[Cite as Sugarcreek Twp. v. Beach City, 2012-Ohio-1756.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
SUGARCREEK TOWNSHIP, ET AL. JUDGES: Hon. W. Scott Gwin, P.J. Relators-Appellants Hon. William B. Hoffman, J. Hon. Julie A. Edwards, J. -vs- Case No. 2011CA00174 VILLAGE OF BEACH CITY
Respondent-Appellee OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2010-CV-03952
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 16, 2012
APPEARANCES:
For Relators-Appellants For Respondent-Appellee
ERIC J. WILLIAMS JAMES F. MATHEWS RANDALL M. TRAUB Baker, Dublikar, Beck, Wiley & Mathews Pelini, Campbell, Williams & Traub LLC 400 South Main Street 8040 Cleveland Avenue N.W. – Suite 400 North Canton, Ohio 44720 North Canton, Ohio 44720 Stark County, Case No. 2011CA00174 2
Hoffman, J.
{¶1} Relators-appellants Sugarcreek Township, et al. appeal the July 5, 2011
Judgment Entry entered by the Stark County Court of Common Pleas, which granted
summary judgment in favor of respondent-appellee Village of Beach City (“Beach City”).
STATEMENT OF THE CASE AND FACTS
{¶2} On October 27, 2010, Appellants Sugarcreek Township, James E. Baltzly,
Bruce and Jean Baltzly, Ian and Lisa Arth, and Joyce Stanforth filed a Complaint in the
Stark County Court of Common Pleas, naming Beach City as defendant-respondent.
Appellants sought a permanent injunction requiring Beach City to continue to provide
water services to their homes. Appellants Baltzly, Arth, and Stanforth are residents of
Sugarcreek Township, and each had received notice from Beach City that, unless they
consented to the annexation of their respective properties to Beach City, their municipal
water service would be discontinued. Appellants received the notice pursuant to
Ordinance No. 09-06 (“the Ordinance”) passed by Village Council.
{¶3} Beach City filed a timely answer and counterclaim on November 18, 2010.
Through its counterclaim, Beach City sought declaratory judgment that the Ordinance
be declared a lawful exercise of Beach City’s authority to regulate the sale, extension,
and distribution of utility services to extraterritorial users.
{¶4} Following the exchange of discovery, the parties filed respective cross-
motions for summary judgment.
{¶5} Beach City adopted Ordinance No. 09-06 on September 23, 2009. The
Ordinance required any utility customer outside of the Village of Beach City Corporation
limits to execute an agreement to annex their property to Beach City in order to continue Stark County, Case No. 2011CA00174 3
as a utility customer. The refusal or failure to consent to an annexation agreement
could result in the termination of service for that customer and disconnection from
Beach City utilities. Beach City provided Appellants with notice their continued supply
of water would be terminated for the failure or refusal to sign an annexation agreement.
Notices were sent to Appellants on September 23, 2009, September 7, 2010, and
September 27, 2010.
{¶6} Via Judgment Entry filed July 5, 2011, the trial court granted Beach City’s
motion for summary judgment and denied Appellants’ cross-motion for summary
judgment.
{¶7} It is from this judgment entry Appellants appeal, raising the following
assignments of error:
{¶8} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN RULING
THAT APPELLANTS ARE NOT ENTITLED TO CONTINUED WATER SERVICE.
{¶9} “II. THE TRIAL COURT ERRED AS A MATTER OF LAW IN RULING
THAT THE VILLAGE COULD TERMINATE THE WATER AGREEMENT.
{¶10} “III. THE TRIAL COURT ERRED AS A MATTER OF LAW IN RULING
THAT A CONTRACT DID NOT EXIST.”
I, II, III
{¶11} Because Appellants’ assignments of error are interrelated, we shall
address said assignments of error together.
{¶12} We begin with Appellants’ assertion the Ordinance is not a valid exercise
of Beach City’s police power. Appellants contend the Ordinance is unreasonable, Stark County, Case No. 2011CA00174 4
arbitrary and capricious and does not bear a rational relationship to the health, safety,
and welfare of its citizens.
{¶13} The record demonstrates Village Council enacted the Ordinance to
enhance Beach City’s tax base, enable Beach City to better provide public services in a
cost-effective manner, and to ensure the future growth and economic development of
Beach City. In Bakies v. City of Perrysburgh, 108 Ohio St.3d 361, 2006-Ohio-1190, the
Ohio Supreme Court held “ordinances requiring extraterritorial customers to agree to
annexation in exchange for continuation of services are a valid exercise of the police
power of a municipality, that such a requirement is not unreasonable, arbitrary, or
capricious, and that it bears a rational relationship to the health, safety, and welfare of
the municipality's citizens.” Id. at para 33.
{¶14} The other issues asserted by Appellants also were addressed by the
Bakies Court. Therein, the Ohio Supreme Court was called upon to determine “whether
a municipality may, through either a written agreement or by ordinance, require
extraterritorial water and sewer customers to annex their property to the municipality or
face termination of their utility service.” Id. at para 1 (Emphasis added).
{¶15} The Bakies Court concluded a municipality which has historically provided
water and sewer service for extraterritorial customers can require annexation of the
extraterritorial property as a condition of continued service to those customers. Id. at
para 17-20. “Municipally owned public utilities have no duty to sell their products,
including water, to extraterritorial purchasers absent a contractual obligation. (Citations
omitted). * * * a municipality does not assume a duty to continue supplying water in
perpetuity to extraterritorial customers merely by virtue of having once agreed to supply Stark County, Case No. 2011CA00174 5
it. * * * The municipality has the sole authority to decide whether to sell its water to
extraterritorial purchasers. (Citation omitted).” Id. at para 20.
{¶16} We find Beach City has no duty to continue to supply water to
extraterritorial property owners, Appellants herein, absent a contractual obligation.
Appellants maintain as successors in interest of property owners who financially
assisted in the building of the waterline at issue, they have a contract with Beach City
for the continued supply of water pursuant to the Waterline Agreement dated March 19,
1979. The trial court found the Waterline Agreement, by its terms, did not provide for
the indefinite, continued water service from Beach City to the extraterritorial property
owners. The trial court added, even if Appellants were successors to the original
Waterline Agreement, such agreement was limited to a period of 25 years; therefore,
had terminated as a result of the passage of time.
{¶17} Assuming, arguendo, the trial court erred in finding Appellants were not
parties to the Waterline Agreement, such finding is harmless. “Even where there is a
contract, but the contract provides no termination date, either party to the
agreement may terminate it upon reasonable notice. (Citation omitted).” Id. at para.
20 (Emphasis added). Beach City provided Appellants with reasonable notice their
continued supply of water would be terminated if they failed or refused to sign the
annexation agreements.
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[Cite as Sugarcreek Twp. v. Beach City, 2012-Ohio-1756.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
SUGARCREEK TOWNSHIP, ET AL. JUDGES: Hon. W. Scott Gwin, P.J. Relators-Appellants Hon. William B. Hoffman, J. Hon. Julie A. Edwards, J. -vs- Case No. 2011CA00174 VILLAGE OF BEACH CITY
Respondent-Appellee OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2010-CV-03952
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 16, 2012
APPEARANCES:
For Relators-Appellants For Respondent-Appellee
ERIC J. WILLIAMS JAMES F. MATHEWS RANDALL M. TRAUB Baker, Dublikar, Beck, Wiley & Mathews Pelini, Campbell, Williams & Traub LLC 400 South Main Street 8040 Cleveland Avenue N.W. – Suite 400 North Canton, Ohio 44720 North Canton, Ohio 44720 Stark County, Case No. 2011CA00174 2
Hoffman, J.
{¶1} Relators-appellants Sugarcreek Township, et al. appeal the July 5, 2011
Judgment Entry entered by the Stark County Court of Common Pleas, which granted
summary judgment in favor of respondent-appellee Village of Beach City (“Beach City”).
STATEMENT OF THE CASE AND FACTS
{¶2} On October 27, 2010, Appellants Sugarcreek Township, James E. Baltzly,
Bruce and Jean Baltzly, Ian and Lisa Arth, and Joyce Stanforth filed a Complaint in the
Stark County Court of Common Pleas, naming Beach City as defendant-respondent.
Appellants sought a permanent injunction requiring Beach City to continue to provide
water services to their homes. Appellants Baltzly, Arth, and Stanforth are residents of
Sugarcreek Township, and each had received notice from Beach City that, unless they
consented to the annexation of their respective properties to Beach City, their municipal
water service would be discontinued. Appellants received the notice pursuant to
Ordinance No. 09-06 (“the Ordinance”) passed by Village Council.
{¶3} Beach City filed a timely answer and counterclaim on November 18, 2010.
Through its counterclaim, Beach City sought declaratory judgment that the Ordinance
be declared a lawful exercise of Beach City’s authority to regulate the sale, extension,
and distribution of utility services to extraterritorial users.
{¶4} Following the exchange of discovery, the parties filed respective cross-
motions for summary judgment.
{¶5} Beach City adopted Ordinance No. 09-06 on September 23, 2009. The
Ordinance required any utility customer outside of the Village of Beach City Corporation
limits to execute an agreement to annex their property to Beach City in order to continue Stark County, Case No. 2011CA00174 3
as a utility customer. The refusal or failure to consent to an annexation agreement
could result in the termination of service for that customer and disconnection from
Beach City utilities. Beach City provided Appellants with notice their continued supply
of water would be terminated for the failure or refusal to sign an annexation agreement.
Notices were sent to Appellants on September 23, 2009, September 7, 2010, and
September 27, 2010.
{¶6} Via Judgment Entry filed July 5, 2011, the trial court granted Beach City’s
motion for summary judgment and denied Appellants’ cross-motion for summary
judgment.
{¶7} It is from this judgment entry Appellants appeal, raising the following
assignments of error:
{¶8} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN RULING
THAT APPELLANTS ARE NOT ENTITLED TO CONTINUED WATER SERVICE.
{¶9} “II. THE TRIAL COURT ERRED AS A MATTER OF LAW IN RULING
THAT THE VILLAGE COULD TERMINATE THE WATER AGREEMENT.
{¶10} “III. THE TRIAL COURT ERRED AS A MATTER OF LAW IN RULING
THAT A CONTRACT DID NOT EXIST.”
I, II, III
{¶11} Because Appellants’ assignments of error are interrelated, we shall
address said assignments of error together.
{¶12} We begin with Appellants’ assertion the Ordinance is not a valid exercise
of Beach City’s police power. Appellants contend the Ordinance is unreasonable, Stark County, Case No. 2011CA00174 4
arbitrary and capricious and does not bear a rational relationship to the health, safety,
and welfare of its citizens.
{¶13} The record demonstrates Village Council enacted the Ordinance to
enhance Beach City’s tax base, enable Beach City to better provide public services in a
cost-effective manner, and to ensure the future growth and economic development of
Beach City. In Bakies v. City of Perrysburgh, 108 Ohio St.3d 361, 2006-Ohio-1190, the
Ohio Supreme Court held “ordinances requiring extraterritorial customers to agree to
annexation in exchange for continuation of services are a valid exercise of the police
power of a municipality, that such a requirement is not unreasonable, arbitrary, or
capricious, and that it bears a rational relationship to the health, safety, and welfare of
the municipality's citizens.” Id. at para 33.
{¶14} The other issues asserted by Appellants also were addressed by the
Bakies Court. Therein, the Ohio Supreme Court was called upon to determine “whether
a municipality may, through either a written agreement or by ordinance, require
extraterritorial water and sewer customers to annex their property to the municipality or
face termination of their utility service.” Id. at para 1 (Emphasis added).
{¶15} The Bakies Court concluded a municipality which has historically provided
water and sewer service for extraterritorial customers can require annexation of the
extraterritorial property as a condition of continued service to those customers. Id. at
para 17-20. “Municipally owned public utilities have no duty to sell their products,
including water, to extraterritorial purchasers absent a contractual obligation. (Citations
omitted). * * * a municipality does not assume a duty to continue supplying water in
perpetuity to extraterritorial customers merely by virtue of having once agreed to supply Stark County, Case No. 2011CA00174 5
it. * * * The municipality has the sole authority to decide whether to sell its water to
extraterritorial purchasers. (Citation omitted).” Id. at para 20.
{¶16} We find Beach City has no duty to continue to supply water to
extraterritorial property owners, Appellants herein, absent a contractual obligation.
Appellants maintain as successors in interest of property owners who financially
assisted in the building of the waterline at issue, they have a contract with Beach City
for the continued supply of water pursuant to the Waterline Agreement dated March 19,
1979. The trial court found the Waterline Agreement, by its terms, did not provide for
the indefinite, continued water service from Beach City to the extraterritorial property
owners. The trial court added, even if Appellants were successors to the original
Waterline Agreement, such agreement was limited to a period of 25 years; therefore,
had terminated as a result of the passage of time.
{¶17} Assuming, arguendo, the trial court erred in finding Appellants were not
parties to the Waterline Agreement, such finding is harmless. “Even where there is a
contract, but the contract provides no termination date, either party to the
agreement may terminate it upon reasonable notice. (Citation omitted).” Id. at para.
20 (Emphasis added). Beach City provided Appellants with reasonable notice their
continued supply of water would be terminated if they failed or refused to sign the
annexation agreements. Beach City enacted the Ordinance on September 23, 2009.
Notices advising of such were sent to Appellants on September 23, 2009, September 7,
2010, and September 27, 2010. We find such notice to be reasonable. As such, we
hold Beach City may terminate Appellants’ water supply. Stark County, Case No. 2011CA00174 6
{¶18} Based upon the foregoing, we find Appellants’ first, second, and third
assignments are not well taken and overrule the same.
{¶19} The judgment of the Stark County Court of Common Pleas is affirmed.
By: Hoffman, J.
Gwin, P.J. and
Edwards, J. concur
s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin _____________________ HON. W. SCOTT GWIN
s/ Julie A. Edwards___________________ HON. JULIE A. EDWARDS Stark County, Case No. 2011CA00174 7
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
SUGARCREEK TOWNSHIP, ET AL. : : Relators-Appellants : : -vs- : JUDGMENT ENTRY : VILLAGE OF BEACH CITY : : Respondent-Appellee : Case No. 2011CA00174
For the reasons stated in our accompanying Opinion, the judgment of the Stark
County Court of Common Pleas is affirmed. Costs to Appellants.
s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN
s/ Julie A. Edwards___________________ HON. JULIE A. EDWARDS