In Re: Annexation of 201.2 Acres of Land in Bath Township To the City of Akron, Summit County, Ohio C.A.
| Decision Date | 02 February 1983 |
| Docket Number | 10763,83-LW-1097 |
| Parties | IN RE: ANNEXATION OF 201.2 ACRES OF LAND IN BATH TOWNSHIP TO THE CITY OF AKRON, SUMMIT COUNTY, OHIO C.A. |
| Court | Ohio Court of Appeals |
APPEAL FROM JUDGMENT ENTERED IN THE COMMON PLEAS COURT COUNTY OF SUMMIT, OHIO CASE NO. CV 80 6 1697.
EDWARD J. RIEGLER, Director of Law, 304 Municipal Bldg., Akron, OH 44308.
JOHN M GLENN and DANIEL G. LaPORTE, Attorneys at Law, P. O. Box 1500, I Cascade Plaza, Akron, OH 44309.
ALFRED E. SCHRADER, Attorney at Law, 730 W. Market St., Akron, OH 44303.
DECISION AND JOURNAL ENTRY
This cause was heard November 15, 1982, upon the record in the trial court, including the transcript of proceedings, and the briefs. It was argued by counsel for the parties and submitted to the court. We have reviewed each assignment of error and make the following disposition:
The Trustees of Bath Township, Summit County, Ohio, appeal the Court of Common Pleas' order reversing the Summit County Commissioners' Resolution No. 1190-80 denying annexation of 201.2 acres of land in Bath Township to the City of Akron and allowing said annexation, subject to the acceptance or rejection by the City. We affirm.
On December 19, 1979, ten property owners petitioned to annex approximately 201.2 acres of land in Bath Township, Ohio (the Territory) to the City of Akron. Pursuant to statute, a public hearing was held before the Summit County Board of Commissioners (the Board) in three separate sessions, and affidavits were submitted for the Board's consideration. The Board rejected the proposed annexation on June 17, 1980.
Those owners of property within the Territory who desired annexation (the proponents) appealed pursuant to R.C. 2506.01 to the Summit County Court of Common Pleas. The Bath Township Trustees (Trustees), having appeared with an attorney before the Board, were permitted to intervene in the initial appeal. After careful consideration of the evidence presented to the Board as well as the relevant statutory and case law, the lower court reversed the Board's resolution denying annexation and issued an order permitting annexation subject to acceptance or rejection by the City. The Trustees were granted a stay of the execution of the judgment pending their appeal to this court pursuant to R.C. 2506.04. The proponents cross appealed and now challenge the Trustees' standing to bring the instant appeal. They contend:
CROSS-APPELLANTS ASSIGNMENT OF ERROR
"The court below erred in granting the motion of the Bath Township Trustees (non-aggrieved parties with respect to the Summit County Commissioners' Resolution denying annexation) to intervene in the Ohio Revised Code Chapter 2506 Administrative Appeal of the annexation petitioners to Common Pleas Court."
In a two-pronged attack, cross-appellants argue that the intervention procedure of Civ. R. 24 is inapplicable to R.C 2506 appeals, and that the Bath Township Trustees are precluded from participating in the R.C. 2506 appeal because they elected to seek injunctive relief under R.C. 709.07. Citing our case of Northhampton Trustees v. City of Akron (May 19, 1982), Summit App. No. 10433, unreported, for these propositions, cross-appellants then argue that, since the Trustees were not proper parties below, they are not proper parties to this appeal.
In the recent case State, ex rel. Bd. of Trustees, v. Davis (1982), 2 Ohio St. 3d 108, the Ohio Supreme Court concluded that the petition for an injunction under R.C. 709.07 may only present errors that occurred before the board of county commissioners. Accordingly, R.C. 709.07 may not be used as a substitute for the R.C. 2506.04 appeal from a decision of the common pleas court. We are not faced, then, with the question of whether the Trustees must elect between means of review, but instead are faced with the question of whether the Trustees are entitled to any review of the common pleas court decision.
Notwithstanding the apparent limitations of R.C. 505.62, the Ohio Supreme Court observed:
Since R.C. 2506.04 provides that the judgment of the court may be appealed by any party, the above quoted language presumes that a "non-aggrieved" Board of Township Trustees is a proper party to a R.C. 2506.01 appeal. Gold Coast Realty v. Bd. of Zoning Appeals (1971), 26 Ohio St. 2d 37. Regardless of the merits ofcross-appellants arguments on the inapplicability of Civ. R. 24 to R.C. 2506 appeals, then, we can see no prejudice in using that mechanism to bring the Trustees into the proceedings below. Accordingly, we overrule this assignment of error.
On appeal, the Trustees assert eight assignments of error.
"The court of common pleas erred in failing to dismiss this case on the grounds that the City of Akron was not a proper party to this ] 709.02 et seq. annexation; further, the court erred in not finding that the City of Akron's actions in prosecuting this matter were ultra vires."
The Trustees contend that, because the agent designated by the proponents is the Law director of the City of Akron and because other attorneys representing proponents are also City employees, the City is a real party in interest and, as such, cannot request annexation under R.C. 709.02. We find nothing to support the proposition that an attorney by representing his clients or by acting as agent for his clients becomes a party to the proceeding. In the instant case, the proponents petitioned for annexation of the Territory based on their desire to develop their parcels for personal, economic gain. Attorneys who are also City employees merely acted as agent and counsel. Thus, we do not believe that the City was a party to the proceeding. Further, the Trustees are not taxpayers residing in the City and, therefore, lack standing to raise the ultra vires issue in this case.
ASSIGNMENT OF ERROR IV
"The common pleas court erred in finding the map and legal description to be full and accurate for annexation purposes."
The proponents submitted a plat map and legal description of the Territory with their petition for annexation. At the hearing, Lawrence Butterworth, a registered surveyor, testified that he had examined the proponent's legal description and had compared it with the legal descriptions contained in the recorded deeds of the various parcels comprising the Territory. In his opinion, the description in the petition contained some discrepancies when compared with the recorded descriptions. However, he testified that he was able to locate the Territory using the proponents' description but that said description did not describe the land as correctly as the recorded descriptions would permit. He flatly refused to state that the proponents' description was unclear.
According to Butterworth, the proponents' description includes a portion of a parcel of real property (the Hakim parcel) owned by a person not participating in the annexation request. When informed that their description added a property owner, the proponents agreed to modify their description to exclude the Hakim parcel. The Board properly amended the petition pursuant to R.C. 709.032. The amended description and map are accurate enough to ascertain the limits of the area to be annexed. Further, the map names the landowners who reside on the boundaries of the Territory thereby avoiding bona fide disputes as to the land annexed.
"The common pleas court erred in finding that there was contiguity between the City of Akron and the area to be annexed."
The Territory in the instant case abuts the City at the parcel known as the Garson annexation. The Trustees contend that due to several somewhat minor defects in filing the final documents to complete the Garson annexation, the Territory was not contiguous to the City on December 19, 1979, when the proponents filed their annexation request. The Trustees note that they are not attempting a "de-annexation" of the Garson parcel and admit that the Garson annexation was unquestionably effective in January, 1980, well before the Board considered and decided the petition in the instant case.
R.C. 709.21 provides:
"No error, irregularity, or defect in the proceedings under sections 709.01 to 709.20, inclusive, of the Revised Code, shall render them invalid, if the annexed territory has been recognized as a part of the annexing municipal corporation, and taxes levied upon it as such have been paid, and it has been subjected to the authority of the legislative authority of such municipal corporation, without objection from the inhabitants of such territory."
The City and the Garson parcel inhabitants believed that the Garson annexation was effective March 22, 1979. The City passed a zoning resolution concerning the Garson parcel and collected taxes upon it. We find nothing in the record to indicate that the Garson parcel inhabitants objected to the City's exercise of this authority. Thus, pursuant to R.C. 709.21, the Garson parcel was effectively annexed well before the proponents in this case filed their petition. The trial court correctly found the Territory to be contiguous with the City.
ASSIGNMENT OF ERROR VI
"The common pleas court erred in overturning the commissioners' finding that the number of valid signatures on the annexation petition constituted the majority required by O.R.C. 709.033."
Hugh Eaton, Jr.,...
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