TUSCARAWAS TWP. BD. OF TRUSTEES v. STARK CTY. BD. OF COMMRS. еt al.
Case No. 2011CA00043
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
October 11, 2011
2011-Ohio-5581
Hon. W. Scott Gwin, P.J., Hon. Julie A. Edwards, J., Hon. Patricia A. Delaney, J.
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2010CV02510; JUDGMENT: AFFIRMED
For Appellants-Tuscarawas Twp. Bd. of Trustees: RANDALL M. TRAUB, 8040 Cleveland Ave. NW, Suite 400, North Canton, OH 44720
For Appellee-Stark Cnty. Bd. of Commrs.: DEBORAH DAWSON, 110 Central Plaza South, Suite 510, Canton, OH 44702
For Appellee-City of Massillon: PERICLES G. STERGIOS, Two James Duncan Plaza, Massillon, OH 44646; ROBERT B. HOLMAN, P.O. Box 46390, Cleveland, OH 46390
Delaney, J.
{¶ 1} Appellants Tuscarawas Township Board of Trustees appeal the January 31, 2011 judgment entry of the Stark County Court of Common Pleas reversing the decision of the Stark County Board of Commissioner to deny Appellee City of Massillon‘s annexation petition seeking to annex 61.852 acres of Tuscarawas Township into the City of Massillon. For the reasons that follow, we affirm the trial court‘s decisiоn.
STATEMENT OF THE FACTS AND CASE
{¶ 2} WTJ, Inc. is the owner of a large parcel of property in Tuscarawas Township, Stark County, Ohio, that planned to develop the parcel into a residential allotment named “Poets Glen.” Stark County approved the preliminary plans for Poets Glen.
{¶ 3} In 2008, WTJ, Inc. pursued annexation of the allotment into the City of Massillon. On February 5, 2008, Jason Haines, agent of the petitioners referenced below, filed a petition with the Stark County Board of Commissioners for the annexation of 61.852 acres of real property located in Tuscarawas Township into the City of Massillon (“2008 Petition“). The proposed annexation territory consisted of seven separate parcels of land owned by five separate entities: WTJ, Inc., William P. Broel, Josephine M. Broel, Bison Storage, Inc., and TJ & MG Properties, LLC. The submitted annexation petition was signed by four of the owners of the area to be annexed: WTJ, Inc., William P. Broel, Josephine M. Broel, and Bison Storage, Inc. TJ & MG Properties, LLC refused to sign the petition.
{¶ 5} The annexation petition came on for a public hearing before the Stark County Board of Commissioners on April 9, 2008. Rick Flory, the Stark County Budget and Property Manager, testified at the hearing that the petition contained a defect as to the maintenance of a section of roadway in the proposed annexation territory. The petition failed to include a roadway and incorrectly identified a street as a road.
{¶ 6} After taking testimony from representatives of the City of Massillon and Tuscarawas Township, the Stark County Board of Commissioners apprоved the annexation petition in a 2 to 1 decision. The resolution was adopted on May 8, 2008.
{¶ 7} The Tuscarawas Township Board of Trustees filed a notice of administrative appeal in the Stark County Court of Common Pleas. The trial court issued its decision on July 25, 2008, affirming the decision of the Stark County Board of Commissioners to permit the annexation.
{¶ 8} Tuscarawas Township filed a notice of appeal of the trial court‘s decision to this Court. In its appeal, Tuscarawas Township argued the trial court committed
{¶ 9} In Tuscarawas Twp. Bd. of Trustees v. City of Massillon, et al., Stark App. No. 2008CA00188, 2009-Ohio-3267, this Court examined each of Tuscarawas Township‘s arguments. We overruled Tuscarawas Township‘s assignments of error and affirmed the trial court‘s decision, except as to its resolution of Tuscarawas Township‘s argument under
{¶ 10} The petitioners filed a second petition for annexation for the same territory known as Poets Glen (“2010 Petition“). The annexation territory in the 2010 Petition consists of the same 61.852 acres located in Tuscarawas Township as in the 2008 Petition. Tuscarawas Township is 128,896 acres. The City of Massillon is 1,196,992 acres.
{¶ 11} The area to be annexed has five property owners: WTJ, Inc., William P. Broel, Josephine Broel, Bison Storage Inc., and TJ & MG Properties, LLC. WTJ, Inc., William P. Broel, Josephine M. Broel, and Bison Storage, Inc. signed the 2010 Petition. The owners in favor of the annexation own 53.38 acres of the 61.852 acres to be annexed, approximately eighty-seven percent. The property owned by TJ & MG Properties, LLC is adjacent to the City of Massillon, but TJ & MG Properties, LLC refused to sign the 2010 Petition for annexation. TJ & MG Properties, LLC own thirteen percent of the territory proposed to be annexed.
{¶ 12} On June 10, 2010, the Stark County Board of Commissioners held a hearing on the 2010 Petition. Mr. Flory testified that the errors regarding identification of the streets had been corrected in the 2010 Petition.
{¶ 13} David Hayes, an officer with WTJ, Inc. testified at the hearing. WTJ, Inc. owned the majority of the property to be annexed into the City of Massillon. Regardless of the approval or disapproval of the annexation of the territory into the City of Massillon, Hayes testified that WTJ, Inc. was going to develop its property into a residential allotment for single-family homes. The exрense of the construction of the water and
{¶ 14} The area to be annexed currently received police services from the Stark County Sheriff‘s Department and fire services from a combination of three fire departments. The City of Massillon would provide fire, police, and emergency transport services to the annexation territory if approved. Tuscarawas Township provided snowplowing and street paving, as would the City of Massillon. The City of Massillon would provide trash pickup service.
{¶ 15} The total taxable value of the annexation territory was $184,360. The tax loss to Tuscarawas Township if the property was annexed would be $8,775.10 and the tax gain to the City of Massillon would be $8,532.69. The Mayor of the City of Massillon оffered the Tuscarawas Township Trustees one-hundred percent of the real estate taxes forever if the Trustees did not oppose the annexation. The Trustees testified at the hearing they rejected the City‘s offer.
{¶ 16} Homeowners impacted by the annexation testified at the hearing. The owners of TJ & MG Properties, LLC testified they objected to the annexation into the
{¶ 17} At the conclusion of the public hearing, the Stark County Board of Commissioners voted 2 to 1 to deny the petition for annexation. The June 10, 2010 resolution stated the petition for annexation was denied under
{¶ 18} The City of Massillon filed an administrative appeal of the Stark County Board of Commissioners’ decision. On January 31, 2011, the trial court issued a comprehensive judgment entry, reversing the decision of the Stark County Board of Commissioners to deny the 2010 Petition. The trial court further found that the Board‘s decision did not meet the requirements of
{¶ 19} It is from this decision Tusсarawas Township appeals.
{¶ 20} Tuscarawas Township raises one Assignment of Error:
{¶ 21} “THE TRIAL COURT ERRED AS A MATTER OF LAW BY REVERSING THE DECISION OF THE STARK COUNTY BOARD OF COMMISSIONERS WHICH DENIED THE ANNEXATION PETITION AT ISSUE.”
{¶ 22} (A) STANDARD OF REVIEW
{¶ 23} In an appeal of an annexation decision, the common pleas court must consider the whole record including any new or additional evidence admitted pursuant
{¶ 24} In an appeal from the judgment of the common pleas court on a petition for annexation, this Court has a more limited scope of review. Kisil v. Sandusky (1984), 12 Ohio St.3d 30, 34, 465 N.E.2d 848. The standard of review for an appellate court is limited to questions of law and does not inсlude the same extensive power to weigh and consider evidence as is granted to the common pleas court. Id. Under this standard of review, the judgment of the common pleas court must be affirmed unless, as a matter of law, its decision is not supported by a preponderance of the substantial, reliable, and probative evidence. In re American Outdoor advertising, LLC, Union App. No. 14-02-27, 2003-Ohio-1820, at ¶ 5, citing Kisil, supra. This standard of review is tantamount to an abuse of discretion standard; therefore, an appellate court should reverse the trial court‘s judgment in such a case only upon a finding that the decision is unreasonable, arbitrary, or unconscionable. Tuscarawas Twp. Bd. of Trustees v. City of Massillon, Stark App. No. 2008CA00188, 2009-Ohio-3267, ¶ 19-20 citing In re American Outdoor Advertising, supra at ¶ 5; see, also, Kisil, supra 12 Ohio St.3d at fn. 4; In re: Petition to Annex 100.642 Acres of Violet Township into Village of Canal Winchester, Fairfield App. No. 03CA073, 2004-Ohio-7092, at ¶ 11; Marsillo v. Stow City Council, Summit App. No. 22229, 2005-Ohio-473, at ¶ 11; Anderson v. City of Vandalia, 159 Ohio App.3d 508, 2005-Ohio-118, 824 N.E.2d 568 at ¶ 22.
{¶ 26} “After the hearing on a petition for annexation, the board of county commissioners shall enter upon its journal a resolution granting the annexation if it finds, based upon a preponderance of the substantial, reliable, and probative evidence on the whole record, that each of the following conditions have been met:
{¶ 27} “(1) The petition meets all the requirements set forth in, and was filed in the manner provided in, section 709.02 of the Revised Code.
{¶ 28} “(2) The persons who signed the petition are owners of real estate located in the territory proposed to be annexed in the petition, and, as of the time the petition was filed with the board of county commissioners, the number of valid signatures on the petition constituted a majority of the owners of real estate in that territory.
{¶ 29} “(3) The municipal corporation to which the territory is proposed to be annexed has complied with division (D) of section 709.03 of the Revised Code.
{¶ 30} “(4) The territory proposed to be annexed is not unreasonably large.
{¶ 31} “(5) On balance, the general good of the territory proposed to be annexed will be served, and the benefits to the territory proposed to be annexed and the surrounding area will outweigh the detriments to the territory proposed to be annexed and the surrounding area, if the annexation petition is grantеd. As used in division (A)(5) of this section, ‘surrounding area’ means the territory within the unincorporated area of any township located one-half mile or less from any of the territory proposed to be annexed.
{¶ 33} The Tuscarawas Township Trustees argue in their sole Assignment of Error the trial court erred in reversing the decision of the Stark County Board of Commissioners to deny the 2010 Petition. We disagree. Our decision is based in part on the analysis of the relevant law for a Type 1 annexation found in
{¶ 34} (B) THE STATUTORY THRESHOLD UNDER R.C. 709.02
{¶ 35} Tuscarawas Township first argues the 2010 Petition failed to meet the statutory threshold requirements under
{¶ 36} “(A) The owners of real estate contiguous to a municipal corporation may petition for annexation to a municipal corporation in the manner provided by sections 709.02 to 709.11 of the Revised Code.”
{¶ 37}
{¶ 38} “(A) After the hearing on a petition for annexation, the board of county commissioners shall enter upon its jоurnal a resolution granting the annexation if it
{¶ 39} “(1) The petition meets all the requirements set forth in, and was filed in the manner provided in, section 709.02 of the Revised Code.”
{¶ 40} The property owned by TJ & MG Properties, LLC is the only property in the annexation territory contiguous to the City of Massillon. The owners of TJ & MG Properties, LLC did not sign the 2008 or 2010 Petitions because they object to the annexation into the City of Massillon. Tuscarawas Township therefore argues the 2010 Petition fails to meet the requirement in
{¶ 41} Tuscarawas Township raised the identical argument in its appeal of the 2008 Petition. In Tuscarawas Twp. Bd. of Trustees v. City of Massillon, supra, Tuscarawas Township argued the property owner adjacent to the City of Massillon objected to the annexation and therefore the annexation petition did not comply with
{¶ 42} There is no dispute the 2008 and 2010 Petitions are identical in that the same petitioners signed the petition and the petitions request the same annexation territory. We find that thе law of the case doctrine is applicable to this scenario and therefore resolves Tuscarawas Township‘s argument under
{¶ 43} Irrespective of the application of the law of the case doctrine to Tuscarawas Township‘s argument, an examination of
{¶ 44} In Higley v. Clark (Mar. 24, 1980), Montgomery App. No. 6540, the Second District Court of Appeals held there was no legal requirement that the owner of adjacent property sign the annexation petition. The Eighth District Court of Appeals examined the relevant statute more thoroughly in In re Annexation of Riveredge Twp. to Fairview Park (1988), 46 Ohio App.3d 29, 545 N.E.2d 1287. In that case, the assigned error to the court was that none of the petitioners owned land adjacent to the municipal corporation as required by
{¶ 45} The version of
{¶ 46} The version of
{¶ 47} “(A) The owners of real estate contiguous to a municipal corporation may petition for annexation to a municipal cоrporation in the manner provided by sections 709.02 to 709.11 of the Revised Code.
{¶ 48} “* * *
{¶ 49} “(C) The petition required by this section shall contain the following:
{¶ 51} “(2) An accurate legal description of the perimeter and an accurate map or plat of the territory proposed for annexation;
{¶ 52} “(3) The name of a person or persons to act as agent for the petitioners. The agent for the petitioners may be an official, employee, or agent of the municipal corporation to which annexation is proposed.
{¶ 53} “* * *”
{¶ 54} The Eighth District also found that
{¶ 55} “After the hearing on a petition to annex, the board of county commissioners shall enter an order upon its journal allowing the annexation if it finds that:
{¶ 56} “(A) The petition contains all matter required in section 709.02 of the Revised Code.
{¶ 57} “(B) Notice has been published as required by section 709.031 of the Revised Code.
{¶ 58} “(C) The persons whose names are subscribed to the petition are owners of real estate located in the territory in the petition, and as of the time the petition was filed with the board of county commissioners the number of valid signatures on the petition constituted a majority of the owners of real estate in the territory prоposed to be
{¶ 59} “(D) The municipal corporation to which the territory is proposed to be annexed has complied with division (B) of section 709.031 of the Revised Code.
{¶ 60} “(E) The territory included in the annexation petition is not unreasonably large; the map or plat is accurate; and the general good of the territory sought to be annexed will be served if the annexation petition is granted.”
{¶ 61} The court stated:
{¶ 62} “Pursuant to the above statute, if the board makes all the required findings, it must enter an order allowing the annexation. If the legislature had intended that an annexation petition contain the signature of a freeholder whose property bordered the annexing municipality, then this requirement would have been listed as a necessary finding undеr the above code section. However,
{¶ 63} Comparing the present
{¶ 64} “(A) After the hearing on a petition for annexation, the board of county commissioners shall enter upon its journal a resolution granting the annexation if it
{¶ 65} “(1) The petition meets all the requirements set forth in, and was filed in the manner provided in, section 709.02 of the Revised Code.
{¶ 66} “(2) The persons who signed the petition are owners of real estate located in the territory proposed to be annexed in the petition, and, as of the time the petition was filed with the board of county commissioners, the number of valid signatures on the petition constituted a majority of the owners of real estate in that territory.
{¶ 67} “(3) The municipal corporation to which the territory is proposed to be annexed has complied with divisiоn (D) of section 709.03 of the Revised Code.
{¶ 68} “(4) The territory proposed to be annexed is not unreasonably large.
{¶ 69} “(5) On balance, the general good of the territory proposed to be annexed will be served, and the benefits to the territory proposed to be annexed and the surrounding area will outweigh the detriments to the territory proposed to be annexed and the surrounding area, if the annexation petition is granted. As used in division (A)(5) of this section, ‘surrounding area’ means the territory within the unincorporated area of any township located one-half mile or less from any of the territory proposed to be annexed.
{¶ 70} “(6) No street or highway will be divided or segmented by the boundary line between a township and the municipal corporation as to create a road maintenance problem, or, if a street or highway will be so divided or segmented, the municipal corporation has agreed, as a condition of the annexation, that it will assume the maintenance of that street or highway. For the purposes of this division, ‘street’ or
{¶ 71} As the Eighth District found in In re Annexation of Riveredge Twp. to Fairview Park, supra, we likewise determine that in order for a board of county commissioners to grant an annexation petition, the petitioners must meet the requirements of
{¶ 72} (C) CONTIGUOUS
{¶ 73} Tuscarawas Township next argues that the annexation territory fails to meet the requirement under
{¶ 74} The proposed annexation territory in the 2010 Petition is identical to the annexation territory in the 2008 Petition. In Tuscarawas Twp. Bd. of Trustees v. City of Massillon, supra, Tuscarawas Township argued the annexation created a balloon configuration, which did not comply with the requirement that an annexed territory must
{¶ 75} ”
{¶ 76} “Upon a review of the record, we find the trial court did not err in finding the annexation territory met the requirements of
{¶ 78} (D) UNREASONABLY LARGE
{¶ 79} Another factor to be considered by the board of county commissioners is whether the territory proposed to be annexed is unreasonably large.
{¶ 80} “‘The issue of what constitutes an “unreasonably large” area of tеrritory which is to be annexed is not numerically or geographically defined in the statute.’ ” In re Petition for the Annexation of 315.118 Acres, More or Less in the Twp. of Xenia (March 20, 1998), Greene App. No. 97 CA 76, 1998 WL 127512, *6, quoting In re Annexation of Territory in Olmsted Twp. (1984), 14 Ohio App.3d 260, 263, 14 OBR 289, 470 N.E.2d 912. Whether an area is ‘unreasonably large’ is a question of fact to be resolved by the tests of proportionality, capacity to successfully serve, and injury to the area from which the land is annexed * * *.” Allen v. Miami Cty. Bd. of Commrs. (June 25, 1992), Miami App. No. 91CA38, 1992 WL 141924, *4.” Id. at 28.
{¶ 81} Ohio courts have adopted a three-prong test to determine whether a territory is unreasonably large:
{¶ 82} “(1) The geographic character, shape and size (acreage) of the territory to be annexed in relation to the territory to which it will be annexed (the city), and in
{¶ 83} “(2) The ability of the annexing city to provide the necessary municipal services to the added territory. (Geographic as well as financial ‘largeness’ may be considered. * * *); and
{¶ 84} “(3) [T]he effect on remaining township territory if annexation is permitted. If the territory sought to be annexed is so great a portion of the township‘s tax base that the annexation would render the remaining township incapable of supporting itself, then the Board might reasonably conclude the proposed annexation is unreasonably large, although such annexation would benefit the territory sought to be annexed.” Tuscarawas Twp. Bd. of Trustees v. City of Massillon, supra quoting Herrick v. Bd. of Cty. Commrs. (Jan. 23, 1980), Summit App. No. 9425.
{¶ 85} In Tuscarawas Twp. Bd. of Trustees v. City of Massillon, supra, we utilized the three-prong test and determined trial court did not err in finding the annexation territory in the 2008 Petition was not unreasonably large. We find the same analysis to be applicable to the present case.
{¶ 86} First, the geographic character, shape, and size of Poets Glen are the same as those examined and approved on appeal of the 2008 Petition. Second, at the 2010 hearing before the Stark County Board of Commissioners, service providers from the City of Massillon, such as the Fire Department and Police department, testified they would be capable of providing the necessary municipal services to the annexation territory. Third, the financial effect on Tuscarawas Township if the property is annexed into the City of Massillon appears from the record to be minimal. The territory of Poets
{¶ 87} The trial court determined these factors weighed in favor of annexation. We find the trial court‘s consideration of the facts as to the determination of whether the annexation territоry was unreasonably large to be supported by a preponderance of the evidence in the record.
{¶ 88} (E) GENERAL GOOD
{¶ 89} The Stark County Board of Commissioners denied the 2010 Petition solely on the basis of
{¶ 90} “(5) On balance, the general good of the territory proposed to be annexed will be served, and the benefits to the territory proposed to be annexed and the surrounding area will outweigh the detriments to the territory proposed to be annexed and the surrounding area, if the annexation petition is granted. As used in division (A)(5) of this section, ‘surrounding area’ means the territory within the unincorporated area of any township located one-half mile or less from any of the territory proposed to be annexed.”
{¶ 91} The statute grants the board of county commissioners the discretion to determine under the facts presented whether the general good of the territory to be annexed will be served if the annexation petition is granted. Kunkel, supra at ¶ 47 citing
{¶ 92} In enacting statutes governing annexation, one of the intentions of the legislature was “to give an owner of property freedom of choice as to the governmental subdivisions in which he desires his property to be located.” Toledo Trust Co. v. Bd. Of Commrs. (1977), 62 Ohio App.2d 121, 124, 404 N.E.2d 764, 766 citing, In re Lariccia (1973), 40 Ohio App.2d 250, 318 N.E.2d 871. Hоwever, the desires of the majority of owners alone, is not enough to satisfy the general good requirement. In re Witschey v. Medina Cty. Bd. Of Commrs., 169 Ohio App.3d 214, 2006-Ohio-5135, 862 N.E.2d 535. The general good requirement includes both the desires of the property owner and the receipt of some benefit to annexed property and the surrounding area. Carlisle Twp. Bd. Of Trustees v. Elyria, Lorain App. No. 07CA009142, 2008-Ohio-1125; In re Witschey v. Medina Cty. Bd. Of Commrs., supra; see also,
{¶ 93} The trial court first examined the desires of the property owners in the annexation territory. In this case, the majority of the property owners approved the annexation. TJ & MG Properties, LLC opposed the annexation. “[I]t has been held that a person owning land in territory sought to be annexed to a municipality is, without
{¶ 94} The trial court went on to examine the services provided for the annexed territory. The record shows that the proposed annexation territory will not lose any services through annexation, but will gain additional services of water and sewer provided by the City of Massillon. Mr. Hayes testified that the proposed residential allotment will be constructed regardless of the annexation. The residential allotment will receive water and sewer services from either Stark County or the City of Massillon, based on the failure or success of the annexation petition. If Stark County provides the services, the location of the lines will force current residents outside the annexation territory to tap in to the Stark County sewer system аt the homeowner‘s expense. If the City of Massillon provides the sewer service, the City of Massillon will fund the system and tap in fees will not be assessed.
{¶ 95} Tuscarawas Township points to the confusion of services within the annexation territory and surrounding territory due to the division of streets and configuration of the annexation territory. The Township argues this was considered by the Stark County Board of Commissioners as a detriment. The City of Massillon provided its service ordinance adopted for the annexed territory to demonstrate it will maintain the streets and highways subject to the annexation.
{¶ 96} The trial court considered the evidence as required under
{¶ 97} (F) DIVIDED STREETS AND HIGHWAYS
{¶ 98} Under
{¶ 99} At the hearing, the City of Massillon presented Ordinance 45-2010 stating it would maintain the roadways segmented by the annexation. The trial court determined the Ordinance satisfied
{¶ 101} The judgment of the Stark County Court of Common Pleas is affirmed.
By: Delaney, J.
Gwin, P.J. and Edwards, J. concur.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. JULIE A. EDWARDS
TUSCARAWAS TWP. BD. OF TRUSTEES v. STARK CTY. BD. OF COMMRS. et al.
Case No. 2011CA00043
COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
For the reasons stated in our accompanying Opinion on file, the judgment of the Stark County Court of Common Pleas is affirmed. Costs assessed to Appellants.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. JULIE A. EDWARDS