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Landowners Whose Property Extends into Roadway Right-Of-Way Must OK ‘Expedited’ Annexation
2005-1685. State ex rel. Butler Twp. Bd. of Trustees v. Montgomery Cty. Bd. of Commrs., 2006-Ohio-6411.
Montgomery App. No. 20725, 162 Ohio App.3d 394, 2005-Ohio-3872. Judgment affirmed.
Moyer, C.J., Resnick, Pfeifer, O'Connor, O'Donnell and Lanzinger, JJ., concur.
Lundberg Stratton, J., dissents.
Opinion: http://www.supremecourtofohio.gov/rod/newpdf/0/2006/2006-Ohio-6411.pdf
(Dec. 13, 2006) In a 6-1 decision announced today, the Supreme Court of Ohio held that when annexation of a roadway into a municipality is sought, landholders who own property over which a roadway easement exists are ‘owners' of the roadway property and therefore must be included in determining the number of owners needed to sign the annexation petition.
The Court was asked to interpret provisions added in 2001 to R.C. Chapter 709, the section of state law that governs the annexation of land from one political subdivision into another. The provisions in question created three new processes by which, under certain conditions, property owners may pursue “expedited” approval by county commissioners of a petition for annexation without going through more complex quasi-judicial proceedings that were previously required for all annexations.
In June 2004, Waterwheel Farm Inc. in Montgomery County, part of which was already located within the corporation limits of city of Union, sought approval by the county commissioners to annex into the city 79 more acres of its property situated in Butler Township. The annexation petition included a segment of a public roadway, Jackson Road, which runs through the Waterwheel property. Asserting that they were the owners of 100 percent of the property for which annexation was sought, the owners of Waterwheel Farm submitted a petition to the county commissioners bearing only their signatures, and requested that the commissioners process the petition as a “Type 2 expedited annexation” under R.C. 709.023(E).
The county commissioners accepted and reviewed the petition under the statutory criteria for expedited annexation in RC. 709.023(E). Butler Township filed objections which were overruled, and in August 2004 the commissioners approved the annexation. The township and owners of some properties adjoining Waterwheel Farm along Jackson Road sought an injunction in the Montgomery County Court of Common Pleas to void the annexation. The trial court ruled that the petition was valid and upheld its adoption.
On review, the 2nd District Court of Appeals reversed the commissioners' ruling and voided the annexation. The appellate panel ruled that, because the stretch of Jackson Road included in the annexation area also bordered other properties adjacent to Waterwheel Farm, and the ownership rights to those properties extended 15 feet into the roadway right-of-way subject to a public-use easement, a petition for Type 2 expedited annexation that included the road must include the signatures of all property owners of the roadway in the annexed area.
In today's decision the Supreme Court affirmed the 2nd District's holding that the excluded landowners in this case must be counted as “owners” of the roadway property under R.C. 709.02(E), and that the Waterwheel Farms petition for expedited annexation was therefore invalid.
Writing for the majority, Justice Alice Robie Resnick gave a detailed analysis of the annexation statutes and the 2001 amendments authorizing expedited procedures, and concluded that the amended provisions are ambiguous regarding the inclusion or exclusion of owners whose only interest in an area to be annexed is property over which a roadway easement exists.
“Even though the excluded landholders have little say over the use of the roadway itself, it cannot be questioned that they own the property underlying the roadway and will be affected if the road that runs directly in front of their property is annexed into the municipality,” Justice Resnick wrote. “We hold that the excluded landholders must be counted as ‘owners' under current R.C. 709.02(E) because not to count them would deprive them of one of the property rights that they would normally have as the holders of an undeniable and definite property ownership interest.”
Justice Resnick noted that the excluded landholders in this case were unquestionably counted as ‘owners' under the former statute, and said the adoption of an ambiguous amendment “does not clearly indicate the General Assembly's intent to change that status. To define the excluded landholders as outside the ambit of ‘owners' strikes us as simply too great a leap to take, given the ambiguity of the statute. If the General Assembly did indeed intend to exclude them from the definition of ‘owners,' we believe that it could have, and should have, done so more clearly.”
Justice Resnick's opinion was joined by Chief Justice Thomas J. Moyer and Justices Paul E. Pfeifer, Maureen O'Connor, Terrence O'Donnell and Judith Ann Lanzinger.
Justice Evelyn Lundberg Stratton entered a dissenting opinion indicating that she would reverse the court of appeals based on her belief that current R.C. 709.02(E) excepts from the definition of ‘owner' the holder of any property located within “any railroad, utility, street and highway rights-of-way.”
“I believe that the majority ignores the history behind the passage of 2001 Am.Sub.S.B. No. 5 and that the new definition of ‘owner' in R.C. 709.02(E), which was intended to remove the very problem that the majority's interpretation would perpetuate,” Justice Stratton wrote. “If the majority's holding does not accurately define these property rights, I invite the General Assembly to revisit and clarify the meaning of ‘owner' within R.C. 709.02(E).”Contacts
John A. Cumming, 937.496.7797, for
the Montgomery County Board of Commissioners.
Catherine A. Cunningham, 614.228.4546, for Waterwheel Farm.
Douglas R. Cole, 614.466.8980, for the Butler Township Board of Trustees.Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions: http://www.supremecourtofohio.gov/ROD/newpdf/. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."