Dennison v. Lake Cty. Commrs. , 2014 Ohio 4294 ( 2014 )

[Cite as Dennison v. Lake Cty. Commrs., 2014-Ohio-4294.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
TED A. DENNISON, et al., : OPINION
Appellees, :
CASE NO. 2013-L-067
- vs - :
LAKE COUNTY COMMISSIONERS, et al., :
Defendants, :
MADISON TOWNSHIP TRUSTEES,
Appellant.
Appeal from the Lake County Court of Common Pleas, Case No. 12 CV 002814.
Judgment: Affirmed.
Kenneth L. Piper, 3503 Carpenter Road, Ashtabula, OH 44041 (For Appellees).
Gary L. Pasqualone, Curry and Pasqualone, 302 South Broadway, Geneva, OH
44041 (For Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, the Madison Township Trustees, appeal the judgment of the
Lake County Court of Common Pleas in favor of appellees, Ted A. Dennison and Cindy
A. Dennison, on their appeal of the trustees’ vacation of South Linda Lane, a township
road. At issue is whether the Dennisons were authorized by R.C. 5563.02 to appeal the
vacation of this road. For the reasons that follow, we affirm.
{¶2} Appellees, Ted A. Dennison and Cindy A. Dennison, own a 40-acre parcel
of real property located in Madison Township on South Linda Lane. Appellees bought
the property in 2005. In 2012, the Dennisons advised the township of their intention to
build a residence on South Linda Lane. In response, appellant, the Madison Township
Trustees, passed a resolution vacating South Linda Lane and requesting that the Lake
County Commissioners act on it. The trustees filed the resolution with the
commissioners on August 24, 2012. The commissioners held a hearing on the
resolution, but did not make a decision within 60 days from the trustees’ filing of their
resolution as required by statute, i.e., by October 23, 2012. The commissioners’
inaction was deemed by statute to grant the trustees’ resolution to vacate South Linda
Lane, effective October 23, 2012.
{¶3} The Dennisons timely appealed the commissioners’ decision to vacate
South Linda Lane in the trial court pursuant to R.C. 5563.02. They also filed a motion to
stay the road vacation while the instant appeal was pending, which the trial court
granted.
{¶4} The trustees filed a motion to dismiss, arguing that the Ohio Revised Code
does not allow a party to appeal the vacation of a road. After the motion was fully
briefed, the trial court denied the trustees’ motion to dismiss, finding that the Dennisons’
appeal of the road vacation was authorized by R.C. 5563.02.
{¶5} The case was tried to a jury between June 3 and June 5, 2013. David
Radachy, Director of the Lake County Planning Commission, testified that South Linda
Lane was established as a township road by a plat map, which was recorded with the
Lake County Recorder in 1957. He said that South Linda Lane is an existing right-of-
way, which was dedicated by its former owners by said plat map for public purposes as
2
a road. The plat map for the subject parcel depicts 22 sublots, 18 of which abut South
Linda Lane and four of which abut intersecting Dock Road. The plat map provides in
part: “The Ashtabula Home Financing Co. * * *, as owners of the land shown on this
plat, do hereby acknowledge the making and signing of the same to be our free act and
deed and do hereby dedicate the streets shown hereon to public use forever.” The plat
was signed and approved by the Lake County Commissioners and the Madison
Township Trustees.
{¶6} Jerry Klco, Madison Township Zoning Inspector, testified that in 2011, Mr.
Dennison applied for a zoning permit for a barn to be built on South Linda Lane. Mr.
Klco said that Mr. Dennison submitted a site plan for the barn, and Mr. Klco issued a
permit for it. Mr. Klco said the Dennisons were also planning to build a 3,900 square
foot single-family residence on South Linda Lane. In 2012, they applied for a zoning
permit for the residence. Mr. Klco conducted a site inspection of the property. He
reviewed and approved the Dennisons’ site plan showing the residence was to be built
on South Linda Lane. Mr. Dennison asked for a street address for his residence on
South Linda Lane. Mr. Klco told him that South Linda Lane is only a “paper road,”
meaning the township does not maintain it, so he gave him a zoning permit using an
address on intersecting Dock Road.
{¶7} Mr. Klco testified that if South Linda Lane was vacated, he could not issue
zoning permits for the individual sublots on South Linda Lane because sublots five
through 22 would have no access to any roads and sublots one through four would only
have access to intersecting Dock Road.
{¶8} Larry Advey, Madison Township Administrator, testified he told the
township trustees that Mr. Dennison intended to build a residence on South Linda Lane
3
and wanted a street number on South Linda Lane for his residence. Concerned that the
township would be responsible for maintaining the road if the Dennisons built their home
on South Linda Lane, Mr. Advey recommended to the trustees that the road be vacated.
As a result of his recommendation, the trustees passed a resolution asking the Lake
County Commissioners to vacate South Linda Lane.
{¶9} Bruce Landeg, Chief Deputy Engineer with the Lake County Engineer’s
Office, said that South Linda Lane is a 50-foot wide platted street and cul-de-sac with a
gravel base. He said the County Engineer had approved the site plan for the
Dennison’s residence. He prepared a chart using a 1973 aerial photograph of South
Linda Lane, which was presented to the Commissioners in connection with the
township’s resolution. Mr. Landeg said the chart shows that, as of 1973, South Linda
Lane was being used. He thus said that South Linda Lane was a “travelled way.”
{¶10} Robert Kosie, a land surveyor, testified that the Dennisons hired him to
prepare a site plan for their new house to be built on South Linda Lane. He said the site
plan was completed in September 2012. It shows: (1) the proposed dwelling on South
Linda Lane, (2) the driveway that leads from the home to South Linda Lane, and (3)
South Linda Lane as a dedicated road. He said the site plan was approved by the
county planning and soil and water departments.
{¶11} Noma Stanze testified that she and her husband have lived on Dock
Road, just south of where it intersects with South Linda Lane, since 1973. She said that
when they moved to Dock Road in that year, South Linda Lane had already been
established and the three fire hydrants on that road had already been installed. She
said that she has seen cars using South Linda Lane.
4
{¶12} Ted Dennison testified that he and his wife have owned the subject
property on South Linda Lane, which consists of 22 sublots, since 2005. He said the
deed granting the property to him and his wife provides, “this deed conveys all of the
twenty-two lots in said Linda Lane Plat No. 1 as recorded in [the] Lake County Records
of plats * * *.”
{¶13} Mr. Dennison testified that a high pressure transmission gas line, water
line, and three fire hydrants have been installed on South Linda Lane. He said he has
paid for the electric line to be brought down South Linda Lane to their proposed
residence. He said it just has to be trenched and installed. He said that within the next
few weeks, their surveyor, Mr. Kosie, will stake the house, dig the basement, and run
the electricity to the house. Mr. Dennison said that the county soil and water
department recently dug at least 600 feet of ditches along South Linda Lane.
{¶14} Mr. Dennison said he has obtained approval from the county for a septic
system on the property, and the house site has been cleared for the septic system. He
has also obtained county permits from the soil and water department, the health
department, the building department, and the plumbing department for the house.
{¶15} Mr. Dennison said that South Linda Lane is not a “paper road,” as Mr. Klco
referred to it. Mr. Dennison said that a paper road is one that has been designed, but
never improved. He said the road base consisting of eight to 12 inches of gravel was
installed over South Linda Lane many years ago. This is what the township originally
used for all of its roads. The road has been there for many years. He said that,
although he has added asphalt grindings to the road surface so trucks could more easily
deliver construction materials, South Linda Lane was already passable and he had
driven on it. Mr. Dennison said that if he decided to put in a development using the
5
sublots shown on the plat, the road as it currently exists and as shown on the recorded
plat, would support the development.
{¶16} Mr. Dennison said the first time he heard about the trustees deciding to
vacate the road was when he went to pick up the zoning permit for the house in August
2012. He said Mr. Advey, the township’s administrator, told him he wanted to vacate
the road. Mr. Dennison asked him why, and Mr. Advey said because the township was
not going to maintain it.
{¶17} Mr. Dennison said that when he and his wife bought the property, they
intended to sell the sublots to defray some of their expense. He said he intends to build
a house for his daughter and another house for one of his grandchildren on the
property. He said he wants the road to remain so that if his children or grandchildren
decide to put in a development in the future, they will be able to do so.
{¶18} Mr. Dennison said that if South Linda Lane was vacated, 18 of the sublots
on the property would be landlocked. He said that only four of the sublots would have
access on Dock Road, but those would be so narrow, no one would want them. He said
that if South Linda Lane was vacated, it would not be convenient to the residence they
intend to build on South Linda Lane. He would end up with only one-half of the road. It
would be difficult to get a fire truck or ambulance to the house. He said that South
Linda Lane provides the only access to their proposed house. Thus, if South Linda Lane
was vacated, the residence would be landlocked.
{¶19} Following the presentation of the evidence, the jury returned a verdict in
favor of the Dennisons, finding “the vacation of South Linda Lane WILL NOT be
conducive to the public convenience and welfare,” and answering each of the following
interrogatories in the affirmative:
6
{¶20} “(A) Has South Linda Lane ever been used as a road?
{¶21} “Yes.
{¶22} “(B) Is there a reason to believe that South Linda Lane will be used as a
road in the near future?
{¶23} “Yes.
{¶24} “(C) Will vacation of South Linda Lane cause the Dennisons to be
landlocked or lock the primary means of access to their property?
{¶25} “Yes.
{¶26} “(D) Does any evidence exist as to any present need or use for the road to
remain open?
{¶27} “Yes.”
{¶28} Based on the jury’s verdict and answers to the interrogatories, the trial
court entered judgment in favor of the Dennisons, finding that “the vacation of South
Linda Lane will not be conducive to the public convenience and welfare.”
{¶29} The trustees appeal the judgment, asserting three assignments of error.
For their first assigned error, they allege:
{¶30} “The Trial Court erred by not granting Appellant’s Motion to Dismiss.”
{¶31} The trustees concede on appeal that the Dennisons appealed the
commissioners’ decision to vacate South Linda Lane pursuant to R.C. 5563.02.
However, the trustees argue the commissioners’ action was legislative in nature and
thus not subject to appeal pursuant to this statute. We do not agree.
{¶32} This court reviews a trial court’s interpretation and application of a statute
under a de novo standard of appellate review. Stalloy Metals, Inc. v. Kennametal, Inc.,
11th Dist. Geauga No. 2012-G-3045, 2012-Ohio-5597, ¶37.
7
{¶33} R.C. 5563.02 provides in pertinent part:
{¶34} Any person * * * interested therein, may appeal from the final order
or judgment of the board of county commissioners, made in any
road improvement proceeding * * *, determining any of the following
matters:
{¶35} (A) The order establishing the proposed improvement;
{¶36} (B) The order * * * refusing to grant the * * * proposed improvement.
{¶37} R.C. 5553.01 defines the “improvement” of a road as “any location,
establishment, alteration, widening, straightening, vacation, or change in the direction of
a public road * * *, as determined upon by a board of county commissioners * * *.”
(Emphasis added.)
{¶38} In the landmark case of Commissioners v. Gibson, 110 Ohio St. 290
(1924), the Supreme Court of Ohio held that the word “improvement” used in G.C. 6891,
the statutory predecessor to R.C. 5563.02, includes “vacation.” Id. at 293-294.
{¶39} The Fifth District in In re Denial of the Vacation of Liberty Township Road,
5th Dist. Guernsey No. CA-595, 1980 Ohio App. LEXIS 11959 (January 30, 1980),
stated:
{¶40} The case of Gibson, [supra], instructs that the vacation of a county
road constitutes an “improvement” and an appeal lies from the final
order of the county commissioners vacating any such road or part
thereof. From that decision, we extrapolate the proposition that the
decision to deny a petition to vacate a township road is, likewise, an
“improvement” and is the proper subject for appeal pursuant to the
8
provisions of R.C. 5563.02. (Emphasis added.) Liberty Township
Road, supra, at *4.
{¶41} This court has stated, “the procedure set forth in R.C. Chapter 5563 is the
only procedure applicable to appeals in road vacation proceedings.” (Emphasis added.)
In re Appeal of Peterson, 11th Dist. Geauga No. 2003-G-2508, 2004-Ohio-2308, ¶7,
citing State ex rel. Lindenschmidt v. Bd. of Commrs. of Butler Cty., 72 Ohio St. 3d 464,
468 (1995).
{¶42} Thus, the commissioners’ decision to grant or deny a township’s request
to vacate a township road is subject to appeal pursuant to R.C. 5563.02.
{¶43} Further, R.C. 5553.045(D), regarding the vacation of township roads,
provides: “If the board of county commissioners fails to vote on the issue of vacating
the road within sixty days after the township’s resolution is filed with it, the road * * *
specified in the resolution shall be deemed to be vacated * * *.” (Emphasis added.)
{¶44} Distilled to their essence, the foregoing authority provides that a property
owner is entitled to appeal the commissioners’ decision in any road improvement
proceeding granting the proposed improvement. R.C. 5563.02. Further, the vacation of
a township road constitutes a road improvement and is the proper subject of an appeal
under R.C. 5563.02. Gibson, supra; Liberty Township Road, supra. Finally, if the
commissioners do not vote on the trustees’ resolution to vacate a road within 60 days of
its filing with the commissioners, the road is deemed to be vacated. R.C. 5553.045(D).
{¶45} Applying these principles to this matter, the trustees’ resolution to vacate
South Linda Lane constituted a road improvement proceeding. By not voting on the
petition within 60 days of its filing with the commissioners, South Linda Lane was
9
deemed to be vacated. Thus, the Dennisons were authorized by R.C. 5563.02 to
appeal the commissioners’ vacation of the road to the trial court.
{¶46} The trustees argue that, because the commissioners did not actually vote
on the issue, they did not enter a final order establishing or refusing the proposed
improvement, either of which is required for a party to appeal the commissioners’ action
under R.C. 5563.02. Thus, they argue the Dennisons were not entitled to appeal the
commissioners’ vacation pursuant to R.C. 5563.02. However, since the commissioners’
inaction is deemed to establish the vacation of the road, the condition for an appeal
under R.C. 5563.02 has been satisfied. The trustees have failed to cite any pertinent
authority to the contrary as required by App.R. 16(A)(7). Moreover, if a party could not
appeal the vacation simply because the commissioners failed to vote on the issue, R.C.
5563.02 would be thwarted because the commissioners could effectively grant the
vacation and prevent the injured party from appealing simply by not voting on the issue.
{¶47} Appellant’s reliance on Ohio Multi-Use Trails Ass’n v. Vinton County
Commissioners, 182 Ohio App. 3d 32 (4th Dist.2009) and Eastland Woods v. Tallmadge,
2 Ohio St. 3d 185 (1983) is misplaced as neither case addressed the application of R.C.
5563.02. In Multi-Use Trails, the court held that R.C. 5553.045 does not provide for an
administrative appeal pursuant to R.C. Chapter 2506. Id. at ¶13. In Eastland Woods,
the Supreme Court held that one whose property does not abut a vacated street cannot
sue a city for an injunction to enjoin the vacation of a street or for damages for its
closing. Id. at 187. These cases are thus inapposite.
{¶48} We therefore hold the trial court did not err in finding that the Dennisons
properly appealed this matter pursuant to R.C. 5563.02 and in denying the trustees’
motion to dismiss.
10
{¶49} The trustees’ first assignment of error is overruled.
{¶50} For their second assignment of error, the trustees contend:
{¶51} “The Trial Court erred in not granting a directed verdict pursuant to Ohio
Civ. Rule 50(A)(4).
{¶52} Civ.R. 50(A)(4) provides that a trial court may not grant a directed verdict
unless the evidence, when construed in the light most favorable to the nonmoving party,
leads reasonable minds to only one conclusion, and that conclusion is adverse to the
nonmovant. Civ.R. 50(A)(4) requires the trial court to give the nonmoving party the
benefit of all reasonable inferences that may be drawn from the evidence. Broz v.
Winland, 68 Ohio St. 3d 521, 526 (1994). “This standard corresponds to the standard
established for summary judgment in Civ.R. 56, that ‘reasonable minds can come to but
one conclusion and that conclusion is adverse to the party against whom the motion for
summary judgment is made, that party being entitled to have the evidence * * *
construed most strongly in the party’s favor.’” Parrish v. Jones, 138 Ohio St. 3d 23,
2013-Ohio-5224, ¶16. “A motion for a directed verdict assesses the sufficiency of the
evidence, not the weight of the evidence or the credibility of the witnesses.” Jarvis v.
Stone, 9th Dist. Summit No. 23904, 2008-Ohio-3313, ¶7. See Civ.R. 50(A). Further, “[a]
motion for directed verdict presents a question of law that an appellate court reviews de
novo.” Celmer v. Rodgers, 11th Dist. Trumbull No. 2004-T-0074, 2005-Ohio-7054, ¶27.
{¶53} R.C. 5563.10 provides that, if an order of the commissioners establishing
a road improvement is appealed, at the conclusion of a trial under R.C. 5563.05, the
jury shall determine in its verdict whether the road improvement will be conducive to the
public convenience and welfare. In order to determine the reasons for the jury’s verdict,
11
the trial court submitted four interrogatories to them reflecting the factors set forth by the
Supreme Court of Ohio in Ruff v. Nichols, 18 Ohio St. 3d 397, 399 (1985).
{¶54} The trustees argue the trial court erred in not directing a verdict in their
favor because, they contend, “overwhelming evidence” was presented that South Linda
Lane has never been used as a road, contrary to the jury’s finding under the first
interrogatory. The trustees simply ignore the countervailing evidence on this issue.
{¶55} The record shows the Dennisons presented direct and circumstantial
evidence that South Linda Lane has been used as a road. First, Mr. Radachy of the
Planning Commission testified that South Linda Lane is “an existing right-of-way,” which
its prior owners dedicated for public purposes as a road in 1957, and that the county
and township approved this dedication. Second, Mr. Dennison testified that water and
gas lines and three fire hydrants have been installed on South Linda Lane. Third, Mr.
Dennison said the county storm water management department recently dug 600 feet of
ditches along South Linda Lane. Fourth, Bruce Landeg of the Lake County Engineer’s
Office identified a 1973 aerial photograph, which, he said, showed South Linda Lane
being used, leading him to conclude that, as of 1973, South Linda Lane was a “traveled
way.” Fifth, Mr. Klco, the township zoning inspector, testified that he issued a zoning
permit to Mr. Dennison to build a barn on South Linda Lane. He also said he approved
Mr. Dennison’s site plan for the Dennisons’ proposed residence on South Linda Lane.
Sixth, Mr. Klco said that if South Linda Lane was vacated, he could not issue zoning
permits to the 22 sublots on the Dennisons’ property because sublots five through 22
would be landlocked and sublots one through four would only have access on Dock
Road. Seventh, Noma Stanze testified she has seen cars using South Linda Lane.
12
Eighth, Mr. Dennison testified that he has driven on South Linda Lane and that it is
drivable.
{¶56} The trustees also argue that, because there is no evidence the township
has maintained South Linda Lane and the state has not reimbursed the township for
any maintenance on that road, the trustees were entitled to a directed verdict.
However, the trustees present no authority in support of either argument. Thus, these
additional arguments lack merit pursuant to App.R. 16(A)(7).
{¶57} Based on our review of the record, the Dennisons presented evidence that
South Linda Lane has been used as a road and that the vacation of that road would not
be conducive to the public convenience and welfare. We therefore hold the trial court
did not err in denying the trustees’ motion for a directed verdict.
{¶58} The trustees’ second assignment of error is overruled.
{¶59} For their third and final assignment of error, the trustees allege:
{¶60} “The Trial Court erred by not giving the jury Court’s Exhibit 2.”
{¶61} The trustees argue the trial court erred in not giving the record before the
commissioners to the jury to consider in arriving at its verdict. The only evidence in the
commissioners’ record about which the trustees complain is a report prepared by Bruce
Landeg of the County Engineer’s Office recommending that the commissioners approve
the vacation. The trustees argue that if the jury would have been permitted to review
this report, the verdict would have been different.
{¶62} While R.C. 5563.03 requires the record of the commissioners’ hearing be
transmitted to the trial court, this statute does not require the record be given to the jury.
Moreover, the trustees do not cite any authority for their argument that the trial court’s
13
decision not to give the record to the jury was reversible error. For this reason alone,
their argument lacks merit. App.R. 16(A)(7).
{¶63} Further, it must be noted that the appeal provided for in road improvement
cases under R.C. 5563.02 is completely different from an administrative appeal from
decisions of administrative agencies pursuant to R.C. Chapter 2506. The appeal in a
road improvement case provides for a de novo trial in the probate court or common
pleas court to a jury. R.C. 5563.09. Further, the rules of law and procedure governing
civil cases apply in such appeals. Id. In contrast, an administrative appeal generally
involves only a review by the court, not a jury, of the agency’s record to determine if the
agency’s decision was supported by substantial, reliable, and probative evidence. R.C.
2506.04. Thus, unlike the typical administrative appeal, in an appeal of a road vacation
case, the trial court has discretion in ruling on the admission of evidence. The trustees
concede the trial court excluded the commissioners’ record to avoid jury confusion. The
court also apparently sought to avoid duplication of evidence because the evidence
presented to the commissioners was basically the same as that presented at trial. The
trial court thus acted within its discretion in not allowing the record before the
commissioners to go to the jury.
{¶64} In any event, the trustees argued in the trial court that the commissioners’
record as a whole should be given to the jury. They did not argue that Mr. Landeg’s
report should have been given to the jury. Thus, the trustees did not give the trial court
an opportunity to consider the propriety of giving Mr. Landeg’s report to the jury. As a
result, the trustees waived any error in this regard. State v. Awan, 22 Ohio St. 3d 120,
122 (1986).
14
{¶65} Further, Mr. Landeg testified at trial and the trustees had an opportunity to
fully cross-examine him. Yet, they did not ask him even one question concerning his
report or the recommendation in his report. Instead, they cross-examined him
concerning the fact that South Linda Lane is not a paved surface and not constructed to
county standards. The trustees obviously relied on Mr. Landeg’s testimony about the
alleged deficiencies in South Linda Lane as a road, rather than the recommendation in
his report. We also note that the Dennisons presented ample, credible evidence in
support of the jury’s verdict. Thus, the trustees have not demonstrated prejudice
resulting from the report not being given to the jury.
{¶66} The trustees’ third assignment of error lacks merit.
{¶67} For the reasons stated in this opinion, the assignments of error lack merit
and are overruled. It is the order and judgment of this court that the judgment of the
Lake County Court of Common Pleas is affirmed.
DIANE V. GRENDELL, J.,
THOMAS R. WRIGHT, J.,
concur.
15