COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73579 : ACCELERATED DOCKET : ROBERT PRUCHNICKI : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION J. TIMOTHY McCORMACK, ET AL. : : Defendant-Appellants : PER CURIAM : DATE OF ANNOUNCEMENT OF DECISION: JULY 30, 1998 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-311436 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellants: TODD W. SLEGGS STEPHANIE TUBBS JONES SUSAN K. FRENCH-SCAGGS Cuyahoga County Prosecutor Todd W. Sleggs & Associates TIMOTHY J. KOLLIN 1015 Euclid Avenue, 3rd Floor Assistant Prosecuting Attorney Cleveland, Ohio 44115 The Justice Center-Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For City of Brecksville and J.R. Courtney, City Engineer: PAUL A. GRAU STEPHEN M. KLONOWSKI 5306 Transportaton Boulevard Garfield Heights, Ohio 44125 PER CURIAM: -2- This case came on for hearing upon the accelerated calendar of our court pursuant to App.R. 11.1 and Loc.R. 25, the records from the court of common pleas, and the briefs of counsel. The Cuyahoga County Auditor appeals from an order of the common pleas court which enjoined the county from imposing a sewer assessment on residential property owned by Robert Pruchnicki, arguing he is a potential user of the sewer system. After thorough review of the facts and law in this case, we have concluded this position is not well taken, and for the following reasons affirm the decision of the trial court. The record in this case reveals that before he built his home on the property, Pruchnicki learned that due to the topography of the land, it would be impossible for him to connect to the county sewer system. As a result, in 1991, he obtained permission from the City of Brecksville and the Cuyahoga County Health Department to construct a septic system on the property and thereafter built his home and installed the septic system. In 1994, however, the Board of Commissioners of Cuyahoga County levied a special assessment for sewer purposes upon properties which are actual and/or potential users of the system. Pruchnicki paid this assessment under protest and filed a complaint in the common pleas court contending that he is neither an actual nor a potential user of the sewer system. He claimed his property is serviced by a septic system and he attempted but could not secure easements to enable him to connect the property to the sewer -3- because such a connection would either require him to destroy an adjacent strip of heavily wooded property or cross deep ravines. After considering the facts and reviewing the trial briefs submitted by the parties, the court enjoined the county from continuing to impose a sewer assessment on this property and ordered a refund of any assessment amounts paid by Pruchnicki. The county now appeals from this decision and asserts the following assignment of error: I. THE TRIAL COURT ERRED IN DETERMINING THAT THE PLAINTIFF- APPELLEE'S REAL PROPERTY WAS NOT A POTENTIAL USER OF THE ADJACENT SEWERAGE SYSTEM RENDERING IT SUBJECT TO THE PAYMENT OF THE SEWER ASSESSMENT AT ISSUE. Essentially, the county admits that Pruchnicki is not an actual user of the sewer system, but contends he is a potential user of the system and should therefore be subject to the assessment. Pruchnicki argues that because he has installed a septic system pursuant to city and county regulations, and because he cannot connect to the sewer system, he is not an actual or potential user of the sewer system and, therefore, his land does not benefit from installation of the sewer, and he should not be subject to the assessment. The issue before us, then, is whether the court erred in enjoining collection of the assessment. We begin by addressing the applicable standard of review as delineated in Danis Clarkco Landfill Co. v. Clark Cty. Solid Waste Mgt. Dist. (1995), 73 Ohio St.3d 590, where the court stated in relevant part at 604: -4- The issue whether to grant or deny an injunction is a matter solely within the discretion of the trial court and a reviewing court should not disturb the judgment of the trial court in the absence of a clear abuse of discretion. R.C. 6117.30 provides the mechanism by which the county may levy an assessment on landowners for costs of constructing a sewer and states in relevant part: The cost and expense of the construction of a main, branch, or intercepting sewer * * * shall be assessed * * * upon all the property within such district found to be benefitted in accordance with the special benefits conferred * * * . (emphasis added). A special benefit to land may consist of either a present increase in its value, or a future or potential benefit, and whether such a benefit has been conferred upon the land is a question of fact. See D'Antuono v. City of Springfield (1960), 114 Ohio App. 102, 106. Furthermore, in KangesserFoundation v. City of Euclid (1959), 159 N.E.2d 919, 919-20, where our court considered a case involving a challenge to a special assessment for a sewer, we determined such an assessment void in that it substantially and materially exceeded the special benefits it conferred upon the land. In our case, the record reflects the parties stipulated that Pruchnicki could not obtain the necessary easements to construct a connection from his property to the sewer, and that before building on the property, Pruchnicki sought and obtained approval from both the City of Brecksville and the Cuyahoga County Health Department to construct a septic system on his property, and that he subsequently installed that system. After reviewing the record in -5- this case, we have concluded the court did not abuse its discretion in enjoining the county from assessing Pruchnicki's property because the assessment substantially and materially exceeds any benefit the sewer could confer upon the property. This assignment of error is, therefore, overruled, and we affirm the order of the trial court. Judgment affirmed. -6- It is ordered that appellee recover of appellants costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOSEPH J. NAHRA, PRESIDING JUDGE TERRENCE O'DONNELL, JUDGE TIMOTHY E. McMONAGLE, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .