Eaton Twp. Bd. of Trustees v. KNG, Ltd.

[Cite as Eaton Twp. Bd. of Trustees v. KNG, Ltd., 2023-Ohio-1621.]

STATE OF OHIO ) IN THE COURT OF APPEALS

)ss: NINTH JUDICIAL DISTRICT

COUNTY OF LORAIN )

BOARD OF TOWNSHIP TRUSTEES FOR C.A. No. 22CA011854

EATON TOWNSHIP

Appellant

APPEAL FROM JUDGMENT

v. ENTERED IN THE

COURT OF COMMON PLEAS

KNG, LTD., et al COUNTY OF LORAIN, OHIO

CASE No. 21 CV 203634

Appellees

DECISION AND JOURNAL ENTRY

Dated: May 15, 2023

STEVENSON, Judge.

{¶1} Appellant Board of Township Trustees for Eaton Township (“Eaton”) appeals the

decision of the Lorain County Court of Common Pleas affirming the Lorain County Board of

Commissioners’ (“Commissioners”) decision to allow the annexation of 41.9821 acres of land

located in Eaton to appellee the Village of Grafton (“Grafton”). For the reasons set forth below,

we sustain Eaton’s third assignment of error. Eaton’s first and second assignments of error are,

accordingly, moot.

I.

{¶2} On January 22, 2021, appellee KNG, Ltd. (“KNG”) filed a petition for regular

annexation of land from Eaton to Grafton. The petition involved 41.9821 acres of land which is

the final phase of KNG’s four-phase residential development project, Fiddler’s Green, that began

in 2004.

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{¶3} A public hearing on the annexation petition commenced before the Commissioners

on April 6, 2021 and concluded, after being continued, on April 20, 2021. All parties submitted

post-hearing briefs to the Commissioners.

{¶4} On May 12, 2021, the Commissioners passed Resolution No. 21-318 granting the

requested annexation. Eaton then filed a notice of administrative appeal to the Lorain County

Court of Common Pleas. The trial court affirmed the Commissioners’ decision.

{¶5} Eaton timely appealed the trial court’s decision to this Court, setting forth three

assignments of error for review. We consider the assignments of error out of order because the

third assignment of error is dispositive of this appeal.

II.

ASSIGNMENT OF ERROR NO. 3

THE TRIAL COURT ERRED IN UPHOLDING THE LORAIN COUNTY

COMMISSIONERS’ GRANT OF RESPONDENT-DEFENDANTS’

PETITION FOR ANNEXATION BECAUSE THE PETITIONERS FAILED

TO SATISFY THE REQUIREMENTS OF R.C. 709.033(A)(6), TO WIT,

THAT ‘[N]O STREET OR HIGHWAY WILL BE DIVIDED OR

SEGMENTED BY THE BOUNDARY LINE BETWEEN A TOWNSHIP

AND THE MUNICIPAL CORPORATION AS TO CREATE A ROAD

MAINTENANCE PROBLEM, OR, IF A STREET OR HIGHWAY WILL BE

SO DIVIDED OR SEGMENTED, THE MUNICIPAL CORPORATION HAS

AGREED, AS A CONDITION OF THE ANNEXATION, THAT IT WILL

ASSUME THE MAINTENANCE OF THAT STREET OR HIGHWAY. FOR

PURPOSES OF THIS DIVISION, “STREET” OR “HIGHWAY” HAS THE

SAME MEANING AS IN SECTION 4511.01 OF THE REVISED CODE.”

R.C. 709.033.

{¶6} Eaton argues in its third assignment of error that KNG and Grafton (collectively

“Petitioners”) failed to meet R.C. 709.033(A)(6)’s requirements and that, therefore, the

Commissioners improperly granted the annexation and the trial court improperly upheld the

Commissioners’ decision. We agree.

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{¶7} An order affirming a petition to annex a property may be appealed pursuant to R.C.

2506.01. Smith v. Granville Twp. Bd. of Trustees, 81 Ohio St.3d 608, 612 (1998). The review

process for an appeal of a grant of a petition for annexation starts in the court of common pleas

wherein the trial court reviews the administrative order pursuant to R.C. 2506.04. The common

pleas court “must weigh the evidence in the record and may consider new or additional evidence.”

Smith at 612, citing Dudukovich v. Lorain Metro. Hous. Auth., 58 Ohio St.2d 202, 206-207 (1979).

The common pleas court’s decision may then be appealed to an appellate court on questions of

law. Smith at 613.

{¶8} “An appellate court's function does not involve a determination as to the weight of

the evidence.” CMK, Ltd. V. Bd. of Cty. Commrs., 9th Dist. Lorain No. 02CA008185, 2003-Ohio-

5160, ¶ 17, citing In re Annexation of 1,544.61 Acres, 14 Ohio App.3d 231, 233 (9th Dist.1984).

This Court’s inquiry “is more limited in scope.” Kisil v. Sandusky, 12 Ohio St.3d 30, 34 (1984).

An appellate court is required “to affirm the common pleas court” unless it finds “as a matter of

law, that the decision of the common pleas court is not supported by a preponderance of reliable,

probative and substantial evidence.” Id. The appellate court’s review, however, “‘does not include

the same extensive power to weigh the ‘preponderance of substantial, reliable and probative

evidence,’ as is granted to the common pleas court. * * * Appellate courts must not substitute their

judgment for those of an administrative agency or a trial court absent the approved criteria for

doing so.’” (Internal quotations omitted.) Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio

St.3d 142, 147 (2000), quoting Lorain City School Dist. Bd. of Edn. v. State Emp. Relations Bd.,

40 Ohio St.3d 257, 261 (1988).

{¶9} R.C. 709.033 governs the Commissioners’ determination to grant a petition for

annexation. For an annexation to be approved by the commissioners, the petitioners are required

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to show at a hearing, based on a preponderance of the evidence, that each of the six elements set

forth in R.C. 709.033(A) have been met. The element at issue in Eaton’s third assignment of error

is R.C. 709.033(A)(6) which provides:

No street or highway will be divided or segmented by the boundary line between a

township and the municipal corporation as to create a road maintenance problem,

or, if a street or highway will be so divided or segmented, the municipal corporation

has agreed, as a condition of the annexation, that it will assume the maintenance of

that street or highway. For the purposes of this division, “street” or “highway” has

the same meaning as in section 4511.01 of the Revised Code.

{¶10} The Ohio Supreme Court has stated that, “where the language of a statute is clear

and unambiguous, it is the duty of the court to enforce the statute as written, making neither

additions to the statute nor subtractions therefrom.” Hubbard v. Canton City School Bd. of Edn.,

97 Ohio St.3d 451, 2002-Ohio-6718, ¶ 14. If a statute is “ambiguous, we must then interpret the

statute to determine the General Assembly's intent. If it is not ambiguous, then we need not

interpret it; we must simply apply it.” State v. Hairston, 101 Ohio St.3d 308, 2004-Ohio-969, ¶

13.

{¶11} As a result of the requested annexation, Durkee Road will be divided or segmented

by the boundary line between Eaton and Grafton. With respect to the maintenance of Durkee

Road, Grafton’s Council passed Resolution No. 20-039 on October 6, 2020, over three months

before the petition for regular annexation was filed, authorizing its “Mayor to enter into a shared

maintenance agreement with Lorain County for the care and upkeep of Durkee Road.” Pursuant

to the shared maintenance agreement, Grafton and Lorain County would “share equally (1/2) the

cost of maintenance of a portion of Durkee Road”.

{¶12} KNG’s petition for regular annexation was filed with the Commissioners on

January 22, 2021. Lorain County Sanitary Engineer Ken Carney stated in a February 17, 2021

letter that Grafton and Lorain County would “[s]eparately * * * enter into an agreement * * * to

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share the maintenance of the affected portion of Durkee Road, in order to avoid segmentation of

this county road.” Thus, Grafton has not assumed maintenance of the road but agreed to share

maintenance.

{¶13} The Commissioners issued their decision, Resolution No. 21-318, on May 12, 2021.

The Board acknowledged R.C. 709.033(A)(6) and the requirement that, “if a street or highway

will be so divided or segmented, the municipal corporation has agreed, as a condition of the

annexation, that it will assume the maintenance of that street or highway.” The Commissioners

found that this requirement was established as “Grafton has submitted to the Board for its review

a qualifying road maintenance agreement for Durkee Rd.”

{¶14} The trial court affirmed the Commissioners’ decision. With respect to R.C.

709.033(A)(6), the trial court held “that the Commissioners’ decision that (1) provisions have been

made for the maintenance of Durkee Road * * * is not unconstitutional, illegal, arbitrary,

capricious, unreasonable or unsupported by the preponderance of substantial, reliable and

probative evidence on the whole record.” The trial court’s finding that “provisions have been

made” for the maintenance of the road is not the unambiguous standard required by R.C.

709.033(A)(6).

{¶15} As previously set forth, R.C. 709.033(A)(6) states that, if a street or highway will

be divided or segmented by the boundary line between the township and the municipal corporation,

“the municipal corporation” must have agreed, “as a condition of the annexation, that it will

assume the maintenance of that street or highway.” Eaton argues that Grafton’s Ordinance 20-039

fails to comply with R.C. 709.033(A)(6) as it “did not include any language that – as a condition

[of] the annexation of the Parcel – Grafton would assume maintenance of Durkee Road.”

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{¶16} Grafton maintains the road maintenance agreement “achieves the desired effect

that the road or highway will continue to be maintained after segmentation due to annexation.”

Grafton relied on In re: Petition to Annex 331.2142 Acres etc. Wadsworth Twp. Bd. of Trustees v.

Wadsworth, 9th Dist. Medina No.03CA0101-M, 2004-Ohio-1425, to support its position that,

because there was an agreed shared maintenance agreement for Durkee Road prior to KNG’s

submission of its annexation petition, the “special ‘condition precedent’ language * ** would have

no measurable effect.”

{¶17} The trial court in Petition to Annex 331.2142 Acres ended its R.C. 709.033(A)(6)

analysis on the finding that the streets at issue “were in fact already segmented and properly

maintained prior the petition.” Petition to Annex 331.2142 Acres at ¶ 14. Because the requested

annexation would not result in a new division or segmentation of streets or highways, the court

found that there was no road maintenance problem and ended its analysis. Thus, Petition to Annex

331.2142 Acres only considered the first portion of the statute, whether annexation caused roads

to be segmented, and not the second portion, who must maintain a road that is segmented by

annexation.

{¶18} Unlike in Petition to Annex 331.2142 Acres, it is undisputed that Durkee Road will

be divided or segmented because of the requested annexation. The Commissioners heard

testimony and were presented with evidence pertaining to alleged maintenance agreements for the

portion of Durkee Road that would be affected by the requested annexation. Because “a street or

highway will be so divided or segmented” as a result of the annexation, it was Petitioners’ burden

to establish by “a preponderance of the substantial, reliable, and probative evidence on the whole

record,” that “the municipal corporation has agreed, as a condition of the annexation, that it will

assume the maintenance of that street or highway.” R.C. 709.033(A)(6). R.C. 709.033(A)(6) is

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clear and unambiguous and, as such, must be enforced “as written.” Hubbard, 97 Ohio St.3d 451,

2002-Ohio-6718 at ¶ 14.

{¶19} Prior to the annexation request, Grafton passed Resolution No. 20-039 authorizing

its mayor to enter into a shared maintenance agreement with Lorain County for the care and upkeep

of Durkee Road. The Resolution states that Grafton and Lorain “desire to enter into a shared

maintenance agreement whereupon each will share equally (1/2) the cost of maintenance” of the

relevant portions of Durkee Road. Provisions for maintenance, and the “desire to enter into” a

maintenance agreement, are not the same as the “municipal corporation * * *, as a condition of

annexation, * * * will assume the maintenance.” Contrary to R.C. 709.033(A)(6) mandates,

neither the Resolution nor the record establish that Grafton, as the municipality and “as a condition

of the annexation * * * will assume the maintenance of” Durkee Road. Petitioners failed to satisfy

the requirements of R.C. 709.033(A)(6).

{¶20} Accordingly, we conclude that the trial court erred in finding that the Lorain County

Board of Commissioners approved the petition for annexation based on compliance with R.C.

709.033(A)(6). Eaton’s third assignment of error is sustained.

ASSIGNMENT OF ERROR NO. 1

THE COMMISSIONERS MISREAD R.C. 709.033(A)(5) & (6), AND

EFFECTIVELY ELIMINATED THE STATUTORY REQUIREMENTS TO

BOTH CONSIDER THAT “[O]N BALANCE, THE GENERAL GOOD OF

THE TERRITORY PROPOSED TO BE ANNEXED WILL BE SERVED,

AND THE BENEFITS TO THE TERRITORY PROPOSED TO BE

ANNEXED AND THE SURROUNDING AREA WILL OUTWEIGH THE

DETRIMENTS TO THE TERRITORY PROPOSED TO BE ANNEXED

AND THE SURROUNDING AREA, IF THE ANNEXATION PETITION IS

GRANTED” AND THAT “NO STREET OR HIGHWAY WILL BE

DIVIDED OR SEGMENTED BY THE BOUNDARY LINE BETWEEN A

TOWNSHIP AND THE MUNICIPAL CORPORATION AS TO CREATE A

ROAD MAINTENANCE PROBLEM, OR, IF A STREET OR HIGHWAY

WILL BE SO DIVIDED OR SEGMENTED, THE MUNICIPAL

CORPORATION HAS AGREED, AS A CONDITION OF THE

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ANNEXATION, THAT IT WILL ASSUME THE MAINTENANCE OF

THAT STREET OR HIGHWAY. FOR THE PURPOSES OF THIS

DIVISION, “STREET” OR “HIGHWAY” HAS THE SAME MEANING AS

IN SECTION 4511.01 OF THE REVISED CODE.” R.C. 709.033.

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT ERRED IN UPHOLDING THE LORAIN COUNTY

COMMISSIONER’S GRANT OF PETITIONERS’ PETITION FOR

ANNEXATION BECAUSE INSUFFICIENT EVIDENCE WAS PROVIDED

TO SATISFY R.C. 709.033(A)(5), AND THE COMMISSIONERS IGNORED

THE STATUTORY LANGUAGE REQUIRING THAT “ON BALANCE,

THE GENERAL GOOD OF THE TERRITORY PROPOSED TO BE

ANNEXED WILL BE SERVED, AND THE BENEFITS TO THE

TERRITORY PROPOSED TO BE ANNEXED AND THE SURROUNDING

AREA WILL OUTWEIGH THE DETRIMENTS TO THE TERRITORY

PROPOSED TO BE ANNEXED AND THE SURROUNDING AREA, IF THE

ANNEXATION PETITION IS GRANTED. AS USED IN DIVISION (A)(5)

OF THIS SECTION, “SURROUNDING AREA” MEANS THE

TERRITORY WITHIN THE UNINCORPORATED AREA OF ANY

TOWNSHIP LOCATED ONE-HALF MILE OR LESS FROM ANY OF THE

TERRITORY PROPOSED TO BE ANNEXED.”

{¶21} Eaton argues in its first and second assignments of error that R.C. 709.033(A)(5)

was misread and that there was insufficient evidence to satisfy this statutory provision. Eaton also

argues that the Commissioners misread and eliminated the statutory requirements set forth in R.C.

709.033(A)(6). Based on this Court’s resolution of the third assignment of error, the first and

second assignments of error are moot.

III.

{¶22} For the reasons set forth above, Eaton’s third assignment of error is sustained.

Eaton’s first and second assignments of error are moot. The judgment of the Lorain County Court

of Common Pleas is reversed and the matter is remanded to the trial court for further proceedings

in accordance with law and consistent with this opinion.

Judgment reversed and remanded.

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There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

Costs taxed to Appellees.

SCOT STEVENSON

FOR THE COURT

SUTTON, P. J.

FLAGG LANZINGER, J.

CONCUR.

APPEARANCES:

ALFRED E. SCHRADER, Attorney at Law, for Appellant.

GRETCHEN A. HOLDERMAN, Attorney at Law, for Appellee.

JAMES N. TAYLOR, Attorney at Law, for Appellee.