State ex rel. Xenia v. Greene Cty. Bd. of Commrs. (Slip Opinion) , 2020 Ohio 3423 ( 2020 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Xenia v. Greene Cty. Bd. of Commrs., Slip Opinion No. 2020-Ohio-3423.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2020-OHIO-3423
THE STATE EX REL. THE CITY OF XENIA, APPELLEE, v. GREENE COUNTY
BOARD OF COMMISSIONERS ET AL., APPELLANTS.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Xenia v. Greene Cty. Bd. of Commrs., Slip
Opinion No. 2020-Ohio-3423.]
Annexation—Mandamus is a proper vehicle to compel county board of
commissioners to grant city’s annexation petition—Board failed to show
that city’s petition does not satisfy R.C. 709.023(E)(1), (4), (5), or (7)—
Court of appeals’ judgment granting writ of mandamus ordering board to
approve city’s petition affirmed.
(No. 2019-1791—Submitted May 12, 2020—Decided June 25, 2020.)
APPEAL from the Court of Appeals for Greene County,
No. 2018CA0021, 2019-Ohio-4805.
_________________
Per Curiam.
{¶ 1} This is an annexation case concerning roughly 45 acres of land located
between the city of Xenia and Central State University. The Second District Court
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of Appeals granted the city’s request for a writ of mandamus ordering the Greene
County Board of Commissioners (“the county”) to approve the city’s annexation
petition. The county has appealed, arguing that a writ of mandamus cannot compel
it to grant the city’s petition because, it says, it relied on its discretion in denying
the petition and performed all its statutorily required duties. The county also argues
that the city’s petition falls short of the statutory requirements for approval. For
the reasons that follow, we affirm.
I. LEGAL BACKGROUND
{¶ 2} In Ohio, “annexation is strictly a statutory process.” In re Petition to
Annex 320 Acres to S. Lebanon, 64 Ohio St. 3d 585, 591, 597 N.E.2d 463 (1992).
The General Assembly comprehensively reformed Ohio’s annexation processes in
2001 with the enactment of Am.Sub.S.B. No. 5, 149 Ohio Laws, Part I, 621 (“S.B.
5”). See State ex rel. Butler Twp. Bd. of Trustees v. Montgomery Cty. Bd. of
Commrs., 112 Ohio St. 3d 262, 2006-Ohio-6411, 858 N.E.2d 1193, ¶ 3 (discussing
the legislation). S.B. 5 established three procedures “allow[ing] for expedited
annexations when all the property owners within a parcel to be annexed sign an
annexation petition.” Id. The three procedures are referred to as expedited type-1,
type-2, and type-3 annexations. Id. at ¶ 5.
{¶ 3} This appeal involves a type-2 annexation, which is governed by R.C.
709.023. In a type-2 annexation, “the residents of the territory become residents of
both the township and the municipality, subject to the taxes of both, and potentially
able to receive services from either.” Butler Twp. Bd. of Trustees at ¶ 7 (citing R.C.
709.023(H)). A type-2 annexation petition must be filed with the clerk of the board
of county commissioners. R.C. 709.023(B). After the petition is filed, the
municipal corporation to which annexation is proposed must adopt an ordinance or
resolution specifying what services it will provide to the territory proposed for
annexation and when it will provide them. R.C. 709.023(C). A township or
municipal corporation that opposes the proposed annexation may file objections
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with the board. R.C. 709.023(D). If objections are filed, the board must “review
[the petition] to determine if each of the following conditions” are satisfied:
(1) The petition meets all the requirements set forth in,
and was filed in the manner provided in, section 709.021 of the
Revised Code.
(2) The persons who signed the petition are owners of
the real estate located in the territory proposed for annexation and
constitute all of the owners of real estate in that territory.
(3) The territory proposed for annexation does not
exceed five hundred acres.
(4) The territory proposed for annexation shares a
contiguous boundary with the municipal corporation to which
annexation is proposed for a continuous length of at least five per
cent of the perimeter of the territory proposed for annexation.
(5) The annexation will not create an unincorporated
area of the township that is completely surrounded by the territory
proposed for annexation.
(6) The municipal corporation to which annexation is
proposed has agreed to provide to the territory proposed for
annexation the services specified in the relevant ordinance or
resolution adopted under division (C) of this section.
(7) If a street or highway will be divided or segmented
by the boundary line between the township and the municipal
corporation as to create a road maintenance problem, the municipal
corporation to which annexation is proposed has agreed as a
condition of the annexation to assume the maintenance of that street
or highway or to otherwise correct the problem.
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R.C. 709.023(E).
{¶ 4} A board of county commissioners must grant a petition that satisfies
all the conditions and must deny a petition that does not. R.C. 709.023(F).
Although “[t]here is no appeal in law or equity from the board’s entry of any
resolution under this section,” a party may request “a writ of mandamus to compel
the board * * * to perform its duties * * *.” R.C. 709.023(G).
II. FACTUAL BACKGROUND
{¶ 5} In September 2017, the city filed a type-2 annexation petition with the
county seeking approval to annex roughly 45.6 acres of territory located in Xenia
Township. The city owns approximately 41.1 acres of the territory proposed for
annexation, and its ownership interest consists of a narrow strip of land used for a
bicycle path. The path runs outward from the city in a northeasterly direction,
where it ends adjacent to the remaining roughly 4.5 acres of the territory proposed
for annexation—a triangular-shaped parcel owned by Central State University. A
report prepared by the city’s staff explained that the city would benefit from the
annexation by receiving income-tax revenue from Central State University’s
employees and contractors and that Central State University, in turn, would benefit
by becoming a recipient of the city’s services. Central State University consented
to the city’s proposal to annex the 4.5-acre parcel.
{¶ 6} The township trustees urged the county to deny the petition, which the
county did after determining that the city’s petition did not satisfy R.C.
709.023(E)(1), (4), (5), or (7). The city then filed an original action in the court of
appeals requesting a writ of mandamus ordering the county to approve the petition.
The court denied the county’s motion for summary judgment, granted the city’s
motion for summary judgment, and issued the writ. The county has appealed. The
Ohio Township Association has filed an amicus brief in support of the county, and
the Ohio Municipal League has filed an amicus brief in support of the city.
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III. STANDARD OF REVIEW
{¶ 7} For a writ of mandamus to issue in a type-2 setting, the relator must
establish that it has a clear legal right to the requested relief by showing that it
satisfies the conditions necessary for annexation. State ex rel. Natl. Lime & Stone
Co. v. Marion Cty. Bd. of Commrs., 152 Ohio St. 3d 393, 2017-Ohio-8348, 97
N.E.3d 404, ¶ 26. If the relator can show that it satisfies the conditions, a board of
county commissioners has a clear legal duty to approve the annexation. Id.
Because R.C. 709.023(G) authorizes an action in mandamus, a court need not
consider whether the relator lacks an adequate remedy at law. Id.
{¶ 8} This court exercises de novo review in an appeal from a grant of
summary judgment. Transtar Elec., Inc. v. A.E.M. Elec. Servs. Corp., 140 Ohio
St.3d 193, 2014-Ohio-3095, 16 N.E.3d 645, ¶ 8. Summary judgment may be
granted only when (1) there is no genuine issue of material fact, (2) the moving
party is entitled to judgment as a matter of law, and (3) upon viewing the evidence
in the light most favorable to the nonmoving party, reasonable minds can reach
only a conclusion adverse to the nonmoving party. Id.
IV. ANALYSIS
{¶ 9} Our analysis proceeds in two parts. We first address the county’s
claim that a writ of mandamus is an improper vehicle to compel it to grant the city’s
petition. We then address the county’s claim that the city’s petition fails to satisfy
the conditions specified in R.C. 709.023(E).
A. Whether a writ of mandamus is a proper vehicle to compel the county to grant
the city’s petition
{¶ 10} A writ of mandamus is a command directing the “performance of an
act which the law specially enjoins as a duty resulting from an office, trust, or
station.” R.C. 2731.01. A writ cannot compel the exercise of a permissive act.
State ex rel. Hodges v. Taft, 64 Ohio St. 3d 1, 4, 591 N.E.2d 1186 (1992). Nor can
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it “issue to control an officer’s exercise of discretion, but it can be issued to compel
him to exercise it when he has a clear legal duty to do so.” Id.
{¶ 11} The county claims that mandamus does not lie because it applied its
discretion under R.C. 709.023(E) in denying the city’s petition. Because a board
of county commissioners is a statutory creation, with only “such power and
jurisdiction as are conferred expressly by statutory enactment,” State ex rel. Shriver
v. Belmont Cty. Bd. of Commrs., 148 Ohio St. 277, 74 N.E.2d 248 (1947),
paragraphs one and two of the syllabus, the county must locate its claimed
discretionary powers in the text of division (E)’s seven conditions. We discern no
such powers here. Division (E)’s seven conditions are tightly written legal rules
requiring straightforward application, see, e.g., R.C. 709.023(E)(3) (“The territory
proposed for annexation [must] not exceed five hundred acres”), not open-ended
standards permitting a “power of free decision or choice within certain legal
bounds” or a “latitude of decision [to] decide[] questions * * * not expressly
controlled by fixed rules of law,” Webster’s Third New International Dictionary
647 (1993) (defining “discretion”). Tellingly, the county does not develop an
argument centered on division (E)’s seven conditions that shows otherwise.1
{¶ 12} Had the General Assembly intended to confer discretion on a board
of county commissioners in a type-2 setting, it would not have been difficult to use
wording to that effect. Under what we have termed the “traditional” method of
annexation, Sugarcreek Twp. v. Centerville, 133 Ohio St. 3d 467, 2012-Ohio-4649,
979 N.E.2d 261, ¶ 3, a board must consider whether “the general good of the
1. The county argues for the first time in its reply brief that it performed a ministerial act when it
reviewed the petition, determined that it did not satisfy all of R.C. 709.023(E)’s conditions, and
denied it. That argument is not only in tension with the county’s claim in its merit brief that it
exercised discretion in reviewing the petition, applying division (E), and denying the petition, see
Maloney v. Rhodes, 45 Ohio St. 2d 319, 322, 345 N.E.2d 407 (1976) (distinguishing a discretionary
act from a ministerial act)—the argument is also tardy, see Corrigan v. Illum. Co., 151 Ohio St. 3d
85, 2017-Ohio-7555, 86 N.E.3d 287, ¶ 11, fn. 1 (disregarding an argument raised for the first time
in a reply brief).
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territory proposed to be annexed will be served” by the annexation, R.C.
709.033(A)(5). Interpreting virtually identical language found in R.C. 709.033’s
predecessor, we observed that such language presents a “question of fact within the
discretion of the board.” In re Annexation of 118.7 Acres in Miami Twp. to
Moraine, 52 Ohio St. 3d 124, 132, 556 N.E.2d 1140 (1990). Division (E)’s seven
conditions do not contain this type of open-ended language.
{¶ 13} Turning from the statutory text to our caselaw, we observed in Butler
Twp. Bd. of Trustees that S.B. 5 put “in place firm standards to govern the
consideration of annexation petitions * * *.” 112 Ohio St. 3d 262, 2006-Ohio-6411,
858 N.E.2d 1193, at ¶ 8. And in Natl. Lime & Stone, we explained that when a
type-2 annexation petition satisfies all seven of division (E)’s conditions, a board
“has no discretion to deny the petition” and a writ of mandamus will issue. 152
Ohio St. 3d 393, 2017-Ohio-8348, 97 N.E.3d 404, at ¶ 2. The boards in those two
cases did not raise precisely the same argument that the county is raising here, but
we see no reason why the logic of those two decisions does not apply here.
{¶ 14} The county next contends that mandamus does not lie because it
performed all its statutorily imposed duties. It points to division (G), which
provides that a party may pursue relief in mandamus to “compel the board of county
commissioners to perform its duties under this section,” R.C. 709.023(G). In the
county’s view, it performed its statutory duties when it reviewed the petition,
determined that it does not comply with the statutory conditions, and adopted a
resolution denying it. See R.C. 709.023(E) and (F).
{¶ 15} The county’s argument fails under Natl. Lime & Stone. There, a
board of county commissioners denied a mining company’s type-2 annexation
petition. The company then filed a complaint for a writ of mandamus in the court
of appeals to compel the board to grant the petition, which the court of appeals
dismissed. We reversed and granted the writ, determining that the company had
satisfied division (E)’s conditions. As we explained, when a relator satisfies all the
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statutory conditions, it establishes a “clear legal right to the requested relief and a
clear legal duty on the part of the commissioners to provide it,” meaning that a
board “must grant the annexation.” Id. at ¶ 32 (citing R.C. 709.023(F) and (G)). It
follows from Natl. Lime & Stone that the county’s performance of its three
statutorily imposed duties does not, on its own, foreclose the possibility that the
county could be compelled to grant the city’s petition in a mandamus action.
Indeed, if the county were correct here, we would not have reversed the court of
appeals’ judgment and granted the writ in Natl. Lime & Stone.
B. Whether the city’s petition satisfies the conditions of R.C. 709.023(E)
{¶ 16} The county claims that the city’s petition fails to satisfy four of the
seven conditions specified in R.C. 709.023(E). We address the conditions in turn.
1. Whether the city’s petition satisfies R.C. 709.023(E)(1)
{¶ 17} Under R.C. 709.023(E)(1), a petition must “meet[] all the
requirements set forth in” and be “filed in the manner” prescribed by R.C. 709.021.
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.
(Emphasis added.)
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{¶ 18} The word “contiguous” in R.C. 709.021(A) is undefined by statute,
leading the county to argue that the word should be understood according to the
contiguity principles we announced in Middletown v. McGee, 39 Ohio St. 3d 284,
530 N.E.2d 902 (1988), a pre-S.B. 5 decision that addressed whether a territory
proposed for annexation was contiguous with the annexing municipality. We
observed in McGee that although “the law is unsettled as to what degree of touching
is needed to fulfill the contiguity requirement,” there “is general[] agree[ment] that
some touching of the municipality and the territory to be annexed is required.” Id.
at 287. We explained that Ohio courts had looked with disfavor on the “use of
connecting strips of land to meet the contiguity requirement when annexing
outlying territory not otherwise connected to the municipality. Such annexations
are usually referred to as ‘strip, shoestring, subterfuge, corridor, and gerrymander
annexations.’ ” Id., quoting Watson v. Doolittle, 10 Ohio App. 2d 143, 148-149,
226 N.E.2d 771 (6th Dist.1967). Applying these principles, we concluded that a
section of the territory proposed for annexation, which included a strip of roadway
that extended outward from the annexing municipality for several miles, could not
lawfully be annexed, because it was “not sufficiently contiguous” to the
municipality. Id. at 288.
{¶ 19} The county asserts that because R.C. 709.023(E)(1) incorporates
R.C. 709.021, a type-2 annexation petition must conform to McGee’s contiguity
principles. The city responds that the sole contiguity requirement in a type-2 setting
lies in R.C. 709.023(E)(4), which requires that the territory proposed for annexation
have a boundary contiguous with the municipal corporation of “at least five per
cent” of the territory’s perimeter. We conclude that McGee does not apply here.
{¶ 20} As McGee itself makes clear, the General Assembly had not, at the
time we decided that case, defined the word “contiguous” for the purpose of
applying Ohio’s annexation statutes. That statutory silence led us to draw from the
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caselaw in determining the minimum degree of touching necessary for a territory
and an annexing municipality to be contiguous. See id. at 287.
{¶ 21} Here, in contrast, the General Assembly has defined the minimum
degree of touching necessary in a type-2 setting. As set forth in R.C. 709.023(E)(4),
the territory proposed for annexation must have a boundary contiguous to the
annexing municipality for a “continuous length of at least five per cent” of the
territory’s perimeter. See also Lawrence Twp. Bd. of Trustees v. Canal Fulton, 185
Ohio App. 3d 267, 2009-Ohio-6822, 923 N.E.2d 1180, ¶ 38-40 (5th Dist.) (rejecting
the view that a type-2 annexation petition must satisfy contiguity requirements in
addition to those prescribed by R.C. 709.023(E)(4)); 1 Gotherman, Babbitt & Lang,
Baldwin’s Ohio Practice: Local Government Law—Municipal, Section 2.19, at 3
(Sept. 2019) (“territory that is a ‘balloon on a string’ may nevertheless be annexed
using the expedited type-2 annexation process provided that the territory shares a
contiguous boundary with the municipal corporation for a continuous length of at
least 5% of the perimeter of the territory”). It follows that applying McGee’s
contiguity principles in a type-2 case would render meaningless the specific
contiguity limitations embodied in R.C. 709.023(E)(4). See In re Adoption of M.B.,
131 Ohio St. 3d 186, 2012-Ohio-236, 963 N.E.2d 142, ¶ 19 (disfavoring an
interpretation that renders a statute meaningless); R.C. 1.47(B) (“The entire statute
is intended to be effective”).
{¶ 22} Another problem with the county’s argument is that it is in tension
with our decision in Natl. Lime & Stone, 152 Ohio St. 3d 393, 2017-Ohio-8348, 97
N.E.3d 404. There, we considered whether each of the seven conditions applicable
in a type-2 setting were satisfied. Not once did we refer to McGee’s contiguity
principles in determining whether the territory proposed for annexation was
contiguous with the annexing municipality. Instead, we simply performed the
analysis prescribed by R.C. 709.023(E)(4), determining that the territory proposed
for annexation was sufficiently contiguous because it “share[d] a contiguous
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boundary of at least 5 percent of the territory’s perimeter.” Natl Lime & Stone at
¶ 30. To be sure, Natl. Lime & Stone does not squarely resolve the argument that
the county raises here. But even so, it would be hard to characterize the above
language of Natl. Lime & Stone as dicta because its contiguity analysis was
essential to the judgment.2
{¶ 23} The county urges this court to apply State ex rel. Overholser
Builders, L.L.C. v. Clark Cty. Bd. of Commrs., 2d Dist. Montgomery No. 2007 CA
36, 2008-Ohio-6338, ¶ 37-39, a decision holding that McGee’s contiguity
principles apply to type-1 annexation petitions filed under R.C. 709.022. But
Overholser Builders does not apply here, because the city filed its annexation
petition under R.C. 709.023, not R.C. 709.022.
{¶ 24} In summary, we hold that R.C. 709.023(E)(4) establishes the sole
contiguity requirement in a type-2 setting. Because the county does not otherwise
contend that the city’s petition departs from R.C. 709.023(E)(1), we conclude that
the petition satisfies the requirements of that provision.
2. Whether the city’s petition satisfies R.C. 709.023(E)(4)
{¶ 25} Under R.C. 709.023(E)(4), the territory proposed for annexation
must have a boundary contiguous with the municipal corporation of at least 5
percent of the territory’s perimeter. The city attested to the court of appeals that
the territory proposed for annexation has a perimeter of 36,302.11 feet and has a
boundary contiguous with the city of 1,929.14 feet, equating to a shared boundary
of roughly 5.31 percent of the territory’s perimeter. For its part, the county attested
that the territory proposed for annexation has a perimeter of 38,317.34 feet and has
a boundary contiguous with the city of 1,929.14 feet, equating to a shared boundary
of roughly 5.03 percent of the territory’s perimeter. The court of appeals
2. Our decision in Butler Twp. Bd. of Trustees does not require a different result. There, we observed
that “balloon-on-a-string annexations can be a significant problem.” 112 Ohio St. 3d 262, 2006-
Ohio-6411, 858 N.E.3d 1193, at ¶ 40. But we did not hold in that case that they are unlawful under
R.C. 709.023.
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determined that there is no genuine issue of material fact about the petition’s
compliance with R.C. 709.023(E)(4) because, although the parties’ numbers
slightly diverge, they nevertheless establish that the shared boundary exceeds the 5
percent threshold.
{¶ 26} The county now points to a different category of evidence, urging us
to consider the city’s future plans for annexing additional territory. Specifically,
the county cites a city report describing the city’s future plan to annex roughly 159
acres of territory, at least some of which Central State University has an interest in.
According to the county, if one were to account for the city’s future annexation
plans, the shared boundary would fall to 4.29 percent.
{¶ 27} The problem with the county’s argument is twofold. First, Ohio law
directs a board of county commissioners to review a petition to determine whether
it satisfies R.C. 709.023(E)’s seven conditions, not a municipal corporation’s intent
to annex additional territory at some indeterminate point in the future. We decline
the county’s invitation to rewrite the statute by considering the city’s future plans.
See State v. Hughes, 86 Ohio St. 3d 424, 427, 715 N.E.2d 540 (1999) (“In construing
a statute, we may not add or delete words”). Second, the county’s argument
conflicts with the statement of facts that it and the city jointly filed below, which
states, among other things, that the city’s petition seeks to “annex 45.637 acres of
territory, more or less, in Xenia Township to the City of Xenia.”
{¶ 28} We conclude that the city’s petition satisfies R.C. 709.023(E)(4)’s
requirements.
3. Whether the city’s petition satisfies R.C. 709.023(E)(5)
{¶ 29} Under R.C. 709.023(E)(5), the petition must show that the
“annexation will not create an unincorporated area of the township that is
completely surrounded by the territory proposed for annexation.” The county
claims that the city’s petition does not satisfy this condition because the proposed
annexation of the bicycle path would create two township islands. The first area,
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known as the Green Parcel, is a triangular-shaped parcel that is bounded by the city
on two sides, with the bicycle path running along the third side. The second, the
Douglas Street area, is a quadrilateral-shaped group of parcels that are bounded by
the city on three sides, with the bicycle path running along the fourth side.
{¶ 30} The city does not dispute that the proposed annexation would create
two township islands. But it correctly points out that R.C. 709.023(E)(5) forbids
only township islands that are “completely surrounded by the territory proposed for
annexation,” not islands that are created by the coupling of pre- and post-annexation
boundaries. Here, “the territory proposed for annexation” would form merely one
side of the triangular-shaped island and one side of the quadrilateral-shaped island.
{¶ 31} We conclude that the city’s petition satisfies R.C. 709.023(E)(5)’s
requirements.
4. Whether the city’s petition satisfies R.C. 709.023(E)(7)
{¶ 32} R.C. 709.023(E)(7) provides that “[i]f a street or highway will be
divided or segmented by the boundary line between the township and the municipal
corporation as to create a road maintenance problem, the municipal corporation”
must have “agreed as a condition of the annexation to assume the maintenance of
that street or highway or to otherwise correct the problem.”
{¶ 33} Although the city essentially replicated this language in its petition,
during deliberations on the petition, one of the county commissioners inquired
about the scope of the city’s agreement. The city’s attorney initially responded that
the city would maintain portions of affected roads that crossed over the bicycle path
but would not maintain any other portions of the roads, because the city would not
have jurisdiction over the latter portions. The attorney later clarified this response,
saying that the city would comply with “whatever legal requirements” regarding
road maintenance would apply.
{¶ 34} The county claims that the attorney’s statements invalidate the city’s
agreement to assume road-maintenance duties. But as the court of appeals
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observed, R.C. 709.023(E)(7) provides that a municipal corporation must agree
either to “assume the maintenance of th[e] street or highway or to otherwise correct
the problem.” (Emphasis added.) In light of the clause’s disjunctive phrasing, it
does not matter whether the attorney’s statement undermined the city’s promise to
assume street-maintenance duties, because the city had agreed “to otherwise correct
the problem,” id.
{¶ 35} The county next argues that the city failed to present to the township
or any agency an agreement concerning road-maintenance issues; however, the
county cites no law that requires a municipal corporation to do this.
{¶ 36} Last, the county claims that the city had failed to correct road-
maintenance problems arising from prior annexations. Thus, the argument runs,
the city will fail to correct problems arising from the proposed annexation. This
argument is speculative, and even if true, it fails to establish a genuine issue of
material fact concerning whether the city in fact agreed in its petition to correct
road-maintenance-related problems.
{¶ 37} We conclude that the city’s petition satisfies R.C. 709.023(E)(7)’s
requirements.
V. CONCLUSION
{¶ 38} For the foregoing reasons, we affirm the judgment of the court
appeals.
Judgment affirmed.
O’CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DEWINE, DONNELLY,
and STEWART, JJ., concur.
_________________
Donnette A. Fisher, Director of Law, for appellee.
Stephen K. Haller, Greene County Prosecuting Attorney, and Elizabeth A.
Ellis, Assistant Prosecuting Attorney, for appellants.
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Frost, Brown, Todd, L.L.C., Philip K. Hartmann, Yazan S. Ashrawi, and
Christopher D. Thomas; and Garry E. Hunter, General Counsel, urging affirmance
for amicus curiae Ohio Municipal League.
Brosius, Johnson & Griggs, L.L.C., Peter N. Griggs, Julia E. Donnan, and
Jennifer L. Huber, urging reversal for amicus curiae Ohio Township Association.
_________________
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