In re Petition to Annex 320 Acres to the Village of S. Lebanon

OPINIONS OF THE SUPREME COURT OF OHIO

The full texts of the opinions of the Supreme Court of

Ohio are being transmitted electronically beginning May 27,

1992, pursuant to a pilot project implemented by Chief Justice

Thomas J. Moyer.

Please call any errors to the attention of the Reporter's

Office of the Supreme Court of Ohio. Attention: Walter S.

Kobalka, Reporter, or Justine Michael, Administrative

Assistant. Tel.: (614) 466-4961; in Ohio 1-800-826-9010.

Your comments on this pilot project are also welcome.

NOTE: Corrections may be made by the Supreme Court to the

full texts of the opinions after they have been released

electronically to the public. The reader is therefore advised

to check the bound volumes of Ohio St.3d published by West

Publishing Company for the final versions of these opinions.

The advance sheets to Ohio St.3d will also contain the volume

and page numbers where the opinions will be found in the bound

volumes of the Ohio Official Reports.

In re Petition to Annex 320 Acres to the Village of South

Lebanon: Cincinnati Milacron, Inc., Appellee and

Cross-Appellant, v. Doughman, Clerk, et al., Appellants and

Cross-Appellees.

In re Petition to Annex 320 Acres to the Village of South

Lebanon: Cincinnati Milacron, Inc., Appellee, v. Board of

Commissioners of Warren County, Ohio, Appellant.

[Cite as In re Petition to Annex 320 Acres to the Village

of S. Lebanon (1992), Ohio St.3d .]

Municipal corporations -- Annexation -- R.C. 709.07 provides

exclusive remedy for persons who challenge a board of

county commissioners' approval of a landowners' annexation

petition -- R.C. 709.07 does not permit a reviewing court

to partially enjoin an approved landowners' petition for

annexation.

1. R.C. 709.07 provides the exclusive remedy for persons

whochallenge a board of county commissioners' approval of

a landowners' annexation petition.

2. R.C. 709.07 does not permit a reviewing court to sever

(partially enjoin) an approved landowners' petition for

annexation. (Middletown v. McGee [1988], 39 Ohio St.3d

284, 530 N.E.2d 902, distinguished.)

(Nos. 91-1028 and 91-1037 -- Submitted May 5, 1992 --

Decided September 2, 1992.)

Appeals and Cross-Appeal from the Court of Appeals for

Warren County, Nos. CA90-04-024 and CA90-08-054.

On August 7, 1989, fourteen landowners purporting to be

the majority of landowners of a 320.411 acre tract of land

located in Union and Hamilton Townships, in Warren County,

Ohio, filed an annexation petition attempting to annex their

properties to the village of South Lebanon. The petitioners

designated appellant and cross-appellee, Carl Oeder, as their

agent for this action.

Prior to the date set for the hearing before appellant,

Board of County Commissioners of Warren County, Ohio ("board"),

the village of South Lebanon passed a resolution pursuant to

R.C. 709.031, detailing the services that it would provide to

the area to be annexed. The services included sewer and water,

recreation and parks, police protection, street lighting,

street maintenance, snow and ice removal, storm sewers, waste

collection, and unclassified miscellaneous services. On

October 17, 1989, the board held its required public hearing on

the annexation petition. Based on a motion made by Oeder, the

number of acres of land set forth in the annexation petition

was amended from 320.411 to 313.589.1

Evidence contained in the record before the board

indicated that water and sewer service was not readily

available in the area to be annexed. Furthermore, those owners

who were already receiving water services from the village of

South Lebanon would benefit from cheaper rates following

annexation of their land to the village. Moreover, there was

no direct police protection in the area to be annexed.

Instead, the Warren County Sheriff's Office was responsible for

police protection in the area. South Lebanon Village Trustee

Russ Kilburn stated that South Lebanon could furnish the entire

area to be annexed with water service and better police

protection than was already provided.

In opposing the annexation to the village of South

Lebanon, appellee and cross-appellant, Cincinnati Milacron,

Incorporated, which owns property in the area to be annexed,

put forth evidence that the village of South Lebanon lacked the

manpower and government resources to deal effectively with the

problems it currently was experiencing and annexing the

territory in question would further add to the village's

strain. In fact, the annexation would add fifty percent more

acreage to the territory of the village and extend it in a

linear fashion about a mile and a half. According to

Cincinnati Milacron's witness, Dean E. Sterling, who is a

village administrator for Miami Township in Clermont County,

the good of the general area to be annexed would not be served

by the petition. The quality of government services would

decline in the territory and the annexed area would be worse

off following the annexation. Sterling concluded that the city

of Lebanon would be the appropriate jurisdiction to annex the

subject land given the city's higher level of governmental

services. Cincinnati Milacron pointed out it had its own

in-house sewage treatment plant and, therefore, would not

benefit by connecting its land to the village of South Lebanon

facilities.

On October 24, 1989, the board passed a resolution

approving the amended annexation petition. The resolution

stated that the petition contained all matters required by law

(i.e., R.C. 709.033), including:

" --- that the statements in said petition are true;

" --- that the territory sought to be annexed is adjacent

to the village of South Lebanon, Ohio;

" --- that the petition contains a full and accurate

revised legal description;

" --- that the revised map of said territory attached to

the petition is accurate;

" --- that the petition is signed by a majority of the

owners of real estate in the territory sought to be annexed;

" --- that the required legal notices of the filing of the

petition and the hearing thereon have been given;

" --- that the territory is not unreasonably large;

" --- that the general good of the territory sought to be

annexed will be served if the annexation is granted * * *."

Cincinnati Milacron sought two different forms of relief

in the Warren County Court of Common Pleas from the annexation

of its property to the village of South Lebanon. The first

remedy sought by Cincinnati Milacron was an R.C. 2506.01 direct

appeal (hereinafter referred to as the "Section 2506 appeal")

from the board's decision filed on November 17, 1989.

Cincinnati Milacron also filed a statutory injunction action

pursuant to R.C. 709.07 (hereinafter referred to as the

"Section 709 action") on December 27, 1989, which was styled

"Petition for Injunction Against Annexation."

In the Section 2506 appeal Cincinnati Milacron named the

board as the sole appellee. On February 7, 1990, the board

filed a motion to dismiss the Section 2506 appeal, claiming

that an R.C. 709.07 injunction action was Cincinnati Milacron's

sole remedy. On March 7, 1990, the trial court granted the

board's motion to dismiss, which was formalized in an entry on

March 19, 1990. In dismissing Cincinnati Milacron's Section

2506 appeal, the trial court held that Cincinnati Milacron's

sole and exclusive remedy was to seek an injunction pursuant to

R.C. 709.07

Cincinnati Milacron appealed to the Warren County Court of

Appeals, which reversed the trial court's decision after it sua

sponte dissolved the consolidation of both the Section 2506

appeal and the Section 709 action. Essentially, the appellate

court held that an R.C. 709.07 injunction was not the exclusive

remedy to challenge the board's approval of an annexation

petition.

The second statutory remedy pursued by Cincinnati Milacron

was an original action pursuant to R.C. 709.07. Cincinnati

Milacron sought two alternative remedies by its Section 709

action. First, it sought to enjoin the village of South

Lebanon from any further action to complete the annexation.

Alternatively, Cincinnati Milacron attempted to enjoin the

annexation only insofar as it related to its property. The

trial court would only allow certain evidence to be submitted

by the parties,2 and refused to consider evidence directed to

various discretionary findings of the board. On August 7,

1990, the trial court denied both the complete and partial

injunctions sought by Cincinnati Milacron in the Section 709

action. The court held, inter alia, that Cincinnati Milacron

failed to show by clear and convincing evidence any of the

alleged errors claimed in its petition for injunction and that

the administrative record before the board supported the

commissioners' approval of the annexation.

With respect to the Section 709 action the Court of

Appeals for Warren County reversed the trial court in part and

remanded the action to that court with a mandate to approve the

annexation only after Cincinnati Milacron's property had been

"severed" from the territory sought to be annexed. The court

of appeals relied upon Middletown v. McGee (1988), 39 Ohio

St.3d 284, 530 N.E.2d 902, to authorize a severance of property

under circumstances where that portion of the property sought

to be annexed is not benefited.

The Section 2506 appeal has been appealed by the board

(case No. 91-1037), while the Section 709 action has been

appealed to this court by Oeder, agent for petitioners, and

Richard Doughman, Clerk of the village of South Lebanon (case

No. 91-1028). Cincinnati Milacron has filed a cross-appeal in

case No. 91-1028 in order to preserve its request to have the

annexation completely enjoined in the event this court finds

the partial injunction to be invalid.

This cause is now before this court pursuant to

consolidation of the cases and the allowance of motions and a

cross-motion to certify the record.

Frost & Jacobs, David C.Horn and Vincent E. Mauer, for

Cincinnati Milacron, Inc. in case Nos. 91-1028 and 91-1037.

John C. Quinn, for appellant and cross-appellee Richard

Doughman, Clerk, in case No. 91-1028.

Lucas, Prendergast, Albright, Gibson & Newman and Richard

C. Brahm; Rendigs, Fry, Kiely & Dennis and William P.

Schroeder, for appellant and cross-appellee Carl E. Oeder,

Agent, in case No. 91-1028.

Timothy A. Oliver, Prosecuting Attorney, Michael E. Powell

and Carolyn A. Duvelius, for appellant Warren County Board of

Commissioners in case No. 91-1037.

John C. Quinn, urging reversal for amicus curiae, village

of South Lebanon, Ohio, in case No. 91-1037.

Calfee, Halter & Griswold, John E. Gotherman and Marilyn

G. Zack, urging reversal for amicus curiae, Ohio Municipal

League in case Nos. 91-1028 and 91-1037.

Holmes, J. The first issue before the court is whether

R.C. Chapter 2506 is a potential remedy for persons who

challenge the annexation of property to another jurisdiction by

a board of county commissioners which has acted upon a

landowners' petition. Another issue before the court is

whether a reviewing court pursuant to R.C. 709.07 may "sever"

or "excise" territory from an approved annexation petition.

For the reasons that follow, we answer both queries in the

negative.

I

Statutory Scheme for Annexation on

Application of Landowners

In the present case a group of landowners sought to have

their territory annexed to the village of South Lebanon. To

better understand the remedy or remedies available to

landowners challenging a decision approving an annexation

petition, a brief outline of Ohio's annexation law is indicated.

Generally, a petition signed by a majority of the owners

of territory adjacent to a municipal corporation is filed with

the board of county commissioners. R.C. 709.02. The petition

must contain a full description and accurate map or plat of the

territory sought to be annexed. R.C. 709.02(A). Also, it must

contain a statement of the number of owners of real estate in

the territory sought to be annexed, along with the name of a

person or persons who are to act as the agent for the

petitioners. R.C. 709.02(B) and (C). A public hearing is then

held by the board of county commissioners, where testimony and

evidence is offered by both proponents and opponents of the

annexation. R.C. 709.031 and 709.032. After the hearing, the

board decides whether to grant or deny the petition pursuant to

R.C. 709.033 based upon the following factors:

"(A) The petition contains all matter required in section

709.02 of the Revised Code.

"(B) Notice has been published as required by section

709.031 of the Revised Code.

"(C) The persons whose names are subscribed to the

petition are owners of real estate located in the territory in

the petition, and as of the time the petition was filed with

the board of county commissioners the number of valid

signatures on the petition constituted a majority of the owners

of real estate in the territory proposed to be annexed.

"(D) The municipal corporation to which the territory is

proposed to be annexed has complied with division (B) of

section 709.031 of the Revised Code.

"(E) The territory included in the annexation petition is

not unreasonably large; the map or plat is accurate; and the

general good of the territory sought to be annexed will be

served if the annexation petition is granted."

If the petition is approved, the transcript of the

proceedings is placed before the legislative authority of the

annexing municipal corporation for acceptance. R.C. 709.04.

At this point any interested person or person who appeared at

the public hearing3 may file with the court of common pleas a

petition seeking an injunction against the annexation. The

individual bringing the injunction action must allege and prove

by clear and convincing evidence that the board's decision is

unreasonable or unlawful or that there was some error in the

proceedings. R.C. 709.07(D).

In the present case Cincinnati Milacron pursued its remedy

from the adverse board decision through both an R.C. Chapter

2506 appeal and an R.C. 709.07 injunction action. Thus, we are

asked to determine whether one or both of these remedies, R.C.

709.07 and 2506.01 et seq., can be utilized by persons

challenging adverse annexation decisions by boards of county

commissioners.

II

Statutory Remedies

Section 2506 Appeal vs. Section 709 Injunction

As the above commentary regarding annexation plainly

shows, annexation is strictly a statutory process. Therefore,

the key issue we must decide is whether the General Assembly

provided for two distinct remedies for disappointed parties in

landowner-petitioned annexation proceedings.

In 1957, the General Assembly enacted R.C. Chapter 2506,

which gave courts of common pleas jurisdiction to hear and

decide appeals from administrative agencies. See 127 Ohio Laws

963. Subsequently, on March 17, 1987, amendments were made to

R.C. Chapter 2506.4 The amendments to R.C. 2506.01 et seq.

were technical in nature. The actual provision allowing for

appeals to common pleas courts contained in R.C. 2506.01

provides:

"Every final order, adjudication, or decision of any

officer, tribunal, authority, board, bureau, commission,

department, or other division of any political subdivision of

the state may be reviewed by the court of common pleas of the

county in which the principal office of the political

subdivision is located as provided in Chapter 2505. of the

Revised Code, except as modified by this chapter.

"The appeal provided in this chapter is in addition to any

other remedy of appeal provided by law.

"A 'final order, adjudication, or decision' means an

order, adjudication, or decision that determines rights,

duties, privileges, benefits, or legal relationships of a

person, but does not include any order, adjudication, or

decision from which an appeal is granted by rule, ordinance, or

statute to a higher administrative authority if a right to a

hearing on such appeal is provided, or any order, adjudication,

or decision that is issued preliminary to or as a result of a

criminal proceeding."

R.C. 2506.02 through 2506.04 provide the procedures to be

followed on appeal. R.C. 2506.04 sets forth the mode of

inquiry and the standard of review the common pleas court must

adhere to. Specifically, R.C. 2506.04 provides:

"The court may find that the order, adjudication, or

decision is unconstitutional, illegal, arbitrary, capricious,

unreasonable, or unsupported by the preponderance of

substantial, reliable and probative evidence on the whole

record. Consistent with its findings, the court may affirm,

reverse, vacate, or modify the order, adjudication, or

decision, or remand the cause to the officer or body appealed

from with instructions to enter an order, adjudication or

decision consistent with the findings or opinion of the court.

The judgment of the court may be appealed by any party on

questions of law as provided in the Rules of Appellate

Procedure and, to the extent not in conflict with those rules,

Chapter 2505. of the Revised Code."

The provisions of R.C. 2506.01 et seq. were made

applicable to decisions of boards of county commissioners in

1963, when the General Assembly amended R.C. 307.56 to provide:

"A person aggrieved by the decision of the board of county

commissioners may appeal to the court of common pleas, as

provided by and under authority of Chapter 2506. of the Revised

Code. The court shall advance such appeal when perfected for

immediate trial." (130 Ohio Laws 196.)

In contrast to R.C. 2506.01, R.C. 709.07 was originally

enacted in substantially its present form in 1967 (see 132 Ohio

Laws, Part I, 366-377) and was subsequently amended in 1978,

1980 (and 1992). R.C. 709.07, as amended in 1980, provided,

with respect to the procedure to be followed in bringing a

petition for an injunction, that:

"(A) Within sixty days from the filing of the papers

relating to the annexation with the auditor or clerk as

provided by division (D) of section 707.04 or by section

709.033 of the Revised Code, any person interested, and any

other person who appeared in person or by an attorney in the

hearing provided for in section 709.031 of the Revised Code,

may make application by petition to the court of common pleas

praying for an injunction restraining the auditor or clerk from

presenting the annexation petition and other papers to the

legislative authority. The petition of a person interested

shall set forth facts showing:

"(1) How the proposed annexation adversely affects the

legal rights or interests of the petitioner;

"(2) The nature of the error in the proceedings before the

board of county commissioners pursuant to section 707.04,

709.032, or 709.033 of the Revised Code, or how the findings or

order of the board is unreasonable or unlawful.

"The petition of any other person shall set forth facts

applicable to division (A)(2) of this section." (138 Ohio Laws,

Part I, 410.)

In determining which statutes, either R.C. 2506.01 et seq.

or 709.07, apply when boards of county commissioners approve of

an annexation petition over the objections of complaining

parties, we must look to the dictates of R.C. 1.51, which

states:

"If a general provision conflicts with a special or local

provision, they shall be construed, if possible, so that effect

is given to both. If the conflict between the provisions is

irreconcilable, the special or local provision prevails as an

exception to the general provision, unless the general

provision is the later adoption and the manifest intent is that

the general provision prevail."

Furthermore, R.C. 1.52(A) provides that "[i]f statutes

enacted at the same or different sessions of the legislature

are irreconcilable, the statute latest in date of enactment

prevails."

As noted above, R.C. 1.51 requires that initally an

attempt be made to reconcile R.C. 709.07 and 2506.01 et seq.,

if possible. This requirement reflects the common-law

presumption that statutes are not repealed by mere

implication. See Cincinnati v. Thomas Soft Ice Cream, Inc.

(1977), 52 Ohio St.2d 76, 79, 6 O.O.3d 277, 279, 369 N.E.2d

778, 780; and 85 Ohio Jurisprudence 3d (1988) 121, Statutes,

Section 128.

In the present case this court is confronted with two

statutes which appear on their face to apply two different

remedies in challenging decisions made by boards of county

commissioners approving annexations of territory. On the one

hand, R.C. 2506.01 et seq. provides generally for appeals from

administrative determinations in conjunction with R.C. 307.56,

which allows for appeals from boards of county commissioners.

Conversely, R.C. 709.07 specifically addresses challenges made

to the approval of landowners' annexation petitions by boards

of county commissioners. More particularly, R.C. 709.07 places

an increased burden upon the party bringing the action to prove

that the board of county commissioners erred in its

determination. In essence, the complaining party seeking to

enjoin an approved annexation must establish by clear and

convincing evidence that the annexation would adversely affect

the petitioner's legal rights or interests, and there was error

in the board proceedings, or the result reached by the board

was unreasonable or unlawful. This standard of review is

highly deferential to the board of county commissioners.

However, when a party brings a Section 2506 appeal a virtual de

novo examination of the record is conducted by the court

pursuant to R.C. 2506.04. Therefore, due to the differing

standards of review, we believe that R.C. 2506.01 appeals

cannot be reconciled with R.C. 709.07 injunction actions as

applied to decisions made by boards of county commissioners

approving landowners' annexation petitions.

In applying the rules of statutory construction set forth

in R.C. 1.51, we observe that R.C. 709.07, the specific

statute, will prevail as an exception to R.C. Chapter 2506, the

general statutory provisions, unless R.C. Chapter 2506 can be

shown to be the later adoption of the two and the manifest

intent of the General Assembly was to have the general

provisions control.

As discussed earlier, R.C. Chapter 2506 was originally

enacted in 1957, while R.C. 709.07 (in its form as applicable

here) was enacted in 1967 and amended in 1978 and 1980.

However, effective March 17, 1987, various technical amendments

were made to R.C. Chapter 2506. See Am. Sub. H.B. No. 412, 141

Ohio Laws, Part II, 3605-3607. Thus, the query before us is to

determine whether the 1987 amendments to R.C. Chapter 2506 made

it a later enactment than R.C. 709.07. (The 1992 amendment to

R.C. 709.07 is not applicable to this case, and is technical in

nature.)

In our determination of whether an amended statute should

be considered a continuation of a prior statute, R.C. 1.54 is

germane and provides: "A statute which is reenacted or amended

is intended to be a continuation of the prior statute and not a

new enactment, so far as it is the same as the prior statute."

(Emphasis added.) See, also, In re Allen (1915), 91 Ohio St.

315, 320-321, 110 N.E. 535, 537 (when a statute is amended the

part that remains unchanged is to be considered as having

continued as the law from the time of its original enactment).

In the present case, a review of the changes made to R.C.

2506.01, 2506.02, 2506.03, and 2506.04 indicates only minor

procedural and technical modifications. The key language in

R.C. 2506.01, providing for appeals from administrative

determinations, remains unchanged following the 1987

amendments. Therefore, the pertinent portions of R.C. Chapter

2506 to the case at hand should be considered as having

continued as the law from the time of their original enactment.

However, even assuming arguendo that the 1987 amendments

to R.C. Chapter 2506 were substantive, R.C. 1.51 still requires

that the manifest intent is that the general provision (R.C.

2506.01 et seq.) prevail. See Thomas Soft Ice Cream, supra,

paragraph one of the syllabus.

In reviewing R.C. Chapter 2506, we do not find any

expression of legislative intent that these provisions should

control over R.C. 709.07. In fact, our review evinces that the

enactment of R.C. 709.07 (the specific statute) was part of a

comprehensive legislative scheme to promote and encourage

annexation. In reviewing the history of the annexation

statutes, we find that several key changes to these laws have

confirmed the General Assembly's desire to avoid fragmented

local governments and to encourage orderly urban growth. The

first change in this area came about in 1967. Prior to the

1967 amendments, only "adult freeholders residing in such

territory" could seek annexation. See R.C. 709.02 (Bur. of

Code Rev. 1953). Thus, corporations and absentee owners were

excluded.5 However, under the present statutes any owner,

including corporations and trustees, may file annexation

petitions. The second legislative change involved the

discretion of the board of county commissioners in annexation

proceedings. Prior to the enactment of R.C. 709.033 in 1967,

the board of county commissioners, after a public hearing,

could grant an annexation petition if it found, inter alia, it

to be "right that the prayer of the petition be granted." See

R.C. 707.07(I) (Bur. of Code Rev. 1953). This gave the board

almost unlimited discretion in approving or denying the

petition. See Lariccia v. Mahoning Cty. Bd. of Commrs. (1974),

38 Ohio St.2d 99, 101, 67 O.O.2d 97, 98-99, 310 N.E.2d 257, 258

(prior to 1967, boards of county commissioners were possessed

with wide discretionary power and authority in annexation

proceedings); and Dabkowski v. Baumann (1963), 175 Ohio St. 89,

23 O.O.2d 386, 191 N.E.2d 809. The enactment of R.C. 709.033

significantly diminished the board's discretion in annexation

proceedings. As this court observed in Lariccia, supra, at

101-102, 67 O.O.2d at 99, 310 N.E.2d at 258-259:

"* * * [T]he enactment in 1967 of R.C. 709.033

substantially curtailed the discretion to be exercised by

boards of county commissioners in such proceedings. That

statute establishes specific standards to be applied by the

board to the evidence before it in annexation proceedings, and

grants to the board the discretion to make only those factual

determinations specifically called for in the statute.

"* * *

"Although the implications for the community to which the

property in question would be annexed may well be of some

consequence, the clear statement of the General Assembly in

R.C. 709.033 cannot be ignored. That statute directs that the

ultimate focus of annexation proceedings be on 'the general

good of the territory sought to be annexed,' and requires

granting of the petition when it is shown that such benefit

will result."

In Middletown v. McGee (1988), 39 Ohio St.3d 284, 285-286,

530 N.E.2d 902, 903-904, we discussed Ohio's municipal

annexation policy and observed:

"As revealed by the statutes enacted by the General

Assembly that are currently in force, it is the policy of the

state of Ohio to encourage annexation by municipalities of

adjacent territory. Indeed, after an election approving

annexation, the laws of this state offer little protection to

those who would oppose such annexations. * * * A petitioner

seeking to enjoin a proposed annexation bears the heavy burden

of satisfying the requirements of R.C. 709.07(D) * * *.

"Thus, in order to avoid dismissal of their petition for

an injunction, appellants must clearly and convincingly prove

that the annexation would adversely affect their legal rights

or interests, and that either there was prejudicial error in

the proceedings or findings of the board, the board's decision

was unreasonable or unlawful, or the result of the election was

tainted by prejudicial error." (Emphasis sic.)

Accordingly, in applying the rules of statutory

construction, we hold that R.C. 709.07 takes precedence over

R.C. Chapter 2506 where disappointed persons challenge

decisions by boards of county commissioners approving

landowners' annexation petitions. Thus, R.C. 709.07 is the

exclusive remedy for persons who challenge a board of county

commissioners' approval of a landowners' annexation petition.6

III

Severability of Territory under R.C. 709.07

Appellant Oeder asserts that R.C. 709.02 through 709.11,

which outline the procedures and review process for petitions

requesting annexation, do not contemplate the severance of any

part of a territory which has been approved for annexation

after a hearing by the board of county commissioners.

Essentially, appellants collectively claim that the boards of

county commissioners as well as the reviewing courts must

either allow or disallow the annexation in toto. Thus, there

is no statutory scheme which permits the partial allowance or

disallowance of a proposed annexation. We agree. However, as

discussed infra, R.C. 709.032 does provide for an amendment to

the petition if leave is granted by the board of county

commissioners and consent is given by the agent for the

petitioners.

As is clear throughout this opinion, annexation in Ohio is

accomplished through a highly comprehensive statutory process.

The statutory scheme indicates that the primary focus in

evaluating the merits of a proposed petition for annexation is

on the entire area to be annexed rather than an individual

tract of land. Thus, as indicated in R.C. 709.02, it takes

only a majority of owners in a territory to petition for

annexation. See, also, R.C. 709.033(C). R.C. 709.033(E)

specifically provides that following a hearing on a petition to

annex territory, the board of county commissioners shall

approve the petition if:

"The territory included in the annexation petition is not

unreasonably large; the map or plat is accurate; and the

general good of the territory sought to be annexed will be

served if the annexation petition is granted." (Emphasis

added.)

Furthermore, R.C. 709.033 allows for a board only to

"grant or deny the petition for annexation within ninety days

after the hearing set pursuant to section 709.031 * * * of the

Revised Code." (Emphasis added.)

Cincinnati Milacron suggests that our opinion in

Middletown v. McGee, supra, authorizes the severance (or a

partial injunction to be issued) of a single tract of land from

a petition for annexation. In McGee the city of Franklin

sought to annex two sections of Cincinnati-Dayton Road in

Warren County. The first section of roadway was referred to as

the northern territory, which connected two areas of the city

of Franklin. The second section, the southern territory, ran

parallel to the boundary of Franklin for about eighteen hundred

feet and then continued outward into Franklin Township. The

two sections of the county's highway right-of-way totalled 3.8

miles in length and were eighty feet wide at all points. The

primary motivation for the annexation was to prevent a

suspected future attempt by the city of Middletown to expand

into Warren County. McGee, supra, at 289, 530 N.E.2d at 906.

The McGee court held that the annexation of the section of the

southern territory which extended outward from the city for

several miles was unlawful because "it violate[d] the basic

concept of municipal unity." Id. at 288, 530 N.E.2d at 905.

The case at bar and McGee are distinguishable in many

facets. In McGee we were confronted with essentially two

territories, whereas in the present case only one territory is

involved. Specifically, in McGee, supra, 39 Ohio St.3d at 288,

530 N.E.2d at 906, fn. 4, we noted that the petition proposed

by the city of Franklin described two separate territories, but

did not comment on its legality since the issue was not raised

at the trial level. We determined in McGee that the northern

territory was legally contiguous to the city of Middletown, but

part of the southern territory was not. Id. at 288, 530 N.E.2d

at 905-906. Moreover, the petition for annexation in McGee was

the result of a resolution passed by the Franklin City Council,

submitted to the voters of the unincorporated areas of Franklin

Township and subsequently approved by resolution of the Board

of Commissioners of Warren County. Since the city was the

interested party as described in R.C. 709.07, we did not review

what would have happened if a single property owner had

objected to a landowners' petition for annexation.

Furthermore, the petition in McGee was clearly no more than an

attempt by the city of Franklin to discourage the eastward

expansion of the city of Middletown by annexing a strip of land

the width of a roadway and extending several miles to the

Butler-Warren County line. Thus, the petition in McGee failed

to comply with the concept of municipal unity.

When a petition for annexation is before the board of

county commissioners, the board contemplates the inclusion of

an entire territory, not some individual segment. A reviewing

court cannot make its own findings of fact as to the propriety

of a petition for annexation by deleting territory previously

approved by a board of county commissioners. Such an approach,

if permitted, would allow individual landowners to successfully

veto a proposed annexation even though it would benefit the

entire territory to be annexed. A single owner's preference

cannot, in accord with the intent of the annexation statutes,

take precedence over the good of the territory as a whole and

the desires of a majority of the owners within the area to be

annexed.

If a landowner is dissatisfied with a proposed petition

for annexation, he or she may seek an amendment of the petition

and removal of their property therefrom pursuant to R.C.

709.032, which provides in pertinent part:

"The petition may be amended without further notice by

leave of the county commissioners with the consent of the agent

for the petitioners where such amendment does not add to the

territory embraced in the original petition. If any amendment

is permitted, whereby territory not before embraced is added,

the board shall appoint another time for the hearing, of which

notice shall be given as specified in section 709.031 of the

Revised Code."

Clearly, there is no statutory provision for the deletion

of parcels of territory from a petition following a hearing and

determination by the board of county commissioners. Thus,

landowners' annexation petitions may be amended only while the

petition is before the board of county commissioners. If this

process by which amendments may be made to a petition appears

to be too stringent for an objecting landowner, the appropriate

method of change to this process would be by way of legislative

amendment. Construing former R.C. 709.033(D) (now R.C.

709.033[E]), the Fairfield County Court of Appeals in Johnson

v. Boggs (1976), 49 Ohio App.2d 315, 319-320, 3 O.O.3d 384,

386-387, 361 N.E.2d 474, 477, properly observed:

"But in any event, we find that defendants' contention

that the 'territory to be annexed' phrase in R.C. 709.033

refers to the time when the original petition is filed not to

be well taken. Rather, we find that the 'territory to be

annexed' phrase refers to 'after the hearing on the petition to

annex' has been completed and the 'territory proposed to be

annexed' is finally determined. In short, if a deleting

amendment is to be granted, it must be accomplished before the

commissioners' 'finding' process mandated by R.C. 709.033

begins. Obviously, the finding required by R.C. 709.033(D)

could not be undertaken by the county commissioners until they

know the exact boundaries of the territory which is to be

considered for annexation in the context of 'the general good

of the territory.' * * *" (Emphasis added.)

The statutory mandates of R.C. 709.033 would require the

board of county commissioners, in its determination of whether

to allow the annexation of the territory as petitioned, to

consider the benefits and/or the detriments to the totality of

the property included within the petition. Accordingly, any

determination made by the board would have to be in reference

to all the property. Based upon these considerations, we

conclude that R.C. 709.07 does not permit a reviewing court to

sever (issue a partial injunction enjoining) an approved

landowners' petition for annexation.

In the case sub judice, the court of appeals approved the

annexation in part, while severing or excising Cincinnati

Milacron's property from the annexed territory. In essence,

the court of appeals reversed the trial court's decision

upholding the board's decision to approve the amended petition

for annexation in its entirety. The new territory which

remained following the court of appeals' decision was never

examined in its modified form by the board. Although this

annexation might not benefit Cincinnati Milacron, the interests

of the entire territory covered in the petition must be

examined. Thus, we reverse that portion of the court of

appeals' decision which severs Cincinnati Milacron's property

from the approved landowners' petition for annexation.

In reviewing the record concerning the entire territory

approved for annexation by the board and upheld by the trial

court,7 we find that there was sufficient evidence presented by

affidavit and testimony to the board which supported its

findings of adjacency between the territory sought to be

annexed and the village of South Lebanon. Moreover, we find

that Cincinnati Milacron failed to demonstrate by clear and

convincing evidence that the entire territory to be annexed

would be unreasonably large or the general good of the entire

territory to be annexed would not be served by the annexation.

Furthermore, although the board adopted certain guidelines that

may not have been adhered to, the Revised Code does not mandate

any procedure outside what was afforded this petition.

IV

Conclusion

Accordingly, for the foregoing reasons, the judgments of

the court of appeals are reversed and the trial court's

decisions are reinstated both as to the applicability of R.C.

Chapter 25068 and as to the propriety of issuing a partial

injunction pursuant to R.C. 709.07.

Judgments reversed.

Moyer, C.J., Sweeney, Douglas, Wright, H. Brown and

Resnick, JJ., concur.

FOOTNOTES:

1 The amendment to the petition for annexation involved

the deletion of 6.82225 acres of the former Penn Central

Railroad right-of-way, which was owned by the board.

2 Based upon motions to define the scope of the

evidentiary hearings, the trial court issued the following

order:

"1. The Court will receive and consider the entire record

of the proceedings below, including a transcript of testimony;

"2. The Court will receive evidence at this trial offered

to establish the adverse effect of the annexation on the

petitioner and the nature of any error in the proceedings

before the Board of County Commissioners;

"3. The Court will not receive new evidence (beyond the

record below) as to the discretionary issues which were

considered and decided by the County Commissioners, i.e.,

whether the general good of the territory sought to be annexed

will be served if the annexation petition is granted and

whether the territory is unreasonably large.

"The latter issue will be reviewed and considered by this

Court on the basis of the record and hearing which was held

before the County Commissioners on October 17, 1989."

3 Prior to January 1980, only "person(s) interested"

could file for an injunction against an annexation. (137 Ohio

Laws, Part II, 2088-2089.) The phrase "any person interested"

was defined as limited to residents of the area to be annexed.

See Weber v. Williams (1972), 32 Ohio App.2d 65, 61 O.O.2d 57,

288 N.E.2d 322; and Eaton v. Summit Cty. Bd. of Commrs. (1973),

45 Ohio App.2d 316, 74 O.O.2d 485, 345 N.E.2d 87. Thus, if

territory had one owner and he or she petitioned for

annexation, no one would have standing to test the board's

decision to grant the annexation. The latter amendments have

expanded the potential class of persons who are eligible to

file the action to include any person who appeared at the

public hearing.

4 R.C. 2506.01, as amended by Am.Sub.H.B. No. 412, 141

Ohio Laws, Part II, 3605-3606, reads as follows:

"Every final order, adjudication, or decision of any

officer, tribunal, authority, board, bureau, commission,

department, or other division of any political subdivision of

the state may be reviewed by the COURT of common pleas court

of the county in which the principal office of the political

subdivision is located as provided in sections 2505.01 to

2505.45, inclusive, CHAPTER 2505. of the Revised Code, and

EXCEPT as such procedure is modified by sections 2506.01 to

2506.04, inclusive, of the Revised Code THIS CHAPTER.

"The appeal provided in sections 2506.01 to 2506.04,

inclusive, of the Revised Code THIS CHAPTER is in addition to

any other remedy of appeal provided by law.

"A 'final order, adjudication, or decision' MEANS AN

ORDER, ADJUDICATION, OR DECISION THAT DETERMINES RIGHTS,

DUTIES, PRIVILEGES, BENEFITS, OR LEGAL RELATIONSHIPS OF A

PERSON, BUT does not include any order, ADJUDICATION, OR

DECISION from which an appeal is granted by rule, ordinance, or

statute to a higher administrative authority and IF a right

to a hearing on such appeal is provided any order which does

not constitute a determination of the rights, duties,

privileges, benefits, or legal relationships of a specified

person; nor, OR any order, ADJUDICATION, OR DECISION THAT IS

issued preliminary to or as a result of a criminal proceeding."

5 R.C. 709.02 presently defines "owner" or "owners" as:

"* * * [A]ny adult individual seized of a freehold estate

in land who is legally competent and any firm, trustee, or

private corporation that is seized of a freehold estate in

land; except that individuals, firms, and corporations holding

easements are not included within such meanings; and no person,

firm, trustee, or private corporation that has become an owner

of real estate by a conveyance the primary purpose of which is

to affect the number of owners required to sign an annexation

petition is included within such meanings.

6 R.C. Chapter 2506 is still a viable method to challenge

the denial of a landowners' annexation petition.

7 Although the court of appeals did not explicitly state

that it reviewed the addition of Cincinnati Milacron's property

within the territory included in the approved landowners'

annexation petition, it did state that "the Cincinnati Milacron

area of the total annexation is a spur that can be removed

without significant change or damage to the balance of property

sought to be annexed to the village." Therefore, the court of

appeals seemed to indicate that it had reviewed the propriety

of the petition and found that Cincinnati Milacron's property

not to be benefited by the annexation. Since the annexation

issue has been brought before the court on the merits, we will

nevertheless review the board's decision to approve the entire

petition.

8 Due to the fact that we have decided that an R.C.

Chapter 2506 appeal is not available to a disappointed party

when a landowners' petition for annexation is approved by a

board of county commissioners, we need not treat amicus curiae

village of South Lebanon's arguments that this court was

without jurisdiction to review the appeal and that a

supersedeas bond was required in order to effectuate the appeal.