THE COLT‘S NECK HOMEOWNERS ASSOCIATION v. FRANKLIN COUNTY, OHIO BOARD OF COMMISSIONERS, et al.
Case No. 2024 CA 00048
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
January 16, 2025
2025-Ohio-113
Hon. William B. Hoffman, P.J.; Hon. Craig R. Baldwin, J.; Hon. Andrew J. King, J.
Appeal from the Licking County Court of Common Pleas, Case No. 23 CV 1462; Judgment: Dismissed
JUDGMENT: Dismissed
DATE OF JUDGMENT: January 16, 2025
APPEARANCES:
For Plaintiff-Appellant: RICHARD E. ROGOVIN, 8142 Creek Hollow Road, Blacklick, Ohio 43004; BRIAN S. HUNG, Loveland Law, LLC, 3300 Riverside Drive, Suite 125, Upper Arlington, Ohio 43221
For Defendant-Appellee Jefferson Twp, Ohio: JENNIFER L. HUBER, JULIA E. DONNAN, PETER M. GRIGGS, Brosius, Johnson & Griggs, LLC, 6797 North High St., Suite 350
For Defendant-Appellees Franklin County, Ohio Bd of Commissioners and Franklin County Engineer: JOSEPH R. DURHAM, Eastman & Smith LTD., 250 Civic Center Drive, Suite 280, Columbus, Ohio 43215
For Defendant- Appellee Licking County, Ohio Bd of Commissioners: CAROLYN CARNES, Assistant Prosecuting Attorney, Licking County Prosecutor‘s Office, 20 South 2nd Street, Newark, Ohio 43055
Baldwin, J.
{¶1} The appellant appeals the decision of the trial court dismissing its appeal from the decision of the Joint Board of County Commissioners of Franklin and Licking Counties to proceed with a ditch improvement project survey and design. Appellees are the Franklin County, Ohio Board of Commissioners; Licking County, Ohio Board of Commissioners; Franklin County Engineer; Jefferson Township, Ohio; and, Julie A. Dockter.
STATEMENT OF THE FACTS AND THE CASE
{¶2} On or about April 26, 2024, appellees Jefferson Township and Julie A. Dockter filed a Petition for Ditch Improvement with the Franklin County Board of Commissioners alleging that certain improvements to the Cole Ditch were necessary, would benefit the petitioners, and would be conducive to the public welfare. The improvements sought in the Petition included a request to: repair, replace, or alter current drainage; mitigate flooding in the petitioner‘s properties; and, improve drainage for the parcels owned by the petitioners.
{¶3} Cole Ditch is located in both Franklin and Licking Counties. Accordingly, a Joint Board of County Commissioners of Franklin County and Licking County (“Joint Board“) convened on December 5, 2023, for a First Hearing on the Petition. The hearing commenced, and testimony from a representative of the Franklin County Engineer‘s office was presented, establishing the following.
{¶4} The entire Cole Ditch watershed area spans approximately 1,132 acres, with approximately 894 acres in Franklin County and 238 acres in Licking County; 8,541 parcels are located in Franklin County, and 70 parcels are located in Licking County. The
{¶5} During the hearing, the Engineer clarified on cross-examination that the Engineer‘s office only served 89 property owners of the appellant‘s 104 members with the notice, as only those 89 properties are in the Cole Ditch watershed, and the other properties are not in the watershed and would therefore not be assessed.
{¶6} The First Hearing also included sworn testimony by the appellant‘s witnesses, the admission of evidence, the requisite cross-examination, and the opportunity to be heard. At the conclusion of the hearing, the Joint Board determined that the
{¶7} The appellant appealed the Joint Board‘s December 5, 2023, decision to the Licking County Court of Common Pleas1. Its notice of appeal included a request for damages in excess of $25,000. The appellees filed
{¶8} “I. THE TRIAL COURT ERRED IN DISMISSING APPELLANT‘S CASE PURSUANT TO
STANDARD OF REVIEW
{¶9} The appellate standard of review of a trial court‘s decision to grant a
ANALYSIS
{¶10} The appellant argues that the trial court erred in granting the appellees’
{¶11} The appellant initially argues that the trial court erred because it failed to establish a two judge panel consisting of judges from both Licking and Franklin counties. However, the appellant demanded damages in excess of $25,000.00 at the conclusion of its Notice of Appeal.
{¶12} Next, the appellant erroneously argues that it is entitled to appeal a decision to proceed following a First Hearing. County drainage improvements are governed by statute.
{¶13} In the case sub judice, the matter had proceeded through the First Hearing only.
(A) At the first hearing on a petition for a proposed improvement, the board of county commissioners shall do both of the following:
(1) Hear the preliminary report of the county engineer required under
section 6131.09 of the Revised Code ;(2) Hear any evidence offered by any owner for or against the granting of the proposed improvement or for or against the granting of any laterals, branches, spurs, or change of route, course, termini, or manner of construction described in the petition or in any amendment.
(B) If necessary, the board of county commissioners may recess and continue the hearing on subsequent days as may be reasonable to consider additional information about the proposed improvement or so that all interested owners may have an opportunity to comment on the proposed improvement.
(C) At the conclusion of the first hearing, the board shall vote to determine whether to proceed with the project survey and design or to dismiss the petition, taking into consideration the petition, the preliminary report, and comments on the proposed improvement.
The First Hearing was conducted in compliance with the requirements set forth in
{¶14}
(A) If the board of county commissioners finds at the conclusion of the first hearing for a proposed improvement that a proposed improvement is not necessary, will not be conducive to the public welfare, or that the estimated cost of the proposed improvement will exceed the benefits to be derived if it is constructed, the board shall dismiss the petition for the proposed improvement and enter its findings upon its journal.
(B) Any owner who is affected by the order of dismissal may appeal to the court of common pleas of the county in which the petition was filed, as provided in
sections 6131.12 to6131.64 of the Revised Code . If no appeal is filed within thirty days pursuant tosection 6131.25 of the Revised Code , the bond shall cover all the costs incurred in the proceedings. Any remaining funds from the bond shall be returned to the petitioner.(C) An order issued by the board under this section is effective on the day of the hearing at which the board issued it.
The Petition herein was not dismissed.
{¶15}
{¶16} Finally,
{¶17} Furthermore, the right to appeal is not conferred upon the appellant by
R.C. § 2506.01 does not create a cause of action where none otherwise exists. Regarding administrative appeals underR.C. § 2506.01 , Ohio courts require a party to identify a statutory provision that expressly authorizes the filing of an appeal. Yanega v. Cuyahoga Cty. Bd. of Revision, 156 Ohio St.3d 203, 2018-Ohio-5208, 124 N.E.3d 806, ¶ 10 (“there is no inherent right to appeal an administrative decision; rather, the right must be conferred by statute“). This statutory permission cannot come fromR.C. § 2506.01 itself. JRB Holdings, LLC v. Stark Cty. Bd. of Revision, 5th Dist. Stark No. 2021CA00144, 2022-Ohio-1646, ¶ 11-18, (looking beyondR.C. Chapter 2506 to determine whether an appeal from a board of revision is permitted).Rather, that authority must arise from another statutory provision. See also Hamer v. Danbury Twp. Bd. of Zoning Appeals, 6th Dist. Lucas No. L-19-1210, 2020-Ohio-3209, 155 N.E.3d 218, ¶ 10 (“jurisdiction over an administrative appeal is improper unless granted by
R.C. 119.12 or other specific statutory authority“), quoting Nkanginieme v. Ohio Dept. of Medicaid, 10th Dist. Franklin No. 14AP-596, 2015-Ohio-656, 29 N.E.3d 281, ¶ 15.
R.C. § 2506.01 is a general statute dealing with appeals from various bodies.R.C. § 5717.01 , on the other hand, is a special statute specifically dealing with board of revision property valuations and rights of appeal therefrom. Under such circumstances,R.C. § 5717.01 prevails and is exclusively applicable. As set forth by the Ohio Supreme Court in Acme Engineering Co. v. Jones (1948), 150 Ohio St. 423, 83 N.E.2d 202:A special statutory provision which applies to a specific subject matter constitutes an exception to a general statutory provision covering other subjects as well as the specific subject matter which might otherwise be included under the general provision. (State, ex rel. Steller et al., Trustees v. Zangerle, Aud., 100 Ohio St. 414, 126 N.E. 413, and paragraph one of the syllabus in State, ex rel. Elliott Co. v. Connar, Supt., 123 Ohio St. 310, 175 N.E. 200, approved and followed.)
See also Ruprecht v. City of Cincinnati, 64 Ohio App.2d 90, 92–93, 411 N.E.2d 504, 507 (1st Dist. 1979).
Id. at ¶¶ 39-42. Thus, the right to appeal cannot be conferred by
{¶18} In this case, the First Hearing did not result in dismissal of the petition. Instead, the Joint County Board of Commissioners found that the improvements were necessary and conducive to the public welfare and that the benefits outweighed the potential cost, and instructed the Franklin County Engineer to submit plans, estimates,
{¶19} The doctrine of ripeness was discussed by this Court in State v. Manion, 2020-Ohio-4230:
The Ohio Supreme Court discussed the concept of ripeness for review in State ex rel. Elyria Foundry Co. v. Indus. Comm., 82 Ohio St.3d 88, 1998-Ohio-366, 694 N.E.2d 459:
Ripeness “is peculiarly a question of timing.” Regional Rail Reorganization Act Cases (1974), 419 U.S. 102, 140, 95 S.Ct. 335, 357, 42 L.Ed.2d 320, 351.
The ripeness doctrine is motivated in part by the desire “to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies * * *.” Abbott Laboratories v. Gardner (1967), 387 U.S. 136, 148, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681, 691. As one writer has observed:
“The basic principle of ripeness may be derived from the conclusion that ‘judicial machinery should be conserved for problems which are real or present and imminent, not squandered on problems which are abstract or hypothetical or remote.’ * * * [T]he prerequisite of ripeness is a limitation on jurisdiction that is nevertheless basically optimistic as regards the prospects
of a day in court: the time for judicial relief is simply not yet arrived, even though the alleged action of the defendant foretells legal injury to the plaintiff.” Comment, Mootness and Ripeness: The Postman Always Rings Twice (1965), 65 Colum. L.Rev. 867, 876. Id. at 89, 694 N.E.2d at 460.
{¶20} This case did not present the trial court, and does not present this Court, with an issue that is real or imminent. The Franklin County Engineer has not yet completed the reports, plans, and schedules for the improvement of the Cole Ditch watershed which were ordered to aid the Joint Commissioners in their determination at a future hearing. Furthermore, if after the conclusion of the second hearing there was a vote not to proceed, the affected residents would not be responsible for the costs related to the plans and specifications. In addition, it is unclear which members of the appellant HOA may be subject to assessments, and if so, how much. The appellant has not yet suffered any damages. The matter before this Court is not yet ripe, and is therefore dismissed.
CONCLUSION
{¶21} Based upon the foregoing, we find that the issues raised in this appeal are not yet ripe for review. Accordingly, the appellant‘s assignment of error is overruled, and the appeal is dismissed.
By: Baldwin, J.
Hoffman, P.J. and
King, J. concur.