The opinion of the court was delivered by: Judge Gregory L. Frost
Magistrate Judge Terrance P. Kemp
This matter comes before the Court for consideration of a motion for judgment on the pleadings (Doc. # 8) filed by Defendant Board of Trustees of Alexander Township, Athens County, Ohio ("Board of Trustees"), a memorandum in opposition (Doc. # 12) filed by Plaintiff Richard L. Jeffers ("Plaintiff"), and a reply. (Doc. # 15.) Also before the Court is a motion to dismiss or alternatively to stay proceedings (Doc. # 13) filed by Defendant Board of Commissioners of Athens County, Ohio ("Board of Commissioners"), a memorandum in opposition (Doc. # 13) filed by Plaintiff, and a reply. (Doc. # 19.) Finally, this Court will consider a motion to dismiss (Doc. # 17) filed by Board of Trustees, a memorandum in opposition (Doc. # 21) filed by Plaintiff, and a reply. (Doc. # 22.)
Plaintiff is a resident of Athens County, Ohio. Plaintiff is the owner of over 500 acres of real property located in Alexander Township, Athens County. At issue are two tracts of Plaintiff's property. First, Plaintiff owns a tract of land located in Section 17 of Alexander Township consisting of approximately 75 acres ("tract one"). Tract one abuts directly upon Alexander Township Road # 554, which has a common name of "Jeffers Road." Second, Plaintiff owns an additional tract of land located in Section 22 of Alexander Township consisting of approximately 24 acres ("tract two"). Tract two abuts directly upon Alexander Township Road # 548 that has a common name of "Red Lane."
Board of Commissioners is a political subdivision of the State of Ohio. It is responsible for county roads within Athens County. The Board of Trustees is also a political subdivision of the State of Ohio and has certain responsibilities associated with township roads.
A petition to vacate both Red Lane and Jeffers Road was filed with the Board of Commissioners in March of 2004. After a public viewing of both Red Lane and Jeffers Road, the Board of Commissioners voted to vacate each of them. Under Ohio Law, the vacation of a public road is considered an "improvement." Ohio Rev. Code § 5553.01. The Board of Commissioners failed to initiate proceedings to determine the amount of compensation, if any, to be awarded to Plaintiff for the cost of the improvement. See Ohio Rev. Code §§ 5553.11, 163.01-.22. To this date, the Board has not held a hearing on compensation.
Plaintiff appealed both of the Board of Commissioners' orders to vacate Jeffers Road and Red Lane to the Court of Common Pleas, Athens County, Ohio ("common pleas court") and requested a jury trial on the question of whether the closure of the two roads was "conducive to the public convenience and welfare." See Ohio Rev. Code §§ 5553.11, 163.01-.22. While the matter was on appeal, Plaintiff claims that he filed a petition with the Board of Commissioners to widen and improve Jeffers Road and Red Lane on June 29, 2004. Alleging that the Board of Commissioners has refused to act on such petition, Plaintiff filed Case No. 04C1355 on December 7, 2004. Although not containing the word "mandamus", Plaintiff's pleading seeks to compel the Board of Commissioners to meet its statutory obligations pursuant to O.R.C. § 5553.04. The common pleas court denied the Board of Commissioners' motion to dismiss. (Doc. # 2 ¶ 27; Doc. # 8-4.) This case has been stayed. (Doc. # 13; Doc. # 16.) With respect to Red Lane, Plaintiff first appeal was successful. Subsequently, the Board of Trustees filed a second petition to vacate. After holding a public viewing, the Board of Commissioners voted to vacate Red Lane. The Plaintiff again appealed the Board of Commissioners' decision to vacate Red Lane with the common pleas court under case number 04C1282.
Both the Jeffers Road appeal (Case No. 04C1324) and the second Red Lane appeal (04C1282) referenced by Plaintiff in the Complaint (Doc. # 2 ¶¶ 27, 38) are still pending. On January 12, 2005, Judge L. Alan Goldsberry ordered that two appeals be consolidated.
In addition, Plaintiff filed a "Verified Petition for Writ of Mandamus to Compel Board of County Commissioners of Athens, County Ohio to Follow Procedures outlined in O.R.C. § 5553.09, 163.01 et. Seq." (Doc. # 8-6); see (Doc. # 2-41.) In Plaintiff's Mandamus action, Plaintiff requests that the Board of Commissioners have a hearing on compensation. (Case no. 06CI190).
Thereafter, in an August 8, 2006 Decision and Judgment, Judge Goldsberry held that the Board of Commissioners neglected its duties when it failed to make an inquiry into the compensation and damages to be awarded to Plaintiff for the vacation of his lands as required by Ohio Rev. Code §§ 5553.11 and 5563.02.*fn1 Given this "substantial irregularity" Judge Goldsberry opted to stay these two consolidated cases pending the outcome of Plaintiff's mandamus action (Case no. 06CI190).
Judge Goldsberry has indicated by court order that if Plaintiff succeeds in his mandamus action and receives his desired compensation, then it may be necessary to dismiss the pending appeals without prejudice. (Doc. # 8-7.) However, if the Board of Commissioners renders a decision from which Plaintiff is dissatisfied, then Judge Goldsberry may address the compensation issue by means of a jury trial in the mandamus action pending before him*fn2. (Doc. # 8-7.)
Thus, currently, there are two appeals pending before the common pleas court (Case Nos. 04C1324 and O4C1282), a pending mandamus action (Case No. 06CI190), and a pending pro se action aforementioned (Case No. 04C1355).
On May 17, 2006 Plaintiff filed a Complaint (Doc. # 2) with this Court against the Board of Commissioners and the Board of Trustees asserting several claims directly related or ancillary to the vacating of Red Lane and Jeffers Road. The claims include allegations of property takings without just compensation, denial of procedural and substantive due process, deprivation of constitutional rights as they relate to vacation process ...