By Carol McIntire
January 8, 2013
Judge Linton D. Lewis has ruled Carroll County Commissioners can own Atwood Lake Resort and Golf Club, lease the property and provide money for construction and improvements to the property.
In a judgment entry filed in Carroll County Common Pleas Court Jan. 4, Judge Lewis granted a motion for summary judgment filed by the Muskingum Watershed Conservancy District (MWCD) in a lawsuit filed by Don and Robin Warner against Carroll County Commissioners, Radius Hospitality and the MWCD and rendered judgment in favor of county commissioners and Radius Hospitality.
The Warners filed the lawsuit in Carroll County Common Pleas Court in September 2012 on behalf of investors of the Days Inn and taxpayers in the state of Ohio.
The Warners asked Judge Lewis to declare Ohio Revised Code (ORC) does not permit Carroll County Commissioners to provide, own, operate or lease a hotel and that a hotel is not an “other necessary building” under the statute. They also asked the judge to rule the commissioners’ contract with Radius Hospitality to operate the facility is an unconstitutional effort to raise money to aid Radius and that the contract is unconstitutional.
In his judgment entry, Judge Lewis said Ohio Revised Code provides power to county commissioners in addition to its other powers that gives county commissioners (a political subdivision) the authority to acquire and lease property for commerce and provide money for construction and improvements.
Lewis quoted from Ohio Revised Code section 307.02 which provides county commissioners with the power to purchase or lease buildings and improve those facilities which are used for several specific purposes as well as “other necessary buildings”. A golf course is specifically listed in the ORC section.
Lewis said he used the rule of construction known as ejusdem generis and an attorney general’s opinion to come to the conclusion a hotel, golf course and additional facilities are devoted to use by the general public and therefore are within the definition of “other necessary buildings” pursuant to the ORC section.
He also quoted a section of the Ohio Constitution that states to create or preserve jobs and employment opportunities and improve economic welfare of the people of the state is a proper purpose for a political subdivision and that they can acquire, construct, enlarge, improve or equip, and sell, lease, exchange or otherwise dispose of property for industry and can also provide money for the acquisition, construction or enlargement of the facilities.
“Carroll County Commissioners is a political subdivision pursuant to the stipulation between the parties (MWCD and Radius Hospitality),” Lewis wrote. “This provision grants the commissioners authority to acquire and lease property for commerce and further to provide money for construction, enlargement and improvements of the property in question.”
Also in the judgment entry, Lewis addressed count two of the complaint which the Warners filed on behalf of Ohio taxpayers which alleges county commissioners violated the Ohio Taxpayers statue by misapplying (spending) county funds at Atwood, Judge Lewis granted the Warners 60 days to conduct discovery and file a response to the MWCD’s motion for summary judgment on or before Feb. 5. All responses must be filed by Feb. 12.