In re Barberton-Norton Mosquito Abatement District

947 N.E.2d 743, 191 Ohio App. 3d 763
CourtOhio Court of Appeals
DecidedDecember 30, 2010
DocketNo. 25126
StatusPublished

This text of 947 N.E.2d 743 (In re Barberton-Norton Mosquito Abatement District) 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 Barberton-Norton Mosquito Abatement District, 947 N.E.2d 743, 191 Ohio App. 3d 763 (Ohio Ct. App. 2010).

Opinion

Carr, Presiding Judge.

{¶ 1} Appellant, the Barberton-Norton Mosquito Abatement District, appeals the judgment of the Summit County Court of Common Pleas. This court affirms.

I

{¶ 2} On May 4, 2005, Joseph Harrison, on behalf of himself and 617 residents of Barberton and Norton, Ohio, filed a petition in the Summit County Court of Common Pleas for the creation of the Barberton-Norton Mosquito Abatement District. The petitioners requested that the abatement district encompass the territorial limits of the cities of Barberton and Norton, Ohio. On May 9, 2005, a notice of hearing on the formation of the abatement district was issued. The notice indicated that “[a]ll persons and public corporations owning or interested in real estate within the territory” would be given an opportunity to be heard at the hearing. No written objections were filed pursuant to R.C. 6115.08. On June 23, 2005, the abatement district was formed by judgment decree.

{¶ 3} On August 3, 2005, Dale Sungy, James Hrubik, and Terry Lawrence prepared a “Report of Board of Appraisers” for the abatement district. Sungy, Hrubik, and Lawrence were formally appointed to the board of appraisers on August 9, 2005. The report indicated that persons within the abatement district “will benefit by the mosquito control measures applied, by reducing the population of mosquitoes and protection from the potential of mosquito-borne disease such as West Nile Virus.” The report did not include findings with respect to persons outside the abatement district. The trial court, by order dated January 30, 2006, found that no exceptions were filed pursuant to R.C. 6115.35, and approved the report.

{¶4} On December 18, 2007, Joseph Harrison, on behalf of the board of directors of the abatement district and numerous residents, filed a petition in the trial court to enlarge the abatement district pursuant to R.C. Chapter 6115 to include the territorial limits of the cities of New Franklin and Green, the villages of Clinton and Lakemore, and the townships of Copley, Coventry, and Springfield. This first petition for enlargement also sought to retain the current members of the board of appraisers and to change the name of the BarbertonNorton Mosquito Abatement District to the “Summit Mosquito Abatement District.” A notice of hearing was issued to all persons and public corporations [766]*766owning real estate in the communities sought to be annexed. All seven of the communities, as well as numerous residents of those communities, filed objections to the expansion. After a hearing, the trial court issued a judgment entry dated May 15, 2008, dismissing the first petition for enlargement. In dismissing the petition, the trial court found that the reason for the petition was the abatement district’s desire to expand rather than a public need for mosquito-control measures. The trial court specifically noted that “nearly everyone, except Joseph Harrison and the Barberton-Norton Health District, believes that the public health is being properly protected in each of the communities within the proposed expansion area.” The court concluded that “there is no public necessity for the change and there is little evidence that [the abatement district’s] services will be conducive to the public health, safety, comfort[,] convenience or welfare.” The abatement district did not appeal the trial court’s order dismissing the first petition for enlargement.

{¶ 5} On March 12, 2009, Joseph Harrison, on behalf of the board of directors of the abatement district, filed a second petition to enlarge the district. On the same day, Harrison, on behalf of the board of appraisers, filed the report of the board of appraisers. In the petition, the abatement district’s board of appraisers and the board of directors petitioned for the enlargement of the district, pursuant to R.C. 6115.31 through 6115.35, to include the portions of Fairview and Home-wood Avenue in Coventry Township. The second petition for enlargement stated that the board of appraisers had filed a notice of report of appraisers, which found that segments in the area to be annexed were already being benefited by the operation of the abatement district. The petitioners also requested that the name of the Barberton Norton Mosquito Abatement District be changed to the “Mosquito Abatement District.” On August 26, 2009, a notice of hearing on appraisals and notice of enlargement of the district were filed. Coventry Township opposed the second petition for enlargement. A concurrent hearing on enlargement and appraisals was held on October 13, 2009. The trial court denied the petition in an order dated November 17, 2009. The trial court specifically noted that in order to consider enlargement under R.C. 6115.31 through 6115.35, it would have to circumvent the requirements of R.C. 6115.05. The trial court further found that the petitioners had “failed to establish that the proposed expansion is necessary for the public health, safety, comfort, convenience or welfare.”

{¶ 6} On appeal, the abatement district raises three assignments of error.

II

Assignment of Error I

The trial court erred when it determined that R.C. 6115.31 does not provide a mechanism to enlarge an existing sanitary district.

[767]*767Assignment of Error II

The trial court erred by applying the wrong standard of review when it determined that the proposed expansion was not necessary for the public health, safety, comfort, convenience or welfare.

{¶ 7} In its first assignment of error, the abatement district argues that the trial court erred in determining that R.C. 6115.31 does not provide a mechanism to enlarge an existing sanitary district. In its second assignment of error, the abatement district argues that the trial court erred by applying the wrong standard of review in ruling on the second petition for enlargement. The court disagrees.

JURISDICTION

{¶ 8} Coventry Township contends that the trial court order from which the abatement district appeals is not a final, appealable order. Upon the filing of the second petition to enlarge the abatement district, the township filed a motion to dismiss the petition on the basis of res judicata. In support of its motion, the township argued that the second petition to enlarge the abatement district was an “attempt to do in piecemeal fashion what it was unable to accomplish in the 2007 proceeding.” In responding to the motion, the abatement district argued that “there is no prior lawsuit, there are no previous or subsequent actions; there is merely the instant special proceedings. Thus, res judicata does not apply.” The abatement district also cited case law in support of the proposition that “[Civ.R.] 54(B) allows for a reconsideration or rehearing of interlocutory orders.” On appeal, the township argues that because the abatement district took the position that the order dismissing the first petition for enlargement was interlocutory, the abatement district is precluded under the doctrine of judicial estoppel from taking the position that the petition denying the second motion is a final, appealable order.

{¶ 9} This court’s jurisdiction is limited to the review of final orders of lower courts. Section 3(B)(2), Article IV, Ohio Constitution. In the absence of a final, appealable order, this court must dismiss an appeal for lack of jurisdiction. Id. See also Lava Landscaping, Inc. v. Rayco Mfg., Inc. (Jan. 26, 2000), 9th Dist. No. 2930-M, 2000 WL 109108.

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Bluebook (online)
947 N.E.2d 743, 191 Ohio App. 3d 763, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-barberton-norton-mosquito-abatement-district-ohioctapp-2010.