556 N.E.2d 200 | Ohio Ct. App. | 1988
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 Westerville 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.
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.
"III. The court of common pleas erred in finding that the proposed annexation was lawfully brought under R.C.
"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.
"V. The court of common pleas erred in upholding the Board of Franklin County Commissioners' finding that R.C.
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 signatures *10 and presented the annexation petition to the board.
Pursuant to R.C.
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.
Ohio statutes establish two procedures whereby an unincorporated territory may become annexed to a municipality. R.C.
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.
"The owners of real estate adjacent to a municipal corporationmay, at their option, cause such territory to be annexed thereto, in the manner provided by sections
R.C.
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.
Home rule grants a city the power of local self-government, Section
However, the Home Rule Amendments do not restrict a city to involvement solely in its own territory and do not prevent a city from acting in its interest outside the city limits. It has been held that a municipality can be involved in actions that are necessary and will serve a public municipal interest. State, exrel. Gordon, v. Rhodes (1951),
Recently, the Supreme Court stated that a city may provide, at its discretion, municipally owned public utilities outside its territory. Fairway Manor, Inc. v. Summit Cty. Bd. of Commrs.
(1988),
By analogy, a municipality within its discretion may involve itself in extraterritorial activities, such as an owners' annexation petition, in order to ensure that the city may continue growing. The primary difference in the two petition methods is who signs the petition rather than that there may not be an interest or involvement in the procedure initiated by those who do not formally commence the proceeding. Hence, even if the procedures are mutually exclusive, it does not follow that the municipality which has an interest in its boundaries may not be involved in assisting landowners with their petition.
The court of common pleas did not err in finding that, even with Westerville's involvement, the proposed annexation was lawfully brought under R.C.
Appellants' third assignment of error is overruled.
In appellants' fourth assignment of error, they argue that the board's order was invalid because it resulted from private deliberations in violation of R.C.
R.C.
R.C.
"All meetings of any public body are declared to be public meetings open to the public at all times. * * *"
A "public body" is defined to mean "any board, commission, committee, * * *." R.C.
Appellants argue that the executive session that the board held with its attorney to determine which signatures on the petition were proper and which ones were not proper does not fall within the exceptions enumerated in R.C.
In Matheny v. Frontier Local Bd. of Edn. (1980),
16 O.O. 3d 411,
Furthermore, an R.C.
"Proceedings of administrative officers and agencies are not quasi-judicial where there is no requirement for notice, hearing and the opportunity for introduction of evidence." M.J. KelleyCo. v. Cleveland (1972),
In the owners' petition annexation method, the board must provide notice, hearing, and an opportunity for introduction of evidence. R.C.
Appellants' fourth assignment of error is overruled.
In appellants' second assignment of error, they argue that, if the court of common pleas denied appellants' R.C.
R.C.
Appellants first argue that the trial court granted their R.C.
Appellants argue that, according to R.C.
Appellants did not object to the trial court procedure, nor is there any indication in the proffered materials that the result would have been *13 different had there formally been declared a right to present additional evidence. The trial court reviewed the evidence in both of the cases, as it appears was contemplated by the court's ruling on the motion.
Appellants' second assignment of error is overruled.
In appellants' fifth assignment of error composed of four sections and numerous subsections, they argue that the court of common pleas erred in upholding the board's finding that there had been compliance with R.C.
Appellants argue that factors necessary to allow annexation pursuant to R.C.
Appellants initially argued that, since the board incorrectly found that the petition for annexation contained thirty-nine valid signatures instead of thirty-seven, an injunction should be granted pursuant to R.C.
Although the board made a mathematical error in its finding, thirty-seven signatures are still a majority and, therefore, the petitioners' rights or interests were not adversely affected by this error.
In order to consider appellants' challenge of the board's decision allowing the annexation, we will apply the standard of review in R.C.
First, appellants challenge the board's decision by contesting the validity of five signatures on the petition.
They argue that three signatures were void, pursuant to R.C.
R.C.
R.C.
Two people swore in their affidavits that they signed the petition in order to get water service and were not told that they signed an annexation petition. Applying the R.C.
Since appellees have not asked us to reconsider the validity of the two signatures deleted from the petition by the trial court, we will not address that issue.
However, there is a preponderance of substantial, reliable, and probative evidence supporting the court's decision that the other three signatures were not obtained by misrepresentation.
It is important to note that the annexation petition clearly stated in four places that it was an annexation petition. The signature gatherers also stated that they told each person whose signature they obtained that the purpose of the petition was to annex the property in question to Westerville.
Two of the three people admitted at the hearing that they received an annexation map when they signed the petition. However, one of these two people stated that she was never told that she was signing an annexation petition and thought it was only about water service. The other of these two persons swore that she did not remember if annexation had been mentioned when she signed the petition, that if it had been, she did not know what it meant, that the signature collector had talked to her about water and that was why she signed the petition. The third person whose signature is contested swore in her affidavit that she talked with the petition gatherer about annexation and water service, but that the petition gatherer did not mention a charge for water installation.
After reviewing the evidence, including the depositions of two of the available signature gatherers, the affidavits and testimony of the three people who appellants claim signed because of misrepresentation, and the annexation petition itself, we conclude that there was reliable, probative, and substantial evidence to support the trial court's decision that these three signatures were valid.
Appellants also contest two other signatures — one person signed for another because she claimed she had a power of attorney, and the other signed with a different last name than the one on record.
R.C.
Appellants argue that the power of attorney must be recorded to be valid. R.C.
We need not decide whether an attorney-in-fact may sign an annexation petition for an owner because there are sufficient signatures even if that signature is invalid.
Appellants also argue that the signature of a person whose last name was different from the name of the recorded property owner was not valid. They argue that there was insufficient evidence that the person signing was the same person as the person who owned the property because the signer was not a property owner of record.
R.C.
Appellants offered no evidence contesting this assertion. Even though the statements were hearsay, they were not inherently unreliable and were sufficient to constitute substantial, reliable and probative evidence of the validity of the signature.
Therefore, based on the foregoing discussion, the total number of valid signatures was at least thirty-four, a number in excess of the required thirty-two signatures.
Appellants next argue that the board's failure to allow them a right to examine the witnesses at the board's hearing, pursuant to R.C.
According to R.C.
Appellants argue that they were not given an opportunity to fully examine and cross-examine witnesses. Appellants specifically refer to the testimony of Westerville's city planning director. Appellants' attorney wanted to cross-examine him about the cost of water services to the residents of the territory proposed to be annexed.
Although the board refused to allow appellants' attorney directly to cross-examine the planning director, the board allowed her to examine him in a more indirect manner. The board asked appellants' attorney what her question was and then asked the city planning director her question. Although this procedure is different from that set forth by the Rules of Evidence, the end result was that appellants' attorney examined the city planning director. In addition, the other examples cited by appellants do not support their claim that they were given an inadequate opportunity to fully examine and cross-examine witnesses.
After reviewing the transcript, we find that the board did not fail to allow examination pursuant to R.C.
Appellants next argue that the resolution passed by Westerville's City Council, did not comply with R.C.
R.C.
Westerville Resolution No. 85-27, approved in compliance with this statute, provides that the city will provide police and fire services, water services, refuse removal services, recreation services, street maintenance and related street services.
Appellants argue that many of these services were previously provided to the people who lived in the territory to be annexed. Therefore, they argue that the Westerville resolution was misleading.
However, the plain meaning of R.C.
Appellants further argue that the proposed annexation would not serve the general good of the area. Whether the annexation serves the general good of the area is a factual question and, as such, can only be overturned upon a finding that it is "`unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable and probative evidence * * *.'" In re Petition for Annexation of141.8 Acres (1985),
Appellants' fifth assignment of error is overruled.
Last, appellants assert that the trial court failed to apply the correct standard of review to two of appellants' claims. However, the trial court stated the correct standard of review in the consolidated cases for both the R.C. Chapter 2506 appeal and the R.C.
Appellants' first assignment of error is overruled.
Appellants' assignments of error are overruled, and the judgments of the trial court are affirmed.
Judgments affirmed.
WHITESIDE, P.J., and STRAUSBAUGH, J., concur. *17