Petition for Incorporation of the Village of Holiday City, In re
| Citation | 70 Ohio St.3d 365,639 N.E.2d 42 |
| Decision Date | 28 September 1994 |
| Docket Number | No. 93-1115,93-1115 |
| Parties | In re PETITION FOR INCORPORATION OF THE VILLAGE OF HOLIDAY CITY: BOARD OF TRUSTEES OF JEFFERSON TOWNSHIP et al., Appellants, v. PETITIONERS FOR INCORPORATION OF the VILLAGE OF HOLIDAY CITY et al., Appellees. |
| Court | Ohio Supreme Court |
SYLLABUS BY THE COURT
Township trustees may not challenge a board of county commissioners' decision involving a petition for incorporation through either an R.C. Chapter 2506 appeal or an R.C. 707.11 proceeding.
This appeal arises from four separate cases filed in the Court of Common Pleas for Williams County. The facts concerning this appeal are not in dispute.
On July 16, 1991, various landowners residing in Jefferson Township, Williams County, Ohio, appellees, filed a petition with the Board of Commissioners of Williams County to incorporate an area of the township and establish a village to be known as Holiday City. 1 Appellees are residents of the area in question. On August 26, 1991, the board held a public hearing with respect to the petition.
The August 26, 1991 hearing was attended by appellants, Board of Trustees of Jefferson Township, Howard Ames and Dale Holtrey. Ames and Holtrey are landowners and residents of the township, but they live outside the area sought to be incorporated. Also present and participating at the hearing was amicus curiae, Toledo Edison Company ("Toledo Edison"), which owns and maintains land within the area at issue. Appellants and Toledo Edison challenged the proposed incorporation.
Following the hearing, the board granted the petition. Thereafter, appellants filed, in the Court of Common Pleas of Williams County, an R.C. Chapter 2506 appeal from the board's determination. This appeal was assigned case No. 91-CI-129 ("case No. 129"). In addition, appellants filed an R.C. 707.11 injunction proceeding, claiming that the board's decision was unreasonable and unlawful. Appellants requested that the trial court prohibit the Recorder of Williams County from making and filing a copy of the record of incorporation with the Ohio Secretary of State. Appellants' injunction action was assigned case No. 91-CI-143 ("case No. 143"). Meanwhile, Toledo Edison also filed, in the same court, a statutory injunction proceeding and an administrative appeal regarding the board's ultimate decision granting the petition. Toledo Edison's R.C. 707.11 action was assigned case No. 91-CI-125 ("case No. 125") and its R.C. Chapter 2506 appeal case No. 91-CI-128 ("case No. 128").
Subsequently, appellees filed motions to dismiss appellants' administrative appeal and statutory injunction action (case Nos. 129 and 143). The trial court issued separate judgment entries granting these motions and, citing In re Appeal of Bass Lake Community, Inc. (1983), 5 Ohio St.3d 141, 5 OBR 273, 449 N.E.2d 771, determined that the township trustees lacked standing to pursue an administrative appeal from the board's decision, or to oppose the incorporation of the village under R.C. 707.11. The trial court made a similar determination with respect to Ames and Holtrey. On February 20, 1992, appellants appealed the judgments of the trial court, regarding case Nos. 129 and 143, to the Court of Appeals for Williams County.
On March 4, 1992, appellants also moved to intervene in both Toledo Edison cases (case Nos. 125 and 128). The trial court, in separate judgment entries, denied appellants' motions. As a result, appellants appealed those judgments to the court of appeals. 2
On March 4 and April 22, 1992, the court of appeals, sua sponte, consolidated all four cases, assigning the appeals as case No. 92WM000011. The court of appeals affirmed the judgments of the trial court, finding that the court did not err in dismissing case Nos. 129 and 143 or denying appellants' motion to intervene in case Nos. 125 and 128.
This cause is now before the court pursuant to the allowance of a motion to certify the record.
Gary F. Kuns, Maumee, and Robert C. Battin, Grand Rapids, for appellants.
David W. Zoll & Associates, David W. Zoll and Michelle L. Kranz, Toledo, for appellees.
Fuller & Henry, Craig J. Van Horsten, Mary Ann Whipple and Lance M. Keiffer, Toledo, urging reversal for amicus curiae, Toledo Edison Co.
The issue before this court is whether R.C. 707.11 and R.C. Chapter 2506 present potential avenues of review available to township trustees and individual property owners to challenge a board of county commissioners' decision granting a petition for incorporation of a village. Specifically, appellants claim that the trial court erred in denying them standing to bring an R.C. Chapter 2506 appeal in case No. 129, to pursue an R.C. 707.11 injunction action in case No. 143, and to participate in case Nos. 125 and 128 3 involving Toledo Edison. For the sake of clarification with respect to the applicable law, we have categorized appellants into two classes, the trustees and the individual property owners.
Although we have not specifically dealt with the questions raised by appellants' contentions involving incorporation disputes, this court has, on various occasions, reviewed the statutory scheme concerning Ohio's annexation law and evaluated remedies available to township trustees and others in annexation proceedings. We are fully aware that annexation and incorporation are different concepts and, in some instances, present different policy considerations. However, we believe that a brief review of some of our decisions in the area of annexation lends insight into whether township trustees have standing to oppose a board of county commissioners' decision granting a petition for incorporation.
In In re Appeal of Bass Lake Community, Inc., supra, this court held that township trustees do not have standing under R.C. 307.56 and 2506.01 to participate in an appeal from a decision of a board of county commissioners denying an annexation petition, but that the trustees do have standing to pursue an R.C. 709.07 injunction proceeding where a petition for annexation has been granted. The township trustees in Bass Lake argued that the 1980 amendments to R.C. Chapter 709, when read in conjunction with R.C. 505.62 (), granted them the right to participate in an R.C. Chapter 2506 appeal of the county commissioners' decision in an annexation proceeding. At the time, R.C. 505.62 authorized township trustees to appropriate funds for representation by an attorney at annexation proceedings before a board of county commissioners and upon any appeal of a board's decision brought pursuant to R.C. 709.07.
We disagreed with the trustees' contentions in Bass Lake and determined that R.C. 505.62 Id., 5 Ohio St.3d at 143, 5 OBR at 275, 449 N.E.2d at 774. We further explained that:
Id. at 144, 5 OBR at 276, 449 N.E.2d at 774.
In response to our decision in Bass Lake, the General Assembly amended R.C. 505.62. As a result, township trustees can now appropriate funds for any appeal of a board's decision pursuant to R.C. 709.07 or R.C. Chapter 2506. In addition, the General Assembly specifically added the language, "The board of township trustees * * * has standing in any appeal of the board of county commissioners' decision on the annexation of township territory that is taken pursuant to section 709.07 or Chapter 2506. of the Revised Code * * *." (Emphasis added.) R.C. 505.62 (see 140 Ohio Laws, Part I, 2196). Interpreting this amendment, this court has held that township trustees may appeal a board of county commissioners' denial of a petition for annexation through an R.C. Chapter 2506 appeal, but R.C. 709.07 provides the exclusive remedy for those who challenge a board's approval of a petition. See In re Annexation of 311.8434 Acres of Land (1992), 64 Ohio St.3d 581, 597 N.E.2d 460 4; see, also, In re Annexation of 466.112 Acres of Land (1992), 65 Ohio St.3d 226, 602 N.E.2d 1136; compare In re Petition to Annex 320 Acres to the Village of S. Lebanon (1992), 64 Ohio St.3d 585, 597 N.E.2d 463.
In essence, Bass Lake and its progeny reinforce the well-settled principle that township trustees can exercise only those powers granted by the General Assembly. See, also, Trustees of New London Twp. v. Miner (1875), 26 Ohio St. 452, 456 (); and Geauga Cty. Bd. of Commrs. v. Munn Rd. Sand & Gravel (1993), 67 Ohio St.3d 579, 621 N.E.2d 696 (). Therefore, the question we are confronted with is whether the General Assembly conferred upon the...
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