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North Broadway right of way

Despite judge's ruling, still 'clearly a dispute'

Work on East North Broadway turn lane began last week

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Although the attorney for the North Broadway Street Association stopped short last week of saying there will be an appeal to a judge's dismissal of a lawsuit against the city, the president of the organization said right-of-way ownership along the historic boulevard will have to be settled eventually, one way or the other.

Lawyer Philip L. Harmon and Carole W. Tomko, president of the North Broadway Street Association, were reacting to Franklin County Common Pleas Court Judge Timothy S. Horton's Aug. 22 dismissal "with prejudice" of the legal action brought to halt construction of a turn lane at East North Broadway and North High Street.

Work on the project, which eventually will allow westbound motorists to turn south onto North High Street, got underway last week as part of an agreement reached between the parties to the lawsuit in late July.

"The work will continue through the fall, and ... this will help reduce the traffic that cuts through the neighborhood and hopefully make that intersection safer," Department of Public Service Assistant Director Rick Tilton said.

Horton, who presided over the agreement between city officials and the neighborhood organization, sided with the request from the city to dismiss the lawsuit after receiving further filings from both parties.

"The matter is now fully briefed and ripe for review by the court," Horton wrote.

He then proceeded to say that nothing the North Broadway Street Association had argued could convince him to overturn a 1974 Tenth District Court of Appeals ruling, Sparrow v. City of Columbus, that found the 15 feet of right of way along East North Broadway had not legally been given to the property owners by the Franklin County Board of Commissioners on Aug. 15, 1952.

"Sparrow was never appealed or overturned, and therefore remains good law in this jurisdiction," the judge wrote.

"It's disappointing but not surprising," Tomko said. "We wouldn't really necessarily think that the common pleas court would declare a court of appeals decision to be wrong. That isn't typically what happens."

"At its essence, the trial court indicated that it is going to follow case precedent, and we anticipated that would be the ruling originally," Harmon said.

"It still needs sorted out," Tomko said. "You still have people with deeds and surveys that say they own it.

"There is clearly a dispute and a disparity of who owns the land that needs to be cleared up so that future property owners on that street don't have a question as to who owns what."

An appeal to the judge's ruling or some other method will have to determine ownership of the disputed property, Tomko added.

As for filing an appeal, Harmon said a portion of the street association's lawsuit dealing with an alleged public-records request is pending, and until that's decided, further legal action is stymied.

"We were waiting to see how that plays out," Harmon said. "The option to appeal is certainly there. The timing of it is there. Those decisions are there to be made."

"The court ruled on the issues that could potentially relate to the turn lane, and I'm happy to see the case come to a close," Clintonville Area Commission Chairman Daniel B. Miller said. "I think many members of the community for a long time felt that the lawsuit lacked merit."

"Plaintiffs should not feign disbelief that today's decision defers to the Sparrow decision of the Tenth District Court of Appeals," Horton wrote in the concluding section of his ruling. "From the filing of the complaint to the recent supplementation of evidence, plaintiffs have revealed their knowledge and understanding of the Tenth District's decision in Sparrow.

"The city of Columbus has never vacated any portion of its interest in the street. More importantly, the issue of ownership of the strips of land in question has been resolved for approximately 36 years through other litigation."

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