October 19, 2006

By Diane Chiddister

What does it mean that roads are a state-mandated service? Does the state require the Village to maintain roads at a specific level? Those questions have concerned many villagers the past several months as they have considered the upcoming $8.4 mill property tax levy, Issue 21. Issue 21, if passed, will address the Village’s current $366,848 general fund deficit and will also add almost $400,000 to the Village’s road budget, doubling the current amount of spending on roads.

In discussions on the 2006 budget deficit this summer and early fall, Village Manager Eric Swansen and Village Council identified roads as a funding priority because they are mandated by the state, whereas the pool, library and other human services are not state-mandated; during those discussions, the human services were identified as the first to be cut if the Village can’t raise revenues. In response to concerns voiced by many Yellow Springers, Council approved the current levy, which will fund equally human, non-mandated services and mandated ones. However, some Council members continue to identify the human services as the first to be cut if the levy fails.

Does the state mandate a municipality to maintain roads to a specific level?

“Yes and no,” said Ohio Department of Transportation spokesperson Lindsey Kamlane in a recent interview.

ODOT “is not an enforcement agency,” Kamlane said. The agency does not require road maintenance on a specific level, and does not make inspections on roads, she said.

However, all municipalities are required to follow Ohio Revised Code Section 723.01, which states that municipalities must keep roads “in repair and free from nuisance.”

That requirement means that Yellow Springs could be found liable if someone sustained an injury on a local road, Village Manager Eric Swansen said. The Village is not responsible for road conditions on Xenia Avenue, which is maintained by the Ohio Department of Transportation because it is a state road.

“It doesn’t matter if there are no inspectors,” Swansen said in an interview last week. “I’ve got trial lawyers right and left” who would be happy to sue the Village, he said.

Asked what standard of maintenance the Village should follow to avoid being found negligent in keeping roads in repair, Swansen said, “You want to be in the middle of the pack, following generally accepted practices.”

Those who sue a municipality find that the burden of proof lies with them, according to attorney Ellis Jacobs, who said that to win, the plaintiff must prove that the municipality has a clear standard of care, that that standard has been violated, and that the violation caused the injury.

While the Village does have liability insurance, the insurance premium would go up if it were found by the courts to have been negligent, according to Swansen, who emphasized last week that cost effectiveness and not liability is the main reason to double the road investment.

Beyond the legalities, the Village has an ethical responsibility to keep roads in good repair so as not to cause harm, Council President Jocelyn Hardman has stated. But the current level of maintenance has kept local roads safe, said Richard Zopf, who is the Miami Township zoning inspector and former Village zoning inspector.

“If we get to a point where our streets are a health hazard, there would be a problem,” Zopf said. “We’re so far from that, it’s not an issue.”

Council member Kathryn Chase believes that Yellow Springs roads are already a health hazard. Recently, she said, a biker sustained injuries when the person hit a pothole on Walnut Street.

“Broken pavement is a safety hazard. We have people who are being hurt,” Chase said. “When we put such an emphasis on being a bike-friendly community, it’s logical to make sure our streets are suitable for bikes.”

Overall, Chase said in a recent interview, while Council members want to save all Village services, it’s a question of priorities.

“All of us on Council are committed to keeping the human services — that’s why we’re trying to fund them,” she said. “But reality has raised its ugly head. I compare it to running a household. You have to pay the mortgage, buy food and medicine. If there’s no money left for designer clothing or a high definition TV, it’s not that you don’t want them, it’s that you can’t pay.”

But the most important priority for Council is not what the state wants but what the community wants, said Tony Bent, who served on Council for 18 years, the last time until 1996.

“If the village tells Council, as it has, to be sure to keep the pools and library open, you should do so,” he said. “The fact that the state says you ought to do something doesn’t mean you have to. What happens if you don’t follow the state’s suggestion? Nothing.”

In an interview from his home in Wisconsin, former Council President Tony Arnett said that during his eight years on Council, “We looked at each thing individually,” rather than break services down into the categories of mandated and nonmandated.

“Streets are a priority because they’re an important part of the community, as are the pool and library,” he said.

Arnett also said that he supports the levy and has no doubt that the streets need significant attention since past Councils have put off doing substantial street repairs for budget reasons.

Contact: dchiddister@ysnews.com