree line in the distance.

YOUNGSTOWN — The battle is heating up before the Ohio Supreme Court over whether park boards, including Mill Creek MetroParks, can use eminent domain to acquire land for hike and bike trails.

The attorney for local animal advocate Diane Less of Green Township this month filed a brief in the case that states Ohio legislators never authorized park boards to use eminent domain to build bike trails.

Her lawyer argues that Washingtonville Road, which runs parallel and near to the proposed bike trail, is an “existing state bike route” that already provides riders with what a mapping system on the Eastgate Regional Council of Governments’ website calls an “easy” route. Eastgate’s offices are in Youngstown.

“The taking of the property for a bikeway for public transportation and recreational purposes was not necessary, as less than 1 mile from the (Less) property being taken is a bikeway along Washingtonville Road,” the filing states.

“At its very furthest point, this proposed additional bikeway is only (eight tenths) of a mile from Washingtonville Road,” the filing by attorney Carl James of Youngstown states.

If the MetroParks were to acquire some of Less’ land and build the bikeway on its intended path along a former railroad bed, it would run through the farm that has been in Less’ family for 100 years, the filing states.

“The is not just any green space — it is a family farm. She is a civic-minded person well known in her community for her work as the co-founder of the local nonprofit animal shelter (Angels for Animals), employs 70 people and yearly finds homes for over 1,500 cats and dogs and spays and neuters over 10,000 cats and dogs,” the filing states.

The 42-page filing, called a merit brief, will not be the final filing before the Ohio Supreme Court decides the case, which has generated a great deal of debate over whether the government should be able take a person’s land against his or her will.

The MetroParks will get to file a response to the Less filing.

The MetroParks in June had asked the court to hear the case because the MetroParks “is one of many Ohio public park districts” that operate under a specific Ohio law that governs acquisition of property for park use. “This case presents the court with the opportunity to clarify that parks boards in Ohio acting under (state law) may continue to appropriate land for recreational trails as this court and (another court) have previously held,” the filing by MetroParks attorneys James Roberts and Elizabeth Farbman of Youngstown states.

Within two to four months, the Ohio Supreme Court will hold oral arguments and then issue a ruling in another four to six months, according to a “Frequently Asked Questions” feature on the Supreme Court website.

OHIO FARM BUREAU

In addition to the Less filing, the Ohio Farm Bureau Federation filed an amicus brief with the Ohio Supreme Court. An amicus brief is a “friend of the court” brief, filed by a person or group not a party to an action but having a strong interest in the matter.

The organization said it was filing the brief because it is “strongly committed to protecting private property rights preserved by the Ohio and U.S. Constitutions” and because the Farm Bureau is “staunch in its opposition to the use of eminent domain power generally and particularly where it impacts farmland.”

It noted the potential for “members of the Farm Bureau to be affected by the outcome of this case statewide.”

It stated that the Farm Bureau is concerned about park-related use of eminent domain because park boards are “largely insulated from accountability of the citizens at large. Park commissions are not elected entities, and are only held accountable to the voters through election of the probate judge who appoints the members of the (board), and the approval or disapproval of any proposed levies to support the park district.”

WASHINGTONVILLE ROAD

At the beginning of the process, Less offered to donate property on the east side of her farm near Washingtonville Road for a bike trail because she “did not want her property to be divided and split into two on the west side of her farm, where Mill Creek Park insisted on building the additional bikeway,” the filing states.

“Putting the additional bikeway on the west side of her (Less’) property will cut off approximately six acres from the rest of her farm. The property she offered to donate would have been about one half mile in length,” it states.

The filing states that the MetroParks stated in 1993 that the 6.4-mile portion of the bike trail that would travel through her property would be “open for reasonable commute hours 5 a.m. to 11 p.m. daily.”

Though the Less filing says there is a “state bike route on Washington Road” and later calls it the “existing Washingtonville Road Bikeway,” a Google search did not turn up a single reference to such a bikeway.

The Eastgate Regional Council of Governments website contains a “bike suitability” map for Mahoning and Trumbull counties referenced in the Less filing. It shows Washingtonville Road being “easy” for bike riding. It does not call it the “Washingtonville Road Bikeway.”

The map also shows the proposed MetroParks bike trail running parallel to Washington Road and calls it a “bike path / lane,” even though that part of the bike trail is not yet built.

An Ohio Department of Transportation map of state and national bike routes does show a bike route that runs along Washingtonville Road, also known as County Road 95, that starts just north of Western Reserve Road in Canfield and travels south all the way to Marietta and west to Xenia and then back north in various directions. That route also connects a short distance north of Washingtonville Road with a national bike route.

METROPARKS LAWSUIT

The appropriation lawsuit that the MetroParks filed against Less sought to acquire 2.5 ares of her property along the western edge of her property, it states.

A separate lawsuit the MetroParks filed against property owner Green Valley Wood Products would eliminate “the ingress and egress of (Less) to her farmlands from state Route 165,” the filing states. The Green Valley property is close to Less’ property. The Green Valley case is part of the case being heard by the Ohio Supreme Court.

The MetroParks’ efforts to acquire a right of way on the property of Less’ and Green Valley Wood Products began in Mahoning County Common Pleas Court. It was approved by Judges Maureen Sweeney and John Durkin.

Less and Green Valley appealed the rulings to the 7th District Court of Appeals. A panel of judges from the Circleville area was appointed to hear the case and ruled in favor of Less and Green Valley Wood Products.

The MetroParks then appealed the ruling to the state’s top court, and the court agreed to hear it.

As Less’ attorney has argued in the past, the MetroParks “has no authority under (a state law involving eminent domain) to take the property of (Less and Green Valley) for the creation of a bikeway used for public transportation and recreational purposes,” the filing states.

An earlier appellate court decision stated that the Metroparks “does not have the power to appropriate or take property through eminent domain except for ‘conversion into forest reserves and the conservation of the natural resources of the state,'” the Less filing states. That includes conservation of resources such as “streams, lakes, submerged lands, and swamplands; and specifically not for a bikeway solely dedicated to public transportation and recreational purposes,” the filing states.

“Tearing up rural farmland to put in a bikeway is not conserving the natural resources so (that) an occasional bicyclist can ride by and have a look at (Less’s) farmland,” the filing states in one of its more pointed remarks.

erunyan@vindy.com