State ex rel. Cornell v. Greene Cty. Bd. Commrs.

Ohio Court of Appeals December 19, 2014

State ex rel. Cornell v. Greene Cty. Bd. Commrs., 2014 Ohio 5584 (2014)

Froelich

Opinion

[Cite as State ex rel. Cornell v. Greene Cty. Bd. Commrs.,

2014-Ohio-5584

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY

STATE OF OHIO, EX REL., MICHAEL A. CORNELL

Petitioner-Relator

GREENE COUNTY BOARD OF COUNTY COMMISSIONERS, et al.

Respondents

Appellate Case No. 13-CA-23

DECISION AND FINAL JUDGMENT ENTRY; WRIT OF MANDAMUS December 19, 2014

PER CURIAM:

{¶ 1} This mandamus action is before the court on competing motions for summary

judgment. The underlying dispute concerns two petitions to annex property located in Beavercreek

Township into the city of Beavercreek. One annexation petition was denied; the other has not been

denied or granted.

{¶ 2} The petition for mandamus was filed on May 8, 2013. An amended petition was 2 accepted as filed on November 15, 2013. The petitions ask this court to order the Greene County

Board of County Commissioners and the individual commissioners to review and grant the second

petition for annexation, or alternatively, to grant the first petition.

{¶ 3} Petitioner-Relator, Michael A. Cornell, Agent for the Petitioners (“Relator”) filed a

motion for summary judgment on November 1, 2013, and a supplemental motion for summary

judgment on April 28, 2014.

{¶ 4} Respondents, Greene County Board of County Commissioners, Thomas Koogler,

Robert J. Glaser, Jr., and Alan G. Anderson (collectively, “the Commissioners”), filed a motion for

summary judgment on October 31, 2013, and a supplemental motion for summary judgment on May

12, 2014.

{¶ 5} Intervening Respondent, Beavercreek Township Board of Trustees (“the Township”),

filed a motion for summary judgment on October 31, 2013, and a supplemental motion for summary

judgment on May 12, 2014.

{¶ 6} The parties have filed responses and replies to the respective motions. Also pending

are the Township’s motion to stay proceedings (and a response and reply thereto), Relator’s first

motion to strike the motion to stay (and a response and reply thereto), and Relator’s second motion

to strike the motion to stay and notice of authority (and a response thereto). The matter is ripe for

decision.

Facts and Procedural History

The “Initial Petition”

{¶ 7} On October 23, 2012, Relator filed a petition for annexation of approximately

118.403 acres in Beavercreek Township to the City of Beavercreek (the “Initial Petition”). On

October 25, 2012, the Greene County Map Department filed a report stating the written legal 3 descriptions for the proposed annexation would be legally sufficient if corrections were made.

{¶ 8} On October 26, 2012, the Greene County Engineer filed a report with the

Commissioners on the accuracy of the legal description of the perimeter and map or plat of the

territory proposed to be annexed. The Engineer’s report said:

We have reviewed the referenced annexation and find that there are

errors and omissions in the paperwork that need to be addressed.

These issues are marked in the paperwork and described in the Memo

from Peggy Middleton dated October 25, 2012. Please have all

errors and omissions fixed prior to acceptance by the Commissioners.

{¶ 9} Ms. Middleton’s memorandum indicated that the “legal description is legally

sufficient with corrections noted.” She noted several required additions and changes to the legal

description and map, as well as discrepancies between the two.

{¶ 10} On October 29, 2012, the Regional Planning and Coordinating Commission of

Greene County (“RPCC”) filed a report with the Commissioners on the accuracy of the legal

description of the perimeter and map or plat of the territory proposed to be annexed. The RPCC

noted fourteen (14) “discrepancies” to be addressed in the annexation summary and adjoining

summary.

{¶ 11} On October 30, 2012, the Commissioners journalized the filing of the Initial Petition.

On November 7, 2012, the Council of the City of Beavercreek adopted a resolution consenting to

the annexation. On November 13, 2012, the Township adopted and filed a resolution objecting to

the annexation.

{¶ 12} On November 20, 2012, Relator filed revisions to the legal description and map with

the Commissioners. The annexation territory remained 118.403± acres. 4 {¶ 13} On November 27, 2012, the Commissioners discussed the Initial Petition during their

work session, but took no action on it. On December 6, 2012, the Commissioners unanimously

adopted Resolution 12-12-6-6 denying the Initial Petition. In Resolution 12-12-6-6, the

Commissioners found “the following conditions have not been met: 1. The Petitioners failed to file

an accurate legal description of the perimeter and an accurate map of the territory proposed for

annexation, in contravention of R.C. 709.02(C)(2).” No other unmet conditions were identified.

{¶ 14} Relators’ amended mandamus petition seeks an order compelling the Commissioners

to approve the Initial Petition.

The “Subsequent Petition”

{¶ 15} On December 4, 2012, two days before the Commissioners denied the Initial

Petition, Relator filed a second annexation petition (the “Subsequent Petition”). The Subsequent

Petition contained a legal description and map of the 118.403± acres at issue in the Initial Petition,

with the corrections previously noted by the County Engineer.

{¶ 16} On December 6, 2012, immediately after denying the Initial Petition, the

Commissioners journalized the Subsequent Petition.

{¶ 17} On December 6 or 7, 2012, the Greene County Engineer reported that the Subsequent

Petition’s legal description and map were both “legally sufficient as described.” Ms. Middleton’s

revised memorandum contained notations showing the previously indicated errors and omissions

were now “OK.”

{¶ 18} On December 17, 2012, the RPCC, which had previously identified discrepancies on

the annexation summary and adjoining summary, advised the Commissioners that the “the property

owner adjacent to or directly across the road from the territory to be annexed is correct.”

{¶ 19} The City of Beavercreek consented to the annexation on December 21, 2012. The 5 City passed resolutions the same day stating what services it would provide upon annexation, stating

that buffers would be required for incompatible uses, and agreeing to assume the maintenance of

any portion of a street divided by the boundary line that created a maintenance problem.

{¶ 20} Also on December 21, 2012, the Township adopted Resolution 2012-449 objecting

to the Subsequent Petition. The Township filed the resolution with the Commissioners on

December 27, 2012.

{¶ 21} On January 15, 2013, the Commissioners met to review the Subsequent Petition.

During the meeting, Commissioner Anderson moved to approve the Subsequent Petition.

Commissioner Glaser abstained. Commissioner Koogler took no action; the motion died for lack

of a second. The Commissioners have taken no further action on the Subsequent Petition.

{¶ 22} Relator filed a Verified Petition for Writ of Mandamus on May 8, 2013, seeking to

compel the Commissioners to review and grant the Subsequent Petition.

Relevant legal standards

Writ of Mandamus

{¶ 23} For a writ of mandamus to issue, the relator must show “(1) that he has a clear legal

right to the relief prayed for, (2) that respondents are under a clear legal duty to perform the

requested act, and (3) that relator has no plain and adequate remedy at law.” State ex rel. Dayton

Newspapers, Inc. v. Wagner,

129 Ohio App.3d 271, 273

717 N.E.2d 773

(2d Dist. 1998); State ex

rel. Plain Dealer Publishing Co. v. Barnes,

38 Ohio St.3d 165, 167

527 N.E.2d 807

(1988). A

“writ of mandamus is an appropriate remedy should a board of county commissioners fail to

perform its statutory duty in regard to a Type 2 annexation petition.” Lawrence Twp. Bd. Of

Trustees v. Canal Fulton,

185 Ohio App.3d 267

2009-Ohio-6822

923 N.E.2d 1180, ¶ 16

(5th

Dist.); see also R.C. 709.023(G) (“any party may seek a writ of mandamus to compel the board of 6 county commissioners to perform its duties under this section”).

Summary Judgment

{¶ 24} Mandamus actions “ordinarily proceed as civil actions under the Ohio Rules of Civil

Procedure.” Loc. App.R. 8(A). Pursuant to those rules,

Summary judgment shall be rendered forthwith if the pleadings, depositions,

answers to interrogatories, written admissions, affidavits, transcripts of evidence,

and written stipulations of fact, if any, timely filed in the action, show that there is

no genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law. * * * A summary judgment shall not be rendered

unless it appears from the evidence or stipulation, and only from the evidence or

stipulation, that reasonable minds can come to but one conclusion and that

conclusion is adverse to the party against whom the motion for summary judgment

is made, that party being entitled to have the evidence or stipulation construed most

strongly in the party's favor.

Civ.R. 56(C).

{¶ 25} Thus, to be entitled to summary judgment, the movant must show that “(1) no

genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to

judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to

but one conclusion, and viewing the evidence most strongly in favor of the nonmoving party, that

conclusion is adverse to the nonmoving party.” State ex rel. Levin v. Schremp,

73 Ohio St.3d 733, 734

654 N.E.2d 1258

(1995).

{¶ 26} The parties filed a “Joint Stipulation of Facts.” The Commissioners also filed

notices of filing “the Transcripts requested in Petitioner-Relator’s Praecipe for records” and 7 1 “Transcripts of the Meetings of the Greene County Board of County Commissioners.” The parties

agree that these documents, so identified in the “Joint Stipulation to Court’s October 20, 2014

Order,” are properly before this court. We therefore consider them in deciding the summary

judgment motions. State ex rel. Spencer v. E. Liverpool Planning Com’n,

80 Ohio St.3d 297, 301

685 N.E.2d 1251

(1997).

Expedited Type-2 Annexation

{¶ 27} “Annexation by municipalities of adjacent territory is encouraged in the State of

Ohio.” Smith v. Bethel Twp. Bd. of Trustees, 2d Dist. Miami No. 2002-CA-32,

2003-Ohio-466

, ¶

9. It is strictly a statutory process. In re Petition to Annex 320 Acres to the Village of S. Lebanon,

64 Ohio St.3d 585, 591

597 N.E.2d 463

(1992). “Consequently, the procedures for annexation and

for challenging an annexation must be provided by the General Assembly.” Kunkel v. Champaign

Cty. Bd. of Commrs.,

177 Ohio App.3d 718

2008-Ohio-4017

895 N.E.2d 905, ¶ 19

(2d Dist.),

citing State ex rel. Butler Twp. Bd. of Trustees v. Montgomery Cty. Bd. of Cty. Commrs.,

162 Ohio App.3d 394

, 2005–Ohio–3872,

833 N.E.2d 788, ¶ 8

(2d Dist.).

The legislature enacted Senate Bill 5 in 2001 and substantially altered

existing annexation statutes. The new annexation statutes add three special

procedures for expedited annexation. These procedures eliminate discretion by

requiring the board of commissioners to approve annexation if the petition complies

with certain technical requirements.

The annexation involved in the present case is the second of the three new

annexation procedures and is referred to as an “expedited type–2 annexation.” State

ex rel. Butler Twp. Bd. of Trustees v. Montgomery Cty. Bd. of Commrs.,

112 Ohio 1

The parties also filed a substitute transcript of the Commissioners’ meetings. 8 St.3d 262, 264,

2006-Ohio-6411

858 N.E.2d 1193, at ¶ 7

. The statute pertaining to

this type of procedure is R.C. 709.023 and is not analogous to any statutes existing

prior to 2001.

Sugarcreek Twp. v. Centerville,

184 Ohio App.3d 480

2009-Ohio-4794

921 N.E.2d 655, ¶ 97-98

(2d Dist.). Expedited type-2 annexation petitions allow a unanimous group of defined owners to

seek annexation in a streamlined fashion.

{¶ 28} R.C. 709.023 sets out the timeframe. “Upon the filing of the petition in the office of

the clerk of the board of county commissioners, the clerk shall cause the petition to be entered upon

the board’s journal at its next regular session.” R.C. 709.023(B). “Within twenty days after the

date that the petition is filed, the legislative authority of the municipal corporation to which

annexation is proposed shall adopt an ordinance or resolution” concerning its anticipated provision

of municipal services. R.C. 709.023(C).

{¶ 29} “Within twenty-five days after the date that the petition is filed, the legislative

authority of the municipal corporation to which annexation is proposed and each township any

portion of which is included within the territory proposed for annexation may adopt and file with the

board of county commissioners an ordinance or resolution consenting or objecting to the proposed

annexation.” R.C. 709.023(D).

{¶ 30} The petition shall be granted if both the municipal corporation and the township

consent. R.C. 709.023(D). If either files an objection,

not less than thirty or more than forty-five days after the date that the petition is filed, the board of

county commissioners shall review it to determine if each of the following conditions has been met:

(1) The petition meets all the requirements set forth in, and was

filed in the manner provided in, section 709.021 of the Revised 9 Code.

(2) The persons who signed the petition are owners of the real estate

located in the territory proposed for annexation and constitute all of

the owners of real estate in that territory.

(3) The territory proposed for annexation does not exceed five

hundred acres.

(4) The territory proposed for annexation shares a contiguous

boundary with the municipal corporation to which annexation is

proposed for a continuous length of at least five per cent of the

perimeter of the territory proposed for annexation.

(5) The annexation will not create an unincorporated area of the

township that is completely surrounded by the territory proposed for

annexation.

(6) The municipal corporation to which annexation is proposed has

agreed to provide to the territory proposed for annexation the services

specified in the relevant ordinance or resolution adopted under

division (C) of this section.

(7) If a street or highway will be divided or segmented by the

boundary line between the township and the municipal corporation as

to create a road maintenance problem, the municipal corporation to

which annexation is proposed has agreed as a condition of the

annexation to assume the maintenance of that street or highway or to

otherwise correct the problem. 10 R.C. 709.023(E) (emphasis added). Of these seven requirements, the parties do not appear to

dispute that subsections E(2), E(3), E(4), and E(5) are met here.2

{¶ 31} The parties’ arguments center around the following statutory provision:

Not less than thirty or more than forty-five days after the date that the

petition is filed, * * * the board of county commissioners, if it finds

that each of the conditions specified in division (E) of this section has

been met, shall enter upon its journal a resolution granting the

annexation. If the board of county commissioners finds that one or

more of the conditions specified in division (E) of this section have

not been met, it shall enter upon its journal a resolution that states

which of those conditions the board finds have not been met and that

denies the petition.

R.C. 709.023(F).

{¶ 32} As noted above, R.C. 709.023(E)(1) requires the board of county commissioners to

find that the “petition meets all the requirements set forth in, and was filed in the manner provided

in, section 709.021 of the Revised Code.” R.C. 709.021(B) provides in part that

Application for annexation shall be made by a petition filed with the

clerk of the board of county commissioners of the county in which the

territory is located, and the procedures contained in divisions (C), (D),

2 While these Petitions were pending before the Commissioners, the Township objected on the grounds that R.C. 709.023(E)(6) and (E)(7) were not met. The various summary judgment motions, however, contain little argument on those grounds. This is likely because of two resolutions in the record that on their face appear to satisfy these sections. We note that the Commissioners did not indicate they denied the Initial Petition because (E)(6) and (E)(7) were not met. Because the Township and Commissioners’ summary judgment motions do not support their vague statements with record evidence showing subsections (E)(6) and (E)(7) are unsatisfied, they have neither satisfied their burden on summary judgment to show they are undisputedly unmet, nor have they demonstrated a material factual dispute as to whether they are met. 11 and (E) of section 709.02 of the Revised Code shall be followed,

except that all owners, not just a majority of owners, shall sign the

petition.

R.C. 709.021(B).

{¶ 33} In turn, as relevant here, R.C. 709.02(C) provides:

The petition required by this section shall contain the following:

(1) The signatures of a majority of the owners of real estate in the

territory proposed for annexation. * * *

(2) An accurate legal description of the perimeter and an accurate

map or plat of the territory proposed for annexation;

(3) The name of a person or persons to act as agent for the petitioners.

***

R.C. 709.02(C) (emphasis added). The accuracy requirement is at the heart of this dispute.

Analysis

{¶ 34} We consider the annexation petitions in the order they were filed, and the summary

judgment motions in reverse order, as the timing of each is relevant. Relator also asserts that a

decision granting summary judgment on the Initial Petition would moot the motions for summary

judgment on the Subsequent Petition.

Initial Petition

Clear Legal Right and Clear Legal Duty to Grant the Initial Petition

{¶ 35} Because they are intertwined, we consider the first two elements of the mandamus

claim together. Relator argues the Commissioners have a clear legal duty to grant a petition that

satisfies the seven conditions of R.C. 709.023(E)(1)-(7). The Commissioners do not specifically 12 take issue with this proposition, but argue that not all the requirements, namely, the requirement that

the legal description and map be accurate, are met. R.C. 709.02(C)(2); R.C. 709.023(E)(1).

Therefore, the Commissioners argue, there is no clear legal right or duty.

{¶ 36} As a preliminary matter, the Commissioners direct this court to a previous decision

in which we held that “[t]he determination of accuracy * * * is a question of fact within the

discretion of the board.” In re Petition for Annexation of 131.983 Acres, 2d Dist. Miami No.

94-CA-15,

1995 WL 418694

, * 3 (July 7, 1995) (“131.983 Acres”), citing Lariccia v. Board of

Commrs.,

38 Ohio St.2d 99, 102

310 N.E.2d 257

(1974). Because the Commissioners have

discretion to determine the accuracy of a legal description and map, they suggest, they have no duty

to find the statute satisfied as a matter of law, thus defeating a mandamus claim. See State ex rel.

Husted v. Brunner,

123 Ohio St.3d 119, 122

2009-Ohio-4805

914 N.E.2d 397

(noting that a court

may compel the exercise of discretion on mandamus, but cannot control it).

{¶ 37} In re 131.983 Acres is distinguishable on the facts and the applicable law. In that

case, this court affirmed the trial court’s review of the Miami County Board of Commissioners’

denial of an annexation petition. Notably, that petition was subject to the full statutory annexation

process, including a public hearing, an appeal, and the requirement of a finding that the “territory

included in the annexation petition is not unreasonably large; the map or plat is accurate; and the

general good of the territory sought to be annexed will be served if the annexation petition is

granted.” Id., *3.

{¶ 38} This court held that the three criteria were questions of fact within the board’s

discretion. Id. We noted that an amendment to the statute had narrowed the board’s discretion

from previous versions. Id.

Prior to the enactment of R.C. 709.033 in 1967, the board of county commissioners, after a public 13 hearing, could grant an annexation petition if it found, inter alia, it to be “right that the prayer of the

petition be granted.” This gave the board almost unlimited discretion in approving or denying the

petition. The enactment of R.C. 709.033 significantly diminished the board’s discretion in

annexation proceedings.

In re Petition to Annex 320 Acres to the Village of S. Lebanon,

64 Ohio St.3d 585, 596

597 N.E.2d 463

(1992) (internal citations omitted).

{¶ 39} The instant case concerns subsequent amendments to the annexation statutes and

further discretion-narrowing in the expedited procedures:

The legislature enacted Senate Bill 5 in 2001 and substantially altered

existing annexation statutes. The new annexation statutes add three

special procedures for expedited annexation. These procedures

eliminate discretion by requiring the board of commissioners to

approve annexation if the petition complies with certain technical

requirements.

Sugarcreek Twp. v. Centerville,

184 Ohio App.3d 480

2009-Ohio-4794

921 N.E.2d 655, ¶ 94

(2d

Dist.) (emphasis added).

{¶ 40} In this case, the Commissioners have a different level of discretion than under the

regime described in In re 131.983 Acres. We reject the suggestion that the Commissioners have

discretion as to accuracy that bars mandamus relief as a matter of law. To hold otherwise would

render nonsensical the statute’s explicit provision for mandamus relief in type-2 annexations,

because every such annexation requires accuracy. R.C. 709.023(G); State ex rel. Cincinnati Post v.

Cincinnati,

76 Ohio St.3d 540, 543-44

668 N.E.2d 903

(1996) (courts construe statutes to avoid

unreasonable or absurd results). Here, rather than exercise discretion, the Commissioners were 14 required “to approve annexation if the petition complies with certain technical requirements,”

including accuracy. Sugarcreek Twp. at ¶ 94.

Accuracy of the Initial Petition’s Legal Description and Map

{¶ 41} The parties agree that an “accurate legal description of the perimeter and an accurate

map or plat of the territory proposed for annexation” is required before a Board of County

Commissioners grants an annexation petition. R.C. 709.02(C)(2). For summary judgment

purposes, the initial (and material) dispute between the parties is whether the legal description and

map in the Initial Petition were “accurate.” Relator argues they were; the Commissioners and the

Township argue they were not.

{¶ 42} Before reviewing the facts presented as to accuracy, we first resolve the parties’ legal

arguments concerning the level and timing of accuracy required. Relator argues that the Initial

Petition’s legal description and map were accurate when filed and when reviewed, with the

exception of “minor scrivener’s errors or stylistic changes” that were then corrected. Relator

asserts the Commissioners were required to “cure technical errors and defects” pursuant to R.C.

709.015 (concerning procedural defects). Further, Relator asserts that annexation petitioners are

permitted to correct discrepancies in filed petitions where they do not add to the territory and the

owners do not change. Relator argues, in essence, that substantial compliance with the statutes,

including the accuracy requirement, is sufficient.

{¶ 43} The Commissioners respond that the legal description and map filed with the Initial

Petition were not accurate. They also argue that no statute authorizes amendments to type-2

petitions, and that amendments are therefore not permitted. With respect to R.C. 709.015, the

Commissioners emphasize the difference between procedural and substantive requirements, and

assert that the accuracy requirement is substantive. Finally, the Commissioners dispute the 15 characterization of changes as the correction of scrivener’s errors.

{¶ 44} We first address the Commissioners’ argument that no statute authorizes

amendments to type-2 annexation petitions. Revised Code Chapter 709 contains a provision

allowing annexation petitioners to amend regular, non-expedited petitions:

The petition may be amended without further notice by leave of the

board of county commissioners and with the consent of the agent for

the petitioners if the amendment does not add to the territory

embraced in the original petition and is made at least fifteen days

before the date of the hearing.

R.C. 709.031(B).

{¶ 45} The amendment provision does not apply to expedited petitions, pursuant to R.C.

709.021(C):

Except as otherwise provided in this section, only this section and

sections 709.014, 709.015, 709.04, 709.10, 709.11, 709.12, 709.192,

709.20, and 709.21 of the Revised Code apply to the granting of an

annexation described in this section.

R.C. 709.021(C). As the amendment provision is not included in this list or otherwise

incorporated, it is inapplicable to expedited type-2 petitions. And, because “annexation is strictly a

statutory process,” the absence of a statute authorizing amendments means that amendments are not

permitted. In re Petition to Annex 320 Acres to the Village of S. Lebanon,

64 Ohio St.3d 585, 591

597 N.E.2d 463

(1992). This is particularly true where the statute contains an amendment

provision but specifically labels it inapplicable in type-2 annexations. See State ex rel. Butler Twp.

Bd. of Trustees v. Montgomery Cty. Bd. of Commrs.,

124 Ohio St.3d 390, 394

2010-Ohio-169

, 922

16 N.E.2d 945, ¶ 20-21

(“The canon expressio unius est exclusio alterius tells us that the express

inclusion of one thing implies the exclusion of the other.”) (internal citations omitted).

{¶ 46} In In re 320 Acres, the Ohio Supreme Court considered a similar argument

concerning statutory authorization. There, appellants argued that boards must grant or deny

annexation petitions in toto, rather than granting or denying them in part. The Court agreed that

“there is no statutory scheme which permits the partial allowance or disallowance of a proposed

annexation.” In re 320 Acres at 597. Without such authority, the board could not partially grant or

deny the petition.

Id.

We find this analysis instructive.

{¶ 47} We also find our previous decision in Moore v. Union Twp. Bd. of Trustees

analogous. In Moore, we agreed that

“it seems axiomatic that a formal petition of legal import and standing

should include, at the time of its execution, all of the information and

material required by law so as to apprise signatories of its content, and

that it should not be supplemented, modified, or remodified after its

signing except pursuant to amendment procedures countenanced by

law.” This interpretation by the Board was a reasonable one, and we

agree with it.

2d Dist. Miami No. 2002CA44,

2003-Ohio-914

, ¶ 19 (emphasis added). Although these decisions

were rendered in different contexts, they support our determination that because there is no statutory

authority for amending filed type-2 petitions, such petitions may not be amended. This is not the

end of our analysis, however.

{¶ 48} R.C. 709.015, entitled “Directory nature of procedural requirements,” is contained in

the statutory list of provisions applicable to type-2 petitions, and does allow “procedural defects” to 17 be cured. R.C. 709.015 provides:

The procedural requirements set forth in sections 709.02 to 709.21 of

the Revised Code are directory in nature. Substantial compliance with

the procedural requirements of those sections is sufficient to grant the

board of county commissioners jurisdiction to hear and render its

decision on a petition for annexation filed under those sections. The

board shall cure a procedural defect and shall not deny a petition for

annexation solely upon the basis of procedural defects.

R.C. 709.015 (emphasis added).

{¶ 49} This statute speaks in terms of both “procedural requirements” and “procedural

defects.”

Id.

“In examining the language of the statute, the legislature has indicated that

substantial compliance with the procedural requirements is sufficient to grant the Board jurisdiction

to hear the matter and to ultimately render its decision.” Wadsworth Twp. Bd. of Trustees v.

Medina Cty. Bd. of Commrs., 9th Dist. Medina No. 09CA0036-M,

2010-Ohio-5921

, ¶ 16 (emphasis

in original).

In other words, when faced with a procedural defect, the defect will not be a bar to the Board’s legal

authority to proceed to hear the matter, provided there has been substantial compliance with the

procedure. However, the legislature has also as made clear that “the board shall cure a procedural

defect[.]”

Id.

Thus, R.C. 709.015 does not absolve compliance with the procedural requirements of

the statutes; rather it directs the Board to cure any procedural defect.

Id. at ¶ 16.

{¶ 50} Here, the parties disagree whether the attempted changes to the petition – correcting

the errors and omissions on the map and legal description – correct “procedural defects.” Relator 18 suggests a meaning of procedural defects that equates with minor errors, and argues that substantial

compliance with the annexation requirements is sufficient to require the Commissioners to grant the

petition under R.C. 709.015. We find this argument too broad.

{¶ 51} Substantial compliance with procedural requirements is sufficient to grant the board

jurisdiction to consider the matter. Wadsworth Twp. at ¶ 16. The statute does not say, and we will

not construe it to mean, that substantial compliance with every annexation requirement is sufficient

to compel the board to exercise its jurisdiction and grant the petition. See generally State ex rel.

Butler Twp. Bd. of Trustees v. Montgomery Cty. Bd. of Commrs.,

124 Ohio St.3d 390

2010-Ohio-169

922 N.E.2d 945, ¶ 21

(“a court cannot read words into a statute but must give effect

to the words used in the statute.”). As the Commissioners here have already exercised their

jurisdiction to consider the Initial Petition, the question of whether there was substantial compliance

with the procedural requirements sufficient to invoke that jurisdiction is no longer an issue.

{¶ 52} The more relevant question is whether Relator’s failure to provide an accurate legal

description and map (if the petition is indeed inaccurate) is a “procedural defect” that the

Commissioners must cure. Procedural law, a deviation from which may be described as a

procedural defect, is defined as “rules that prescribe the steps for having a right or duty judicially

enforced, as opposed to the law that defines the specific rights or duties themselves.” Black’s Law

Dictionary (9th ed. 2009). Substantive law is the “part of the law that creates, defines, and

regulates the rights, duties, and powers of parties.

Id.

{¶ 53} Timely journalization of the petition (R.C. 709.023(B)), giving notice to the proper

parties (R.C. 709.023(B)), and the filing of objections by the township on the relevant statutory

factors (R.C. 709.023(D)) are examples of the procedural rules governing annexation. The

requirement that a filed petition contain an accurate legal description and map describing the 19 territory to be annexed, like the requirement that all the defined owners have signed (R.C.

709.023(E)(2)) that the area not exceed 500 acres (R.C. 709.023(E)(3)), or that the area contain at

least five per cent contiguous border with the annexed property (R.C. 709.023(E)(4)), are more

properly viewed as substantive requirements. Defects or deviations from those requirements in the

petition affect the parties’ substantive rights, duties, and powers. For example, if petitioners sought

to annex 501 acres, they would be substantively barred from using the expedited type-2 annexation

procedure. R.C. 709.023(E)(3). The requirement has nothing to do with the procedure for

pursuing annexation; it concerns the standard against which annexation is evaluated.

{¶ 54} The same is true for the requirement that the petition contain an accurate legal

description and map. No procedure is implicated by the requirement, which is confirmed by the

absence of a procedure for amending the petition and its legal description. While defects in the

Initial Petition’s legal description or map may indeed be minor or technical as Relator argues, they

are substantive defects and not curable by the Commissioners. R.C. 709.015.

{¶ 55} We are aware of the Fifth District’s decision in Lawrence Twp. Board of Trustees v.

City of Canal Fulton,

185 Ohio App.3d 267

2009-Ohio-6822

923 N.E.2d 1180

(5th Dist.), which,

in our view, is factually distinguishable.

{¶ 56} In Lawrence Twp., the board had before it a type-2 annexation petition, which it

approved, finding all the requirements of 709.023(E)(1)-(7) met. Id. at ¶ 3. The day after

approval, the Stark County Engineer’s Office informed the board that the legal description

contained a single error: the length of a curve was L=1131.64’, rather than L=1311.64’. An

additional discrepancy was later found, where the legal description included a central angle of

05’04’06, and the plat was incorrectly marked 05’04’05. Id. at ¶ 17.

{¶ 57} In moving for summary judgment in Lawrence Twp., the township argued the 20 petition was inaccurate and defective. The trial court denied the township’s summary judgment

motion and upheld the annexation. The court cited R.C. 709.015 and briefly analyzed the situation:

We concur with the trial court that the description contained in the

plat was a scrivener’s error that was readily corrected and that did

“not rise to the level of a reason that the Commissioners should have

denied the annexation.” We find that there was substantial compliance

with the requirements of R.C. 709.02(C)(2) and that any procedural

defects have since been cured.

Lawrence Twp. at ¶ 20. The Lawrence Twp. court did not consider the situation before this court –

where the County Engineer reported several errors and omissions in the petition before it was

considered. The number and type of inaccuracies identified by the County Engineer here, as

discussed below, is also distinguishable.

{¶ 58} Although it uses the “substantial compliance” language of R.C. 709.015, we read

Lawrence Twp. to suggest that scrivener’s errors discovered after a petition’s approval have little

retroactive impact on the approval’s legitimacy. It neither squarely answers the question of

whether “minor” errors presented to the board during review could properly be grounds for denial of

a petition, nor specifically holds that scrivener’s errors are the equivalent of procedural defects.

Because the statute is clear that only procedural defects may be corrected, we decline to hold that

minor errors in substantive requirements may also be corrected.

{¶ 59} Although the standard for accuracy we describe here is indeed high, it is consistent

with the expedited nature of type-2 proceedings, including their truncated timeframes and the

eliminated requirement for public hearing, as well as the board’s lack of discretion in granting or

denying such petitions. 21 An examination of Senate Bill 5 indicates that some of the overall goals of the bill—including those

of the new expedited procedures—were to promote consistency in decision-making by putting in

place firm standards to govern the consideration of annexation petitions, to improve the efficiency

of annexations by creating the expedited processes, and to promote cooperation among local

governments.

State ex rel. Butler Twp. Bd. of Trustees v. Montgomery Cty. Bd. of Commrs.,

112 Ohio St.3d 262

2006-Ohio-6411

858 N.E.2d 1193, ¶ 8

. Here, the General Assembly created a process without

much discretion for boards – either the petition meets the requirements, or it does not. To import a

“substantial compliance” standard into the substantive requirements for annexation would blur those

analytic lines and thwart the General Assembly’s goals in creating the expedited annexation

procedures.

{¶ 60} Against this background, we review the matters that were before the Commissioners

here concerning the legal description and map. The Greene County Engineer reported that there

were “errors and omissions in the paperwork that need to be addressed.” The errors and omissions

are detailed in a report from Peggy Middleton, initially dated October 25, 2012 and revised several

times thereafter. Three corrections were required to the written legal description. Specifically, the

words “to the right” were inserted at three points to describe the direction of the perimeter curve.

In addition, the corresponding description of these perimeter curves were shown on the map as

straight lines, rather than curves. Ms. Middleton later identified an additional discrepancy: the

written description reflected a curve radius of 2082.26, while the map reflected the same curve

radius as 2086.26.

{¶ 61} The map also required the acreage of each parcel to be labelled; the addition of the

plat cabinet and page in place of the plat book and page; and the correction of the direction of 22 3 several lines (one from N to S, and six from E to W), and one degree notation (N40°13’41”W to

N4°13’41”W).

{¶ 62} There is no dispute between the parties that these numerous discrepancies, errors, and

omissions existed in the Initial Petition as filed. The legal description and map are therefore

inaccurate, and the Initial Petition does not meet the requirements of R.C. 709.023 and R.C.

709.021.

{¶ 63} Each party has moved for summary judgment, alleging there is no genuine issue of

material fact remaining. We find that reasonable minds could only conclude that the discrepancies,

errors, and omissions rendered the legal description and map inaccurate. Because it is inaccurate, it

does not satisfy the requirements of a type-2 annexation petition. The annexation petitioners had

no clear legal right to have the Initial Petition granted, and the Commissioners had no clear legal

duty to grant it.

Conclusion on the Initial Petition

{¶ 64} Because the legal description and map were not accurate, because the attempted

changes were not procedural but substantive, and because there is no statute authorizing

amendments to type-2 petitions to correct substantive errors, we hold that the first two elements of

the mandamus claim are not satisfied. We therefore sustain the Commissioners and Township’s

supplemental motions for summary judgment, and overrule Relator’s supplemental motion for

summary judgment. The writ of mandamus is denied as to the Initial Petition.

Subsequent Petition

Clear Legal Right and Clear Legal Duty to Consider the Subsequent Petition

{¶ 65} We also consider together the first two elements of the mandamus claim concerning

3 Although not written in Ms. Middleton’s report, notes on the map also show a directional correction required for Line 14 in the chart on the lower left corner of the map. 23 the Subsequent Petition. Relator argues that all seven statutory requirements were met when he

filed the Subsequent Petition, and that the Commissioners had a duty to “enter upon its journal a

resolution granting the annexation.” R.C. 709.023(F). Relator notes that the statute requires

boards to either grant or deny annexation petitions; there is no authority for other courses of action,

such as simply failing to reach a decision.

{¶ 66} Relator directs the court to State ex rel. Smith v. Frost,

74 Ohio St.3d 107, 111-112

656 N.E.2d 673

(1995), in which the Ohio Supreme Court considered whether relators had a clear

legal right, and the board a corresponding clear legal duty, to consider an annexation petition. The

court held:

Therefore, as to the issues of clear legal right and clear legal

duty, “[w]hen a duty is enjoined by statute upon an administrative

board to hear and decide an issue within a specific time limitation, it

is mandatory that the board act accordingly, unless to do so would

lead to an inevitable conflict with rights which are superior to those of

the party for whose benefit the duty is to be discharged.” State ex rel.

Hannan v. DeCourcy (1969),

18 Ohio St.2d 73

47 O.O.2d 193

247 N.E.2d 465

, paragraph one of the syllabus. Under R.C. 709.031, the

commissioners were required to conduct a hearing on relators’

annexation petition no later than ninety days after the petition was

filed in the office of the county auditor. When a board of county

commissioners defers consideration of landowners’ annexation

petitions pending a vote of electors on a municipal annexation

petition, a writ of mandamus will lie to compel the commissioners to 24 consider the annexation petitions in the order in which they should

have been considered had the time limitations been followed initially.

Holcomb v. Summit Cty. Bd. of Commrs. (1980),

62 Ohio St.2d 241

16 O.O.3d 278

405 N.E.2d 262

. As in Holcomb, relators have

established a clear legal right to have the commissioners proceed on

their annexation petition and a corresponding clear legal duty on the

part of the commissioners to do so.

Frost at 111-112

{¶ 67} As in Frost, we find that the type-2 annexation statute requires the Commissioners to

consider and decide the Subsequent Petition on the following timeframe: