In re Henry Cty. Regional Water & Sewer Dist.

[Cite as In re Henry Cty. Regional Water & Sewer Dist., 2020-Ohio-4341.]

IN THE COURT OF APPEALS OF OHIO

THIRD APPELLATE DISTRICT

HENRY COUNTY

IN RE:

CASE NO. 7-20-03

THE HENRY COUNTY REGIONAL

WATER AND SEWER DISTRICT

OPINION

[CITY OF NAPOLEON - APPELLANT]

Appeal from Henry County Common Pleas Court

Trial Court No. 02CV097

Judgment Reversed and Cause Remanded

Date of Decision: September 8, 2020

APPEARANCES:

Teresa L. Grigsby for Appellant

Carl C. Ireland for Appellee

Case No. 7-20-03

ZIMMERMAN, J.

{¶1} Appellant, the City of Napoleon (“Napoleon”), appeals the December

26, 2019 judgment of the Henry County Court of Common Pleas granting the

petition of the petitioner/appellee, the Henry County Regional Water and Sewer

District (“HCRWSD”). For the reasons that follow, we reverse the decision of the

trial court with instructions to dismiss the petition.

{¶2} This case stems from the intended merger of the HCRWSD with the

Northwestern Water and Sewer District (“NWWSD”). The facts relevant to this

appeal are as follows. On July 19, 2002, the Board of County Commissioners of

Henry County petitioned the Henry County Court of Common Pleas for the

organization of a regional water and sewer district as provided by R.C. Chapter

6119. (Doc. No. 1). On July 19, 2002, the trial court issued a preliminary order

establishing the HCRWSD. (Doc. No. 2). After a final hearing, the trial court issued

a final order on January 9, 2003 declaring the HCRWSD a finally and completely

organized political subdivision and approving its plan of operation. (Doc. Nos. 6,

13).

{¶3} On December 9, 1991, the Wood County Commissioners, along with

various townships, villages, and cities situated in Wood County, petitioned the

Wood County Court of Common Pleas for the organization of a regional water and

sewer district as provided by R.C. Chapter 6119. (Doc. No. 15). See also

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Northwood v. Wood Cty. Regional Water & Sewer Dist., 6th Dist. Wood No. WD-

97-010, 1998 WL 46390, *2 (Jan. 30, 1998), rev’d, 86 Ohio St.3d 92 (1999). The

Wood County Court of Common Pleas established the Wood County Regional

Water and Sewer District (“WCRWSD”) on May 18, 1992, and approved its plan

of operation on September 28, 1993. (Id.); Id. On July 11, 2000, the WCRWSD

petitioned the Wood County Court of Common Pleas to amend the original petition

to change the name of the water and sewer district from the WCRWSD to the

NWWSD, which the court granted on October 2, 2000. (Doc No. 15).

{¶4} On September 4 2019, the HCRWSD Board of Trustees adopted a

resolution “consenting to the merger of the [HCRWSD] with and into the

[NWWSD], authorizing the execution and delivery of an agreement and plan of

merger, authorizing the preparation and filing of a petition for modification of the

district, and authorizing and approving other matters in connection therewith.”

(Doc. No. 15, Ex. G). The NWWSD Board of Trustees adopted a similar resolution

on September 26, 2019. (Doc. No. 15, Ex. H).

{¶5} In accordance with the resolutions adopted by the respective boards of

trustees, the HCRWSD and the NWWSD executed an agreement and plan of merger

on September 26, 2019. (Doc. No. 15, Ex. J2).

{¶6} Further, based on the resolution of the NWWSD Board of Trustees and

the agreement and plan of merger, the NWWSD filed a petition in the Wood County

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Court of Common Pleas on October 31, 2019 requesting an order permitting it to

increase or add to its purposes or to amend its petition. (See Doc. No. 22). Similarly,

on November 5, 2019, the HCRWSD petitioned the Henry County Court of

Common Pleas to approve “the merger of the [NWWSD] and the [HCRWSD]” and

to modify “the manner of selection and the number of the members of the Board of

Trustees of the surviving entity * * * .” (Doc. No. 15). In its petition, the HCRWSD

also requested that the trial court consolidate the Henry County case with the Wood

County case in the Wood County Court of Common Pleas. (Id.). (See also Doc.

Nos. 20, 21). In response, the Henry County Court of Common Pleas scheduled a

hearing on the HCRWSD’s petition for December 12, 2019. (Doc. No. 17).

{¶7} On December 5, 2019, Napoleon filed a motion to continue the

December 12, 2019 hearing; an objection under R.C. 6119.051 to the HCRWSD’s

petition; and (as an alternative) a motion to intervene in the case “for purposes of

submitting its complaint for injunctive relief, declaratory judgment, and other relief

due to [Napoleon’s] interest in and objection to the proposed agreement and plan of

merger that is the subject of this action.”1 (Doc. No. 22).

{¶8} On December 10, 2019, the HCRWSD filed a memorandum in

opposition to Napoleon’s motion to continue the December 12, 2019 hearing. (Doc.

No. 23). After denying Napoleon’s motion to continue the December 12, 2019

1

Napoleon filed a complaint against the HCRWSD in another case. (Doc. No. 28).

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hearing, the Henry County Court of Common Pleas proceeded to a hearing on the

HCRWSD’s petition during which the trial court permitted Napoleon to present

evidence relative to its objections to the HCRWSD’s petition.2 (See Doc. Nos. 26,

34, 38).

{¶9} On December 26, 2019, the Henry County Court of Common Pleas

granted the HCRWSD’s “petition for merger of the [NWWSD] and the

[HCRWSD]”; granted “an Order Modifying the manner of selection and the number

of trustees of the new entity, [NWWSD] as contained in the resolutions approved

by the respective Boards of Trustees”; and denied Napoleon’s motion to intervene.

(Doc. No. 33). That same day, the trial court granted the HCRWSD’s motion to

consolidate the case with the Wood County case, ordering that the cases be

consolidated in the Wood County Court of Common Pleas. (Doc. No. 33).

{¶10} On January 23, 2020, Napoleon filed its notice of appeal, and raises

six assignments of error for our review. (Doc. No. 35). In conjunction with its brief,

the HCRWSD filed a motion to dismiss the appeal.

Assignment of Error No. I

HCRWSD filed a modification petition under R.C. 6119.051

which had the practical effect of extinguishing its existence,

dissolving its Board, eliminating local representation, and ceding

all of its operations and assets to NWWSD. That statute requires

2

Subsequent to the December 12, 2019 hearing, on December 20, 2019, Napoleon filed a “supplemental

objection” to the HCRWSD’s petition. (Doc. No. 28). On December 23, 2019, the HCRWSD filed

memoranda in opposition to Napoleon’s “supplemental” objection to its petition and motion to intervene in

the case. (Doc. Nos. 30, 31).

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that a petition for abandonment or surrender of the purposes of

a water district, or amendment to the petition which approved it,

be dismissed if trial court does not find the proposed action to be

conducive to the public health, safety, convenience or welfare, and

would not adversely affect the continued operation of the district.

The trial court erred when it did not apply and analyze the

standard of review set forth in 6119.051 to any aspect of the

modification petition filed by Appellee HCRWSD except Board

composition. Instead, it reviewed all other aspects of the

modification petition as a merger under R.C. 6119.06(Y) for

which it incorrectly concluded no judicial oversight was necessary

appropriate. The trial court compounded its error by entering an

order approving the "petition for merger" contained in the

modification plan - after determining it would not evaluate or

analyze the merger plan other than changes to Board composition

under R.C. 6119.051.

Assignment of Error No. II

Statutes must be read in pari materia. The trial court erred in not

evaluating the interplay between R.C. 6119.051 and R.C.

6119.06(Y). Specifically, it erred in finding R.C. 6119.051 does not

constitute a mechanism by which the City of Napoleon could

object to the merger plan set forth in the modification petition,

and instead by concluding that R.C. 6119.06(Y) divested the

Court of judicial oversight of a modification petition which

involves a merger of two water districts.

Assignment of Error No. III

The trial court erred in concluding that the only issue for

consideration under R.C. 6119.051 on HCRWSD's modification

petition was the impact of the merger plan on Board composition.

It compounded that error by issuing an order which approved

changes to NWWSD Board—an entity over which it lacked

jurisdiction—and not issuing an order related to the

abandonment of the HSR WSD Board.

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Assignment of Error No. IV

The trial court committed plain error when it entered an order

approving the modification of the manner of selection and

addition to the number of trustees of NWWSD because the Henry

County Common Pleas Court lacked jurisdiction over NWWSD's

modification petition pending in Wood County Common Pleas

Court.

Assignment of Error No. V

The evidence at the hearing on the modification petition did not

support a finding that approval of the petition which resulted in

the elimination of the HCRWSD Board that was composed

entirely of Henry County citizens, and the creation of a NWWSD

Board in which Henry County citizens have 10% representation

was consistent with public health, safety, convenience or welfare.

Assignment of Error No. VI

The trial court erred, abused its discretion, and deprived the City

of a fundamentally fair proceeding by: (a) moving forward with a

hearing on the modification petition 6 days after the City's

objection was filed; (b) denying the City's request for

continuation of the hearing; (c) depriving the City of an

opportunity to engage in limited discovery from HCRWSD

related to the modification petition, where HCRWSD had refused

to respond to the City's previous records requests; (d) allowing an

attorney for a biased, non-party to present evidence and examine

witnesses at the hearing; (e) requiring supplementation of the

hearing record 7 days after the hearing without reasonable

opportunity for discovery on the petition or the several objections

submitted related to the petition; and (f) failing to conduct a

hearing on the objections filed by third parties.

{¶11} In its assignments of error, Napoleon argues that the trial court erred

by granting the HCRWSD’s petition. However, before we address the merits of

Napoleon’s arguments, we must address a threshold jurisdictional issue.

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{¶12} R.C. Chapter 6119, which applies to water and sewer districts,

provides the procedure under which regional water and sewer districts may be

organized by local governments. See Ayersville Water & Sewer Dist. v. Geiger, 3d

Dist. Defiance No. 4-11-19, 2012-Ohio-2689, ¶ 27; Brunswick v. Brunswick Hills

Twp. Bd. Trustees, 81 Ohio App.3d 252, 254 (9th Dist.1992), citing R.C. 6119.01.

See also Northeast Ohio Regional Sewer Dist. v. Bath Twp., 144 Ohio St.3d 387,

2015-Ohio-3705, ¶ 9 (noting that water and sewer districts organized under R.C.

Chapter 6119 are “creature[s] of statute”). The process is initiated when “one or

more municipal corporations, one or more counties, or one or more townships, or

by any combination of them, after having been authorized by the legislative

authority of the political subdivision” files a petition (as described in the statute) in

“the court of common pleas of one of the counties all or part of which lies within

the proposed district.” R.C. 6119.02(A). After a final hearing,

if it appears that the proposed district is necessary, that it and the plan

for the operation of the district are conducive to the public health,

safety, convenience, and welfare, and that the plan for the operation

of the district is economical, feasible, fair, and reasonable, the court,

after disposing of all objections as justice and equity require and by

its findings, entered of record, shall declare the district finally and

completely organized and to be, or to be empowered to continue as, a

political subdivision.

R.C. 6119.04(D). See In re Erie-Huron Cty. Rural Water Auth. (N. Ohio Rural

Water), 6th Dist. Huron No. H-04-039, 2005-Ohio-4881, ¶ 10.

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{¶13} Following the creation of a district, R.C. 6119.06 prescribes the rights,

powers, and duties of the district. As relevant to this case, R.C. 6119.06 provides:

Upon the declaration of the court of common pleas organizing the

regional water and sewer district pursuant to section 6119.04 of the

Revised Code and upon the qualifying of its board of trustees and the

election of a president and a secretary, said district shall exercise in

its own name all the rights, powers, and duties vested in it by Chapter

6119. of the Revised Code, and, subject to such reservations,

limitations and qualifications as are set forth in this chapter, such

district may:

***

(Y) Merge or combine with any other regional water and sewer district

into a single district, * * * provided two-thirds of the members of each

of the boards consent to such merger or combination. Such merger or

combination shall become legally effective unless, prior to the

ninetieth day following the later of the consents, qualified electors

residing in either district equal in number to a majority of the qualified

electors voting at the last general election in such district file with the

secretary of the board of trustees of their regional water and sewer

district a petition of remonstrance against such merger or

combination.

(Emphasis added.) R.C. 6119.06(Y).

{¶14} Furthermore, when a change to its original petition is necessary, R.C.

6119.051 permits a district to petition the court of common pleas to effectuate that

change. That statute provides as follows:

At any time after the creation of a water and sewer district, the district,

after action by its board of trustees, may file a petition in the court of

common pleas requesting the order of such court permitting the

district to:

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(A) Increase or add to its purposes heretofore approved by the court

so long only as its purposes are those described in section 6119.01 of

the Revised Code, or

(B) Abandon or surrender any purpose heretofore approved by the

court, or

(C) Amend any provision of the petition filed pursuant to section

6119.02 of the Revised Code.

Upon the filing of petition pursuant to this section the court shall set

a date for hearing and the clerk of the court shall give notice thereof

by publication once each week for four consecutive weeks in a

newspaper having a general circulation in each of the counties, in

whole or in part, within the district. Any person or any political

subdivision residing or lying within an area affected by the operation

of the district, on or before the date set for hearing, may file an

objection to the granting of the petition. Upon hearing, if it appears

that the request of the petition is conducive to the public health, safety,

convenience or welfare and will not if granted adversely affect the

continued operation of the district, the court shall grant the prayer of

the petition. Otherwise, it shall dismiss the petition.

(Emphasis added.) R.C. 6119.051. See In re Erie-Huron Cty. Rural Water Auth. at

¶ 12.

{¶15} Here, the HCRWSD was finally and completely organized as a

political subdivision on January 9, 2003 after the Henry County Court of Common

Pleas approved its petition for organization filed under R.C. Chapter 6119.

Thereafter, on September 4, 2019, the HCRWSD Board of Trustees adopted a

resolution consenting “to the merger of the [HCRWSD] with and into the

[NWWSD] in accordance with [R.C. 6119.06(Y)]”; (2) authorizing “the execution

and delivery of an agreement and plan of merger between the [HCRWSD] and the

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[NWWSD]; and (3) authorizing “the preparation and filing of a petition for

modification of the [HCRWSD] in accordance with [R.C. 6119.051(B)] in order to

surrender its approved purposes.” (Emphasis added.) (Doc. No. 15, Ex. G).

{¶16} On September 26, 2019, the NWWSD Board of Trustees adopted a

similar resolution in which it (1) consented to “the execution and delivery of an

agreement and plan of merger by and between the NWWSD and the HCRWSD” in

accordance with R.C. 6119.06(Y); (2) authorized the “execution and delivery of an

agreement and plan of merger by and between the NWWSD and the HCRWSD; and

authorized “the preparation and filing of a petition for modification of the NWWSD

in accordance with [R.C. 6119.051(A) or (C)] in order to expand the scope of its

service area and to provide for related changes in governance and related matters in

accordance with the approved purposes of the NWWSD.” (Doc. No. 15, Ex. H).

{¶17} Subsequent to the resolutions adopted by the respective boards of

trustees, the HCRWSD and the NWWSD executed the agreement and plan of

merger. (Doc. No. 15, Ex. J2). Importantly, and relevant to this case, the agreement

and plan of merger specified as follows:

5.3. Petitions for Modifications of the Districts. The Districts shall

cooperate to cause the filing by NWWSD and HCRWSD, as

applicable, in accordance with [R.C. 6119.051], one or more petitions

for modification of each of the Districts’ original petitions for

creation, for the purposes of, among other things, (a) modifying the

boundaries of NWWSD to include the boundaries of HCRWSD, (b)

adding a member to the Board of Trustees of NWWSD (the tenth

board member) to be appointed by the Board of County

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Commissioners of Henry County, Ohio, which member shall

represent the Board of County Commissioners of Henry County, as

well as all other municipalities and townships within Henry County

that are currently part of HCRWSD other than the Village of McClure,

(c) providing that the Village of McClure will receive voting

privileges consistent with the other current member municipalities of

NWWSD, (d) providing that any additional municipalities and/or

townships in Henry County requesting to be part of NWWSD must do

so by petition and will receive voting privileges consistent with the

other current member municipalities and townships, respectively, of

NWWSD, unless otherwise agreed to by NWWSD and such

municipalities and/or townships at a future date, and (e) abandoning

the purposes of HCRWSD as approved in its original petition for

creation.

(Underline sic.); (Italics added.) (Id. at 12).

{¶18} Notwithstanding the resolution adopted by the HCRWSD Board of

Trustees, the HCRWSD petitioned the Henry County Court of Common Pleas on

November 5, 2019 to approve “the merger of the [NWWSD] and the [HCRWSD]”

and to permit it to amend its petition by modifying “the manner of selection and the

number of the members of the Board of Trustees of the surviving entity * * * .”

(Doc. No. 15). Stated another way, the HCRWSD sought judicial approval of the

districts’ decision to merge under R.C. 6119.06(Y) and judicial permission to amend

its petition under R.C. 6119.051(C) despite the resolution of HCRWSD Board of

Trustees (as well as the agreement and plan of merger) necessitating that any

petition for change filed by the HCRWSD to be filed under R.C. 6119.051(B). After

hearing Napoleon’s objections to the petition filed by the HCRWSD, the trial court

granted the requested relief in the HCRWSD’s petition.

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{¶19} “As creatures of statute, sewer districts ‘have no more authority than

that conferred upon them by the statute, or what is clearly implied therefrom.’”

Northeast Ohio Regional Sewer Dist., 144 Ohio St.3d 387, 2015-Ohio-3705, at ¶ 41

(Kennedy, J., dissenting), quoting Hall v. Lakeview Local School Dist. Bd. of Edn.,

63 Ohio St.3d 380, 383 (1992). R.C. 6119.06 describes the rights, powers, and

duties of a finally and completely organized water and sewer district, including the

ability to merge with another regional water and sewer district. See, e.g.,

Northwood, 1998 WL 46390, at *11 (noting that water and sewer districts are vested

with the rights enumerated in R.C. 6119.06), rev’d on other grounds, 86 Ohio St.3d

92 (1999). Mergers of water and sewer districts under R.C. 6119.06(Y) do not

require judicial approval. Indeed, the plain language of the statute states that, when

“two-thirds of the members of each of the boards consent to [a] merger or

combination,” the “merger or combination shall become legally effective unless” a

petition of remonstrance is filed in accordance with the statute. R.C. 6119.06(Y).

Further, the statute provides that the water and sewer district may “[e]xercise the

powers of the district without obtaining the consent of any other political

subdivision * * * .” R.C. 6119.06(Z).

{¶20} Moreover, the decision to merge with another regional water and

sewer district is not equivalent to the steps necessary to effectuate a merger. Rather,

the method for judicially effectuating any change to the petition of a water and sewer

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district is found in R.C. 6119.051. R.C. 6119.051 permits a water and sewer

district—after action by its board of trustees—to file a petition with the court of

common pleas to request an order permitting it to do any of the following: (1)

increase or add to its purposes; (2) abandon or surrender any purposes; or (3) amend

any provision of its petition. See, e.g., Glouster v. Trimble Twp. Waste Water

Treatment Dist., 112 Ohio App.3d 392, 396 (4th Dist.1996) (noting that “R.C.

6119.051 provides very specific procedures on petitioning for change”).

{¶21} Upon our review, we conclude that the petition filed by the HCRWSD

in this case sought relief beyond what is required by statute and sought relief outside

of what was specifically authorized by the HCRWSD Board of Trustees. That is,

judicial approval of the HCRWSD’s decision to merge with the NWWSD under

R.C. 6119.06(Y) is unnecessary.

{¶22} Certainly, the objections raised by Napoleon relative to the

HCRWSD’s decision to merge with the NWWSD under R.C. 6119.06(Y) should

have been challenged through the mechanism provided by the statute—a petition of

remonstrance. “[A] petition of remonstrance when duly filed makes ineffectual the

action of the board of trustees.” Myers v. Trustees of Southwest Regional Water

Dist., 12th Dist. Butler No. CA98-07-146, 1999 WL 225124, *4 (Apr. 19, 1999),

citing Cty. Bd. of Edn. of Putnam Cty. v. Bd. of Edn. of Hartsburg Rural Special

School Dist. of Putnam Cty., 112 Ohio St. 108, 110 (1925). In this case, there is no

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evidence in the record that a petition of remonstrance was filed in accordance with

the statute. Compare id. (noting that a petition of remonstrance is the appropriate

remedy to “make[] ineffectual the action of [a] board of trustees” but that no party

“availed himself of [that] remedy” in the case). Therefore, the merger was legally

effective 90 days after the later of the districts to consent to the merger—that is, the

merger of the HCRWSD and the NWWSD was legally effective 90 days after the

NWWSD Board of Trustees consented to the merger on September 26, 2019.

{¶23} Furthermore, the HCRWSD was without authority to file a petition for

change under R.C. 6119.051(C) requesting an order permitting it to amend its

purposes. Here, the HCRWSD Board of Trustees adopted a resolution authorizing

the HCRWSD to file a petition for change under R.C. 6119.051(B) requesting an

order permitting it to abandon or surrender its purposes. Accordingly, as a creature

of statute, the HCRWSD was authorized only to file a petition for change under

R.C. 6119.051(B) requesting an order permitting it to abandon or surrender its

purposes. In other words, the HCRWSD was not authorized to petition the Henry

County Court of Common Pleas for an order authorizing it to amend its petition by

modifying the manner of selection and the number of the members of the board of

trustees of the surviving entity. Accordingly, when faced with a petition seeking an

order permitting the district to take action other than the action specifically

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authorized by resolution of the district’s board of trustees, the trial court should have

dismissed the petition.

{¶24} Also before this court is a motion to dismiss filed by the HCRWSD.

In its motion to dismiss, the HCRWSD contends that this court is without

jurisdiction to consider the merits of Napoleon’s arguments as a result of

consolidation of the cases in the Wood County Court of Common Pleas. In sum,

the HCRWSD argues that a decision of this tribunal reversing the decision of the

Henry County Court of Common Pleas would also overturn the congruent decision

of the Wood County Court of Common Pleas granting the relief requested by the

NWWSD in its petition filed on October 31, 2019. We disagree.

{¶25} Action by the Henry County Court of Common Pleas and the Wood

County Court of Common Pleas on appropriately filed petitions requesting an order

to change the petition of the district (that is subject to each tribunal’s jurisdiction as

provided by R.C. 6119.03) are independent determinations. As we previously

stated, mergers of water and sewer districts under R.C. 6119.06(Y) do not require

judicial approval. Accordingly, the districts should have filed a petition for change

(as authorized by the respective board of trustees) in the Henry County Court of

Common Pleas and Wood County Court of Common Pleas, respectively.

Specifically, (as we determined in this appeal) the HCRWSD Board of Trustees

adopted a resolution authorizing the HCRWSD to file a petition for change under

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R.C. 6119.051(B) requesting an order permitting it to abandon or surrender its

purposes. Likewise, the NWWSD Board of Trustees adopted a resolution

authorizing the NWWSD to file a petition for change under R.C. 6119.051(A) or

(C) “in order to expand the scope of its service area and to provide for related

changes in governance and related matters in accordance with the approved

purposes of the NWWSD.” (Doc. No. 15, Ex. H). Importantly, the relief requested

by the HCRWSD and the NWWSD in the respective court of common pleas is

personal to the petition establishing each district. Thus, the specific relief sought

by the HCRWSD in the Henry County Court of Common Pleas and the specific

relief sought by the NWWSD in the Wood County Court of Common Pleas is not

dependent on action by either tribunal. Therefore, the HCRWSD’s motion to

dismiss is denied.

{¶26} For these reasons, we conclude the HCRWSD’s petition seeking

judicial approval of the HCRWSD’s decision to merge with the NWWSD and

seeking judicial approval of its request to amend its petition under R.C. 6119.051(C)

was not properly before the trial court and should have been dismissed. See

Crenshaw v. State of Ohio Lucas Cty., 6th Dist. Lucas No. L-97-1440, 1998 WL

336930, *2 (May 22, 1998); R.C. 6119.051. Under App.R. 12(A)(1)(a) we have the

authority to “affirm, modify, or reverse” a judgment of a trial court. Accordingly,

because the trial court should have dismissed the petition, we must reverse the

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decision of the trial court and remand the cause to the trial court with instructions to

dismiss the petition.

{¶27} Therefore, we sustain Napoleon’s assignments of error to the limited

extent discussed above and overrule them in all other respects.

{¶28} Having found error, we reverse the judgment of the trial court and

remand the matter with instructions to dismiss the petition.

Judgment Reversed and

Cause Remanded

SHAW, P.J. and PRESTON, J., concur.

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