Board of Trustees v. for Incorporation of Holiday City

Douglas, J. The issue before this court is whether R.C. 707.11 and R.C. Chapter 2506 present potential avenues of review available to township trustees and individual property owners to challenge a board of county commissioners’ decision granting a petition for incorporation of a village. Specifically, appellants — 368 — claim that the trial court erred in denying them standing to bring an R.C. Chapter 2506 appeal in case No. 129, to pursue an R.C. 707.11 injunction action in case No. 143, and to participate in case Nos. 125 and 1283 involving Toledo Edison. For the sake of clarification with respect to the applicable law, we have categorized appellants into two classes, the trustees and the individual property owners. A. Township Trustees Although we have not specifically dealt with the questions raised by appellants’ contentions involving incorporation disputes, this court has, on various occasions, reviewed the statutory scheme concerning Ohio’s annexation law and evaluated remedies available to township trustees and others in annexation proceedings. We are fully aware that annexation and incorporation are different concepts and, in some instances, present different policy considerations. However, we believe that a brief review of some of our decisions in the area of annexation lends insight into whether township trustees have standing to oppose a board of county commissioners’ decision granting a petition for incorporation. In In re Appeal of Bass Lake Community, Inc., supra, this court held that township trustees do not have standing under R.C. 307.56 and 2506.01 to participate in an appeal from a decision of a board of county commissioners denying an annexation petition, but that the trustees do have standing to pursue an R.C. 709.07 injunction proceeding where a petition for annexation has been granted. The township trustees in Bass Lake argued that the 1980 amendments to R.C. Chapter 709, when read in conjunction with R.C. 505.62 (which was enacted at the same time as amendments to R.C. Chapter 709, Am.S.B. No. 151, 138 Ohio Laws, Part I, 409), granted them the right to participate in an R.C. Chapter 2506 appeal of the county commissioners’ decision in an annexation proceeding. At the time, R.C. 505.62 authorized township trustees to appropriate funds for representation by an attorney at annexation proceedings before a board of county commissioners and upon any appeal of a board’s decision brought pursuant to R.C. 709.07. We disagreed with the trustees’ contentions in Bass Lake and determined that R.C. 505.62 “clearly provides that the use of an attorney to represent the township upon an appeal is permitted solely when the appeal is pursuant to R.C. 709.07. That is not the present case. Appellees’ [the petitioning landowners’] appeal was taken under the authority of R.C. Chapter 2506, not as an R.C. 709.07 proceeding.” Id., 5 Ohio St.3d at 143, 5 OBR at 275, 449 N.E.2d at 774. We further explained that: — 369 — “From these provisions it can be seen that the General Assembly has afforded a considerable right of appeal to those whose rights are directly affected. In contrast, the General Assembly has provided a carefully limited form of relief for other persons to oppose an annexation petition which has been granted. The General Assembly intended these other persons to contest the petition only by meeting the stiffer standards required for an injunction and thus R.C. 709.07 is their sole remedy. There is no protection afforded the township trustees under R.C. Chapter 2506.” Id. at 144, 5 OBR at 276, 449 N.E.2d at 774. In response to our decision in Bass Lake, the General Assembly amended R.C. 505.62. As a result, township trustees can now appropriate funds for any appeal of a board’s decision pursuant to R.C. 709.07 or R.C. Chapter 2506. In addition, the General Assembly specifically added the language, “The board of township trustees * * * has standing in any appeal of the board of county commissioners’ decision on the annexation of township territory that is taken pursuant to section 709.07 or Chapter 2506. of the Revised Code * * (Emphasis added.) R.C. 505.62 (see 140 Ohio Laws, Part I, 2196). Interpreting this amendment, this court has held that township trustees may appeal a board of county commissioners’ denial of a petition for annexation through an R.C. Chapter 2506 appeal, but R.C. 709.07 provides the exclusive remedy for those who challenge a board’s approval of a petition. See In re Annexation of 311.8434 Acres of Land (1992), 64 Ohio St.3d 581, 597 N.E.2d 4604; see, also, In re Annexation of 466.112 Acres of Land (1992), 65 Ohio St.3d 226, 602 N.E.2d 1136; compare In re Petition to Annex 320 Acres to the Village of S. Lebanon (1992), 64 Ohio St.3d 585, 597 N.E.2d 463. In essence, Bass Lake and its progeny reinforce the well-settled principle that township trustees can exercise only those powers granted by the General Assembly. See, also, Trustees of New London Twp. v. Miner (1875), 26 Ohio St. 452, 456 (“[N]either the township nor its trustees are invested with the general powers of a corporation; and hence the trustees can exercise only those powers conferred by statute, or such others as are necessarily to be implied from those granted, in order to enable them to perform the duties imposed upon them.”); and Geauga Cty. Bd. of Commrs. v. Munn Rd. Sand & Gravel (1993), 67 Ohio St.3d 579, 621 N.E.2d 696 (Local authorities, such as counties and other entities, absent home rule authority, may exercise only those powers affirmatively granted by the General Assembly.). Therefore, the question we are confronted with is whether the General Assembly conferred upon the township trustees statutory — 370 — authority to pursue an R.C. Chapter 2506 appeal from the decision of the board of county commissioners or challenge the decision by way of an R.C. 707.11 action. As is evident, the General Assembly has cloaked township trustees with certain remedies under R.C. 505.62 regarding annexation proceedings. However, there is no specific statutory counterpart to R.C. 505.62 with respect to a decision by a board of county commissioners involving the incorporation of a village. Further, we have reviewed R.C. Chapter 707 and R.C. Chapter 2506 and there is nothing within those statutory schemes that provides appellants with standing to seek review of a board’s decision involving incorporation matters. Therefore, absent a specific directive from the General Assembly, township trustees are powerless to pursue an R.C. Chapter 2506 appeal or bring an R.C. 707.11 injunction action challenging a board’s decision. Appellants also take issue with the holdings of the trial court denying it the opportunity to participate in matters involving Toledo Edison. However, as is the case with an administrative appeal and an R.C. 707.11 proceeding, the General Assembly has not provided township trustees with the authority to intervene under Civ.R. 24. Moreover, there is no right to participate in an appeal from an order of the county commissioners where those who seek to intervene are precluded from appealing in their own right. See Bass Lake, supra, 5 Ohio St.3d at 144-145, 5 OBR at 276, 449 N.E.2d at 775 (“No other statutory authority gives township trustees the right to intervene in an R.C. Chapter 2506 appeal. Appellants are not necessary parties under R.C. 2506.01 because they possess no rights which have been adjudicated. Lacking authority to intervene, appellants lack standing to participate in the current appeal.”). In light of the foregoing, we find that township trustees may not challenge a board of county commissioners’ decision involving a petition for incorporation through either an R.C. Chapter 2506 appeal or an R.C. 707.11 proceeding. Thus, we find that the trial court did not err in dismissing the township trustees’ actions in case Nos. 129 and 143, and denying the trustees’ request to intervene in case Nos. 125 and 128. B. Individual Property Owners We are also presented with the question of whether Ames and Holtrey may utilize R.C. Chapter 2506 and R.C. 707.11 to challenge the board’s decision. Ames and Holtrey, while residents of the township, do not own land within the area approved by the board to be incorporated. In fact, both landowners reside at least seven miles from the area in question. Notwithstanding, we agree with the court of appeals that even though appellants Ames and Holtrey do not own land or reside within the territory at issue, those facts alone are not sufficient to deny them standing to challenge the board’s decision. See, generally, Geauga — 371 — Lake Improvement Assn. v. Lozier (1932), 125 Ohio St. 565, 182 N.E. 4895; and R.C. 707.06 and 707.07(D). Rather, the right to seek review of a board’s decision is subject to limitations contained in R.C. 707.11 and 307.56. R.C. 707.11 sets forth that only those persons who are “interested” may challenge a board’s decision. On the other hand, R.C. 307.56 provides that persons must be “aggrieved” by the decision in order to appeal to the common pleas court under R.C. Chapter 2506. Further, R.C. 2506.01 limits the availability of an appeal to those whose “rights, duties, privileges, benefits, or legal relationships” are adversely affected. We have construed R.C. Chapter 2506 to permit appeals only by those who are directly affected by the administrative decision. See Bass Lake, supra, 5 Ohio St.3d at 144, 5 OBR at 276, 449 N.E.2d at 774. See, also, Schomaeker v. First Natl. Bank of Ottawa (1981), 66 Ohio St.2d 304, 311-312, 20 O.O.3d 285, 290, 421 N.E.2d 530, 537. Regardless of whether appellants are seeking a remedy under R.C. 707.11 or 307.56, they are, for all practical purposes, appealing the board’s decision. In Ohio Contract Carriers Assn. v. Pub. Util. Comm. (1942), 140 Ohio St. 160, 23 O.O. 369, 42 N.E.2d 758, syllabus, we held that “[a]ppeal lies only on behalf of a party aggrieved by the final order appealed from. Appeals are not allowed for the purpose of settling abstract questions, but only to correct errors injuriously affecting appellant.” In reaching this holding, we explained that the party appealing must have a “ ‘present’ ” and “ ‘substantial’ ” interest in the subject matter of the litigation and must be “ ‘aggrieved or prejudiced’ ” by the decision. Id. at 161, 23 O.O. at 369, 42 N.E.2d at 759. We further recognized that such an interest must affect a substantial right and it must be “ ‘immediate and pecuniary, and not a remote consequence of the judgment; a future, contingent or speculative interest is not sufficient.’” Id. Ames and Holtrey suggest they are interested and aggrieved persons by virtue of their status as landowners living in the township. The crux of appellants’ discontent with the board’s decision granting the incorporation is that the township’s tax base and governmental services may decrease if the village of Holiday City files for a division of township property and funds under R.C. 707.28, or petitions for removal of the village from the township pursuant to R.C. Chapter 503. Appellants’ concerns are speculative at best and fail to expose a present interest in the matters at issue. A board’s decision to grant or deny a petition for incorporation involves an entirely different procedure from that of an R.C. 707.28 proceeding. Furthermore, even assuming arguendo that the village — 372 — decides to file in the probate court for a division of township property and funds, the harm alleged by appellants appears to be nothing more than a generalized grievance shared by a large class of citizens. See, generally, Warth v. Seldin (1975), 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343, 354; and Valley Forge Christian College v. Americans United for Separation of Church & State (1982), 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700. For the foregoing reasons, we conclude that Ames and Holtrey are neither interested nor aggrieved persons. Accordingly, we find that the court of appeals properly determined that appellants lacked standing to contest the board’s decision in case Nos. 129 and 143. Further, appellants have failed to demonstrate that their interests are sufficient to permit them to participate in case Nos. 125 and 128. Judgment affirmed. Moyer, C.J., A.W. Sweeney, Koehler and F.E. Sweeney, JJ., concur. Wright and Pfeifer, JJ., dissent. Richard N. Koehler, J., of the Twelfth Appellate District, sitting for Resnick, J. Footnotes [3] On October 1, 1993, the trial court dismissed Toledo Edison’s R.C. Chapter 2506 appeal (case No. 128). [4] Upon reflection, we recognize that the facts of In re Annexation of 311.8434 Acres of Land (1992), 64 Ohio St.3d 581, 597 N.E.2d 460, were that the county commissioners had approved the annexation in question and the issue in that case was not whether the trustees could participate in some action questioning the commissioners’ action denying an annexation. [5] Geauga Lake Improvement Assn. v. Lozier (1932), 125 Ohio St. 565, 182 N.E. 489, involved a predecessor statute to R.C. 707.11. Although Geauga Lake did not involve the issue of standing, a close reading of that decision indicates that adjacent property owners of the area sought to be incorporated would not be denied standing to challenge the allowance of a petition for incorporation.