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Commissioners respond to Pioneer, AquaBounty brief

By Lucas Bechtol

The Williams County commissioners have filed the last brief in the lawsuit appealing a trial court ruling on the use of county-owned right of way.

The lawsuit came about after commissioners thrice rejected a petition from Pioneer and AquaBounty Technologies to build a water and wastewater line in right of way owned by the county. A trial court ruled in favor of the village and aquaculture company, but commissioners appealed that decision.

The two sides have exchanged briefs with the third, and final, brief being a response from the commissioners.

In the brief, commissioners state the village's brief "fails to address the undisputed lack, as admitted by the trial court," of any law requiring the commissioners to give the permit.

Without a legal foundation, the brief states the commissioners' denial was not capricious or arbitrary.

"Second, they also ignore the presumption of regularity and legality that attached to the board's official actions," the brief states. "Third, there was substantial evidence that the putative 'public utility' was actually a purely private arrangement for the sole benefit of two private property owner(s) and was not a public utility."

The final flaw, the brief states, is the village, by its own admission, will have zero control over the rates charged for use of the water lines and have no control over whether the same services could be withdrawn or restricted.

Another argument the commissioners defended in the brief is the three applications all sought the same thing: issuance of a permit to construct water lines between two private property owners for two private uses.

The matter was settled, therefore, when Pioneer and AquaBounty didn't appeal the first denial.

"The law in Ohio says when an unsuccessful applicant fails to appeal an administrative decision, the applicant is bound by the determinations in that unappealed denial," the brief states. "The trial court erred by failing to follow this law in this case."

Commissioners, in their brief, state the current arrangement is not a public utility as it connects two private entities for the benefit of those entities.

Arguments the lines could be used by others in the future is irrelevant, the brief states.

"Possible future economic development is not a relevant factor in determining whether an entity is a public utility under the case law," the brief states. "The Supreme Court wisely did not adopt speculative future economic development as a criteria as there is no way to accurately predict the future. The determination of whether this arrangement is a public utility must be based on the arrange(ment) as currently proposed."

According to the rules of appellate procedure, the next steps in the case will be a possible prehearing conference and oral arguments.

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