In Re Petition for Annexation of 162.631 Acres

556 N.E.2d 200, 52 Ohio App. 3d 8, 1988 Ohio App. LEXIS 4014
CourtOhio Court of Appeals
DecidedSeptember 27, 1988
Docket87AP-1070 and 87AP-1071
StatusPublished
Cited by21 cases

This text of 556 N.E.2d 200 (In Re Petition for Annexation of 162.631 Acres) 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 Petition for Annexation of 162.631 Acres, 556 N.E.2d 200, 52 Ohio App. 3d 8, 1988 Ohio App. LEXIS 4014 (Ohio Ct. App. 1988).

Opinion

McCormac, J.

Appellants appeal the affirmance by the Franklin County Court of Common Pleas of the decision of the Franklin County Board of Commissioners to allow the city of Wester-ville to annex approximately 162.631 acres of land in Blendon Township and the denial of appellants’ petition for an injunction against the annexation.

Owners of real estate in the 162.631 acres adjacent to Westerville collected signatures of landowners in an annexation petition pursuant to R.C. 709.02 to 709.11. The Franklin County Board of Commissioners (“board”) held a hearing on the annexation petition and unanimously agreed to allow Westerville to annex the territory. Prior to a vote of the Wester-ville City Council on the annexation application, appellant filed an R.C. Chapter 2506 appeal of the board’s approval of the annexation application. Appellants also filed an injunction action under R.C. 709.07 to prevent Wester-ville from annexing the property.

The Franklin County Court of Common Pleas granted a preliminary injunction to stay any further annexation proceedings until the court decided whether the board’s decision allowing the annexation was valid. Thereafter, the court affirmed the board’s decision to allow Westerville to annex the territory, dissolved the preliminary injunction, and denied the petition for a permanent injunction against the annexation.

Appellants appeal these judgments and assert the following assignments of error:

“I. The court of common pleas erred in failing to apply the proper standard of review to two of appellants’ claims.
“II. If the court of common pleas denied appellants’ R.C. 2506.03 motion, then the court committed reversible error.
“HI. The court of common pleas erred in finding that the proposed annexation was lawfully brought under R.C. 709.02-709.11.
“IV. The court of common pleas erred in failing to find the board’s order invalid because it resulted from •private deliberations in violation of R.C. 121.22 and 709.032.
“V. The court of common pleas erred in upholding the Board of Franklin County Commissioners’ finding that R.C. 709.033 had been complied with.”

Several landowners in Blendon Township approached Westerville about having their land annexed to Westerville and obtaining its water services. At the time, which was in the early 1980s, Westerville was not interested.

In 1985, Westerville changed its mind, contacted these three interested landowners and held a meeting. The city told the landowners that it was interested in providing them with water services, but that its policy was to annex property before servicing it. The city described the annexation process to the landowners, provided them with annexation petitions, an annexation map of the 162.631 acres, and a sheet explaining the cost of the water lines. Westerville suggested its attorney as the annexation agent and the landowners did not object to this designation.

These three landowners then circulated the annexation petition among the property owners in the area, handed out the annexation map, and the sheet on water-line cost. They needed the signatures of a majority of the sixty-three landowners in the area, i.e., thirty-two signatures, on the petition. They obtained forty-two signa *10 tures and presented the annexation petition to the board.

Pursuant to R.C. 709.031(B), Wes-terville passed Resolution No. 85-27, which set forth the services Wester-ville would provide to the area if Wes-terville annexed it.

On January 15, 1986, the board held a public hearing on the annexation petition to determine whether to allow Westerville to annex the area. At the hearing, three of the forty-two signatures were removed by mutual consent of all parties. Counsel for the opposition requested that fourteen other names be removed, but the board took no action on these names and postponed the decision until it could obtain its attorney’s opinion of the validity of the contested signatures. On February 12, 1986, the board reconvened and stated that it had met in an executive session with its attorney staff and decided that two names should be deleted. Since the board found that the remaining thirty-seven signatures on the petition constituted a majority of the landowners in the area and that it was for the general good of the area to be annexed, it entered an order allowing the annexation, which order was later affirmed by the Franklin County Court of Common Pleas.

Appellants argue that the trial court erred in finding that the proposed annexation was lawfully brought under R.C. 709.02 to 709.11, by petition of the owners, because of Wester-ville’s involvement in the annexation. Appellants further argue that the trial court also erred because it did not find that a private consultation between the board and its counsel was a violation of the Sunshine Law, R.C. 121.22. Lastly, appellants state that the trial court applied the wrong standard of review to these two issues.

Ohio statutes establish two procedures whereby an unincorporated territory may become annexed to a municipality. R.C. 709.02 to 709.11 provide the procedure whereby landowners of a territory can annex their property to a municipality. R.C. 709.13 to 709.18 establish a method for a municipality to annex territory through its own actions.

Appellants argue that these two methods are mutually exclusive and, hence, that the municipality cannot be involved in the landowners’ annexation action. The plain meaning of R.C. 709.02 to 709.11 does not support this argument. R.C. 709.02 states that:

“The owners of real estate adjacent to a municipal corporation may, at their option, cause such territory to be annexed thereto, in the manner provided by sections 709.03 to 709.11 of the Revised Code. *'* *” (Emphasis added.)

R.C. 709.03 to 709.11 do not provide that only landowners can be involved in this annexation process. Appellants cite case law which they claim supports this proposition. However, three of the cases they cite, Perry Twp. Bd. of Trustees v. Cicchinelli (1986), 35 Ohio App. 3d 173, 174-175, 520 N.E. 2d 235, 236-237; Canton Twp. Bd. of Trustees v. Mallonn (Aug. 3, 1987), Stark App. No. CA-7084, unreported; and Genoa Twp. Trustees v. Hahn (Oct. 9, 1987), Delaware App. No. 87-CA-11, unreported, all support the proposition that an owners’ petition for annexation may be valid and proper even though the city aids the landowners.

The Ohio Attorney General in an advisory opinion, 1985 Ohio Atty. Gen. Ops. No. 85-034, 2-119, at 2-121, found that a municipal corporation may not retain private counsel in order to assist residents of adjacent townships in proceeding with an application for annexation under R.C. 709.02. The Attorney General extended this finding in 1986 Ohio Atty. Gen. Ops. No. 86-008, 2-33, at 2-36, another advisory opinion, *11 when it found that a municipality may not expend its funds, provide the assistance of its employees, or contract with others to assist the residents of an adjacent township interested in annexation under R.C. 709.02.

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

Related

Barga v. St. Paris Village Council
2024 Ohio 5293 (Ohio Supreme Court, 2024)
Barga v. St. Paris Village Council
2023 Ohio 1067 (Ohio Court of Appeals, 2023)
Katsande v. Ohio Dept. of Medicaid
2020 Ohio 5488 (Ohio Court of Appeals, 2020)
Groves v. Ohio State Racing Comm.
2020 Ohio 1250 (Ohio Court of Appeals, 2020)
Knapp v. Defiance Therapeutic Massage & Wellness Ctr., LLC
2018 Ohio 1890 (Ohio Court of Appeals, 2018)
Wightman v. Ohio Real Estate Comm.
2017 Ohio 756 (Ohio Court of Appeals, 2017)
Rudd v. Ohio Dept. of Job & Family Servs.
2015 Ohio 3796 (Ohio Court of Appeals, 2015)
Farran v. Cleveland Civ. Serv. Comm.
2014 Ohio 823 (Ohio Court of Appeals, 2014)
Shaker Hts. ex rel. Cannon v. DeFranco
2012 Ohio 3965 (Ohio Court of Appeals, 2012)
State Ex Rel. Ross v. Crawford County Board of Elections
2010 Ohio 2167 (Ohio Supreme Court, 2010)
Westlake v. Dept. of Agriculture, 08ap-71 (9-2-2008)
2008 Ohio 4422 (Ohio Court of Appeals, 2008)
Holzhauser v. State Medical Board of Ohio, 06ap-1031 (9-25-2007)
2007 Ohio 5003 (Ohio Court of Appeals, 2007)
Chagrin Falls v. Board of Comm., Unpublished Decision (9-30-2004)
2004 Ohio 5310 (Ohio Court of Appeals, 2004)
TBC Westlake, Inc. v. Hamilton County Board of Revision
689 N.E.2d 32 (Ohio Supreme Court, 1998)
TBC Westlake, Inc. v. Hamilton Cty. Bd. of Revision
1998 Ohio 445 (Ohio Supreme Court, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
556 N.E.2d 200, 52 Ohio App. 3d 8, 1988 Ohio App. LEXIS 4014, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-petition-for-annexation-of-162631-acres-ohioctapp-1988.