2009-0186. State ex rel. Butler Twp. Bd. of Trustees v. Montgomery Cty. Bd. of Commrs., Slip Opinion No. 2010-Ohio-169.
Montgomery App. No. 22664, 2008-Ohio-6542. Judgment of the court of appeals affirmed.
Moyer, C.J., and Pfeifer, O'Connor, O'Donnell, and Lanzinger, JJ., concur.
Lundberg Stratton and Cupp, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-169.pdf
(Jan. 28, 2010) In a decision announced today, the Supreme Court of Ohio ruled that by filing objections with county commissioners to an annexation petition pursuant to R.C. 709.023(D), a board of township trustees does not gain legal standing to later file a mandamus action challenging the commissioners’ approval of the requested annexation.
The Court’s 5-2 majority decision, which affirmed a ruling of the 2nd District Court of Appeals, was authored by Justice Terrence O’Donnell.
The case involved an October 2007 petition filed with the Montgomery County Board of Commissioners by Waterwheel Farms Inc. seeking to have 78.489 acres of its property located within Butler Township annexed into the adjacent city of Union. The petition specified that annexation was sought under R.C. 709.023 as an “Expedited Type II Annexation” in which the property owner and the municipality had mutually agreed to all terms and conditions of annexation.
Prior to the county commissioners’ consideration of the petition, as permitted by statute, the Board of Trustees of Butler Township adopted a resolution setting forth objections to the proposed annexation and forwarded that resolution to the county commissioners. The objection claimed that the annexation of Waterwheel Farms’ property by the city would cause road maintenance problems for a portion of a road adjacent to but not within the annexed area, because the city had not entered into an agreement regarding maintenance of that roadway. The commissioners subsequently approved the requested annexation notwithstanding the township’s objection.
The township trustees filed suit asking the Montgomery County Court of Common Pleas to issue a declaratory judgment that the commissioners had acted contrary to law in approving the annexation and seeking a writ of mandamus that would compel the commissioners to rescind their order approving the petition. The trial court granted a motion by Union to dismiss the trustees’ complaint on the basis that only a “party” to an expedited annexation proceeding under R.C. 709.023 had legal standing to file a mandamus action challenging the commissioners decision in the case, and the township was not a “party” as that term is defined in the applicable statute
The township appealed the common pleas court ruling to the 2nd District Court of Appeals. On review, the court of appeals affirmed the trial court’s ruling that the township trustees were not a party with legal standing to sue for reversal of the commissioners’ decision granting annexation. Butler Township sought and was granted Supreme Court review of the trial and appellate court decisions.
Writing for the Court in today’s decision, Justice O’Donnell noted that effective in March 2002, the General Assembly enacted several new sections of state law establishing expedited proceedings for the approval of annexations in which all of the affected property owners and a city agreed in advance on the terms and conditions set forth in an annexation petition. The key issue in this case was whether or not the definition of a “party” set forth in R.C. 709.021(D) is or is not applicable to the type of expedited proceedings undertaken under R.C. 709.023.
Although the definition of a party in R.C. 709.021(D) includes “each township any portion of which is included within the territory proposed for annexation,” Justice O’Donnell wrote, “(S)ubsection (D) expressly provides that this definition applies to R.C. 709.022 and 709.024, but R.C. 709.023 is not mentioned. ‘The canon expressio unius est exclusio alterius tells us that the express inclusion of one thing implies the exclusion of the other.’ ... It is well recognized that a court cannot read words into a statute, but must give effect to the words used in the statute. The General Assembly could have applied the R.C. 709.021(D) definition of ‘party’ to R.C. 709.023 if it had intended to do so. It chose otherwise. Our duty is to construe the statutes as written. In doing so, we conclude that the General Assembly did not intend the definition of ‘party’ in R.C. 709.021(D) to apply to R.C. 709.023; hence R.C. 709.021 does not confer party status on a township in an R.C. 709.023 special annexation proceeding.”
“Based on the foregoing, we conclude that a township that files a resolution objecting to an annexation petition pursuant to R.C. 709.023(D) in an R.C. 709.023 annexation proceeding is not a ‘party’ as that term is used in R.C. 709.023(G) and therefore lacks standing to seek a writ of mandamus to compel the board of county commissioners to make findings on each of the conditions set forth in R.C. 709.023(E).” In light of that conclusion, the majority held that a second issue raised by the township trustees in their complaint was moot and therefore declined to address it.
Justice O’Donnell’s opinion was joined by Chief Justice Thomas J. Moyer and Justices Paul E. Pfeifer, Maureen O’Connor and Judith Ann Lanzinger.
Justice Robert R. Cupp entered a dissent, joined by Justice Evelyn Lundberg Stratton, in which he disagreed with the majority’s holding that the absence of a reference to R.C. 709.023 proceedings in the statutory definition of a “party” deprives an affected township of standing to contest the granting of an expedited annexation petition.
“Taken together, the provisions allowing a township to object to a proposed annexation under R.C. 709.023 and requiring the board of county commissioners to determine whether the seven conditions specified in R.C. 709.023(E) for such an annexation have been met show that a township, some of whose territory is to be annexed, is a ‘party’ who may file a mandamus action under R.C. 709.023(G),” wrote Justice Cupp. “As the township and its amici point out, only the township has an interest in challenging an improperly approved annexation under R.C. 709.023. Surely R.C. 709.023 does not expressly allow affected townships to object to an annexation and to require the board of county commissioners to determine whether all of the statutorily specified conditions for such annexations have been met, only to exclude townships from filing a mandamus action under division (G) to challenge an improperly approved annexation. ... I would reverse the court of appeals’ judgment and remand this matter to that court for a determination whether the board of county commissioners’ resolution approving the annexation in this case satisfied the requirement that the board of commissioners find that all of the seven conditions in R.C. 709.023(E) have been met.
Contacts
Wanda L. Carter, 614.255.5441, for the Butler Township Board of Trustees.
John A. Cumming, 937.496.7797, for the Montgomery County Board of Commissioners.
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