[Cite as Alliance v. Lexington Twp. Bd. of Trustees,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

CITY OF ALLIANCE : JUDGES: : : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. Julie A. Edwards, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 10-CA-289 LEXINGTON TOWNSHIP BOARD OF : TRUSTEES : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas Case No. 2007CV03723

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: June 27, 2011

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

ROBERT R. HUNTER 0026616 KENNETH J. CARDINAL 0010659 470 E. Market Street 758 N. 15th Street Alliance, Ohio 44601 P.O. Box 207 Sebring, Ohio 44672 DEBORAH A. DAWSON Assistant Stark County Prosecutor 110 Central Plaza, South, Ste. 510 Canton, Ohio 44702 [Cite as Alliance v. Lexington Twp. Bd. of Trustees,

.]

Delaney, J.

{¶1} Appellant Lexington Township Board of Trustees (“Lexington Township”)

appeals the judgment of the Stark County Court of Common Pleas, which affirmed the

Stark County Board of Commissioner’s January 27, 2010 Resolution approving the

annexation petition of Appellee City of Alliance.

{¶2} The facts underlying this appeal are as follow:

{¶3} On July 17, 2007, the Board held a public hearing on the annexation

petition of the City of Alliance to annex 51.279 acres of Lexington Township. Additional

testimony was taken by the Board at a subsequent hearing on August 21, 2007. The

petition was signed by three of the five property owners, a majority of the owners within

the territory. The Board considered the petition and voted on the petition at its August

30, 2007 meeting. As memorialized in a Resolution adopted on August 30, 2007,

Commissioners Vignos and Harmon denied the annexation petition on the basis that a

majority of the Commissioners did not vote in favor of the annexation. Commissioner

Vignos voted in favor of the annexation, Commissioner Harmon voted against it.

Commissioner Bosley abstained. Since then, this matter has been in continuous appeal

either to the Court of Common Pleas or to this Court.

{¶4} This matter has been before us twice before. In Alliance v. Lexington

Twp. Bd. of Trustees (Feb. 9, 2009), 5th Dist. No. 2008CA00024,(“Alliance I”) one of the

issues presented was whether a property owner had followed applicable statutory

procedures to withdraw her signature from an annexation petition. This Court found that

the trial court had erred in finding that the property owner's signature had been

withdrawn. We also found the trial court had erred in concluding that because the signature had been withdrawn, the general good requirement could not be satisfied. We

remanded the matter to the Court of Common Pleas for further proceedings.

{¶5} Upon remand, the trial court returned the matter to the Board with

instructions to enter an order approving the annexation on their journal. In Alliance v.

Lexington Twp. Bd. Of Trustees,

,

,

(“Alliance II”), Lexington Township appealed the remand instructions issued by the

trial court. This Court determined, in Alliance II, that the trial court erred in concluding

that the Board should approve the annexation. We stated: “ * * * the court erred in this

conclusion, because the record indicates the commissioners have not yet evaluated the

petition on the six statutory factors. The [trial] court properly remanded the matter but

erred in its directive to the Board.” Id. at ¶19. We remanded the matter to the Court of

Common Pleas with instructions to remand the matter to the Board for “review of the

petition according to law and consistent with this opinion and our prior opinion.”

{¶6} On December 29, 2009, the trial court remanded the matter to the Board

“for review of the petition according to law and consistent with the decisions of the Fifth

District Court of Appeals.”

{¶7} On January 27, 2010, new Commissioners Meeks and Ferguson (in place

of former Commissioners Vignos and Harmon), approved the annexation petition.

Commissioner Bosley again abstained. Prior to the voting, Lexington Township urged

the Board to take additional testimony concerning the petition. The Board refused to do

so, and instead the new Commissioners relied upon their review of the prior hearing

transcripts in approving the petition. {¶8} Lexington Township filed a Notice of Appeal with the Board on February

22, 2010. A Notice of Filing Transcript of Proceeding with the Clerk of Courts occurred

on March 9, 2010. The Resolution was added to the record on March 17, 2010, in a

supplemental filing with the trial court.

{¶9} Lexington Township argued before the trial court that the Board lacked

jurisdiction to consider the petition because R.C. 709.033(B) mandates that the Board

rule upon an annexation petition thirty days from the date of the public hearing, which

last occurred on August 21, 2007. Lexington Township also asserted its substantive

procedural due process rights were violated in two ways: first, the new board members

who voted on the petition were not the original board members who conducted the

public hearings and second, the Board’s legal counsel improperly influenced the

Commissioners vote.

{¶10} On September 14, 2010, the trial court affirmed the Board’s Resolution

approving the annexation petition and Lexington Township appealed the entry to this

Court.

{¶11} Lexington Township raises four Assignments of Error:

{¶12} “I. THE TRIAL COURT ERRED IN FINDING THAT THE BOARD DID

HAVE JURISDICTION OVER THIS PARTICULAR PETITION TO APPROVE THE

ANNEXATION MORE THAN THIRTY (30) DAYS AFTER THE DATE OF PUBLIC

HEARING. BOARD LACKS PARTICULAR JURISDICTION WHEN. [SIC]

{¶13} “II. THE TRIAL COURT ERRED IN FINDING THAT THE BOARD DID

NOT VIOLATE THE SUBSTANTIVE PROCEDURAL DUE PROCESS RIGHTS OF THE

TRUSTEES WHEN THE NEW BOARD MEMBERS WHO VOTED ON AN ANNEXATION PETITION WERE NOT THE ORIGINAL BOARD MEMBERS WHO

CONDUCTED THE STATUTORY PUBLIC HEARING AND WHO VIEWED THE

WITNESSES, EVIDENCE AND JUDGED THE WEIGHT OF THE RELIABILITY AND

CREDIBILITY TO BE AFFORDED TO EACH.

{¶14} “III. THE TRIAL COURT ERRED IN FINDING THAT THE BOARD DID

NOT VIOLATE THE SUBSTANTIVE DUE PROCESS RIGHTS OF THE TRUSTEES

WHEN IT PERMITTED A DE FACTO HEARING OFFICER TO IMPROPERLY

INFLUENCE THE BOARD TO VOTE IN FAVOR OF ANNEXATION BY ASSERTING

THAT THE COURT ORDERED THE BOARD TO DO SO.

{¶15} “IV. THE TRIAL COURT ERRED IN FINDING THAT AN APPEAL STAYS

THE MANDATORY TIME PERIODS THAT A BOARD MAY TAKE OFFICIAL ACTION

ON AN ANNEXATION PETITION.”

I., IV.

{¶16} We will address the first and fourth assignments of error together because

they are interrelated. In the first assignment of error, Lexington Township argues that

the trial court erred in determining that the Board had jurisdiction to approve the

annexation more than 30 days subsequent to the public hearing date. In the fourth

assignment of error, the Township asserts the trial court erred in finding that a notice of

appeal stays execution upon all parties.

{¶17} R.C. 709.033 provides, in relevant part:

{¶18} “(B) The board of commissioners shall enter upon its journal a resolution

granting or denying the petition for annexation within thirty days after the hearing

provided for in section 709.093 of the Revised Code. The resolution shall include specific finds of fact as to whether each of the conditions listed in divisions (A)(1) to (6)

of this section has been met. * * *”.

{¶19} Lexington Township concedes the Board originally had subject matter

jurisdiction to pass a resolution granting or denying an annexation petition. However,

the Township contends the Board lost its jurisdiction over the petition by failing to adopt

a resolution for or against annexation after thirty days had elapsed since the public

hearing, which then rendered the January 27, 2010 Resolution voidable on direct

appeal.

{¶20} We find the position of Lexington Township to be untenable. The record

clearly reflects that a resolution was timely passed by the Board. As noted earlier, the

Board considered the petition and voted on the petition at its August 30, 2007 meeting,

which occurred within thirty days of the August 21, 2007 public hearing. As

memorialized in a Resolution adopted on August 30, 2007, Commissioners Vignos and

Harmon denied the annexation petition on the basis that a majority of the

Commissioners did not vote in favor of the annexation.

{¶21} The August 30, 2007 Resolution formed the basis of the City of Alliance’s

first notice of appeal to the trial court on September 12, 2007. The August 30, 2007

Resolution was a final order upon the petition and occurred within the mandatory thirty

day limit set forth in R.C. 709.033 (B).

{¶22} R.C. 709.07 also states, in relevent part:

{¶23} “(A) The agent for petitioners, any owner of real estate in the territory

proposed for annexation, any township in which territory proposed for annexation is

located, and the municipal corporation to which the territory is proposed to be annexed may file an appeal under Chapter 2506 of the Revised Code from a resolution of the

board of county commissioners granting or denying the petition. * * * The filing of a

notice of appeal with the of clerk of the board of county commissioners shall operate as

stay of execution upon that clerk and all parties to the appeal, which stay shall not be

lifted until the court having jurisdiction over the proceedings enters a final order affirming

or reversing the decision of the board of county commissioners and the time limits for an

appeal of that final order have passed with a notice of appeal being filed.”

{¶24} It is readily apparent that this matter has been continuously in appellate

review since the Board’s passage of the August 30, 2007 Resolution denying the instant

annexation petition. Accordingly, by operation of law, any action upon the petition was

stayed until all appeals have been exhausted. Once that occurs, R.C. 709.07(C) and

(D) instruct that the final determination of the court shall be journalized by the clerk of

the board.

{¶25} By entry dated December 29, 2009, the trial court remanded this matter to

the Board for review of the petition according to law and consistent with this Court’s

decisions. We therefore find the Board had jurisdiction to consider and vote upon the

petition at the Board’s January 27, 2010 meeting.

{¶26} The Township’s first and fourth assignments of error are overruled.

II.

{¶27} In its second assignment of error, Appellant argues that the trial court

erred in finding that the Stark County Board of Commission did not violate the due

process rights of the Trustees when Board members who were not the original board

members that heard the case issued a final determination on the merits of the case. {¶28} The safeguards of due process to assure a fair hearing do not require that

an administrative decision-maker actually attend the hearing; the requirement is that the

decision maker must, in some meaningful manner, consider and appraise the evidence

obtained at the hearing. State, ex rel Ormet Corp. v. Industrial Commission (1990),

,

.

{¶29} Obviously over the passage of time, county commissioners are likely to

change composition while appellate review occurs concerning any particular annexation

petition. It is undisputed that Commissioners Meeks and Ferguson read the entire

transcript of the proceedings on the petition (January 27, 2010, T. at 3). In addition, the

Board was provided with a summary by a staff member, Rick Flory, that the annexation

petition was properly noticed and he provided the Board with a copy of the annexation

plat. He also discussed information received from other county officials regarding the

petition (Id. at 9-10).

{¶30} The Board’s review of the hearing transcripts, in lieu of hearing live

testimony, before casting their vote meets the instruction of the Ormet court to consider

the evidence from the public hearing in a meaningful manner. We conclude that the

requirements of due process were satisfied.

{¶31} The Township’s second assignment of error is overruled.

III.

{¶32} In its third assignment of error, Appellant argues that the trial court erred in

finding that the Board did not violate the due process rights of the Trustees when it

permitted a “de facto” hearing officer to influence the Board to vote in favor of

annexation by asserting that the court ordered it to do so. {¶33} At the January 27, 2010, legal counsel for the Board provided a narrative

of the lengthy legal history of this matter, such as the rulings by the trial court and this

Court. Counsel also instructed the Board as to statutory requirements set forth in R.C.

709.033 for considering an annexation petition. She advised the Board members they

had discretion in considering certain factors, such as the general good requirement, and

that their decision be based upon a preponderance of substantial reliable and probative

evidence.

{¶34} Upon our independent review of the transcript, we find nothing in the

record to suggest that legal counsel acted improperly or attempted to influence the

Board in its vote. At no time did legal counsel indicate that the Board was ordered to

vote in favor of or against the petition.

{¶35} The Township’s third assignment of error is overruled.

{¶36} For the foregoing reasons, we affirm the decision of the Stark County

Court of Common Pleas.

By: Delaney, J.

Hoffman, P.J. and

Edwards, J. concur.

HON. PATRICIA A. DELANEY

HON. WILLIAM B. HOFFMAN

HON. JULIE A. EDWARDS IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

CITY OF ALLIANCE : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : LEXINGTON TOWNSHIP BOARD OF : TRUSTEES : Defendant-Appellant : Case No. 10-CA-289 :

For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Stark County Court of Common Pleas is affirmed. Costs assessed to

Appellant.

_________________________________ HON. PATRICIA A. DELANEY

_________________________________ HON. WILLIAM B. HOFFMAN

_________________________________ HON. JULIE A. EDWARDS