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In re Creation of a Park District Within Chester Township

Court of Appeals of Ohio, Eleventh District, Geauga

May 30, 2017

IN THE MATTER OF THE CREATION OF A PARK DISTRICT WITHIN CHESTER TOWNSHIP

         Appeal from the Geauga County Court of Common Pleas, Probate Division, Case No. 84 PC 000139.

          Frank H. Scialdone and Todd M. Raskin, Mazanec, Raskin & Ryder Co., L.P.A., Bridey Matheney, Assistant Prosecutor, (For Appellant C Chester Township Board of Trustees).

          James M. Gillette, City of Chardon Police Prosecutor, PNC Bank Building, (For Appellee C Chester Township Park District Board of Commissioners).

          OPINION

          SEAN C. GALLAGHER, P.J.

         {¶ 1} The core of this appeal is the extent of the probate court's jurisdiction over a judicially created park district under R.C. Chapter 1545. The probate court invoked its own continuing jurisdiction in a case initiated by the Chester Township Board of Trustees ("Trustees") in 1984 to create the Chester Township Park District ("Park District"). The central question, as framed by the parties, is whether the probate court maintained jurisdiction over the Trustees and the township as a political entity either through the exercise of its plenary power to enforce the terms of the 1984 order creating the Park District or, otherwise, through the probate court's continuing jurisdiction over the Park District as provided in R.C. Chapter 1545.

         {¶ 2} The May 10, 1984 order creating the Park District did not impose any obligations or duties. It simply created the legal entity known as the Park District, established the territorial limits of the Park District, and noticed an intent to appoint the original Park District Board of Commissioners ("Commissioners"). There are no terms in that order to be enforced in perpetuity. See, e.g., Am. Motors Corp. v. Huffstutler, 61 Ohio St.3d 343, 349, 575 N.E.2d 116 (1991) (case remanded for further proceedings including the exercise of continuing jurisdiction in connection with enforcing the terms of a permanent injunction). Generally in Ohio, trial courts do not maintain the power, plenary or otherwise, to enforce the terms of a final order absent the grant of continuing jurisdiction or an express retention of jurisdiction in the final judgment. See, e.g., Infinite Sec. Solutions, LLC. v. Karam Props. II, 143 Ohio St.3d 346, 2015-Ohio-1101, 37 N.E.3d 1211, ¶ 30 (power to enforce settlement agreement must be expressly included in final judgment of dismissal); In re Adams, 45 Ohio St.3d 219, 543 N.E.2d 797 (1989) (although domestic relations court generally has continuing jurisdiction, statutory scheme does not include the continuing jurisdiction to modify alimony); In re J.F., 121 Ohio St.3d 76, 2009-Ohio-318, 902 N.E.2d 19, ¶ 20. Because there was nothing to enforce in the order creating the Park District, the Park District has focused its entire argument on the statutory grant of continuing jurisdiction conferred on a probate court in matters involving a park district as the basis for the probate court's action.

         {¶ 3} Based on the statutory framework, however, we must conclude that the probate court exceeded its jurisdiction by declaring portions of an arm's-length agreement entered under R.C. 1545.14 to be invalid and imposing the costs of the master commissioner, appointed to review the Commissioners' conduct, against an unrelated political entity. In light of the demonstrated confusion over a park district's functions and the probate court's role within Chapter 1545, we must begin with the facts of this case as they relate to the statutory framework within which the Park District operates.

         {¶ 4} Upon the creation of a park district, the probate court is required to appoint three commissioners to the board whose terms expire on a rotating basis for the first three years. R.C. 1545.05. Thereafter, each commissioner is appointed for a three-year term. Id. Judge Frank Lavrich created the Park District and appointed the first Commissioners on May 17, 1984. In the early years, the Trustees were responsible for soliciting volunteers and applications for the position of Commissioner, and the probate court accepted the Trustees' recommendation for filling any vacancy. In September 1993, Judge Charles Henry succeeded Judge Lavrich, and according to the record, Judge Henry followed his predecessor's procedure. By July 2007, the probate court began taking applications for the position of Commissioner directly instead of filtering the applications through the Trustees.

         {¶ 5} The creation of the Park District created a legal entity, separate and apart from the township. However, the creation of the Park District did not automatically transfer any land or property over which the Park District could assert control. R.C. 1545.14 expressly provides that a park district cannot acquire or control any park, park lands, parkways, playgrounds, or other lands, or boulevards owned or controlled by any other public authority unless an agreement is reached between the park district and the public authority in possession of such lands. Id. In other words, the public authorities maintained their ownership interests in any park land within the territorial limits of the Park District after its creation. There is no statutory obligation for any public authority to cede ownership or control of its park lands to a park district. A park district does not have a purpose unless there are properties to be maintained, to be developed, or over which the park district could assume control. The legislature contemplated this possibility and provided for the dissolution of a park district after a prolonged period of inactivity. R.C. 1545.38 (upon notice that the park district has not made any expenditures or deposits of funds in five years, the district shall be dissolved). In order to avoid this situation, the legislature provided two mechanisms.

         {¶ 6} A park district could purchase or acquire its own property. R.C. 1545.11. Under R.C. 1545.11, the commissioners could, but were not required to, acquire

lands either within or without the park district for conversion into forest reserves and for the conservation of the natural resources of the state, including streams, lakes, submerged lands, and swamp lands, and to those ends may create parks, parkways, forest reservations, and other reservations and afforest, develop, improve, protect, and promote the use of the same in such manner as the board deems conducive to the general welfare.

         The commissioners have the discretion to obtain such property through gift, purchase by cash or installment payments, or by appropriation, which can only occur through the manner provided in R.C. 163.01 to 163.22. Any gift of property must be approved by the probate court. R.C. 1545.11. The Park District has not obtained any property of its own.

         {¶ 7} The second method of obtaining a purpose for a park district is through R.C. 1545.14, which is entitled "Cooperation with other public authorities." That section provides that the commissioners may enter into agreements with other legislative or public authorities in control of parks or park lands, whether within or without the park district, either (1) to assume control of all or a portion of any existing lands or (2) to otherwise contract or cooperate with the other public authority in connection with the "use, development, improvement, and protection of parks or park lands." (Emphasis added.) Id. It is important to note the disjunctive phrasing of the options.

         {¶ 8} The commissioners of a park district do not need probate court approval before entering any agreement under R.C. 1545.14. The agreements are left to the discretion of the commissioners appointed to manage the park district. If the legislature had intended for the commissioners to seek probate court approval, language similar to sections 1545.11, 1545.12(B), and 1545.15, all of which require approval before the commissioners undertake specific actions, could have been included in R.C. 1545.14. State ex rel. Cordray v. Court of Claims of Ohio, 190 Ohio App.3d 161, 2010-Ohio-4437, 941 N.E.2d 93, ¶ 27 (10th Dist.) (the omission of language dictates the conclusion that the legislature did not intend the omitted language to have any force or effect in proceedings under the statutory section). The contracting option provides the park district with a limited role in which the township delegates some or all of its responsibility over park lands to the park district through an agreement.

         {¶ 9} Although it is a far better practice to define that role in writing, there is no legislative requirement that a park district enter a written contract with the public authority; it may simply "cooperate with" the other political body for the maintenance, use, and development of the park lands. There is also no statutory requirement specifying the degree of control over the park lands that the public authority must delegate to the park district. According to the unambiguous terms of R.C. 1545.14, the public authority may retain any degree of control it deems necessary in contracting or cooperating with the park district. Regardless of which option is chosen, the park district is authorized to develop, improve, and protect those lands as if the lands were acquired by the commissioners. Id.

         {¶ 10} The legislature also provided park districts with several options to obtain funding. The park district may levy a dedicated tax in an amount not to exceed one-half of one mill, but only "[a]fter the budget commission of the county in which the district is located certifies such levy, or such modification thereof as [the budget commission] considers advisable, to the county auditor, he shall place it upon the tax duplicate." (Emphasis added.) Id. Thus, it is within the commissioners' discretion whether to seek the dedicated tax, and even if the commissioners decide to pursue the independent source of funding, the county budget commission must certify the tax if they consider any portion of it advisable. Id. In this case, the Park District received the dedicated tax up until 2002. According to the master commissioner, the township eliminated it.[1] Despite the elimination of the tax, the township provided the Park District with its necessary funding-as would be expected considering the fact that the township still owned the properties and had an obligation and desire to ensure the continuing vitality of the park lands. See R.C. 511.37 (township trustees may make contributions of money from its general fund to the park district for the purpose of planning, acquisition, management, and improvement); 1988 Ohio Atty.Gen.Ops. No. 88-033 (interpreting R.C. 511.37 to mean that the board of a park district does not need to seek approval of the funding terms from the probate court).

         {¶ 11} In addition to the dedicated millage, the commissioners may directly submit a request for an additional tax levy to the voters by resolution. R.C. 1545.21. Outside of taxes, a park district may also receive a share of the undivided local government fund as determined by the county budget commission for the purpose of managing the park land properties. 2008 Ohio Atty.Gen.Ops. No. 08-020, at 21-22, citing R.C. 5747.51.

         {¶ 12} In April 1985, the Park District and the Trustees negotiated an arm's-length agreement under R.C. 1545.14 wherein the Trustees, with "the authority and responsibility to operate and maintain park lands within Chester Township" agreed (1) to allow the Park District to assume control of all park lands owned by the township for a period of five years unless either party terminates the agreement with 90 days' advance notice; (2) that the Park District would operate, maintain, develop, improve, and protect the park lands for the residents of Chester Township and the public; (3) that subject to prior approval from the Trustees, the Commissioners could (a) enter agreements with other political subdivisions for the use and operation of the parks, (b) construct or alter permanent improvements on the park or park lands, and (c) contract for and incur debts that could result in liens being imposed on the township's park land properties; and (4) that the Commissioners must agree that no rangers or park officers shall be appointed other than police officers employed by the township. No one disputed the terms of that agreement.

          {¶ 13} In 1993, following the expiration of the original agreement and a short period in which the Park District cooperated with the township to maintain the park lands without a formal agreement, the Park District and the township negotiated a second agreement nearly identical to the first. There were two material differences between the agreements: (1) the 1993 agreement was for a period of five years, to renew yearly into perpetuity, but subject to the same 90-day term ination clause; and (2) the 1993 agreement was not for the stated purpose of the Park District assuming all control over the township's park lands. The Park District had a more limited role. The Park District only had the contractual authority to use, develop, improve, and protect the park lands within the township and subject to the limitations to which the Park District agreed. No one, and certainly neither of the real parties in interest to the agreement, challenged any aspect of the 1993 agreement in any court of competent jurisdiction.

         {¶ 14} In the early part of 2014, an anonymously drafted "report" surfaced, entitled "Chester Township Park District 2013 Review" ("the review"). The review questioned the Park District's financial affairs. Under R.C. 1545.06, which provides that any park commissioner may be removed at the discretion of the probate judge, the probate court had continuing jurisdiction to sua sponte consider removing any one of the Commissioners based on those allegations of financial misconduct. If, in exercising its grant of continuing jurisdiction, the probate court felt it necessary to remove any Commissioner, the court ...


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