State ex rel. Painesville v. Lake Cty. Bd. of Commrs.

[This decision has been published in Ohio Official Reports at 93 Ohio St.3d 566.]

THE STATE EX REL. CITY OF PAINESVILLE, APPELLEE, v. LAKE COUNTY BOARD

OF COMMISSIONERS, APPELLANT.

[Cite as State ex rel. Painesville v. Lake Cty. Bd. of Commrs., 2001-Ohio-1609.]

Municipal corporations—Real property—Annexation—Mandamus sought to

compel Lake County Board of Commissioners to approve city of

Painesville’s revised petition for annexation of real property located in

Painesville Township—Court of appeals’ grant of writ reversed.

(No. 01-400—Submitted September 18, 2001—Decided November 14, 2001.)

APPEAL from the Court of Appeals for Lake County, No. 99-L-057.

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Per Curiam.

{¶ 1} In 1998, Mark Moore owned approximately seventeen acres of land

in Painesville Township, Lake County, Ohio (“township”). Moore filed a petition

under R.C. 709.02 with appellant, Lake County Board of Commissioners (“board”)

for the annexation of his property from Painesville Township to appellee, the city

of Painesville (“city”). Moore sought the annexation to use the city’s sewer system

for a planned residential development. The board denied Moore’s petition, and on

October 13, 1998, the Lake County Court of Common Pleas affirmed the board’s

decision on appeal.

{¶ 2} Shortly thereafter, on October 26, 1998, the city passed a resolution

authorizing its city manager to enter into a contract to purchase Moore’s property

for $10 “and other valuable considerations.” The city then entered into an “interim

development agreement” with Moore conveying title to the property to the city by

limited warranty deed. One of the purposes specified in the agreement was

cooperation between Moore and the city to “assist in successfully achieving

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annexation of the Property and to achieve the economic benefits associated with

annexation to the City.”

{¶ 3} On December 4, 1998, the city submitted a petition to the board under

R.C. 709.16(B) for annexation of the property it claimed to have acquired from

Moore. Pursuant to R.C. 709.031, the board referred the petition to Lake County

Engineer Thomas P. Gilles for his review. In his review, Gilles checked tax

records, auditor’s records, and the deed for the property. Gilles found an error in

the acreage stated in the petition, which described a 22.498-acre parcel rather than

an approximately seventeen-acre parcel. Gilles found other minor errors, but also

determined that “[a] review of the Tax Records indicates that the petitioner, The

City of Painesville, is the sole owner of the property and the property is contiguous

to The City of Painesville.”

{¶ 4} On January 22, 1999, the city sent the board a revised petition for

annexation of the property that specified 17.027 acres as the subject property and

addressed the engineer’s concerns. As with its first petition, the city represented

that the property to be annexed is contiguous to the city, owned by the city, and

located entirely within the same county as the city. By letter dated February 1,

1999, Gilles informed the board that the revised petition was accurate and reiterated

his previous conclusion that based on tax records, the city is the sole owner of the

property.

{¶ 5} At the request of the board, its attorney, Richard Collins, Jr., prepared

a legal memorandum dated January 18, 1999, which addressed the issue of whether

the city owned the property sought to be annexed. In preparing the memorandum,

Collins obtained a copy of the interim development agreement between Moore and

the city regarding the property.

{¶ 6} Although Collins did not, in his memorandum, direct the board to vote

any specific way, he noted that under the interim development agreement (1) Moore

remained liable for the existing mortgage of $250,000, (2) Moore and the city were

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January Term, 2001

equally responsible for the payment of real estate taxes, assessments, and liability

insurance affecting the land, (3) Moore remained solely responsible for maintaining

the land, and (4) Moore retained the right, upon reasonable notice, to enter the land.

In addition, Collins observed that the agreement granted Moore the right to have

the property transferred back to him if annexation was ultimately either approved

or denied. Neither Collins’s memorandum nor the interim development agreement

is contained in the board’s file concerning the city’s annexation petitions for the

subject property.

{¶ 7} Collins eventually advised the board through discussions with the

individual commissioners that based on his legal research, the city is not the legal

owner of the subject property.

{¶ 8} At its March 9, 1999 public meeting, the board adopted a resolution

denying the city’s requested annexation. The board reasoned that “the City of

Painesville is not an ‘owner’ of the property as defined by law.” The board based

its decision at least in part on Collins’s legal advice.

{¶ 9} In April 1999, the city filed a complaint in the Court of Appeals for

Lake County for a writ of mandamus to compel the board to approve the city’s

revised petition for annexation. The court of appeals referred the matter to a

magistrate, as provided in Loc.App.R. 18, and the magistrate held an evidentiary

hearing.

{¶ 10} On January 8, 2001, the magistrate concluded that since the board

had merely acted in a ministerial rather than a quasi-judicial fashion in ruling upon

a municipality’s annexation petition under R.C. 709.16(B), the board lacked

authority to consider the information provided by its counsel concerning the interim

development agreement between Moore and the city. The magistrate further

concluded that had the board considered only the city’s amended annexation

petition and the engineer’s response, it would have had to conclude that the city

owned the subject property. The magistrate recommended that the court of appeals

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grant the requested writ of mandamus because the city had satisfied all of the

requirements for annexation under R.C. 709.16(B). In his decision, the magistrate

noted that under Civ.R. 53, the parties could file their objections within fourteen

days of his decision.

{¶ 11} On the same day that the magistrate filed his decision, the court of

appeals entered judgment adopting the decision and granting the city a writ of

mandamus to compel the board to grant the city’s annexation petition. On January

18, 2001, the board filed written objections to the magistrate’s decision. On

February 27, 2001, the board filed a notice of appeal to this court from the court of

appeals’ January 8 judgment. We subsequently granted the board’s motion to

remand the cause to the court of appeals for judgment on the board’s objections to

the magistrate’s decision. State ex rel. Painesville v. Lake Cty. Bd. of Commrs.

(2001), 91 Ohio St.3d 1511, 746 N.E.2d 613. In May 2001, the court of appeals

denied the board’s objections.

{¶ 12} This cause is now before the court for its consideration of the board’s

appeal of right as well as its request for oral argument.

{¶ 13} The board requests oral argument “pursuant to S.Ct.[Prac.]R. IX.”

We deny the board’s request because S.Ct.Prac.R. IX does not require oral

argument in this appeal, the board has neither established nor asserted any of the

usual factors that warrant oral argument, and the board does not specify why oral

argument would be beneficial here. State ex rel. Woods v. Oak Hill Community

Med. Ctr., Inc. (2001), 91 Ohio St.3d 459, 460, 746 N.E.2d 1108, 1111. The

parties’ briefs are sufficient to resolve this appeal. Id. at 460-461, 746 N.E.2d at

1111, citing State ex rel. Lucas Cty. Bd. of Commrs. v. Ohio Environmental

Protection Agency (2000), 88 Ohio St.3d 166, 169, 724 N.E.2d 411, 415.

Mandamus

{¶ 14} The board asserts that the court of appeals erred in granting the writ

of mandamus compelling it to approve the city’s revised petition for annexation.

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The court of appeals determined that under R.C. 709.16(B) and In re Annexation of

466.112 Acres of Land (1992), 65 Ohio St.3d 226, 602 N.E.2d 1136, the board had

a purely ministerial duty to approve the amended annexation petition and therefore

it could not consider anything besides the amended petition and the county

engineer’s response to the board’s inquiry to determine whether the city was the

owner of the subject property.

{¶ 15} R.C. 709.16, which governs petitions for annexation of contiguous

property owned by a municipal corporation, provides:

“(A) When a petition for the annexation of contiguous territory by a

municipal corporation is presented to the board of county commissioners,

proceedings shall be had in all respects, as far as applicable, as are required by

sections 709.02 to 709.12 of the Revised Code.

“(B) If the only territory to be annexed is contiguous territory owned by the

municipal corporation seeking annexation and if such territory is located entirely

within the same county as the municipal corporation seeking annexation, upon

receipt of the petition required by section 709.15 of the Revised Code, the board of

county commissioners shall, by resolution, approve the annexation and make such

adjustments of funds, unpaid taxes, claims, indebtedness, and other fiscal matters

as the board determines to be proper. The annexation shall be complete upon the

entry, pursuant to the board’s resolution, of an order upon the journal of the board

authorizing such annexation.” (Emphasis added.)

{¶ 16} In analyzing R.C. 709.16, our paramount concern is the legislative

intent in its enactment. Rice v. CertainTeed Corp. (1999), 84 Ohio St.3d 417, 419,

704 N.E.2d 1217, 1218. We must first review the statutory language, and words

and phrases used shall be read in context and construed according to the rules of

grammar and common usage. State ex rel. Antonucci v. Youngstown City School

Dist. Bd. of Edn. (2000), 87 Ohio St.3d 564, 565, 722 N.E.2d 69, 71.

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{¶ 17} R.C. 709.16(B) mandates that the board approve a petition for

municipal annexation but only if the property to be annexed is contiguous, is owned

by the municipality, and is located entirely within the same county as the

municipality. Therefore, the purely ministerial, mandatory act of approving a

municipal annexation pursuant to R.C. 709.16(B) is invoked only if the board

determines whether these requirements have been satisfied. In making this

determination, the board will necessarily exercise some discretion. See In re

Annexation of 466.112 Acres of Land, 65 Ohio St.3d at 229, 602 N.E.2d at 1138,

where we stated: “Thus, the procedure set out in R.C. 709.16(B) is abbreviated. If

all the requirements are met (i.e., the property is contiguous, is wholly owned by

the municipality, and is located entirely within the county), then the board of county

commissioners merely places an order upon its journal.” (Emphasis added.)

{¶ 18} Nor does R.C. 709.16(B) prohibit the board from seeking the advice

of its legal counsel or prevent its counsel from reviewing other public records like

the interim development agreement to determine whether the prerequisites for

municipal annexation have been met. In other words, nothing in the plain language

of R.C. 709.16(B) precludes consideration of legal memoranda or advice of the

board’s attorney in this determination.

{¶ 19} In fact, relegating the board to the bare allegations of the

municipality seeking the annexation and a county engineer’s report might condone

sham transactions in which, as the board claims here, the municipality is not the

owner of the property sought to be annexed. We need not accord R.C. 709.16(B)

this construction. See State ex rel. Besser v. Ohio State Univ. (2000), 87 Ohio St.3d

535, 540, 721 N.E.2d 1044, 1049, quoting State ex rel. Cincinnati Post v. Cincinnati

(1996), 76 Ohio St.3d 540, 543-544, 668 N.E.2d 903, 906 (“ ‘We must also

construe statutes to avoid unreasonable or absurd results’ ”); R.C. 1.47(C).

{¶ 20} The General Assembly recognizes that the board need not accept an

engineer’s report as conclusive in annexation matters. Under R.C. 709.031(C), the

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board of county commissioners may refer a description and map or plat of property

sought to be annexed to the county engineer for a report on their accuracy, but the

engineer’s report “shall not be conclusive upon the board.” And it is

uncontroverted that the engineer here consulted public records outside the board’s

annexation file, e.g., tax maps and transfer records, much like the board’s attorney

reviewed the interim development agreement between the city and Moore.

{¶ 21} The court of appeals and the city also relied on our decision in In re

Annexation of 466.112 Acres of Land, supra, to support the court of appeals’

holding that the board was limited to considering the city’s revised annexation

petition and the engineer’s report to determine whether to approve the annexation

under R.C. 709.16(B).

{¶ 22} In In re Annexation of 466.112 Acres of Land, the city of Centerville

filed a petition under R.C. 709.16(B) with the Montgomery County Board of

Commissioners to approve the annexation of approximately four hundred sixty-

nine acres of city-owned property from Washington Township to the city. The

board announced that it would approve the annexation but before that decision

could be journalized, the township trustees filed an administrative appeal to the

common pleas court pursuant to R.C. Chapter 2506 and moved to stay the board’s

proceedings. The common pleas court vacated the board’s approval of the

annexation because it determined that the property was not sufficiently contiguous

to the city, and, on appeal, the court of appeals affirmed the common pleas court’s

judgment. Id., 65 Ohio St.3d at 227-228, 602 N.E.2d at 1137.

{¶ 23} Upon allowance of a motion to certify the record, we reversed the

judgment of the court of appeals and reinstated the decision of the board of

commissioners. Id., 65 Ohio St.3d at 231, 602 N.E.2d at 1139. In so holding, we

found that the township trustees could not seek an injunction under R.C. 709.07 in

an R.C. 709.16(B) municipal annexation because R.C. 709.16(B) required no action

by a municipal auditor or clerk that could be enjoined. Moreover, the township

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trustees had no standing to appeal the board’s decision because R.C. 709.16(B)

required no hearing at which the trustees would be represented. Id., 65 Ohio St.3d

at 230-231, 602 N.E.2d at 1138-1139.

{¶ 24} Although we noted at one portion of the opinion that “[t]here is no

hearing provided for in R.C. 709.16(B) before the board of commissioners, but

merely a ministerial determination of whether the property to be annexed is wholly

owned by the municipality, is contiguous, and is located entirely within the county,”

this was in the context of holding that there is no right to appeal under R.C. Chapter

2506 from the decision of a board of commissioners on a municipal annexation

petition pursuant to R.C. 709.16(B). Id., 65 Ohio St.3d at 231, 602 N.E.2d at 1139.

R.C. 2506.01 provides for appeals only from quasi-judicial proceedings, which

require notice, hearing, and the opportunity for introduction of evidence. See State

ex rel. Dublin v. Delaware Cty. Bd. of Commrs. (1991), 62 Ohio St.3d 55, 60-61,

577 N.E.2d 1088, 1093. Because no notice and evidentiary hearing are required by

R.C. 709.16(B), no appeal by way of R.C. 2506.01 is available to aggrieved parties

in an annexation proceeding.

{¶ 25} This holding, however, does not automatically mean that the board

is divested of all discretion in determining whether the R.C. 709.16(B)

requirements (e.g., ownership of the property by the municipality) have been met,

or more pertinently, that the board is restricted to the annexation petition and county

engineer’s report in making this determination. We did not so hold in In re

Annexation of 466.112 Acres of Land. In fact, in that case, we reinstated the board’s

decision on the municipal annexation petition, acknowledging that the board had

expressly “discussed the city’s petition with its counsel and planning

commissioner” and considered their conclusions. Id., 65 Ohio St.3d at 227, 602

N.E.2d at 1136. Similarly, the board here considered and relied on its attorney’s

legal opinion.

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{¶ 26} Therefore, because neither R.C. 709.16(B) nor precedent prevented

the board from considering and relying on its counsel’s legal memoranda and

advice in determining whether the city’s annexation petition had met the statutory

requirements for annexation, the court of appeals erred in so holding.

{¶ 27} Moreover, we find that the board did not abuse its broad discretion

in denying the city’s annexation petition. The board reasonably relied on its

counsel’s advice in determining that the city did not own the property sought to be

annexed. In fact, the city offers no argument to the contrary on this issue on appeal.

{¶ 28} Based on the foregoing, we reverse the judgment of the court of

appeals and deny the writ.

Judgment reversed.

MOYER, C.J., F.E. SWEENEY, PFEIFER, COOK and LUNDBERG STRATTON, JJ.,

concur.

DOUGLAS and RESNICK, JJ., concur in judgment.

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Joseph M. Gurley, Painesville Law Director; Taft, Stettinius & Hollister

LLP, Stephen M. O’Bryan, Peter M. Poulos and Michelle R. Arendt, for appellee.

Charles E. Coulson, Lake County Prosecuting Attorney, and Michael P.

Brown, Assistant Prosecuting Attorney, for appellant.

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