Carlyn v. Davis

469 N.E.2d 989, 14 Ohio App. 3d 22, 14 Ohio B. 26, 1984 Ohio App. LEXIS 11230

• Court: Ohio Court of Appeals
• Decided: February 8, 1984
• Docket: 11337
• Status: Published

Opinions

GEORGE, J.

This appeal arises from a decision of the court of common pleas denying the Springfield Township Trustees an injunction against the Clerk of the Akron City Council to prohibit the clerk from presenting to the city council the Audrey F. Benkoe annexation petition. This court reverses the judgment of the trial court.

In 1979, a municipal petition for annexation was filed by the village of Lakemore requesting all of the unincorporated area within Springfield Township to be merged into the village of Lakemore. This municipal request included 58.007 acres of land owned by Benkoe. The electorate within the affected area approved the merger. Thereafter, the county council approved it, but the court of common pleas found that the proceedings were defective and therefore invalid.

While litigation was proceeding on the Lakemore-Springfield annexation petition, Benkoe requested that her acreage be annexed to the city of Akron. The county council held a public hearing on her request, considered the petition for annexation and denied it. That denial was appealed to the court of common pleas pursuant to R.C. Chapter 2506. The court of common pleas reversed the denial of the Benkoe petition and ordered that the annexation materials be forwarded to the Akron City Council for its consideration of the proposed Benkoe annexation. That decision was not appealed.

The Springfield Township Trustees brought an action, pursuant to R.C. 709.07, claiming that the county council did not have jurisdiction to consider the Benkoe petition for annexation while a municipal annexation petition, which included the Benkoe property, was awaiting a final judicial determination.

First, it is to be noted that the township trustees have no statutory authority to intervene in an administrative appeal filed pursuant to R.C. Chapter 2506. In re Annexation of Land in Springfield Township (Apr. 15, 1981), Summit App. No. 9831, unreported; and In re Appeal of Bass Lake Community, Inc. (1983), 5 Ohio St. 3d 141. Therefore, they could not intervene in Benkoe’s appeal from the denial of her petition for annexation. And, as a matter of record, the township trustees did not intervene in the R.C. Chapter 2506 appeal. Since the decision of the county council was reversed in the administrative review process, and since the court found that the denial of annexation was unsupported by a preponderance of reliable and probative evidence, the township trustees’ only available remedy was to file an R.C. 709.07 action against the proposed Benkoe annexation. In re Annexation of Land in Northampton Township (May 19, 1982), Summit App. No. 10433, unreported. This they have done.

The township trustees have continuously urged that the county council lacked jurisdiction to entertain the Benkoe petition until the Springfield-Lakemore annexation was finally adjudicated. While county council’s action on the Benkoe petition was to deny annexation, by such denial Benkoe was able to perfect an R.C. Chapter 2506 ap peal. The township trustees were prohibited from intervening in the R.C. Chapter 2506 appeal and have not been a party to any litigation which involved the 58.007 acres of Benkoe annexation request.

The remedy available to the township trustees upon the entering of an order allowing an annexation is injunc-tive relief as provided under R.C. 709.07. In re Appeal of Bass Lake Community, Inc., supra. It is only through this type of a proceeding that the trustees can assert their rights. When the trial court adopted the decision rendered previously in the Benkoe R.C. Chapter 2506 appeal as being dispositive of the trustees’ R.C. Chapter 709 action, it effectively denied the trustees théir only remedy. The trial court in this proceeding had before it all the information necessary to determine whether there was any error in the proceedings, as contemplated under R.C. 709.07(D). The trial court should have ruled upon the jurisdictional issue presented in the R.C. 709.07 action independent of other actions brought by other parties.

Accordingly, the assignment of error is well-taken. This court orders that the judgment of the trial court be reversed. The cause is remanded for proceedings consistent with the law and this opinion.

Judgment reversed and cause remanded.

Mahoney, P.J., concurs. Baird, J., dissents.