520 N.E.2d 235 | Ohio Ct. App. | 1986
Defendants-appellants Francis H. Cicchinelli, Jr., Mary Ann Coyne, Helen Maier and Delbert A. Demmer ("appellants") appeal the judgment of the Court of Common Pleas of Stark County granting an injunction preventing annexation. The injunction was petitioned for by plaintiff-appellee Board of Trustees of Perry Township ("Perry Trustees"). Appellants raise the following two assignments of error:
On November 18, 1985, Francis H. *174
Cicchinelli, Jr. filed an annexation petition pursuant to R.C.
The Stark County Board of Commissioners held a public hearing on the annexation which the Perry Trustees attended. The county commissioners subsequently, by resolution dated March 26, 1986, granted the annexation. On April 18, 1986, the Perry Trustees filed the present action, seeking an injunction pursuant to R.C.
The common pleas court below issued a permanent injunction enjoining appellants from further action on the annexation.
In reviewing this determination, we must consider two issues raised by the appellants. We must determine whether the Perry Trustees can, as a matter of law, prevail in an R.C.
"* * * while the petition for annexation on its face appears to be that of certain property owners pursuant to R.C.
The trial court concluded that the city of Massillon was exercising extra-territorial jurisdiction without statutory authority by expanding funds and providing free services of municipal employees and therefore it was error for the county commissioners to allow the annexation upon application of the residents. The court found this way partly because the Ohio Attorney General has stated:
"A municipal corporation may not expend municipal funds, offer the services of municipal employees, or offer the services of a firm or individual with which the municipality has contracted, in order to assist the residents of adjacent townships in proceeding with an application for annexation pursuant to R.C.
On this basis the court of common pleas found that the city of Massillon had abused its corporate power. However, we do not find that this is the proper forum for determining whether there was an abuse of corporate power by the city or other illegality entered *175
into by the city or its councilmen. The focus in the case at bar is upon the procedure before the county commissioners. We cannot find, as the court did below, that there was error in the proceedings before the county commissioners pursuant to R.C.
For the reasons set forth above, we sustain appellants' first assignment of error.
The trial court concluded that R.C.
R.C.
"* * * Any person may appear, in person or by attorney, and support or contest the granting of the prayer of the petition provided for by section
R.C.
"A board of township trustees may enter into a contract with, and appropriate township general revenue fund moneys for the services of, an attorney to represent the township at annexationhearings before the board of county commissioners and upon anyappeal of the board's decision pursuant to section
"The board of township trustees of a township that includes territory that is proposed to be annexed has standing in anyappeal of the board of county commissioners' decision on the annexation of township territory that is taken pursuant to section
R.C.
"(A) Within sixty days from the filing of the papers relating to the annexation * * * any person interested, and any other persons who appeared in person or by an attorney in the hearing provided for in section
It is clear that township trustees are entitled to initiate proceedings for *176
an injunction as provided for in R.C.
In the case at bar, the Perry Trustees did appear "in person" and "by attorney" at the hearing before the county commissioners held pursuant to R.C.
However, appellants argue that the trustees were granted nothing more than "bare standing." Appellants maintain that R.C. Chapter 709 still does not allow for the granting of an injunction for the trustees unless they can, by clear and convincing evidence, prove harm to their legal rights or interests. We agree. R.C.
"(A) * * * The petition of a person interested shall set forth facts showing:
"(1) How the proposed annexation adversely affects the legal rights or interests of the petitioner;
"(2) The nature of the error in the proceedings before the board of county commissioners pursuant to section
"The petition of any other person shall set forth facts applicable to division (A)(2) of this section.
"* * *
"(D) The petition for injunction shall be dismissed unless the court finds the petitioner has shown by clear and convincing evidence that the annexation would adversely affect the legalrights or interests of the petitioner, and that:
"(1) There was error in the proceedings before the board of county commissioners pursuant to section
"(2) There was error in the findings of the board of county commissioners or in the election or certification by the board of elections of the results of the election held pursuant to division (D) of section
We agree with the trial court's conclusion that:
"R.C.
Since the township is not an "interested person" under R.C.
Although a township need not be a property owner in order to pursue an R.C.
We must consider the history of the pertinent statutory sections in order to better understand the intention of the legislature. R.C.
Weber, supra, was one of two appellate decisions interpreting the meaning of "interested person" prior to the most recent amendment of R.C.
In 1980, the Ohio Legislature amended R.C.
R.C.
"* * * Township trustees of a township that includes territory that is proposed to be annexed * * * [have] standing in any appeal of the * * * county commissioners' decision of the annexation * * * if the * * * township trustees * * * [were] represented at the annexation hearing * * *."
Prior to this 1984 amendment, the Ohio Supreme Court released the Bass Lake decision. Although Bass Lake is not on point with the case at bar, the Supreme Court therein discussed some of the issues raised by the appellants. In Bass Lake, the county commissioners rejected the petition for annexation. The community of Bass Lake appealed to the common pleas court pursuant to R.C. Chapter 2506. The trial court refused to grant the township trustees standing to appeal because the trial court determined the township trustees were not interested, adverse parties with standing. The township trustees appealed, and the Ohio Supreme Court eventually heard the case. The Supreme Court stated in BassLake, supra, at 144, 5 OBR at 275,
"From these provisions it can be seen that the General Assembly has afforded a considerable right of appeal to those whose rights are directly affected. In contrast, the General Assembly has provided a carefully limited form of relief for other persons *178
to oppose an annexation petition which has been granted. The General Assembly intended these other persons to contest the petition only by meeting the stiffer standards required for an injunction and thus R.C.
Following the Bass Lake decision, the legislature amended R.C.
The trial court below held that the adversely affected interest requirement under R.C.
The township trustees were also given the power to hire an attorney and spend funds to appeal the granting of an annexation. But the legislature did not make the trustees "interested persons." The trustees could benefit from these proceedings only tangentially, where another party, who is "interested," has an injunction granted on his behalf.
We conclude that the Perry Trustees must prove, by clear and convincing evidence, that the annexation would adversely affect their legal rights or interests, in order to prevail upon an R.C.
Therefore, we sustain appellants' second assignment of error.
Having sustained both of appellants' assignments of error, we reverse the judgment of the Court of Common Pleas of Stark County, dissolve the injunction and order the annexation.
Judgment accordingly.
MILLIGAN, P.J., and HOFFMAN, J., concur.
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