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Township can't help with resident's drainage problem
(by Joseph Koziol Jr. - December 08, 2010)
Township can't help with resident's drainage problem
By JOSEPH KOZIOL JR.
A Chardon Township resident will be on his own in trying to solve a drainage problem.
The Geauga County Prosecutor's Office advised Chardon Township Trustees last week that they have no authority to work outside the roadway right of way in attempting to help Clark Road resident Ken Murray.
"It is my opinion and you are hereby advised that the township is without authority to install a culvert on private property some 30 feet past the edge of the road right of way," Assistant Prosecutor Rebecca Schlag said.
Trustees had asked the prosecutor's office for advice after meeting in November with Mr. Murray, of 11955 Clark Road.
Mr. Murray had asked the township to assist him in replacing a culvert under his driveway to alleviate water runoff from a grade along Clark Road, just east of Ravenna Road. He said the water runoff was killing trees on his property.
Ms. Schlag said culverts outside the road right of way are the responsibility of the property owner. "Culvert pipes are not a part of the drainage system that townships are required to maintain," she said. "Rather, they are the responsibility of the property owner, who has an obligation to install them in order to avoid obstructing the drainage flow."
She said Ohio law, as well as an Ohio Attorney General's Office opinion, places a legal duty on property owners to remove obstructions in ditches along public roads.
"Revised code s5589.06 imposed a duty on a property owner who builds an approach to his land to do so in a manner which does not obstruct an existing ditch along, upon, or across a public highway," Ms. Schlag said. "In order to carry out that duty, the property owner must install in the ditch a culvert upon which his approach can be constructed. Therefore, strictly speaking, the culvert is not necessary for proper drainage, but rather is necessary to prevent the property owner from obstructing the ditch in violation of R.C. s5589.06."
Ms. Schlag said that, while private property owners have actual ownership to the center line of a road, the township or controlling jurisdiction will maintain the road through authority granted by easements in the right of way.
"Townships may take general corrective or maintenance action in the area encompassed by the road right of way," she said. "They may go onto private property with the owner's consent (or applicable court order) for the purpose of corrective or maintenance action. They may not render corrective aid to private property owners when there is no impact on the township road. If that were the case, the township could feasibly be doing lawn care and yard maintenance for virtually all of its residents. The Ohio Revised code simply does not grant such authority to a township."
Trustee Steven Borawski gave similar advice when the issue was raised last month, maintaining that the township has no authority to do the work on Mr. Murray's property.
He said the township possibly could have remedied Mr. Murray's situation during a repaving of Clark Road done earlier this year. The township had planned to examine and replace culverts along the stretch of road.
However, Mr. Borawksi said, the culvert work was omitted from an application to the state for funding. A culvert near Mr. Murray's property could have directed water to the other side of the road, he said.
Mr. Borawski said Mr. Murray could petition Geauga County Commissioners for corrective action but would be responsible for the costs of that action.
In addition to advising the board on its authority, Ms. Schlag said Trustee Michael Brown should recuse him from any action on the matter, because he is Mr. Murray's son-in-law.
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