# Board of Trustees v. for Incorporation of Holiday City

> Ohio Supreme Court · September 28, 1994 · 70 Ohio St. 3d 365

URL: https://www.frixlaw.com/law-library/cases/6770294

## Case

- **Full name:** In re Petition for Incorporation of the Village of Holiday City: Board of Trustees of Jefferson Township v. for Incorporation of the Village of Holiday City
- **Court:** Ohio Supreme Court
- **Decided:** September 28, 1994
- **Citations:** 70 Ohio St. 3d 365
- **Precedential status:** Published
- **Opinion:** Dissent by Pfeifer
- **Judges:** Douglas, Koehler, Moyer, Pfeifer, Resnick, Sweeney, Twelfth, Wright
- **Cited by:** 12 later opinions in the Frix Law Library

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## Opinion text

Pfeifer, J.,
dissenting. If township trustees do not have standing to challenge a county commissioners’ determination of what constitutes the community good, then who does?
R.C. 707.11 provides that “any person interested” may judicially challenge an incorporation approved by the county commissioners. Of course, while R.C. 707.11 confers on any person interested the right to seek the prescribed injunction, the provision does not define the meaning of “person interested.” Instead of looking to annexation law, we may determine the meaning of “person interested” by considering other provisions of Ohio’s incorporation statutes, which are to be read in pari materia with R.C. 707.11.
R.C. 707.07 lists the various findings which the county commissioners must make before they may enter an order approving an incorporation. R.C. 707.-07(D) and former R.C. 707.07(E) specifically require that before an incorporation may be approved, the county commissioners must first determine that “the general good of the community, including both the proposed municipal corporation and the surrounding area, will be served if the incorporation petition is granted.” (Emphasis added.)
The plain language of the statute indicates that in an incorporation proceeding the county commissioners must consider the interests of not only persons within the proposed village, but also of persons in the surrounding township.
*373 To ensure a proper determination of the community good, R.C. 707.06 requires the county commissioners to hold a public hearing on the merits of the incorporation:
“The hearing provided for in section 707.05 of the Revised Code shall be public. Any person interested may appear, in person or by attorney, and contest the granting of the prayer of the petition provided for by section 707.02 of the Revised Code, and affidavits presented in support of or against the prayer of such petition shall be considered by the board.”
Again, “person interested” is not defined in R.C. 707.06. But when read together with R.C. 707.07(D) and (E), R.C. 707.06 calls for a public hearing where the interests of the surrounding area will be heard, as well as the interests of the proposed village. If the hearing is public, and the good of the entire community is to be discussed, those in the surrounding community necessarily are entitled to be heard. Trustees, elected to represent the township and to oversee its government, finances and development, thus must be “persons interested” pursuant to R.C. 707.06, and therefore have standing in litigation concerning the incorporation.
When R.C. 707.06 and R.C. 707.11 are read in pari materia, it is clear that those persons entitled to speak as “persons interested” under R.C. 707.06 are also “persons interested” under R.C. 707.11, and have the right to commence the statutory injunction proceeding. The only way to ensure that the commissioners live up to their statutory mandate to consider the good of the surrounding area is to grant interested persons from the surrounding area the right to challenge the commissioners’ ruling.
The majority errs in looking to annexation law for guidance in determining this question of incorporation. The protection of the surrounding community is absent from Ohio’s annexation provisions. R.C. 709.07, like R.C. 707.11, permits a person interested to commence a statutory injunction proceeding. However, the annexation statutes specifically permit the commissioners to consider only “the general good of the territory sought to be annexed.” R.C. 709.033(E). This crucial difference from incorporation law leaves township trustees outside the scope of the phrase “person interested” under Ohio’s annexation statutes.
Wright, J., concurs in the foregoing dissenting opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6770294. Public record. Not legal advice.