Marietta seeks resolution in sewer battle with Washington County Commission

MARIETTA — While the Washington County Commissioners begin plans to comply with environmental orders to sewer Devola, litigation between the commissioners and the city of Marietta continues.

On Friday, attorneys for the county and city discussed the potential next steps in two legal cases the city has mounted against the county.

City Law Director Paul Bertram and Washington County Assistant Prosecutor Nicole Coil said they also remained hopeful a resolution between the two parties could be reached outside of the court.

“I’m still cautiously optimistic now that the commissioners have submitted to comply with the (Ohio Environmental Protection Agency’s order) and we can come to a resolution,” said Coil.

Judge Linton Lewis granted a summary judgment against the commissioners and in favor of an Ohio EPA lawsuit forcing the county to install sewers in Devola. That summary judgment was declared on Nov. 29 and the commissioners voted on Dec. 20 to not appeal it.

Meanwhile, the first of the two city lawsuits, filed in December 2017, is before the Fourth District Court of Appeals, after procedural questions concerning the authority for outside counsel Matthew Dooley to file on behalf of the city led Lewis to dismiss the case at the close of 2018.

The city appealed that decision and Thursday filed a brief with the district court disputing the dismissal.

In the 2017 case, the next steps include a written county response and city rebuttal, then an oral argument before the district court which Bertram estimated to be scheduled in June.

“We requested an oral argument,” Bertram said. “That would be before a panel of three judges there.”

By having the 2017 case before the court of appeals, Coil looked to pause the nearly-identical case filed in 2018 which was filed with Bertram at the helm and Dooley as the second chair.

“It’s an unnecessary duplication of cost and time to consider the new case while the first one is before the court of appeals,” she said. “So I’ve filed a motion to stay the case until that one is resolved. In my opinion, there’s no reason to have conflicting results potentially.”

Coil agreed that the substantive issue in the 2017 and 2018 cases are the same and have yet to be considered by the court–that the county is in breach of a 40-year contract with the city to sewer Devola and Oak Grove on a schedule to tie into the city’s wastewater treatment plant.

“I don’t think it’s a stalling tactic,” said Bertram of the focus on the procedure before content. “In any litigation, it’s a chess game and there are moves and counter moves as you act on behalf of your client.”

Bertram said Friday he filed a response in opposition of Coil’s motion to stay the case, and also filed three oppositions to motions for summary judgment and to dismiss the case.

“With this new case the next step lays with the judge (Linton Lewis) and what he wants to do,” said Bertram.

He said a judge typically at this point would call for a status or case management conference to talk with both legal representatives.