THE STATE EX REL. THE CITY OF XENIA, APPELLEE, v. GREENE COUNTY BOARD OF COMMISSIONERS ET AL., APPELLANTS.
No. 2019-1791
Supreme Court of Ohio
June 25, 2020
2020-Ohio-3423
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2020-OHIO-3423
THE STATE EX REL. THE CITY OF XENIA, APPELLEE, v. GREENE COUNTY BOARD OF COMMISSIONERS ET AL., APPELLANTS.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Xenia v. Greene Cty. Bd. of Commrs., Slip Opinion No. 2020-Ohio-3423.]
Annexation—Mandamus is a proper vehicle to compel county board of commissioners to grant city’s annexation petition—Board failed to show that city’s petition does not satisfy
(No. 2019-1791—Submitted May 12, 2020—Decided June 25, 2020.)
APPEAL from the Court of Appeals for Greene County, No. 2018CA0021, 2019-Ohio-4805.
_________________Per Curiam.
{¶ 1} This is an annexation case concerning roughly 45 acres of land located between the city of Xenia and Central State University. The Second District Court
I. LEGAL BACKGROUND
{¶ 2} In Ohio, “annexation is strictly a statutory process.” In re Petition to Annex 320 Acres to S. Lebanon, 64 Ohio St.3d 585, 591, 597 N.E.2d 463 (1992). The General Assembly comprehensively reformed Ohio‘s annexation processes in 2001 with the enactment of Am.Sub.S.B. No. 5, 149 Ohio Laws, Part I, 621 (“S.B. 5“). See State ex rel. Butler Twp. Bd. of Trustees v. Montgomery Cty. Bd. of Commrs., 112 Ohio St.3d 262, 2006-Ohio-6411, 858 N.E.2d 1193, ¶ 3 (discussing the legislation). S.B. 5 established three procedures “allow[ing] for expedited annexations when all the property owners within a parcel to be annexed sign an annexation petition.” Id. The three procedures are referred to as expedited type-1, type-2, and type-3 annexations. Id. at ¶ 5.
{¶ 3} This appeal involves a type-2 annexation, which is governed by
- The petition meets all the requirements set forth in, and was filed in the manner provided in, section
709.021 of the Revised Code. - The persons who signed the petition are owners of the real estate located in the territory proposed for annexation and constitute all of the owners of real estate in that territory.
- The territory proposed for annexation does not exceed five hundred acres.
- The territory proposed for annexation shares a contiguous boundary with the municipal corporation to which annexation is proposed for a continuous length of at least five per cent of the perimeter of the territory proposed for annexation.
- The annexation will not create an unincorporated area of the township that is completely surrounded by the territory proposed for annexation.
- The municipal corporation to which annexation is proposed has agreed to provide to the territory proposed for annexation the services specified in the relevant ordinance or resolution adopted under division (C) of this section.
- If a street or highway will be divided or segmented by the boundary line between the township and the municipal corporation as to create a road maintenance problem, the municipal corporation to which annexation is proposed has agreed as a condition of the annexation to assume the maintenance of that street or highway or to otherwise correct the problem.
{¶ 4} A board of county commissioners must grant a petition that satisfies all the conditions and must deny a petition that does not.
II. FACTUAL BACKGROUND
{¶ 5} In September 2017, the city filed a type-2 annexation petition with the county seeking approval to annex roughly 45.6 acres of territory located in Xenia Township. The city owns approximately 41.1 acres of the territory proposed for annexation, and its ownership interest consists of a narrow strip of land used for a bicycle path. The path runs outward from the city in a northeasterly direction, where it ends adjacent to the remaining roughly 4.5 acres of the territory proposed for annexation—a triangular-shaped parcel owned by Central State University. A report prepared by the city‘s staff explained that the city would benefit from the annexation by receiving income-tax revenue from Central State University‘s employees and contractors and that Central State University, in turn, would benefit by becoming a recipient of the city‘s services. Central State University consented to the city‘s proposal to annex the 4.5-acre parcel.
{¶ 6} The township trustees urged the county to deny the petition, which the county did after determining that the city‘s petition did not satisfy
III. STANDARD OF REVIEW
{¶ 7} For a writ of mandamus to issue in a type-2 setting, the relator must establish that it has a clear legal right to the requested relief by showing that it satisfies the conditions necessary for annexation. State ex rel. Natl. Lime & Stone Co. v. Marion Cty. Bd. of Commrs., 152 Ohio St.3d 393, 2017-Ohio-8348, 97 N.E.3d 404, ¶ 26. If the relator can show that it satisfies the conditions, a board of county commissioners has a clear legal duty to approve the annexation. Id. Because
{¶ 8} This court exercises de novo review in an appeal from a grant of summary judgment. Transtar Elec., Inc. v. A.E.M. Elec. Servs. Corp., 140 Ohio St.3d 193, 2014-Ohio-3095, 16 N.E.3d 645, ¶ 8. Summary judgment may be granted only when (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) upon viewing the evidence in the light most favorable to the nonmoving party, reasonable minds can reach only a conclusion adverse to the nonmoving party. Id.
IV. ANALYSIS
{¶ 9} Our analysis proceeds in two parts. We first address the county’s claim that a writ of mandamus is an improper vehicle to compel it to grant the city’s petition. We then address the county’s claim that the city’s petition fails to satisfy the conditions specified in
A. Whether a writ of mandamus is a proper vehicle to compel the county to grant the city’s petition
{¶ 10} A writ of mandamus is a command directing the “performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station.”
{¶ 11} The county claims that mandamus does not lie because it applied its discretion under
{¶ 12} Had the General Assembly intended to confer discretion on a board of county commissioners in a type-2 setting, it would not have been difficult to use wording to that effect. Under what we have termed the “traditional” method of annexation, Sugarcreek Twp. v. Centerville, 133 Ohio St.3d 467, 2012-Ohio-4649, 97 N.E.2d 261, ¶ 3, a board must consider whether “the general good of the
{¶ 13} Turning from the statutory text to our caselaw, we observed in Butler Twp. Bd. of Trustees that S.B. 5 put “in place firm standards to govern the consideration of annexation petitions * * *.” 112 Ohio St.3d 262, 2006-Ohio-6411, 858 N.E.2d 1193, at ¶ 8. And in Natl. Lime & Stone, we explained that when a type-2 annexation petition satisfies all seven of division (E)‘s conditions, a board “has no discretion to deny the petition” and a writ of mandamus will issue. 152 Ohio St.3d 393, 2017-Ohio-8348, 97 N.E.3d 404, at ¶ 2. The boards in those two cases did not raise precisely the same argument that the county is raising here, but we see no reason why the logic of those two decisions does not apply here.
{¶ 14} The county next contends that mandamus does not lie because it performed all its statutorily imposed duties. It points to division (G), which provides that a party may pursue relief in mandamus to “compel the board of county commissioners to perform its duties under this section,”
{¶ 15} The county‘s argument fails under Natl. Lime & Stone. There, a board of county commissioners denied a mining company‘s type-2 annexation petition. The company then filed a complaint for a writ of mandamus in the court of appeals to compel the board to grant the petition, which the court of appeals dismissed. We reversed and granted the writ, determining that the company had satisfied division (E)‘s conditions. As we explained, when a relator satisfies all the
B. Whether the city‘s petition satisfies the conditions of R.C. 709.023(E)
{¶ 16} The county claims that the city‘s petition fails to satisfy four of the seven conditions specified in
1. Whether the city‘s petition satisfies R.C. 709.023(E)(1)
{¶ 17} Under
When a petition signed by all of the owners of real estate in the unincorporated territory of a township proposed for annexation requests the annexation of that territory to a municipal corporation contiguous to that territory under one of the special procedures provided for annexation in sections
709.022 ,709.023 , and709.024 of the Revised Code, the annexation proceedings shall be conducted under those sections to the exclusion of any other provisions of this chapter unless otherwise provided in this section or the special procedure section chosen.
(Emphasis added.)
{¶ 18} The word “contiguous” in
{¶ 19} The county asserts that because
{¶ 20} As McGee itself makes clear, the General Assembly had not, at the time we decided that case, defined the word “contiguous” for the purpose of applying Ohio‘s annexation statutes. That statutory silence led us to draw from the
{¶ 21} Here, in contrast, the General Assembly has defined the minimum degree of touching necessary in a type-2 setting. As set forth in
{¶ 22} Another problem with the county‘s argument is that it is in tension with our decision in Natl. Lime & Stone, 152 Ohio St.3d 393, 2017-Ohio-8348, 97 N.E.3d 404. There, we considered whether each of the seven conditions applicable in a type-2 setting were satisfied. Not once did we refer to McGee‘s contiguity principles in determining whether the territory proposed for annexation was contiguous with the annexing municipality. Instead, we simply performed the analysis prescribed by
{¶ 23} The county urges this court to apply State ex rel. Overholser Builders, L.L.C. v. Clark Cty. Bd. of Commrs., 2d Dist. Montgomery No. 2007 CA 36, 2008-Ohio-6338, ¶ 37-39, a decision holding that McGee‘s contiguity principles apply to type-1 annexation petitions filed under
{¶ 24} In summary, we hold that
2. Whether the city‘s petition satisfies R.C. 709.023(E)(4)
{¶ 25} Under
{¶ 26} The county now points to a different category of evidence, urging us to consider the city‘s future plans for annexing additional territory. Specifically, the county cites a city report describing the city‘s future plan to annex roughly 159 acres of territory, at least some of which Central State University has an interest in. According to the county, if one were to account for the city‘s future annexation plans, the shared boundary would fall to 4.29 percent.
{¶ 27} The problem with the county‘s argument is twofold. First, Ohio law directs a board of county commissioners to review a petition to determine whether it satisfies
{¶ 28} We conclude that the city‘s petition satisfies
3. Whether the city‘s petition satisfies R.C. 709.023(E)(5)
{¶ 29} Under
{¶ 30} The city does not dispute that the proposed annexation would create two township islands. But it correctly points out that
{¶ 31} We conclude that the city’s petition satisfies
4. Whether the city’s petition satisfies R.C. 709.023(E)(7)
{¶ 32}
{¶ 33} Although the city essentially replicated this language in its petition, during deliberations on the petition, one of the county commissioners inquired about the scope of the city’s agreement. The city’s attorney initially responded that the city would maintain portions of affected roads that crossed over the bicycle path but would not maintain any other portions of the roads, because the city would not have jurisdiction over the latter portions. The attorney later clarified this response, saying that the city would comply with “whatever legal requirements” regarding road maintenance would apply.
{¶ 34} The county claims that the attorney’s statements invalidate the city’s agreement to assume road-maintenance duties. But as the court of appeals
{¶ 35} The county next argues that the city failed to present to the township or any agency an agreement concerning road-maintenance issues; however, the county cites no law that requires a municipal corporation to do this.
{¶ 36} Last, the county claims that the city had failed to correct road-maintenance problems arising from prior annexations. Thus, the argument runs, the city will fail to correct problems arising from the proposed annexation. This argument is speculative, and even if true, it fails to establish a genuine issue of material fact concerning whether the city in fact agreed in its petition to correct road-maintenance-related problems.
{¶ 37} We conclude that the city‘s petition satisfies
V. CONCLUSION
{¶ 38} For the foregoing reasons, we affirm the judgment of the court appeals.
Judgment affirmed.
O‘CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DEWINE, DONNELLY, and STEWART, JJ., concur.
_________________Donnette A. Fisher, Director of Law, for appellee.
Stephen K. Haller, Greene County Prosecuting Attorney, and Elizabeth A. Ellis, Assistant Prosecuting Attorney, for appellants.
Frost, Brown, Todd, L.L.C., Philip K. Hartmann, Yazan S. Ashrawi, and Christopher D. Thomas; and Garry E. Hunter, General Counsel, urging affirmance for amicus curiae Ohio Municipal League.
Brosius, Johnson & Griggs, L.L.C., Peter N. Griggs, Julia E. Donnan, and Jennifer L. Huber, urging reversal for amicus curiae Ohio Township Association.