Appeals court rejects dam referendum argument

FREMONT – The Sixth District Appeals Court rejected a lawsuit Thursday that would have put the fate of the Ballville Dam removal project up to voters in November.

In its ruling, the court disagreed with the arguments by plaintiffs that the dam’s demolition did not constitute a public improvement and asserted that City Auditor Paul Grahl acted appropriately when he refused to submit referendum petitions to the county’s board of elections.

A group of three residents had filed a writ of mandamus complaint in March against Grahl and argued that the Fremont City Council’s 4-3 decision in 2014 to remove the dam was legislative in nature and subject to referendum under the Ohio Constitution and applicable statutes.

“The city is very pleased with the outcome. When we first began the case, we knew we were right from a legal standpoint,” Law Director Jim Melle said.

The city is still waiting for a decision on a federal lawsuit filed by the Sierra Club’s Ohio chapter that could halt the dam removal project and require further testing on silt trapped behind the dam.

Andy Mayle, a Fremont attorney representing representing Clemens J. Szymanowski, Dennis Dumminger and Kathie M. Collins in the complaint against the city, said he and his clients disagreed with the appeals court’s decision.

Mayle said the decision, as it reads, means that his clients would have had to file their complaint in 2008 to seek a referendum on the dam removal, even though the council didn’t vote on the removal until November 2014.

“But that doesn’t make any sense,” Mayle said.

In the city’s motion for summary judgment in the case, Melle argued that the ordinance passed to remove the dam was actually the eighth ordinance related to the project, the 10th piece of legislation tied to the dam’s removal and at least the 13th action taken by the city regarding the dam.

The city has contended repeatedly that only the first ordinance on the dam removal is eligible for referendum.

Melle argued in the latest motion that the city’s reservoir project and Ballville Dam removal are two different phases of one project, which were linked together from the beginning.

The city’s motion contends that a 2008 ordinance, which included an agreement with the Ohio Department of Natural Resources for a $5 million grant for reservoir construction and dam removal, was passed by the Fremont City Council as the first ordinance of the combined project.

The appeals court agreed with the city's arguments in its ruling and rejected the residents' argument that dam removal was not specifically called for in the ODNR agreement with the city.

The court also stressed that the residents cited no authority to support their position and incorrectly presented dam removal in isolation from a larger project, which included construction of the city's reservoir.

Mayle noted that the city's 2008 ordinance and agreement with ODNR expired in 2012 and was extended until March 2015, which was after his clients had filed the referendum petition.

The appeals court had previously ordered Grahl to either submit the Ballville Dam referendum petitions to the Sandusky County Board of Elections or show cause as to why he would deny the petitions.

Thursday, Mayle said he was not sure if his clients would appeal the Sixth District Appeals Court decision to the Ohio Supreme Court.

"We're thinking about it," Mayle said.

dacarson@gannett.com

419-334-1046

Twitter:@DanielCarson7.