In Re Annexation of 64.301 Acres, Unpublished Decision (3-13-2000)
In Re Annexation of 64.301 Acres, Unpublished Decision (3-13-2000)
Opinion of the Court
OPINION
On September 23, 1998, Christopher J. Goldthorpe, as agent for petitioners, filed a petition seeking the annexation of 64.301 acres in Plain Township to the City of North Canton. The petition was signed by 77 of the 121 landowners in the area seeking to be annexed. After withdrawals and adjustments due to changes in ownership, 70 signatures remained on the petition. On December 8, 1998, the Stark County Commissioners held a hearing on the annexation petition. Numerous parties testified both in favor of and in opposition to the proposed annexation. Numerous affidavits were submitted on behalf of residents of an adjacent neighborhood known as the "Dells", indicating that had the "Dells" been included in the proposed annexation territory, they would not have signed the petition. On March 4, 1999, the Commissioners passed a resolution denying the annexation, finding that the good of the territory sought to be annexed would not be served if the petition was granted. During discussion on the resolution, two of the Commissioners expressed concern that the "Dells" would become an island of Plain Township located in the City of North Canton. The petitioners filed a notice of appeal to the Stark County Common Pleas Court pursuant to R.C.ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS DISCRETION BY SUPPLANTING THE FACTUAL FINDINGS AND DECISION OF THE COUNTY COMMISSIONERS WITH ITS OWN FACTUAL FINDINGS AND DECISION.
The Board of County Commissioners should allow an annexation petition if it finds that the territory included in the petition is not unreasonably large, the map or plat is accurate, and the general good of the territory sought to be annexed would be served if the petition is granted. R.C. 709.03.3(E). The scope of review of appeals from the decision of the Board of Commissioners is set forth in R.C.
Appellant argues that the court erred in failing to apply the Commissioners' factual findings concerning an island to the issue of whether the area is unreasonably large. Appellant also argues that the court erred in failing to find that the area to be annexed was unreasonably large, based on the creation of an island. Appellees argue that because appellant failed to file a cross-appeal on the issue of whether the Commissioners erred in failing to find that the area was unreasonably large, appellant is barred from arguing this issue on appeal to this court. Because the Court of Common Pleas discussed the issue of islands in its judgment, we will consider the issue on the merits. See In Re: The Annexation of 9.62 Acres of Land in Jackson Township into the City of Massillon (February 22, 2000), Stark App. No. 1999CA00250, unreported. In the appeal to the Court of Common Pleas, appellant argued that the result of the annexation was to create an island. Appellant contended that water could not be supplied to this island by Plain Township without easements across land within the City of North Canton, and the evidence from the hearing before the Commissioners established such easements would not be forthcoming. Appellant further argued to the court that were these residents to be considered, there would not be the requisite number of signatures in support of the petition. The Ohio Revised Code does not specifically delineate the creation of islands as an impediment to annexation. While islands are generally discouraged, their existence alone will not defeat a petition for annexation as long as the decision to create them was not unreasonable, illogical, or arbitrary. Jefferson Township Board of Trustees v. Smith (1992),
The judgment of the Stark County Common Pleas Court is affirmed.
HOFFMAN, J., and EDWARDS, J., CONCUR.
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