In re Annexation of Acres in Jefferson Twp.

7 Ohio App. Unrep. 47
CourtOhio Court of Appeals
DecidedOctober 16, 1990
DocketCase No. 11896
StatusPublished

This text of 7 Ohio App. Unrep. 47 (In re Annexation of Acres in Jefferson Twp.) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Annexation of Acres in Jefferson Twp., 7 Ohio App. Unrep. 47 (Ohio Ct. App. 1990).

Opinions

BROGAN, J.

The Board of Trustees of Jefferson Township appeals the decision of the trial court allowing the annexation of part of its territory to the city of Moraine. The annexation was initiated under R.C. 709.02 et seq. by petition of the appellees who own real estate in the territory to be annexed. The township asserts three assignments of error, claiming that the trial court erred in not finding the annexation to be contrary to the "general good" and involving an unreasonably large amount of land, that the Board of County Commissioners abused its discretion in not continuing a public hearing, and that the landowners' petition was a facade for actions actually initiated by Moraine. For reasons stated more fully below, we will affirm the judgment of the trial court.

In 1988 the City of Dayton initiated procedures under R.C. 709.13 et seq. to annex Jefferson Township. Subsequent to this action, landowners in the southeastern part of the township began signing a petition to have their land annexed to Moraine pursuant to R.C. 709.02 et seq. The township claims that Moraine was the actual impetus of the petition. Moraine denies this allegation, but the record is clear that the city did, at the very least, lend substantial assistance to the supporters of the annexation petition.

Pursuant to R.C. 709.02(c), Kathleen Kropff was named as agent for the landowners. On May 4, 1988, Kropff filed the petition with the Montgomery County Commissioners in accordance with R.C. 709.03. Written notice of this filing was received on the same day by Jack Arnold, the Clerk of Jefferson Township. The Board of County Commissioners filed he petition with the Montgomery County Auditor for public inspection on May 12, 1988.

The parties dispute how many valid landowner signatures were on the petition. The landowners claim 171, while the township alleges 160. Fifty withdrawals of signatures were offered. The Board of County Commissioners, however, ruled that only forty-two of the withdrawals were valid. Thus, the petition was left with either 118 or 129 landowners requesting annexation. 118 signatories constitute a majority of the landowners of the territory. Thus, under both parties' version [48]*48of the facts, the petition had the number of signatures required by R.C. 709.02.

During the pendency of the landowners' annexation process, the City of Dayton withdrew its attempts at an "outside" annexation.

The Board of County Commissioners held a public hearing on the landowners' annexation petition on July 26, 1988. The township raised several objections to the annexation, and requested a continuance in order to verify the number of signatures on the petition. The Board recessed for a half-hour to an hour while they recalculated the number of signatures. Upon reconvening, the Board confirmed that a sufficient number of landowners had signed the petition. Further testimony was heard, and the hearing was then adjourned. On October 11, 1988, the Board formally approved the annexation.

The township timely appealed the Board's decision to the Court of Common Pleas pursuant to R.C. 2506.01. The township also filed for an injunction to prevent the annexation under R.C. 709.07. The trial court consolidated these actions, and on October 27, 1989 affirmed the Board's decision and denied the injunction.

The township now appeals.

For its first assignment of error, the township asserts that:

"THE COURT OF COMMON PLEAS ERRED IN FINDING THAT THE GENERAL GOOD OF THE TERRITORY SOUGHT TO BE ANNEXED WILL BE SERVED BY THIS ANNEXATION, AND FURTHER THE COURT ERRED IN NOT FINDING THAT THE TERRITORY SOUGHT TO BE ANNEXED IS UNREASONABLY LARGE, SUCH FINDINGS WERE AFFIRMATION OF THE DECISION OF THE BOARD OF COUNTY COMMISSIONERS."

R.C. 709.033 states that a Board of County Commissioners shall approve an annexation initiated by landowners of the territory to be annexed if:

"1. A petition is filed in accordance with R.C. 709.02;

"2. Notice of the petition is published in a local newspaper for four consecutive weeks prior to the hearing;

"3. A majority of landowners, have signed the petition;

"4. An accurate map of the territory is attached;

"5. The territory to be annexed is not 'unreasonably large'; and

"6. The annexation serves the 'general good' of the territory to be annexed."

The township argues that the last two of these elements has not been met. We do not agree.

Whether an annexation is for the "general good" of the territory to be annexed is a factual determination within the discretion of the Board of County Commissioners. Middletown v. McGee (1988), 39 Ohio St. 3d 284. Moreover, the Board is to give great weight to the wishes of the landowners to be annexed in deciding what is in their own "general good." In Re Laricca (1973), 40 Ohio App. 3d 250, 253-254. The reason for this deference is that the intent of the General Assembly in enacting R.C. 709.02 et seq. was "to give an owner of property freedom of choice as to the governmental subdivision in which he desires his property to be located." Middletown, supra, at 286.

It is well established that if the decision of an administrative agency, like the Board of County Commissioners, is based upon substantial, reliable, and probative evidence, the decision cannot be disturbed by a reviewing court. Dudukovich v. Housing Authority (1979), 58 Ohio St. 2d 202.

The Board heard extensive testimony on the benefits the landowners would receive by joining Moraine. Taxes are lower, and property values higher and more stable in Moraine than in Jefferson Township. Moraine has 26 full-time police officers and 13 full-time firefighters, while Jefferson Township has only five full-time police officers and an all volunteer fire department. Moraine provides an ambulance, trash pickup, and incinerator fees free of charge to its citizens. Jefferson Township charges for each of these services Moreover, Jefferson Township's ambulance only runs part-time. Lastly, Moraine offers a wider variety of recreational activities than Jefferson Township. Given, this evidence, we cannot say that the Board erred in finding the annexation to be in the "general good" of the landowners.

The township points to several factors, including a lessening of the township's racial balance, that indicate that the annexation will not be for the "general good" of the township as a whole. While many of these points are valid, they are nonetheless not encompassed in the inquiry required by the statute R.C. 709.033(D) clearly limits the issue to the "general good of the territory sought to be annexed," not the territory that will remain if the annexation is [49]*49successful. In Re Annexation of 118.7 Acres in Miami Twp. (1990), 52 Ohio St. 3d 124.

The Summit County Court of Appeals has defined "unreasonably large" in R.C. 709.033(D) in terms of three factors:

"(1) the geographic character, shape and size (acreage) of the territory to be annexed in relation to the-territory to which it will be annexed (the city), and in relation to the territory remaining after the annexation is completed (the remaining Township area);

"(2) the ability of the annexing city to provide the necessary municipal services to the padded territory. (Geographic as well as financial largeness may be considered. ***)

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In Re Annexation of 1,544.61 Acres
470 N.E.2d 486 (Ohio Court of Appeals, 1984)
Dudukovich v. Lorain Metropolitan Housing Authority
389 N.E.2d 1113 (Ohio Supreme Court, 1979)
Holcomb v. Board of Summit County Commissioners
405 N.E.2d 262 (Ohio Supreme Court, 1980)
City of Middletown v. McGee
530 N.E.2d 902 (Ohio Supreme Court, 1988)
Miami Township Board of Trustees v. Caton
556 N.E.2d 1140 (Ohio Supreme Court, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
7 Ohio App. Unrep. 47, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-annexation-of-acres-in-jefferson-twp-ohioctapp-1990.