Hinckley Twp. v. Calvin

2025 Ohio 504

• Court: Ohio Court of Appeals
• Decided: February 18, 2025
• Docket: 2023CA0079-M
• Status: Published

Opinion

[Cite as Hinckley Twp. v. Calvin, 2025-Ohio-504.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA )

HINCKLEY TOWNSHIP, OHIO C.A. No. 2023CA0079-M

Appellant

v. APPEAL FROM JUDGMENT ENTERED IN THE DANIEL P. CALVIN, AGENT FOR COURT OF COMMON PLEAS PETITIONER, et al. COUNTY OF MEDINA, OHIO CASE No. 2023 CIV 0433 Appellees

DECISION AND JOURNAL ENTRY

Dated: February 18, 2025

CARR, Judge.

{¶1} Appellant Hinckley Township (“Hinckley”) appeals the judgment of the Medina

County Court of Common Pleas affirming the decision of the Medina County Board of

Commissioners (“the Board”) granting a petition for annexation of a parcel into Appellee the City

of Brunswick (“Brunswick”). This Court affirms.

I.

{¶2} In February 2023, Petitioner-Appellee West 130th Route 303 LLC filed a petition

for annexation pursuant to R.C. 709.02 for the annexation of a single, approximately 5-acre, parcel

in Hinckley to Brunswick. West 130th Route 303 LLC is owned by Isomer Group, which in turn

is owned by Drug Mart. West 130th Route 303 LLC named attorney Appellee Daniel P. Calvin

as its appointed agent. West 130th Route 303 LLC sought to develop the parcel as a Drug Mart

store. When West 130th Route 303 LLC encountered some difficulties in the development process 2

with Hinckley, West 130th Route 303 opted to file a petition for annexation of the parcel to

Brunswick.

{¶3} A hearing was held before the Board in April 2023, at which several witnesses

testified, and numerous exhibits were presented. In May 2023, the Board issued a resolution

granting the petition for annexation. The resolution contained findings of fact related to the six

statutory factors. Hinckley appealed to the Medina County Court of Common Pleas. Following

briefing, the lower court issued a decision affirming the decision of the Board.

{¶4} Hinckley has appealed, raising two assignments of error for our review.

II.

ASSIGNMENT OF ERROR I

THE BOARD ERRED IN GRANTING PETITIONER’S PETITION FOR ANNEXATION BECAUSE PETITIONER FAILED TO SATISFY THE REQUIREMENTS OF R.C. 709.033(A)(6), TO WIT, THAT “[N]O STREET OR HIGHWAY WILL BE DIVIDED OR SEGMENTED BY THE BOUNDARY LINE BETWEEN A TOWNSHIP AND THE MUNICIPAL CORPORATION AS TO CREATE A ROAD MAINTENANCE PROBLEM, OR, IF A STREET OR HIGHWAY WILL BE SO DIVIDED OR SEGMENTED, THE MUNICIPAL CORPORATION HAS AGREED, AS A CONDITION OF THE ANNEXATION, THAT IT WILL ASSUME THE MAINTENANCE OF THAT STREET OR HIGHWAY.”

{¶5} Hinckley argues in its first assignment of error that the trial court erred in affirming

the decision of the Board because the Petitioner failed to meet its burden to demonstrate that R.C.

709.033(A)(6) was satisfied.

{¶6} “An order affirming a petition to annex a property may be appealed pursuant to

R.C. 2506.01.” In re Petition to Annex 331.2142 Acres, 2004-Ohio-1425, ¶ 7 (9th Dist.), citing

Smith v. Granville Twp. Bd. of Trustees, 81 Ohio St.3d 608, 612 (1998). The scope of the review

by a court of such an administrative order is set forth in R.C. 2506.04, which states: 3

The court may find that the order, adjudication, or decision is unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence on the whole record. Consistent with its findings, the court may affirm, reverse, vacate, or modify the order, adjudication, or decision, or remand the cause to the officer or body appealed from with instructions to enter an order, adjudication, or decision consistent with the findings or opinion of the court. The judgment of the court may be appealed by any party on questions of law as provided in the Rules of Appellate Procedure and, to the extent not in conflict with those rules, Chapter 2505 of the Revised Code.

{¶7} “The administrative ruling is initially appealed to the court of common pleas, which

weighs the evidence in the record and may consider new or additional evidence.” In re Petition to

Annex 331.2142 Acres at ¶ 7, quoting Smith at 612, citing Dudukovich v. Lorain Metro. Hous.

Auth., 58 Ohio St.2d 202, 207 (1979). “The decision of the court of common pleas may then be

appealed to an appellate court on questions of law.” In re Petition to Annex 331.2142 Acres at ¶

7. “An appellate court’s function, however, does not involve a determination as to the weight of

the evidence.” Id. “This Court’s inquiry is limited to a determination of whether we can say, as a

matter of law, that the decision of the common pleas court is not supported by a preponderance of

reliable, probative and substantial evidence.” Id.

{¶8} R.C. 709.033 governs a board of county commissioners’ determination to grant a

petition for annexation. This Court has stated that, “[f]or an annexation to be approved by the

commissioners, the petitioners are required to show at a hearing, based on a preponderance of the

evidence, that each of the six elements set forth in R.C. 709.033(A) have been met.” Bd. of Twp.

Trustees for Eaton Twp. v. KNG, Ltd., 2023-Ohio-1621, ¶ 9 (9th Dist.).

{¶9} R.C. 709.033(A) provides:

After the hearing on a petition for annexation, the board of county commissioners shall enter upon its journal a resolution granting the annexation if it finds, based upon a preponderance of the substantial, reliable, and probative evidence on the whole record, that each of the following conditions has been met: 4

(1) The petition meets all the requirements set forth in, and was filed in the manner provided in, section 709.02 of the Revised Code.

(2) The persons who signed the petition are owners of real estate located in the territory proposed to be annexed in the petition, and, as of the time the petition was filed with the board of county commissioners, the number of valid signatures on the petition constituted a majority of the owners of real estate in that territory.

(3) The municipal corporation to which the territory is proposed to be annexed has complied with division (D) of section 709.03 of the Revised Code.

(4) The territory proposed to be annexed is not unreasonably large.

(5) On balance, the general good of the territory proposed to be annexed will be served, and the benefits to the territory proposed to be annexed and the surrounding area will outweigh the detriments to the territory proposed to be annexed and the surrounding area, if the annexation petition is granted. As used in division (A)(5) of this section, “surrounding area” means the territory within the unincorporated area of any township located one-half mile or less from any of the territory proposed to be annexed.

(6) No street or highway will be divided or segmented by the boundary line between a township and the municipal corporation as to create a road maintenance problem, or, if a street or highway will be so divided or segmented, the municipal corporation has agreed, as a condition of the annexation, that it will assume the maintenance of that street or highway. For the purposes of this division, “street” or “highway” has the same meaning as in section 4511.01 of the Revised Code.

{¶10} In the lower court, and on appeal, Hinckley challenges whether R.C. 709.033(A)(5)

and (A)(6) were satisfied. This assignment of error will focus on R.C. 709.33(A)(6). With respect

to this prong, Hinckley asserts that the statute requires an agreement for road maintenance made

as a condition of annexation. While its discussion mentions Route 303, its focus is on West 130th

Street. We will limit our analysis accordingly.

{¶11} The parcel at issue is located in the southwestern portion of Hinckley. The parcel

is bordered to the north by State Route 303, which runs east and west, and West 130th Street to

the west, which runs north and south. Brunswick is directly west of the parcel and Hinckley

extends north, south, and east of the parcel. 5

{¶12} The Board made factual findings with respect to the road, which do not appear to

have been challenged below, or on appeal. The court of common pleas in turn concluded that the

Board’s decision was supported with substantial, reliable, and probative evidence and was not

unconstitutional, illegal, arbitrary, capricious, or unreasonable. The Board stated that “[t]he

centerline of W. 130th Street is the dividing line between the Township of Hinckley and the City

of Brunswick, and the entire northbound lane of W. 130th Street is now within Hinckley Township.

Upon annexation, the northbound lane of W. 130th Street west of the property to be annexed will

become part of the City of Brunswick, but to the north and south of that segment[,] the northbound

lane will remain in Hinckley Township.” The Board acknowledged that “[t]his [was] a

segmentation.”

{¶13} However, the record also evidenced that Brunswick had a preexisting maintenance

agreement with Medina County that already provided that Medina County would maintain the

stretch of West 130th Street at issue both before and after the annexation. Thus, there was evidence

that any division or segmentation of the street would not “create a road maintenance problem . . .

.” R.C. 709.033(A)(6); see also In re Petition to Annex 331.2142 Acres, 2004-Ohio-1425, at ¶ 14

(“Because the court found that no road maintenance problem was created by the annexation, the

requirement that the City must assume the responsibility to maintain any such roads as a condition

of the annexation pursuant to R.C. 709.033(A)(6) was not at issue in this case.”). Because this

division or segmentation did not create a road maintenance problem the language that Hinckley

points to in the statute is not relevant.

{¶14} Further, we conclude that the facts of this matter are distinguishable from those in

KNG, Ltd. KNG, Ltd. involved a situation in which there was no existing road maintenance

agreement at the time of the annexation proceedings concerning the stretch of road at issue. See 6

KNG, Ltd., 2023-Ohio-1621, at ¶ 11 (9th Dist.). Instead, there was only a resolution authorizing

the municipality to enter into such an agreement. Id. at ¶ 19. As discussed above, in the instant

matter, there was already a road maintenance agreement in place pertaining to the stretch of road

at issue prior to the annexation proceedings. Accordingly, this Court concludes that the holding

of KNG, Ltd. is not determinative of the outcome in this case.

{¶15} Hinckley has not demonstrated that the lower court’s decision was not supported

by a preponderance of reliable, probative and substantial evidence. See In re Petition to Annex

331.2142 Acres, 2004-Ohio-1425, at ¶ 7.

{¶16} Hinckley’s first assignment of error is overruled.

ASSIGNMENT OF ERROR II

THE BOARD ERRED IN GRANTING PETITIONER’S PETITION FOR ANNEXATION BECAUSE INSUFFICIENT EVIDENCE WAS PROVIDED TO SATISFY R.C. 709.033(A)(5), AND THE BOARD IGNORED LANGUAGE REQUIRING THAT “ON BALANCE, THE GENERAL GOOD OF THE TERRITORY PROPOSED TO BE ANNEXED WILL BE SERVED, AND THE BENEFITS TO THE TERRITORY PROPOSED TO BE ANNEXED AND THE SURROUNDING AREA WILL OUTWEIGH THE DETRIMENTS TO THE TERRITORY PROPOSED TO BE ANNEXED AND THE SURROUNDING AREA, IF THE ANNEXATION PETITION IS GRANTED.”

{¶17} Hinckley argues in its second assignment of error that the court of common pleas

erred in affirming the Board’s decision because the record does not support that R.C.

709.033(A)(5) was satisfied.

{¶18} The relevant portion of the statute states:

(A) After the hearing on a petition for annexation, the board of county commissioners shall enter upon its journal a resolution granting the annexation if it finds, based upon a preponderance of the substantial, reliable, and probative evidence on the whole record, that . . .

(5) [o]n balance, the general good of the territory proposed to be annexed will be served, and the benefits to the territory proposed to be annexed and the surrounding area will outweigh the detriments to the territory proposed to be annexed and the 7

surrounding area, if the annexation petition is granted. As used in division (A)(5) of this section, “surrounding area” means the territory within the unincorporated area of any township located one-half mile or less from any of the territory proposed to be annexed.

R.C. 709.033(A)(5).

{¶19} “[T]he fact that the [municipality] is able to provide services does not equate with

general good to the territory or with a finding that the benefits to the territory outweigh the

detriments.” Scio v. N. Twp. Bd. of Trustees, 2023-Ohio-2479, ¶ 104 (7th Dist.). Nonetheless,

“[t]he existing services can be compared to predicted new services in determining the general good

[]and [] in determining whether benefits outweigh the detriments[.]” Id. “The existence of some

benefit must be supported by facts not simply by speculation, beliefs, or desires.” Tuscarawas

Twp. Bd. of Trustees v. Stark Cty. Bd. of Commrs., 2011-Ohio-5581, ¶ 91 (5th Dist.). “The general

good includes both the desires of the property owners and the ability to provide adequate services

to the proposed territory.” Witschey v. Medina Cty. Bd. of Commrs., 2006-Ohio-5135, ¶ 16 (9th

Dist.).

{¶20} “Whether the good of the territory sought to be annexed will be served is a question

of fact within the discretion of the board. The determination of such a question of fact can be

overturned only upon a finding that it is unconstitutional, illegal, arbitrary, capricious,

unreasonable, or unsupported by the preponderance of substantial, reliable and probative

evidence.” In re Annexation of 118.7 Acres in Miami Twp. to Moraine, 52 Ohio St.3d 124, 132

(1990).

{¶21} Again, “[t]his Court’s inquiry is limited to a determination of whether we can say,

as a matter of law, that the decision of the common pleas court is not supported by a preponderance

of reliable, probative and substantial evidence.” In re Petition to Annex 331.2142 Acres, 2004- 8

Ohio-1425, at ¶ 7. Given that limited scope of review, we can only conclude that Hinckley has

not met its burden.

{¶22} The lower court did not set forth any analysis supporting the conclusion in its entry

and so presumably it agreed with the analysis of the Board. The Board discussed this factor at

length in its decision. The Board determined that both communities presented evidence as to the

quality of their services and noted that the Drug Mart would be built irrespective of whether

annexation took place. The Board primarily concluded that the good of the territory to be annexed

would be served because, if the property were annexed, the property owner would receive a 100%

tax abatement. The Board pointed out that the property manager indicated at the hearing that,

based on his experience with both Hinckley and Brunswick, it would be easier and more

economical to develop the property through Brunswick. The property manager specified that

initially, Hinckley had stated that a 50% tax abatement for 15 years would be available for the

property; however, that tax abatement was later voted down. While Hinckley later approved the

tax abatement months later and after the petition for annexation was filed, Brunswick offered a

100% tax abatement for 15 years. The property manager estimated that Brunswick’s tax abatement

would provide over $600,000 in tax savings over the 15 years, which was a substantial amount for

the company.

{¶23} With respect to the second part of this statutory prong, i.e. whether “the benefits to

the territory proposed to be annexed and the surrounding area will outweigh the detriments to the

territory proposed to be annexed and the surrounding area, if the annexation petition is granted[,]”

the Board observed that there was not a lot of evidence in the record as to the benefits or detriments

to the surrounding area. R.C. 709.033(A)(5). This was made more challenging for the Board by

the fact that what evidence of benefit or detriment existed was offset by a corresponding benefit 9

or detriment. For example, the Board noted that Hinckley pointed to a loss in tax revenue,

however, this would be offset by Brunswick taking responsibility for providing services to the

annexed property. The Board also reiterated that there was a consensus that a Drug Mart would

benefit the surrounding area, but it would be built irrespective of annexation and so that fact did

not impact the decision. Ultimately, the Board found the benefits and detriments to the

surrounding area to be in balance, but the benefits to the property to be annexed outweighed the

detriments tipping the scales in favor of annexation.

{¶24} Hinckley argues that the Board’s, and in turn the lower court’s, decision misapplied

the statute and failed to hold Petitioner to its burden. We disagree. The Board engaged in the

appropriate analysis and considered the surrounding area in weighing the benefits and detriments

and the lower court affirmed the Board’s decision. Hinckley has not demonstrated that the decision

of the common pleas court was not supported by a preponderance of reliable, probative and

substantial evidence. In re Petition to Annex 331.2142 Acres, 2004-Ohio-1425, at ¶ 7.

{¶25} Hinckley’s second assignment of error is overruled.

III.

{¶26} Hinckley’s assignments of error are overruled. The judgment of the Medina County

Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal. 10

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

Costs taxed to Appellant.

DONNA J. CARR FOR THE COURT

STEVENSON, P. J. SUTTON, J. CONCUR.

APPEARANCES:

ALFRED E. SCHRADER, Attorney at Law, for Appellant.

DANIEL P. CALVIN and ANDREA D. UHLER, Attorneys at Law, for Appellee.

KENNETH J. FISHER and DENNIS A. NEVAR, Attorneys at Law, for Appellee.

MICHAEL K. LYONS, Assistant Prosecuting Attorney, for Appellee.