Alliance v. Lexington Twp. Bd. of Trustees ( 2011 )

[Cite as Alliance v. Lexington Twp. Bd. of Trustees, 2011-Ohio-3328.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
CITY OF ALLIANCE : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. Julie A. Edwards, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 10-CA-289
LEXINGTON TOWNSHIP BOARD OF :
TRUSTEES
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas Case No. 2007CV03723
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 27, 2011
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
ROBERT R. HUNTER 0026616 KENNETH J. CARDINAL 0010659
470 E. Market Street 758 N. 15th Street
Alliance, Ohio 44601 P.O. Box 207
Sebring, Ohio 44672
DEBORAH A. DAWSON
Assistant Stark County Prosecutor
110 Central Plaza, South, Ste. 510
Canton, Ohio 44702
[Cite as Alliance v. Lexington Twp. Bd. of Trustees, 2011-Ohio-3328.]
Delaney, J.
{¶1} Appellant Lexington Township Board of Trustees (“Lexington Township”)
appeals the judgment of the Stark County Court of Common Pleas, which affirmed the
Stark County Board of Commissioner’s January 27, 2010 Resolution approving the
annexation petition of Appellee City of Alliance.
{¶2} The facts underlying this appeal are as follow:
{¶3} On July 17, 2007, the Board held a public hearing on the annexation
petition of the City of Alliance to annex 51.279 acres of Lexington Township. Additional
testimony was taken by the Board at a subsequent hearing on August 21, 2007. The
petition was signed by three of the five property owners, a majority of the owners within
the territory. The Board considered the petition and voted on the petition at its August
30, 2007 meeting. As memorialized in a Resolution adopted on August 30, 2007,
Commissioners Vignos and Harmon denied the annexation petition on the basis that a
majority of the Commissioners did not vote in favor of the annexation. Commissioner
Vignos voted in favor of the annexation, Commissioner Harmon voted against it.
Commissioner Bosley abstained. Since then, this matter has been in continuous appeal
either to the Court of Common Pleas or to this Court.
{¶4} This matter has been before us twice before. In Alliance v. Lexington
Twp. Bd. of Trustees (Feb. 9, 2009), 5th Dist. No. 2008CA00024,(“Alliance I”) one of the
issues presented was whether a property owner had followed applicable statutory
procedures to withdraw her signature from an annexation petition. This Court found that
the trial court had erred in finding that the property owner's signature had been
withdrawn. We also found the trial court had erred in concluding that because the
signature had been withdrawn, the general good requirement could not be satisfied. We
remanded the matter to the Court of Common Pleas for further proceedings.
{¶5} Upon remand, the trial court returned the matter to the Board with
instructions to enter an order approving the annexation on their journal. In Alliance v.
Lexington Twp. Bd. Of Trustees, 185 Ohio App.3d 256, 2009-Ohio-6792, 923 N.E.2d
1172 (“Alliance II”), Lexington Township appealed the remand instructions issued by the
trial court. This Court determined, in Alliance II, that the trial court erred in concluding
that the Board should approve the annexation. We stated: “ * * * the court erred in this
conclusion, because the record indicates the commissioners have not yet evaluated the
petition on the six statutory factors. The [trial] court properly remanded the matter but
erred in its directive to the Board.” Id. at ¶19. We remanded the matter to the Court of
Common Pleas with instructions to remand the matter to the Board for “review of the
petition according to law and consistent with this opinion and our prior opinion.”
{¶6} On December 29, 2009, the trial court remanded the matter to the Board
“for review of the petition according to law and consistent with the decisions of the Fifth
District Court of Appeals.”
{¶7} On January 27, 2010, new Commissioners Meeks and Ferguson (in place
of former Commissioners Vignos and Harmon), approved the annexation petition.
Commissioner Bosley again abstained. Prior to the voting, Lexington Township urged
the Board to take additional testimony concerning the petition. The Board refused to do
so, and instead the new Commissioners relied upon their review of the prior hearing
transcripts in approving the petition.
{¶8} Lexington Township filed a Notice of Appeal with the Board on February
22, 2010. A Notice of Filing Transcript of Proceeding with the Clerk of Courts occurred
on March 9, 2010. The Resolution was added to the record on March 17, 2010, in a
supplemental filing with the trial court.
{¶9} Lexington Township argued before the trial court that the Board lacked
jurisdiction to consider the petition because R.C. 709.033(B) mandates that the Board
rule upon an annexation petition thirty days from the date of the public hearing, which
last occurred on August 21, 2007. Lexington Township also asserted its substantive
procedural due process rights were violated in two ways: first, the new board members
who voted on the petition were not the original board members who conducted the
public hearings and second, the Board’s legal counsel improperly influenced the
Commissioners vote.
{¶10} On September 14, 2010, the trial court affirmed the Board’s Resolution
approving the annexation petition and Lexington Township appealed the entry to this
Court.
{¶11} Lexington Township raises four Assignments of Error:
{¶12} “I. THE TRIAL COURT ERRED IN FINDING THAT THE BOARD DID
HAVE JURISDICTION OVER THIS PARTICULAR PETITION TO APPROVE THE
ANNEXATION MORE THAN THIRTY (30) DAYS AFTER THE DATE OF PUBLIC
HEARING. BOARD LACKS PARTICULAR JURISDICTION WHEN. [SIC]
{¶13} “II. THE TRIAL COURT ERRED IN FINDING THAT THE BOARD DID
NOT VIOLATE THE SUBSTANTIVE PROCEDURAL DUE PROCESS RIGHTS OF THE
TRUSTEES WHEN THE NEW BOARD MEMBERS WHO VOTED ON AN
ANNEXATION PETITION WERE NOT THE ORIGINAL BOARD MEMBERS WHO
CONDUCTED THE STATUTORY PUBLIC HEARING AND WHO VIEWED THE
WITNESSES, EVIDENCE AND JUDGED THE WEIGHT OF THE RELIABILITY AND
CREDIBILITY TO BE AFFORDED TO EACH.
{¶14} “III. THE TRIAL COURT ERRED IN FINDING THAT THE BOARD DID
NOT VIOLATE THE SUBSTANTIVE DUE PROCESS RIGHTS OF THE TRUSTEES
WHEN IT PERMITTED A DE FACTO HEARING OFFICER TO IMPROPERLY
INFLUENCE THE BOARD TO VOTE IN FAVOR OF ANNEXATION BY ASSERTING
THAT THE COURT ORDERED THE BOARD TO DO SO.
{¶15} “IV. THE TRIAL COURT ERRED IN FINDING THAT AN APPEAL STAYS
THE MANDATORY TIME PERIODS THAT A BOARD MAY TAKE OFFICIAL ACTION
ON AN ANNEXATION PETITION.”
I., IV.
{¶16} We will address the first and fourth assignments of error together because
they are interrelated. In the first assignment of error, Lexington Township argues that
the trial court erred in determining that the Board had jurisdiction to approve the
annexation more than 30 days subsequent to the public hearing date. In the fourth
assignment of error, the Township asserts the trial court erred in finding that a notice of
appeal stays execution upon all parties.
{¶17} R.C. 709.033 provides, in relevant part:
{¶18} “(B) The board of commissioners shall enter upon its journal a resolution
granting or denying the petition for annexation within thirty days after the hearing
provided for in section 709.093 of the Revised Code. The resolution shall include
specific finds of fact as to whether each of the conditions listed in divisions (A)(1) to (6)
of this section has been met. * * *”.
{¶19} Lexington Township concedes the Board originally had subject matter
jurisdiction to pass a resolution granting or denying an annexation petition. However,
the Township contends the Board lost its jurisdiction over the petition by failing to adopt
a resolution for or against annexation after thirty days had elapsed since the public
hearing, which then rendered the January 27, 2010 Resolution voidable on direct
appeal.
{¶20} We find the position of Lexington Township to be untenable. The record
clearly reflects that a resolution was timely passed by the Board. As noted earlier, the
Board considered the petition and voted on the petition at its August 30, 2007 meeting,
which occurred within thirty days of the August 21, 2007 public hearing. As
memorialized in a Resolution adopted on August 30, 2007, Commissioners Vignos and
Harmon denied the annexation petition on the basis that a majority of the
Commissioners did not vote in favor of the annexation.
{¶21} The August 30, 2007 Resolution formed the basis of the City of Alliance’s
first notice of appeal to the trial court on September 12, 2007. The August 30, 2007
Resolution was a final order upon the petition and occurred within the mandatory thirty
day limit set forth in R.C. 709.033 (B).
{¶22} R.C. 709.07 also states, in relevent part:
{¶23} “(A) The agent for petitioners, any owner of real estate in the territory
proposed for annexation, any township in which territory proposed for annexation is
located, and the municipal corporation to which the territory is proposed to be annexed
may file an appeal under Chapter 2506 of the Revised Code from a resolution of the
board of county commissioners granting or denying the petition. * * * The filing of a
notice of appeal with the of clerk of the board of county commissioners shall operate as
stay of execution upon that clerk and all parties to the appeal, which stay shall not be
lifted until the court having jurisdiction over the proceedings enters a final order affirming
or reversing the decision of the board of county commissioners and the time limits for an
appeal of that final order have passed with a notice of appeal being filed.”
{¶24} It is readily apparent that this matter has been continuously in appellate
review since the Board’s passage of the August 30, 2007 Resolution denying the instant
annexation petition. Accordingly, by operation of law, any action upon the petition was
stayed until all appeals have been exhausted. Once that occurs, R.C. 709.07(C) and
(D) instruct that the final determination of the court shall be journalized by the clerk of
the board.
{¶25} By entry dated December 29, 2009, the trial court remanded this matter to
the Board for review of the petition according to law and consistent with this Court’s
decisions. We therefore find the Board had jurisdiction to consider and vote upon the
petition at the Board’s January 27, 2010 meeting.
{¶26} The Township’s first and fourth assignments of error are overruled.
II.
{¶27} In its second assignment of error, Appellant argues that the trial court
erred in finding that the Stark County Board of Commission did not violate the due
process rights of the Trustees when Board members who were not the original board
members that heard the case issued a final determination on the merits of the case.
{¶28} The safeguards of due process to assure a fair hearing do not require that
an administrative decision-maker actually attend the hearing; the requirement is that the
decision maker must, in some meaningful manner, consider and appraise the evidence
obtained at the hearing. State, ex rel Ormet Corp. v. Industrial Commission (1990), 54
Ohio St.3d 102, 107, 561 N.E.2d 920.
{¶29} Obviously over the passage of time, county commissioners are likely to
change composition while appellate review occurs concerning any particular annexation
petition. It is undisputed that Commissioners Meeks and Ferguson read the entire
transcript of the proceedings on the petition (January 27, 2010, T. at 3). In addition, the
Board was provided with a summary by a staff member, Rick Flory, that the annexation
petition was properly noticed and he provided the Board with a copy of the annexation
plat. He also discussed information received from other county officials regarding the
petition (Id. at 9-10).
{¶30} The Board’s review of the hearing transcripts, in lieu of hearing live
testimony, before casting their vote meets the instruction of the Ormet court to consider
the evidence from the public hearing in a meaningful manner. We conclude that the
requirements of due process were satisfied.
{¶31} The Township’s second assignment of error is overruled.
III.
{¶32} In its third assignment of error, Appellant argues that the trial court erred in
finding that the Board did not violate the due process rights of the Trustees when it
permitted a “de facto” hearing officer to influence the Board to vote in favor of
annexation by asserting that the court ordered it to do so.
{¶33} At the January 27, 2010, legal counsel for the Board provided a narrative
of the lengthy legal history of this matter, such as the rulings by the trial court and this
Court. Counsel also instructed the Board as to statutory requirements set forth in R.C.
709.033 for considering an annexation petition. She advised the Board members they
had discretion in considering certain factors, such as the general good requirement, and
that their decision be based upon a preponderance of substantial reliable and probative
evidence.
{¶34} Upon our independent review of the transcript, we find nothing in the
record to suggest that legal counsel acted improperly or attempted to influence the
Board in its vote. At no time did legal counsel indicate that the Board was ordered to
vote in favor of or against the petition.
{¶35} The Township’s third assignment of error is overruled.
{¶36} For the foregoing reasons, we affirm the decision of the Stark County
Court of Common Pleas.
By: Delaney, J.
Hoffman, P.J. and
Edwards, J. concur.
HON. PATRICIA A. DELANEY
HON. WILLIAM B. HOFFMAN
HON. JULIE A. EDWARDS
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
CITY OF ALLIANCE :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
LEXINGTON TOWNSHIP BOARD OF :
TRUSTEES
:
Defendant-Appellant : Case No. 10-CA-289
:
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Stark County Court of Common Pleas is affirmed. Costs assessed to
Appellant.
_________________________________
HON. PATRICIA A. DELANEY
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. JULIE A. EDWARDS