288 N.E.2d 322 | Ohio Ct. App. | 1972
This appeal is from a judgment of the Common Pleas Court, pursuant to a motion, dismissing a petition for injunction against annexation of territory to the city of Defiance, filed under the provisions of R. C.
They allege that their "interests are adversely affected by the proposed annexation"; that they "are interested persons by virtue of the fact that they are the Board of Trustees and Clerk of Noble Township, and are resident freeholders and taxpayers in Noble Township"; and that the proposed annexation adversely affects their legal rights or interests in that:
"a. It will be unfair and unjust to the remaining owners of real estate in and of Noble Township, in that a large amount of taxable valuation will be removed from the Township, while future operating expenses will not be diminished to any extent, thus placing an increased tax burden upon the remaining residents and owners of real estate, including the plaintiffs herein, in their individual capacity.
"b. It will deprive the plaintiffs, as trustees, and clerk, of needed funds for the operation of the township."
The action having been dismissed by the Court of Common Pleas without hearing on the merits, the appeal to this court involves solely the issue of the capacity of the petitioners to maintain the action based on the allegations set forth in their petition. Additionally, it is conceded by the parties that the petitioners neither own land nor reside in the area of Noble Township sought to be annexed to the city of Defiance. We reject any further consideration of the right of the petitioners to maintain a class action as the procedure for class actions set forth in Civil Rule 23 has not been followed.
R. C.
Before we examine the statutes, however, we reflect further on the nature of the statutory proceeding herein involved. The provisions of R. C.
Were the petitioners in the Court of Common Pleas, appellants in this court, parties to the annexation proceeding before the Board of County Commissioners and aggrieved by its decision?
Reference to R. C.
It will be noted that persons not owning any of the real estate to be annexed are not qualified as petitioners and that the option to have such territory annexed is solely that of the owners of such territory, and not of anyone else. Reference to R. C.
We then look to R. C.
"(A) The petition contains all matter required in Section
"(B) Notice has been published as required by Section
"(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 proposed to be annexed.
"(D) The territory included in the annexation petition is not unreasonably large; the map or plat is accurate; and the generalgood of the territory sought to be annexed will be served if theannexation petition is granted." (Emphasis added.)
Again it will be observed that no consideration is to be given to the territory of the township not included in the annexation proceeding, except that consideration which may be implied by the determination under subdivision (D) that the territory included in the annexation petition is not unreasonably large. The matter of "general good" pertains only to the territory sought to be annexed, and an alteration of tax base detrimental to the area not annexed is of no legal consequence in arriving at this determination. ComparePowers v. County Commrs.,
By legislation which also became effective on December *70
1, 1967, the General Assembly prescribed by amendment to R. C.
We conclude that the legislative intent is that the parties to the proceeding before the board of county commissioners must be only the owners of the real estate sought to be annexed which, of course, includes nonpetitioning owners as well as petitioning owners. They are the interested persons who may "appeal" the commissioner's determination by filing the injunction action in the Court of Common Pleas. If they are able to allege (R. C.
We must affirm the judgment of the Court of Common Pleas, dismissing the injunction petition, because the petitioners were not, in any capacity, owners of real estate in the area to be annexed. They were likewise not aggrieved, because their only complaint pertains not to the good of the territory to be annexed but pertains only to the unincorporated territory thereafter remaining.
Judgment affirmed.
YOUNGER, P. J., GUERNSEY and COLE, JJ., concur. *71