CLEVELAND, OH – Garfield Heights’ “appointed” Mayor Michael Burke showed up with bottles of water and not much in the way of information or help after WOIO broadcast a report that water to the home Sylvester Primous shared with his 88-year-old mother had been shut off. After conducting his own investigation, Burke reported to the Primous’ and council that the leaking pipes and water valve under the municipal-owned tree lawn were the Primous’ responsibility. A comparison of Burke’s words to Ohio laws his career as a carpet installer didn’t prepare him to know say otherwise.
Sidewalks and treelawns are public and belong to the municipal corporation. So do the water and sewer lines under the treelawns. Ohio’s courts have long recognized that both state law and local ordinances require permission from city councils before changes can be made on either. Thomas Leffel learned this lesson in 2020 when he claimed the Village of Casstown, Ohio took a treelawn as his property during a street improvement.
“An abutting lot owner may, with the permission, or the mere acquiescence, of the municipal authorities, plant and maintain shade trees upon the street; he may in like manner make and maintain an excavation under the sidewalk; and he may in like manner maintain some structures over and above the surface of the street. But such private uses are only temporary privileges. They must give way to the legitimate public uses, when asserted, and they can never ripen into a strictly juristic right, that is adversary to the public right, which is everywhere regarded as dominant.” Stone v. Cuyahoga Light Co., 9 Ohio N.P. (N.S.) 545, 20 Ohio Dec. 130, 139-140, 1909 WL 1282 (1909)
Primous used an insurance plan to pay the roughly $9000 it cost to repair the city of Garfield Heights leaking on and off valve and water line under its treelawn. Ohio residents living in the Akron area call “treelawns” the “Devil’s strip.” The nickname refers to the government’s ownership and control of “public” sidewalks and treelawns. To plant a tree on a treelawn requires the permission of the city council.
In a February 8, 2021 “Zoom” meeting of Garfield Heights city council Burke delivered a report to the residents where he gave Councilman Michael Dudley the credit for making the call that resulted in the Primous’ water being shut-off. Dudley’s “shut off the water” call showed that like Burke he had no knowledge of the city’s responsibility to repair its water and sewer lines. He claimed the problem was creating a patch of ice that was a danger to pedestrians and vehicles.
Burke further claimed that the Primous’ water problem appears to have come as a result of Phase III work done on the city’s roads, water and sewer lines with funding from the District One Public Works Integrating Committee (DOPWIC). DOPWIC grants were awarded to the city’s five phases of improvements made on roads and sewer lines.
Phase III’s work did not include Maplerow or any of the streets near it according to a description of the project found on DOPWIC’s website. Garfield Heights city council awarded contracts to plumbing contractors to “improve” the city’s water lines by increasing the circumference of the lines from six to eight inches. Water lines entering homes are typically four inches.
“This project is Phase 3 of a 5 phased project designed to improve current infrastructure by removing the over-under sewer system. This work will include: Replacing 725′ of existing 12″ storm sewer with properly sized 12″ to 18″ storm sewer line to prevent flooding during a 25-year storm; Replacing 690′ pf 8″ sewer line which are experiencing cracking, collapsing and offset joints all visible through camera inspection with new 8″ sewer line; Separating storm and sanitary lines; and Installing underground detention along the street. This work will include the repair of an aging roadway that is experiencing alligator cracking, edge cracking and potholes. Curbs will be installed, and driveway aprons, manholes and catch basins will be repaired. See engineer’s estimate in project application for approved bid items and quantities.”
When Garfield Heights city council voted to increase the size of the municipal corporation’s water lines the larger circumference created more pressure on the old and “mineral filled” water lines on the homeowner’s side of the sidewalk. Mineral deposits in homeowner water lines can reduce the circumference to two inches or less. Leaks are inevitable as the homeowner’s old water lines can’t handle the added water pressure.
The vast majority of laws controlling the functions of “Municipal Corporations” like Garfield Heights are found in Title 7 of the Revised Code of Ohio. The “Title” contains 36 chapters (one repealed) that instructs and guides mayors, councils and city employees on how to perform the official duties of the public offices they hold.
The problem in Ohio is that the individuals seeking to be elected to local municipal offices and city workers do not read Title 7 of the Revised Code of Ohio. Voters don’t quiz the candidates they’re electing on the constitutional provisions and laws they will have duties to obey and enforce. 99 percent of candidates for elected office don’t even know Ohio has its own constitution just like every other state. Nowhere was this lack of knowledge more demonstrated than in how both Burke and Dudley handled the Primous’.
Garfield Heights is a “Home Rule” municipal corporation pursuant to Article 18.7 of the Constitution of Ohio. This provision of the state’s constitution allows local cities and villages whose voters adopt this form of government to “may frame and adopt or amend a charter for its government and may, subject to the provisions of section 3 of this article, exercise thereunder all powers of local self-government.”
Pursuant to Article 18.3 of the Constitution of Ohio, the charter of Home Rule municipal corporations, and the laws enacted by the council, cannot conflict with the state’s “General Laws” as they are found in the Revised Code of Ohio. Article 18 of the Constitution of Ohio has been in effect since 1912.
“Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.”
Among the powers given to local municipalities is the authority to “to acquire, construct, own, lease or operate a public utility.” The authority is found in Article 18.5 of the Constitution of Ohio and has been in effect since 1912. Article 18.6 lets cities with excess or surplus water sell it to other municipalities.
Gafield Heights appears to have entered a “direct service agreement” with the City of Cleveland to have its water utility functions managed by them. During my term of office as East Cleveland’s mayor, my administration for 22 months negotiated a “direct service agreement” with Mayor Frank Jackson’s administration that began in February 2006 and concluded in 2008. The 25-year agreement resulted in Cleveland being responsible for water line improvements.
EJBNEWS reviewed Garfield Heights’ charter and ordinances and found none that require property owners to bear the burden of water and sewer line repairs under the sidewalks and treelawns the city owns. The same applies to a review of state laws.
An ordinance Garfield Heights city council enacted on December 13, 1965 created a duty on property owners for the “Care, maintenance and repair of tree lawns.” The “local” tree lawn maintenance law Garfield Heights council enacted on December 13, 1965 is not a state “general law.” It is found in Section 903.08 of Garfield Heights’ codified ordinances. Enforcement authority is given to the “service director” and not to the city’s building and housing department or municipal police.
“(a) In addition to the requirements of other applicable ordinances, every property owner and/or occupant of real estate in the City abutting a roadway shall be required to maintain a tree lawn in good repair. For purposes of this section, “tree lawn” means the strip of land between the sidewalk and curb, or if there is no curb, the roadway. (b) Any property owner and/or occupant not within a Class U-1 or U-2 Use District may, upon proper application and permit being granted as hereinafter set forth, construct a concrete tree lawn with a slab of concrete not less than four inches thick. (c) The installation of concrete on tree lawns required by this chapter shall not be made by the owner or occupant until a permit has been obtained from the Service Director. The cost of such permit shall be five cents (5¢) per lineal foot, but not less than two dollars ($2.00). Repair of an existing tree lawn shall be ten cents (10¢) per lineal foot, but not less than five dollars ($5.00) for the installation of concrete on the tree lawn where none has existed before. The Director shall cause the grade of the tree lawn to be established prior to the issuance of such permit, if the grade can be established in relation to a permanent paved roadway, or existing sidewalks on adjoining property. In the event there is no permanent paved roadway or existing sidewalks on adjoining property, the grade shall be established by the Engineer, and he shall receive three-fifths of the permit fee, but not less than three dollars ($3.00) of the permit fee, as and for services in establishing the grade.”
The 1965 Garfield Heights Ordinance or local law appears to have been enacted after the State Senators and State Representatives in the General Assembly of Ohio on January 1, 1962 created Section 723.011 of the Revised Code of Ohio identifying who had “control over sidewalks, curbs and gutters.”
The legislative authority of a municipal corporation, in addition to the powers conferred by sections 729.01 to 729.10, inclusive, of the Revised Code, may require, by ordinance, by the imposition of suitable penalties or otherwise, that the owners and occupants of abutting lots and lands shall keep the sidewalks, curbs, and gutters in repair and free from snow or any nuisance. Date: 01-01-1962 .
The use of the word “may” in R.C. 723.011 simply gave Garfield Heights city council the “option” of asking homeowners to take care of and be responsible for the city’s treelawns and sidewalks. The use of the word “shall” would have given the council no other choice but to place this burden on homeowners. The word shall removes the option and directs the public official to obey a law as written. No wording of R.C. 723.011 identified the care and maintenance of water and sewer lines that occupy space under treelawns and sidewalks as being a mandatory duty of a homeowner.
What happened on April 9, 2003 was that Ohio’s state senators and state representatives appear to have had a change of mind when they convened as a General Assembly to enact R.C. 723.01 about 38 years after enacting R.C. 723.011. The heading for R.C. 723.01 and its “General Law” instructions to Garfield Heights and other city councils reads as follows:
723.01 Legislative authority to have care, supervision, and control of public roads, grounds and bridges. Municipal corporations shall have special power to regulate the use of the streets. Except as provided in section 5501.49 of the Revised Code, the legislative authority of a municipal corporation shall have the care, supervision, and control of the public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, aqueducts, and viaducts within the municipal corporation. The liability or immunity from liability of a municipal corporation for injury, death, or loss to person or property allegedly caused by a failure to perform the responsibilities imposed by this section shall be determined pursuant to divisions (A) and (B)(3) of section 2744.02 of the Revised Code. Effective Date: 04-09-2003 .
Where the word “owner” appears in the state’s general laws regarding the description of who owns what and how is specific. R.C. 723.16 is captioned “Owner defined” and the definition has not changed since October 1, 1953.
723.16 Owner defined. “Owner,” as used in sections 723.17 to 723.31, inclusive, of the Revised Code, includes the legal or equitable owner, the person in whose name the property may be assessed for taxation on the tax duplicate, a tenant giving satisfactory guaranty that the assessment against the property signed for will be paid, or the board of education having the control of any school property. Effective Date: 10-01-1953
What should be of note to Garfield Heights residents is in how the city council enacted Ordinance No. 6-2003 on January 27, 2003 making property owners responsibility for the maintenance of sidewalks in addition to making them liable for a person’s injury that conflicted with the state’s general laws making the city council responsible on April 9, 2003.
Garfield Heights Ord. No. 903.01 appears to conflict with “general law” R.C. 723.01 that superseded the “local law” on April 9, 2003 less than four months after council enacted it on January 27, 2003.
903.01 SIDEWALKS TO BE KEPT IN REPAIR; LIABILITY FOR INJURY OR DAMAGE. (a) In addition to the requirements of other applicable ordinances, every property owner and/or occupant of real estate in the City abutting a roadway shall be required to maintain a sidewalk in good repair. The Service Director shall determine what is good repair, and shall compile a list of defective sidewalks as provided in Section 903.03. (b) On any claim presented for bodily injury or property damage on the sidewalk, the adjoining or abutting property owner shall be held liable in tort for such damages to another. Alternatively, should the City of Garfield Heights be called upon to make such payments to a third party, the City will look to the adjoining/abutting landowner for contribution and indemnity. (Ord. 6-2003. Passed 1-27-03.)
State senators and state representatives in the General Assembly appear not to have supported Garfield Heights’ buck passing legislation in 2003; especially since state lawmakers authorized the the council to set-aside six percent of municipal incomes taxes to cover repair and improvement costs. This is found in part in R.C. 727.01 and in described in fuller detail through Chapter 727.
When I reviewed the minutes of the meetings and Service Director Fritz Alderman’s report to Garfield Heights city council about the five phases of the sidewalk, water and sewer line improvements what I observed as an absent discussion was the rights of the property owners and the deadlines for which those rights would expire.
Voters have a right to a referendum on every improvement ordinance if a petition is filed with the Clerk of Council within 30 days that rejects all or parts of it. They also have a very narrow window of time pursuant to R.C. 727.18 to review the plans to investigate the type of damages they should expect from the improvements; and to file claims to cover the costs. Residents who want their streets, water and sewer lines improved don’t appear to be advised of their rights to petition their neighbors to support a special assessment if 60 percent of them agree. That’s in R.C. 727.06.
727.06 Petition by 60% of owners of front footage for improvement. When a petition subscribed by the owners of sixty per cent of the front footage of property abutting upon a street, alley, public road, place, boulevard, parkway, park entrance, easement, or other public improvement in a municipal corporation, or the owners of seventy-five per cent of the area to be assessed for such improvement, requesting such improvement, is regularly presented to the legislative authority of the municipal corporation, the total cost of such improvement, including the cost of intersections, regardless of the limitations of sections 727.03 and 727.04 of the Revised Code, and without reference to the value of the lands of those who subscribe to such petition, may be assessed and collected in equal annual installments, proportioned to the whole assessment, in a manner which may be fixed by the legislative authority. When the lot or land of one who did not subscribe to the petition is assessed, such assessment shall not exceed the thirty-three and one-third per cent limitation prescribed by section 727.03 of the Revised Code. Effective Date: 10-08-1963 .
Mr. Primous told EJBNEWS he doesn’t recall seeing the language found in R.C. 727.18 in any correspondence from the former Mayor Vic Collova or Burke in his capacity as the council president. The heading is “Filing damage claims.” This notice was particularly important since its well-known in the plumbing industry that water pressure problems are created when lines around older homes are improved.
An owner of a lot or parcel of land, claiming that he will sustain damages by reason of a proposed public improvement, to be paid for in whole or in part by special assessments, shall, within two weeks from the date of completion of the notice required under section 727.13 of the Revised Code, file a claim in writing with the clerk of the legislative authority of the municipal corporation, setting forth the amount of the damages claimed and a general description of the property with respect to which it is claimed such damages will accrue. An owner who fails to file such claim, shall be deemed to have waived damages and shall be barred from filing a claim or receiving damages. This section applies to all damages which will obviously result from the improvement, but shall not deprive the owner of his right to recover damages arising, without his fault, from the acts of the municipal corporation or its agents. If, subsequent to the filing of such claim, the owner sells the property, or any part thereof, the assignee has the same right to damages which the owner would have had without the transfer.
Cleveland’s division of water restored service to the Primous’ home four days after it was shut off. Sylvester Primous said his water and sewer bills were paid and current.
Mayor Burke showed up with bottles of water instead of a service crew and cast himself as a “decent neighbor” instead of a “chief law enforcement officer” operating with full knowledge of municipal laws that would have solved a problem. City workers could have repaired the problem with the leak from the curb far less than it cost the insurance plan Primous was wise to invest in for less than $4 a month that Dominion gas offers.
A $9000 plumbing bill is a huge bite out of a working family’s income on top of the taxes Garfield Heights property owners pay into a fund, annually, that’s supposed to be set-aside to handle water and sewer line repairs on city property. Burke had the authority as mayor to fix the problem and report to council after doing the same type of research shared in this story that gave weight to the property owner that it might not be his problem.
Burke appears to have operated on what he was “told” when EJBNEWS observed his report to council; and not what he “knew.”