State ex rel. Natl. Lime & Stone Co. v. Marion Cty. Bd. Commrs.

[Cite as State ex rel. Natl. Lime & Stone Co. v. Marion Cty. Bd. Commrs., 2016-Ohio-859.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
__________________________________________________________________
STATE OF OHIO EX REL.,
THE NATIONAL LIME AND
STONE COMPANY,
RELATOR, CASE NO. 9-15-24
v.
BOARD OF MARION COUNTY JUDGMENT
COMMISSIONERS, ENTRY
RESPONDENTS.
__________________________________________________________________
PER CURIAM:
{¶1} This matter comes on for final determination of Relator’s petition for writ
of mandamus. In addition to the petition and response, before the Court are
Respondents’ replies to interrogatories, requests for production, and requests for
admission; the parties’ stipulated statement of facts; Relator’s brief in support of
the writ; and Respondents’ brief seeking dismissal.
{¶2} The parties’ stipulations include the following facts. Relator, an Ohio
corporation, is a limestone aggregates and industrial minerals mining company
that owns 224.257 acres of property in Grand Prairie Township, Marion County,
Ohio. Norfolk Southern Railway (“NSR”) has an ownership interest in a strip of
land running through the southeast portion of Relator’s property. The NSR
Case No. 9-15-24
property was acquired by two deeds, executed in 1892 and 1896, both from David
H. Harvey, unmarried, to Sandusky & Columbus (& Hocking) Short Line Railway
Company, predecessor in interest to NSR.
{¶3} Relator filed a Petition for Expedited Type 2 Annexation (“petition to
annex”) with Respondents (“the Board”) requesting that Relator’s property be
annexed from Grand Prairie Township to the City of Marion, pursuant to R.C.
709.021 and 709.023. Pursuant to the procedures required by statute, notice of the
petition to annex was sent to the Marion City Clerk of Council and Grand Prairie
Township. Relator did not notify NSR or seek its consent for the petition to
annex. The City of Marion issued a resolution approving the petition to annex; the
Board of Township Trustees of Grand Prairie Township objected to the proposed
annexation; and, on May 15, 2014, the Board of County Commissioners
unanimously passed Resolution #2014-0317 denying the petition to annex.
{¶4} The instant petition seeks a writ of mandamus ordering the Board to
approve Relator’s petition to annex its 224.257 acres of property to the City of
Marion. Relator asserts that the Board has a clear legal duty to approve the
petition to annex because all legal conditions were met, including that all
“owners” of real estate in the territory proposed for annexation signed the petition.
The Board asserts that Relator has no clear legal right to the relief requested
-2-
Case No. 9-15-24
because NSR is an “owner” of real estate in the proposed territory and NSR did
not sign the petition to annex, so all legal conditions were not met for granting
annexation. Thus, the Board asserts that it lawfully denied the petition to annex,
and this action must be dismissed.
{¶5} A writ of mandamus is the proper remedy when a board of commissioners
fails to perform its duties in regard to special annexation procedure. There is no
right to appeal in law or equity from the board of county commissioner’s entry of
any resolution on a Type 2 annexation petition; rather, a party may seek a writ of
mandamus to compel the board to perform its duties under this section. R.C.
709.023(A) and (G).
{¶6} The expedited procedure for Type 2 annexation, where all owners
unanimously request annexation authorized in R.C. 709.021, is conducted
pursuant to R.C. 709.023 and summarized as follows. A petition requesting
annexation of land that is not to be excluded from the township under R.C. 503.07
must be signed by all of the owners of the land in the unincorporated territory of
the township requesting annexation into the municipal corporation that is
contiguous to that territory. R.C. 709.021(A) and R.C. 709.023(A). The petition
must be filed in the office of the clerk of the board of county commissioners and
timely notices of same are required to be transmitted. R.C. 709.023(B) and (C).
-3-
Case No. 9-15-24
{¶7} If the municipal corporation or township files an ordinance or resolution
with the board of county commissioners that objects to the proposed annexation,
the board of county commissioners shall timely proceed to review the petition to
determine if each condition set forth in R.C. 709.023(E)(1) through (7) has been
met. R.C. 709.023(D). If the board finds that each condition has been met, it shall
enter a resolution granting the annexation. If the board finds that one or more
conditions has not been met, the board shall enter a resolution stating which
conditions have not been met and deny the petition. R.C. 709.023(F).
{¶8} In the instant case, after the township objected to the petition to annex, the
Board entered a resolution finding that the petition failed to meet the conditions in
R.C. 709.023(E)(1) and (2) because NSR is an “owner” of land in the territory
proposed for annexation and NSR was required to sign the petition. Furthermore,
the resolution stated that the petition failed to meet the condition in R.C.
709.023(E)(4) because the NSR property divides Relator’s property, leaving the
bulk of the property proposed for annexation not contiguous with the corporation
limits of the City of Marion.
{¶9} Therefore, the decisive question is whether NSR meets the definition of an
“owner” of real estate in the territory proposed for annexation under R.C.
709.02(E). We find that NSR is an “owner” under R.C. 709.02(E) and, as
-4-
Case No. 9-15-24
stipulated, NSR did not sign the petition to annex. As a result, the conditions in
R.C. 709.023(E)(1) and (2) had not been met and the Board performed its duties in
regard to special annexation procedure by denying Relator’s petition to annex.
{¶10} R.C. 709.02(E) provides the definition of “owner” for purpose of
establishing who is required to sign a petition to annex. The statute provides:
‘[O]wner’ or ‘owners’ means any adult individual who is legally
competent, the state or any political subdivision * * *, and any firm,
trustee, or private corporation, any of which is seized of a
freehold estate in land; except that easements and any railroad,
utility, street, and highway rights-of-way held in fee, by
easement, or by dedication and acceptance are not included within
those meanings[.]
(Emphasis added).
{¶11} This definition has been found to be ambiguous. State ex rel. Butler
Twp. Bd. Of Trustees v. Montgomery Cty. Bd. Of Commrs., 112 Ohio St.3d 262,
2006-Ohio-6411, ¶ 25. Nevertheless, we are not persuaded by the strained
assertion of Relator that NSR merely “owns land in fee for the purpose of
operating a railroad – in other words, a ‘right of way held in fee.’” (Relator’s
Brief, Pg. 11.)
{¶12} As the Board argues and the evidence shows, NSR’s ownership interest is
not that of a right-of-way, but an owner in fee simple by general warranty deed.
For example, the 1892 deed, in pertinent part, reflects that the grantor transferred
to NSR’s predecessor in title, and its assigns forever, 4 and 35/100 acres, more or
-5-
Case No. 9-15-24
less, “being a strip of ground 60 feet wide through my entire premises * * * with
all the privileges and appurtenances interests belonging,” with covenant by the
grantor and his heirs to the grantee and its assigns that the grantor is lawfully
seized of the premises, said premises are free and clear from all encumbrances
whatsoever, and the grantor will forever warrant and defend the same.
Consequently, NSR is “seized of a freehold in the land” described. Nothing in the
deed supports the assertion that the interest transferred is an easement, right-of-
way, or a “fee for the purpose of operating a railroad.” Therefore, the exception
found in R.C. 709.02(E) to the definition of an “owner” for purpose of R.C.
709.023 is not applicable.
{¶13} This Court’s interpretation and analysis is consistent with the decision
reached in Lawrence Twp. Bd. Of Trustees v. Canal Fulton, 5th Dist. Stark No.
2008CA00021, 2009-Ohio-759, where the same issue was presented, whether the
board of commissioners has a clear legal duty to approve or reject a Type 2
petition for annexation when the territory proposed for annexation includes
property owned by a railroad, and the railroad did not sign the petition or appear in
the proceeding.
{¶14} The court in Lawrence reversed the trial court’s grant of summary
judgment, holding that resolution of the issue “depends upon a determination of
-6-
Case No. 9-15-24
whether [the railroad] is a fee simple owner of the land upon which its tracks sit or
whether it merely possesses a right of way or easement in fee upon the land(s) of
another within the territory to be annexed.” Id. at ¶ 37. Due to a lack of
evidentiary material, the case was remanded to resolve the factual issue of whether
the railroad “owns the land under its tracks in fee simple or merely owns a fee
interest in a right-of-way over the land.” Id. at ¶ 39. The dissent followed the
same rationale, but concluded that evidence existing in the record “undisputedly
establishes that [the railroad] is the owner of a railroad right-of-way” and not an
“owner” under R.C. 709.02(E).
{¶15} Relator’s brief argues alternatively that the language and legislative intent
of R.C. 709.02(E) is to specifically exclude entities such as railroads (regardless of
interest) from the definition of “owner” for purposes of annexation procedure. We
disagree and are not persuaded that this sweeping interpretation, and the
constitutional implications arising therefrom, have been addressed and accepted.
{¶16} The only reference to legislative intent is a statement appearing prior to
the Lawrence opinion, in N. Canton v. Canton, 5th Dist. Stark No. 2005-CA-
00123, 2005-Ohio-6953, ¶ 14. This reference was included in dicta, with no
analysis or support, after the appellate court held that the trial court properly
dismissed the case for lack of subject matter jurisdiction and, even assuming it had
-7-
Case No. 9-15-24
jurisdiction, the municipal corporation lacked standing to challenge the
constitutionality of R.C. 709.02(E). On appeal, the Ohio Supreme Court’s opinion
reiterated the statement, but specifically limited its holding to the narrow issue of
whether a municipality has standing to challenge the constitutionality of R.C.
709.02(E). N. Canton v. Canton, 114 Ohio St.3d 253, 2007-Ohio-4005, ¶ 8.
{¶17} Conversely, when provided the opportunity to directly construe the
language and legislative intent of “owner” under R.C. 709.02(E), the Ohio
Supreme Court addressed the “exception clause” for rights-of-way and easement
holders and held that landowners under a roadway easement must be counted as
“owners” because they have an “undeniable and definite property ownership
interest.” State ex rel. Butler Twp. Bd. Of Trustees v. Montgomery Cty. Bd. Of
Commrs., 112 Ohio St.3d 262, 2006-Ohio-6411, ¶ 46.
{¶18} As the successor in interest to and owner in fee simple by general
warranty deed, NSR has no less of an “undeniable and definite” property interest
in the narrow strip of real estate located in the territory proposed for annexation.
{¶19} Accordingly, Relator’s petition to annex failed to meet the conditions set
forth in R.C. 709.023(E)(1) and (2), requiring that the petition be signed by all
“owners” of real estate in the territory proposed for annexation, and we need not
address the contiguous boundary condition found in R.C. 709.023(E)(4). The
-8-
Case No. 9-15-24
Board performed its legal duty by denying Relator’s petition to annex and the
instant action for writ of mandamus is without merit and must be dismissed.
{¶20} It is therefore ORDERED that Relator’s petition for writ of
mandamus be, and hereby is, dismissed with costs assessed to Relator for which
judgment is hereby rendered.
/S/ SHAW, P.J.
JUDGE
/S/ WILLAMOWSKI
JUDGE
/S/ JENSEN
JUDGE **
TO THE CLERK:
Within three (3) days of entering this judgment on the journal, you are
directed to serve on all parties not in default for failure to appear notice of the
judgment and the date of its entry upon the journal, pursuant to Civ.R. 58(B).
/S/ SHAW
PRESIDING JUDGE
(Signed pursuant to App. R. 15(c))
** Judge James Dean Jensen of the Sixth District Court of Appeals, sitting by
assignment of the Chief Justice of the Supreme Court of Ohio.
-9-
Case No. 9-15-24
DATED: March 7, 2016
-10-