City's use of access road OK'd by court

By Ken Lahmers Aurora Advocate Editor Published:

A legal complaint initially filed two years ago dealing with a 7.1-acre parcel adjacent to the city's Brown-Keidel Service Center and cemetery has been decided in the Aurora's favor.

On Feb. 13, Portage County Common Pleas Judge Laurie Pittman ruled the city is entitled to continue using an access road over Aurora Partners III's property because easements and agreements signed over the years gives it that right.

Harry Caplan, one of the partners in Aurora Partners III, said the judgment may be appealed, and if that route is taken, no development will take place on the property in the near future.

The vacant land lies between the service center and the access road running behind Ganley Chrysler Dodge Jeep Ram, McDonald's and the Aurora Exchange building. The partners purchased the property in April 1995.

Aurora Partners III filed its initial complaint March 18, 2011, alleging the city has no right to use the access road for ingress and egress, but can use it for maintenance of a waterline.

For many years, the city has driven snowplows and other equipment from the service center over the route.

Aurora Partners III amended its complaint May 25, 2012, seeking a declaratory judgment, injunction and monetary damages on claims for quiet title, ejectment, trespass and physical taking.

In its counterclaim, the city contended it was granted the right to use the road for ingress and egress by an easement in 1933 and other agreements since then.

Pittman ruled political subdivisions are immune from liability in actions seeking damages for injury, death or loss to persons or property; thus the city is immune from Aurora Partner III's claims for trespass, taking and ejectment.

Aurora Law Director Alan Shorr said the judgment is "an excellent decision for the city; we're glad the judge upheld our right to use the road."

He added a similar case involving the west end of the access road also was decided in the city's favor.

Meanwhile, Caplan said he disputes that the city has the proper easements and agreements in place to use the road, and believes the judge did not examine the evidence thoroughly.

He contends that the city has erected a fence 1 1/2 feet onto his property, and objects to the city having placed piles of tires and other debris on the property line.

In March 2012, the planning commission and City Council granted a conditional zoning certificate so that Aurora Partners III could proceed with plans for an auto repair/car wash business on the parcel.

At that time, Joseph Chiro, another of the landowners, said the owners were trying to negotiate a deal with a national auto repair/auto parts/car wash chain to build the auto repair shop/car wash.

The firm previously had proposed erecting self-storage units on the property, but the planning panel turned down a CZC for that use.

The CZC granted for the auto repair/car wash business stated the uses for the site would be confined to auto repair, car washing, detailing, oil changes, auto parts sales and auto sales, but no salvaging of autos could take place.

Nothing has been built on the property in the year since the CZC was granted.

Email: klahmers@recordpub.com

Phone: 330-531-9400 ext. 4189

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