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State ex rel Overholser Builders, LLC. v. Board of County Commissioners of Clark County

December 5, 2008

STATE OF OHIO, EX REL., OVERHOLSER BUILDERS, LLC, ET AL. RELATORS
v.
BOARD OF COUNTY COMMISSIONERS OF CLARK COUNTY, ET AL. RESPONDENTS



The opinion of the court was delivered by: Donovan, J.

(Writ of Mandamus)

OPINION

{¶1} This matter is before the Court on the Petition for Writ of Mandamus of Relators, Overholser Builders, LLC; James Davis, Nancy Davis, Gary Durst; Linda Durst and Dawn Annette Foreman Mishler ("Relators") filed May 1, 2007 against the Board of County Commissioners of Clark County, Ohio, and Commissioners Roger Tackett, David Hartley, John Detrick, as well as Michelle Noble, Clerk ("Board"). The Relators own parcels of real property within Springfield Township, Clark County, and they unanimously sought to have 61.38 acres annexed to the City of Springfield, Ohio, by filing a petition for annexation with the Board. On March 13, 2007, the Board adopted Resolution 24607, denying the petition because "the territory described in the petition is not contiguous to the City of Springfield, as required by ORC 709.021(A) and 709.022."

{¶2} After Relators filed their Petition for Writ of Mandamus, the Board filed a Motion to Dismiss and Brief in Support of Motion. Relators then filed a Brief in Opposition to Respondents' Motion to Dismiss. On November 21, 2007, we issued a per curiam Decision and Entry overruling the Board's motion to dismiss, and the matter is now before us on the Briefs of Relators and the Board, and the Reply Brief of Relators.

{¶3} The parties filed stipulations of fact on February 26, 2008, stating in relevant part, "The annexation petition satisfied all other statutory requirements for an expedited annexation by unanimous consent as provided in Sections 709.021 and 709.022 of the Ohio Revised Code except that Respondents deny that the territory sought to be annexed is adjacent to and contiguous with the existing boundary of the City of Springfield, Ohio, whereas Relators contend that the territory satisfies the requirement of adjacency and contiguity under Section 709.021 and 709.022 of the Revised Code."

{¶4} Relators assert one "argument" as follows:

{¶5} "RESPONDENTS HAD A CLEAR LEGAL DUTY UNDER OHIO REVISED CODE SECTIONS 709.021 AND 709.022 TO APPROVE RELATOR'S ANNEXATION PETITION, AND RELATORS ARE ENTITLED TO A WRIT OF MANDAMUS DIRECTING RESPONDENTS TO PERFORM SUCH DUTY."

{¶6} As we previously noted in overruling the Board's motion to dismiss, "It is well-established that a writ of mandamus will issue if the party seeking the writ demonstrates that respondent is under a clear legal duty to perform the requested act, that there is a clear legal right to the requested relief, and that there is no plain and adequate remedy in the ordinary course of the law." (citations omitted). State ex rel. Overholser Builders, LLC, et al v. Board of Cty. Comms. of Clark County, Clark App. No. 2007 CA 36, 2007-Ohio-7230, ¶16.

{¶7} By way of background, in their motion to dismiss, the Board argued, "the Ohio Legislature intended not to permit mandamus actions in connection with proceedings under R.C. 709.022." In overruling the Board's motion to dismiss, we determined, when a valid petition for annexation is filed pursuant to R.C. 709.022, "that statute creates a legal duty on the part of the board of county commissioners to grant the petition and a corresponding right on the part of the annexation petitioners to have the petition granted." Id., at ¶15. Pursuant to Section 16, Article I of the Ohio Constitution, which provides, "All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay," the right created by the filing of a valid petition for annexation pursuant to R.C. 709.022, cannot exist without a remedy. R.C. 709.07, which authorizes appeals under R.C. 2506, does not apply to annexation petitions filed pursuant to R.C. 709.022. R.C. 709.021(C). In other words, annexation petitioners, assuming a valid annexation petition exists, have no plain and adequate remedy in the ordinary course of the law, making an action in mandamus the appropriate means to seek a remedy.

{¶8} Since we found that the third element of the test for a writ of mandamus has been met, we must next determine whether or not the Board has a clear legal duty to act, and whether Relators have a clear legal right.

{¶9} "As revealed by the statutes enacted by the General Assembly that are currently in force, it is the policy of the state of Ohio to encourage annexation by municipalities of adjacent territory." Middletown v. McGee (1988), 39 Ohio St.3d 284, 285, 530 N.E.2d 902. "'[A]nnexation is strictly a statutory process.' (Internal citation omitted). Consequently, the procedures for annexation and for challenging an annexation must be provided by the General Assembly.

{¶10} "Since 2001, R.C. Chapter 709 has provided four procedures for the annexation of property. 2000 Am.Sub.S.B. No. 5 ('Senate Bill 5'). Three of those procedures are expedited procedures that may be used when all of the owners of the property within the annexation territory sign the petition for annexation. See R.C. 709.021, 709.022, 709.023, and 709.024. Under each of these procedures, the owners of real estate contiguous to a municipal corporation may petition for annexation to that municipal corporation. R.C. 709.02 (A)." State ex rel. Butler Twp. Bd. Of Trustees v. Montgomery Cty Bd. of Commrs., 162 Ohio App.3d 394, 2005-Ohio-3872, at ¶ 9-10.

{¶11} R.C. 709.021(A) provides, "When a petition signed by all of the owners of real estate in the unincorporated territory of a township proposed for annexation requests the annexation of that territory to a municipal corporation contiguous to that territory under one of the special procedures provided for annexation in sections 709.022, 709.023, and 709.024 of the Revised Code, the annexation proceedings shall be conducted under those sections to the exclusion of any other provisions of this chapter unless otherwise provided in this section or the special procedure section chosen."

{ΒΆ12} R.C. 709.022 (A) provides, "A petition filed under section 709.021 of the Revised Code that requests to follow this section is for the special procedure of annexing land with the consent of all parties. The petition shall be accompanied by a certified copy of an annexation agreement provided for in section 709.192 of the Revised Code or of a cooperative economic development agreement provided for in section 701.07 of the Revised Code, that is entered into by the municipal corporation and each township any portion of which is included within the territory proposed for annexation. Upon the receipt of the petition and the applicable agreement, ...


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