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Tuscarawas Twp. Bd. of Trustees v. Stark Cty. Bd. of Commrs. et al

October 11, 2011

TUSCARAWAS TWP. BD. OF TRUSTEES, APPELLANTS,
v.
STARK CTY. BD. OF COMMRS. ET AL., APPELLEES.



CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2010CV02510 JUDGMENT: AFFIRMED

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

Cite as Tuscarawas Twp. Bd. of Trustees v. Stark Cty. Bd. of Commrs., 2011-Ohio-5581.

JUDGES Hon. W. Scott Gwin, P.J. Hon. Julie A. Edwards, J. Hon. Patricia A. Delaney, J.

OPINION

[Cite as Tuscarawas Twp. Bd. of Trustees v. Stark Cty. Bd. of Commrs. , 2011-Ohio-5581.]

{¶1} Appellants Tuscarawas Township Board of Trustees appeal the January 31, 2011 judgment entry of the Stark County Court of Common Pleas reversing the decision of the Stark County Board of Commissioner to deny Appellee City of Massillon's annexation petition seeking to annex 61.852 acres of Tuscarawas Township into the City of Massillon. For the reasons that follow, we affirm the trial court's decision.

STATEMENT OF THE FACTS AND CASE

{¶2} WTJ, Inc. is the owner of a large parcel of property in Tuscarawas Township, Stark County, Ohio, that planned to develop the parcel into a residential allotment named "Poets Glen." Stark County approved the preliminary plans for Poets Glen.

{¶3} In 2008, WTJ, Inc. pursued annexation of the allotment into the City of Massillon. On February 5, 2008, Jason Haines, agent of the petitioners referenced below, filed a petition with the Stark County Board of Commissioners for the annexation of 61.852 acres of real property located in Tuscarawas Township into the City of Massillon ("2008 Petition"). The proposed annexation territory consisted of seven separate parcels of land owned by five separate entities: WTJ, Inc., William P. Broel, Josephine M. Broel, Bison Storage, Inc., and TJ & MG Properties, LLC. The submitted annexation petition was signed by four of the owners of the area to be annexed: WTJ, Inc., William P. Broel, Josephine M. Broel, and Bison Storage, Inc. TJ & MG Properties, LLC refused to sign the petition.

{¶4} The only area of the annexation territory adjacent to the City of Massillon is approximately 531.02 feet of property owned by TJ & MG Properties, LLC. The TJ & MG Properties, LLC property abuts a bicycle path owned by the City of Massillon. If viewing the total length of the bicycle path from a map, the bicycle path in some locations crosses fully within the territory of the City of Massillon. At other locations, the bicycle path owned by the City of Massillon bisects territory located within Tuscarawas Township. The portion of the bicycle path at issue in the present case bisects the territory of Tuscarawas Township; however, a small portion of the bike path divides TJ & MG Properties, LLC's land from the City of Massillon.

{¶5} The annexation petition came on for a public hearing before the Stark County Board of Commissioners on April 9, 2008. Rick Flory, the Stark County Budget and Property Manager, testified at the hearing that the petition contained a defect as to the maintenance of a section of roadway in the proposed annexation territory. The petition failed to include a roadway and incorrectly identified a street as a road.

{¶6} After taking testimony from representatives of the City of Massillon and Tuscarawas Township, the Stark County Board of Commissioners approved the annexation petition in a 2 to 1 decision. The resolution was adopted on May 8, 2008.

{¶7} The Tuscarawas Township Board of Trustees filed a notice of administrative appeal in the Stark County Court of Common Pleas. The trial court issued its decision on July 25, 2008, affirming the decision of the Stark County Board of Commissioners to permit the annexation.

{¶8} Tuscarawas Township filed a notice of appeal of the trial court's decision to this Court. In its appeal, Tuscarawas Township argued the trial court committed reversible error in affirming the decision of the Stark County Board of Commissioners granting the annexation. Specific to the present appeal, Tuscarawas Township argued in its appeal of the 2008 Petition: (1) the annexation did not meet the contiguity requirements of R.C. 709.02(A) because the annexation territory created a balloon configuration; (2) the requirements of R.C. 709.02(A) and R.C. 709.033 were not met because the property owner adjacent to the City of Massillon, TJ & MG Properties, LLC, did not sign the petition and objected to the annexation; (3) the annexation was unreasonably large in violation of R.C. 709.033(A)(4); (4) the petitioners failed to meet their burden to show the benefits of annexation outweighed the detriments as required by R.C. 709.033(A)(5); and (5) the petition contained divided streets or highways prohibited by R.C. 709.033(A)(6).

{¶9} In Tuscarawas Twp. Bd. of Trustees v. City of Massillon, et al., Stark App. No. 2008CA00188, 2009-Ohio-3267, this Court examined each of Tuscarawas Township's arguments. We overruled Tuscarawas Township's assignments of error and affirmed the trial court's decision, except as to its resolution of Tuscarawas Township's argument under R.C. 709.033(A)(6), divided streets or highways. The City of Massillon passed an ordinance stating it would maintain the streets within the annexation territory, but failed to include Beaumont Avenue and incorrectly identified Wooster Street. Mr. Flory testified at the hearing the agent for the petitioners was aware of the oversight and would correct the error. We held the petition did not comply with R.C. 709.033(A)(6) because the agent for the petitioners could not cure defects in an ordinance passed by the City of Massillon. For that sole reason, we reversed the decision of the trial court to affirm the decision of the Stark County Board of Commissioners and remanded the matter for further proceedings.

{¶10} The petitioners filed a second petition for annexation for the same territory known as Poets Glen ("2010 Petition"). The annexation territory in the 2010 Petition consists of the same 61.852 acres located in Tuscarawas Township as in the 2008 Petition. Tuscarawas Township is 128,896 acres. The City of Massillon is 1,196,992 acres.

{¶11} The area to be annexed has five property owners: WTJ, Inc., William P. Broel, Josephine Broel, Bison Storage Inc., and TJ & MG Properties, LLC. WTJ, Inc., William P. Broel, Josephine M. Broel, and Bison Storage, Inc. signed the 2010 Petition. The owners in favor of the annexation own 53.38 acres of the 61.852 acres to be annexed, approximately eighty-seven percent. The property owned by TJ & MG Properties, LLC is adjacent to the City of Massillon, but TJ & MG Properties, LLC refused to sign the 2010 Petition for annexation. TJ & MG Properties, LLC own thirteen percent of the territory proposed to be annexed.

{¶12} On June 10, 2010, the Stark County Board of Commissioners held a hearing on the 2010 Petition. Mr. Flory testified that the errors regarding identification of the streets had been corrected in the 2010 Petition.

{¶13} David Hayes, an officer with WTJ, Inc. testified at the hearing. WTJ, Inc. owned the majority of the property to be annexed into the City of Massillon. Regardless of the approval or disapproval of the annexation of the territory into the City of Massillon, Hayes testified that WTJ, Inc. was going to develop its property into a residential allotment for single-family homes. The expense of the construction of the water andsewer lines to the allotment was dependent on the annexation. If the annexation was not approved, WTJ, Inc. would be required to tap into the Stark County water and sewer system. The location of the Stark County water and sewer lines required the lines be extended to existing homes in Tuscarawas Township that currently utilized septic systems. Pursuant to Stark County Board of Health regulations, the Tuscarawas Township homeowners would be required to tap into the Stark County sewer system at the homeowner's expense. If the 2010 Petition was approved, the allotment could connect to the City of Massillon water and sewer lines in a different location and at the City of Massillon's expense, thereby avoiding properties in the Township.

{¶14} The area to be annexed currently received police services from the Stark County Sheriff's Department and fire services from a combination of three fire departments. The City of Massillon would provide fire, police, and emergency transport services to the annexation territory if approved. Tuscarawas Township provided snowplowing and street paving, as would the City of Massillon. The City of Massillon would provide trash pickup service.

{¶15} The total taxable value of the annexation territory was $184,360. The tax loss to Tuscarawas Township if the property was annexed would be $8,775.10 and the tax gain to the City of Massillon would be $8,532.69. The Mayor of the City of Massillon offered the Tuscarawas Township Trustees one-hundred percent of the real estate taxes forever if the Trustees did not oppose the annexation. The Trustees testified at the hearing they rejected the City's offer.

{¶16} Homeowners impacted by the annexation testified at the hearing. The owners of TJ & MG Properties, LLC testified they objected to the annexation into the City of Massillon because they intentionally purchased property in Tuscarawas Township due to the lack of zoning regulations. Other homeowners were concerned about the increased traffic in the area.

{¶17} At the conclusion of the public hearing, the Stark County Board of Commissioners voted 2 to 1 to deny the petition for annexation. The June 10, 2010 resolution stated the petition for annexation was denied under R.C. 709.033(A)(5) because the general good of the territory would not be served by the annexation.

{¶18} The City of Massillon filed an administrative appeal of the Stark County Board of Commissioners' decision. On January 31, 2011, the trial court issued a comprehensive judgment entry, reversing the decision of the Stark County Board of Commissioners to deny the 2010 Petition. The trial court further found that the Board's decision did not meet the requirements of R.C. 709.033(B) in that the resolution denying the 2010 Petition did not contain specific findings of fact as to whether the requirements of R.C. 709.033(A)(1) to (6) had been met. The Board was instructed by the trial court to adopt a resolution consistent with the findings of the trial court.

{¶19} It is from this decision Tuscarawas Township appeals.

{¶20} Tuscarawas Township raises one Assignment of Error:

{¶21} "THE TRIAL COURT ERRED AS A MATTER OF LAW BY REVERSING THE DECISION OF THE STARK COUNTY BOARD OF COMMISSIONERS WHICH DENIED THE ANNEXATION PETITION AT ISSUE."

{¶22} (A) STANDARD OF REVIEW

{¶23} In an appeal of an annexation decision, the common pleas court must consider the whole record including any new or additional evidence admitted pursuant to R.C. 2506.03 and determine whether the decision of the county board of commissioners is unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of the substantial, reliable and probative evidence. Henley v. City of Youngstown Bd. Of Zoning Appeals, 90 Ohio St.3d 142, 147, 2000- Ohio-493, 735 N.E.2d 433.

{¶24} In an appeal from the judgment of the common pleas court on a petition for annexation, this Court has a more limited scope of review. Kisil v. Sandusky (1984), 12 Ohio St.3d 30, 34, 465 N.E.2d 848. The standard of review for an appellate court is limited to questions of law and does not include the same extensive power to weigh and consider evidence as is granted to the common pleas court. Id. Under this standard of review, the judgment of the common pleas court must be affirmed unless, as a matter of law, its decision is not supported by a preponderance of the substantial, reliable, and probative evidence. In re American Outdoor advertising, LLC, Union App. No. 14-02- 27, 2003-Ohio-1820, at ¶ 5, citing Kisil, supra. This standard of review is tantamount to an abuse of discretion standard; therefore, an appellate court should reverse the trial court's judgment in such a case only upon a finding that the decision is unreasonable, arbitrary, or unconscionable. Tuscarawas Twp. Bd. of Trustees v. City of Massillon, Stark App. No. 2008CA00188, 2009-Ohio-3267, ¶ 19-20 citing In re American Outdoor Advertising, supra at ¶ 5; see, also, Kisil, supra 12 Ohio St.3d at fn. 4; In re: Petition to Annex 100.642 Acres of Violet Township into Village of Canal Winchester, Fairfield App. No. 03CA073, 2004-Ohio-7092, at ¶ 11; Marsillo v. Stow City Council, Summit App. No. 22229, 2005-Ohio-473, at ¶ 11; Anderson v. City of Vandalia, 159 Ohio App.3d 508, 2005-Ohio-118, 824 N.E.2d 568 at ¶ 22.

{¶25} Before a board of commissioners may grant a petition for annexation, they must consider the petition in light of the factors set forth in R.C. 709.033(A):

{¶26} "After the hearing on a petition for annexation, the board of county commissioners shall enter upon its journal a resolution granting the annexation if it finds, based upon a preponderance of the substantial, reliable, and probative evidence on the whole record, that each of the following conditions have been met:

{¶27} "(1) The petition meets all the requirements set forth in, and was filed in the manner provided in, section 709.02 of the Revised Code.

{¶28} "(2) The persons who signed the petition are owners of real estate located in the territory proposed to be annexed 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 that territory.

{¶29} "(3) The municipal corporation to which the territory is proposed to be annexed has complied with division (D) of section 709.03 of the Revised Code.

{¶30} "(4) The territory proposed to be annexed is not unreasonably large.

{¶31} "(5) On balance, the general good of the territory proposed to be annexed will be served, and the benefits to the territory proposed to be annexed and the surrounding area will outweigh the detriments to the territory proposed to be annexed and the surrounding area, if the annexation petition is granted. As used in division

(A)(5) of this section, 'surrounding area' means the territory within the unincorporated area of any township located one-half mile or less from any ...


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