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Court rules in Flushing’s favor

October 30, 2013
By ROBERT A. DEFRANK - Staff Writer , Times Leader

ST. CLAIRSVILLE Belmont County Common Pleas Court Judge Frank Fregiato ruled in favor of the village of Flushing during a trial Tuesday over the ownership and responsibility to a lift station and water and sewer lines outside of town.

Daniel Shay, owner of the Wheeling Distribution Center, had brought a case against the village, seeking that Flushing maintain the sewage system at Nichols Town Homes and pay costs and expenses accrued since 2008 when he took possession of the property and its five buildings after a foreclosure sale. Four of the buildings are HUD-guaranteed apartments for low-income families. The property is outside the village and served by the water and sewer system and a lift station. Shay is charge a monthly fee for sewage.

He presented documents from the prior owner, stating the village must maintain the lift station.

Article Photos

T-L Photo/ ROBERT A. DEFRANK
DAN?SHAY, right, testifies in his a suit against the village of Flushing. Judge Frank Fregiato presides.

The issue stems from a 1979 decision by then Mayor Lee Nichols, who has since passed away, which led to the construction of Nichols Town Homes by allowing the project to hook up to the sewer line.

Fregiato based his decision on the Ohio Revised Code, which limits a mayor's ability to enter into contracts on behalf of their municipalities.

"The mayor has no authority to bind to the village, village council, and all the residents of the village without legislative authority. No where has it been presented to me that that mayor had legislative authority," he said. "Everything, quite frankly, points to the opposite."

In addition, Fregiato noted that the original resolution appears to have been complied with by a narrow reading of the language, specifying the installation of the line.

Also, Fregiato found that had there been a contract to maintain the station, the 15-year statute of limitations has long since expired, barring any claim on breach of contract, which would have been incurred in 1979 or 1980.

"I've got to admit, Dan Shay is an innocent victim in this case," he said. "There's no bad guy in this case, outside of possibly the mayor who is not here to defend himself."

He noted the difficulty of researching a foreclosure purchase when dealing with an arm of the federal government.

"I cannot hold the residents of Flushing responsible for a contract for which there was no authority to enter into," he said.

Case was dismissed and court costs are the responsibility of the plaintiff.

During testimony, Flushing officials cast doubt on the proceedings by which Nichols entered into contract.

Flushing Mayor Barbara Bashline testified that the consensus of council was that the village is not responsible for owning or maintaining outside lines.

Past village officials also testified that there has never been a vote or authorization for the mayor to make such a decision. This is in contrast to the minutes.

William Gossett, council member at the time, testified that the council had not voted to authorize the mayor to sign such a contract.

Former Mayor Carol Lapasta, who succeeded Nichols, recounted events at the time.

"The council was never in favor of granting them the possibility of putting in a new line," she said, noting that they were opposed to owning outside lines in the interest of an equal assessment for all in town. She asserted no vote was taken authorizing Nichols to proceed. "Mayor Nichols was acting independently," she said. "He never had approval at any point I was on council."

Lapasta testified that many of the records had been destroyed in an accident years ago and that the minutes may have been reconstructed inaccurately.

After the trial, Shay acknowledged that he will face continued expense, but added that the safety and well-being of the tenants will not be affected. He noted that he will consider appealing the matter.

DeFrank can be reached at rdefrank@timesleaderonline.com

 
 

 

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