[Cite as Holtkamp v. Knox & Richland Cty. Joint Bd. of Commrs., 2011-Ohio-2986.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
DARLA J. HOLTKAMP, et al. JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiffs-Appellees Hon. John W. Wise, J.
Hon. Julie A. Edwards, J.
-vs-
Case No. 10 CA 122
JOINT BOARD OF COUNTY
COMMISSIONERS, KNOX and
RICHLAND COUNTY, OHIO
Defendants-Appellants OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Probate Division, Case No.
20104006A
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: June 16, 2011
APPEARANCES:
For Plaintiffs-Appellees For Defendants-Appellants
DARLA J. HOLTKAMP CHARLES T. McCONVILLE
FRANK M. NAGY KNOX CTY. ASSISTANT PROSECUTOR
PRO SE 117 East High Street, Suite 234
21750 Ankneytown Road Mount Vernon, Ohio 43050
Butler, Ohio 44822
REESE F. MILLE
MABEE AND MILLS LLC
24 West Third Street, Suite 300
Mansfield, Ohio 44902
Richland County, Case No. 10 CA 122 2
Wise, J.
{¶1} Appellant Joint Board of Commissioners, Knox and Richland Counties,
appeals the decision of the Richland County Court of Common Pleas, Probate Division,
which denied its petition, following an administrative appeal by Appellees Darla
Holtkamp and Frank Nagy, to vacate a certain section of township road. The relevant
facts leading to this appeal are as follows.
{¶2} Appellee Holtkamp owns residential property in Richland County along a
road known as Leedy’s Lane. Appellee Nagy also resides at the property. On June 28,
2010, subsequent to separate township resolutions, the Jefferson Township (Richland
County) Board of Trustees and Berlin Township (Knox County) Board of Trustees filed a
joint petition to the Joint Board of Commissioners under R.C. 5553.045 to vacate
approximately 679 feet of Leedy’s Lane.1
{¶3} On August 5, 2010, the commissioners, both county engineers, and
appellees attended a viewing of the area of the road vacation. The matter proceeded to
a public hearing before the Joint Board of Commissioners later the same day. Following
the hearing, the Joint Board ruled five-to-one in favor of granting the petition to vacate
Leedy’s Lane.
{¶4} Appellees thereafter filed an administrative appeal to the Richland County
Court of Common Pleas, Probate Division. The matter proceeded to a preliminary
hearing on August 27, 2010. The court afforded the parties an opportunity to provide
legal memoranda, and it reset the hearing for September 7, 2010. Following the hearing
on that date, the court took the matter under advisement. A judgment entry was issued
1
A joint board petition is necessitated where the road in question is on the county line.
Richland County, Case No. 10 CA 122 3
on September 24, 2010, finding in favor of appellees based on res judicata and
collateral estoppel, based upon a 2009 ruling by the Joint Board not to vacate Leedy’s
Lane.
{¶5} On October 13, 2010, Appellant Joint Board filed a notice of appeal. It
herein raises the following sole Assignment of Error:
{¶6} “I. THE TRIAL COURT ERRED WHEN IT CONCLUDED THE PRIOR
DECISION OF THE JOINT BOARD OF COMMISSIONERS WAS AN
ADMINISTRATIVE DECISION SUBJECT TO THE DOCTRINE OF RES JUDICATA.”
I.
{¶7} In its sole Assignment of Error, appellant contends the trial court erred in
dismissing, on res judicata grounds, its statutory administrative appeal seeking vacation
of the road known as Leedy’s Lane or Leedy Road. We agree.
{¶8} The applicability of res judicata is a question of law, which an appellate
court reviews de novo. EMC Mtge. Corp. v. Jenkins, 164 Ohio App.3d 240, 249, 841
N.E.2d 855, 2005-Ohio-5799. Under Ohio law, legal abandonment of a public township
road requires formal abandonment proceedings before the local board of county
commissioners. Craig v. Knaub, Perry App.No. 04 CA 9, 2004-Ohio-6646, ¶ 11. The
Ohio Supreme Court, in Eastland Woods v. Tallmadge (1983), 2 Ohio St.3d 185, 188,
443 N.E.2d 972, recognized that the act of vacating a street is a legislative act. In
Costlow v. Etna Twp. Board of Zoning Appeals, Licking App.No. 2002CA00053, 2002-
Ohio-5955, we recognized the doctrine of res judicata does not apply to legislative acts,
which are always subject to amendment by the legislative body that enacted them, and
therefore not final in the same sense that a judgment of a judicial body is final. Id. at
Richland County, Case No. 10 CA 122 4
¶21, citing Grava v. Parkman Twp., 73 Ohio St.3d 379, 653 N.E.2d 226, 1995-Ohio-331,
syllabus.
{¶9} We first turn to R.C. 5553.045, which outlines procedures for road
vacations initiated by township trustees in Ohio. The statute allows a board of township
trustees to petition the board of county commissioners to vacate a township road or a
portion thereof by passing a resolution that requests such vacation. R.C. 5553.045(B).
The township clerk then files a copy of the resolution with the board of county
commissioners and certifies another copy to the county engineer. Id. Upon receipt of the
copy of the township's resolution, the board of county commissioners is required to set a
date for a public hearing on the vacation of the road within forty-five days of the date of
the resolution’s filing. R.C. 5553.045(C). The clerk of the board is then required to notify
by regular mail the landowners abutting the road portion proposed to be vacated. Id.
R.C. 5553.045(D) further states: “After the public hearing, if the board of county
commissioners determines that the vacation of the road or portion of the road would be
for the public convenience or welfare, it shall adopt a resolution by a majority vote
declaring the road or portion to be vacated and file a certified copy of the resolution with
the petitioner board of township trustees, the county recorder, and the county engineer.”
After the certified copies of the vacation resolution are filed, “ *** the board of township
trustees, by resolution, shall order the road or portion of the road vacated.” R.C.
5553.045(E).
{¶10} At that point, the commissioners’ decision on a petition for road vacation
may be appealed, and “any appeal may be perfected in the manner provided in R.C.
Richland County, Case No. 10 CA 122 5
5563.01 to 5563.17.” See State ex rel. Lindenschmidt v. Butler Cty. Bd. of Commrs., 72
Ohio St.3d 464, 467, 650 N.E.2d 1343, 1995-Ohio-49.
{¶11} We have previously recognized that administrative proceedings are quasi-
judicial “where there is notice, hearing, and an opportunity to introduce evidence.” See
Richards v. Kazleman (May 31, 1994), Stark App.No. CA-9544, citing State ex rel.
Republic Steel Corp. v. Ohio Civil Rights Commission (1975), 44 Ohio St.2d 178.
Furthermore, “[t]o be considered a quasi-judicial proceeding, the proceeding must
resemble a court proceeding in that an exercise of discretion is employed in
adjudicating the rights and duties of parties with conflicting interests.” Thomas v.
Beavercreek (1995), 105 Ohio App.3d 350, 663 N.E.2d 1333, citing Talbut v.
Perrysburg (1991), 72 Ohio App .3d 475, 478, 594 N.E.2d 1046.
{¶12} Appellant directs us to several appellate cases in which the “legislative
act” description was applied to road vacation proceedings by a board of county
commissioners. See, e.g., Fitzpatrick v. Palmer, 186 Ohio App.3d 80, 2009-Ohio-6008,
¶44; Ohio Multi-Use Trails Assn. v. Vinton County Commrs., 182 Ohio App.3d 32, 2009-
Ohio-2061, ¶12.
{¶13} In their response brief, however, appellees maintain that such case law
ignores the distinction between road vacations carried out by county commissioners
under R.C. Chapter 5553 and street vacations carried out by city councils under R.C.
Chapter 723. Appellees thus urge affirmance on the basis that road vacations executed
by county commissioners are quasi-judicial, and thus are subject to the doctrine of res
judicata, unlike similar proceedings before city councils, which have the power to vacate
via legislative passage of municipal ordinances. Appellees also point out that specific
Richland County, Case No. 10 CA 122 6
appellate procedural statutes exist for road vacations by county commissioners (see
R.C. Chapter 5563), while no such separate statutes are in place for appeals of
vacation proceedings before city councils.
{¶14} A review of R.C. 723.04 reveals the process (including a public hearing)
for vacation of city streets by “the legislative authority of a municipal corporation” upon
petition. In Armate Assoc. v. Reynoldsburg (1997), 122 Ohio App.3d 469, the Tenth
District Court of Appeals, first reiterating that the act of vacating a street is a legislative
act, held the provision for a hearing under R.C. 723.04 did not transform “the exercise of
an otherwise legislative power by a municipal authority in weighing the public benefit of
vacating a street from a legislative function into a quasi-judicial or administrative
function.” Id. at 473. The court went on to hold that “absent a clear showing that council,
in enacting the ordinance, acted fraudulently or abused its discretion, the act of the
legislative authority is not subject to review.” Id. at 474. While in contrast R.C. Chapter
5563 has been interpreted to allow appeals of vacations of township or county roads,
we find nothing in R.C. 5553.045 that would act to make the township road vacation
process quasi-judicial.
{¶15} Furthermore, we are unpersuaded by appellees’ responsive assertion that
county commissioners are not empowered to make laws or pass ordinances, and thus
do not act legislatively, in the realm of vacating roads: Art. X, Sec. 4 of the Ohio
Constitution indicates that the legislative authority of a county includes the board of
county commissioners. Cf., also, R.C. 302.13(M). Appellees’ remaining responsive
arguments do not go to the issue of res judicata herein raised by appellant.
Richland County, Case No. 10 CA 122 7
{¶16} The trial court in the case sub judice, in reaching its decision, particularly
cited Eaton v. Little, Ottawa App.No. OT-05-032, 2006-Ohio-1400. In that case, certain
lakeshore property owners had successfully petitioned the Ottawa County
Commissioners in 1989 to vacate the northern portion of a submerged street. At some
point after the street vacation, these property owners erected a fence across said street,
effectively denying public access to the lake from that point. Id. at ¶ 4. About fourteen
years after the street vacation, other property owners sued the lakeshore property
owners, alleging that the fence interfered with a private easement for access to the lake
they held by virtue of the original plat. Id. at ¶ 5. The lakeshore property owners
maintained, and the Sixth District Court of Appeals agreed, that because the plaintiff
property owners had not asserted their purported property rights at the vacation hearing
or properly appealed the commissioners' resolution to vacate, plaintiff property owners
had waived their right to assert an interest in the street and were effectively barred from
bringing their claim. Id. at ¶ 10.
{¶17} We find Eaton to be significantly procedurally dissimilar to the case sub
judice. In Eaton, the plaintiff property owners clearly were not directly appealing from a
county road vacation proceeding under R.C. Chapters 5553 and 5563. While the Sixth
District Court did invoke the doctrine of res judicata, this was based on the fact that the
property owners who had filed suit in that case had never attempted a timely statutory
appeal of the 1989 commissioner's resolution. Id. at ¶ 12. Thus, the doctrine was
applied to prevent a subsequent private lawsuit, not a subsequent statutory proceeding
by county commissioners.
Richland County, Case No. 10 CA 122 8
{¶18} Finally, on public policy grounds, we conclude under the present
circumstances that the application of res judicata to deny county commissioners their
discretion to periodically vacate township roads in the interest of the welfare of the
citizens, upon proper petition, would begin to make public transportation systems
nonadaptable to the development of Ohio’s townships. We are unable to read such a
policy into Title 55 of the Revised Code. Upon review, we hold the trial court committed
reversible error in dismissing the matter on the basis of res judicata.
{¶19} Appellants' First Assignment of Error is sustained.
{¶20} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Probate Division, Richland County, Ohio, is hereby reversed and
remanded for further proceedings consistent with this opinion.
By: Wise, J.
Gwin, P. J., and
Edwards, J., concur.
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JUDGES
JWW/d 0519
Richland County, Case No. 10 CA 122 9
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
DARLA J. HOLTKAMP, et al. :
:
Plaintiffs-Appellees :
:
-vs- : JUDGMENT ENTRY
:
JOINT BOARD OF COUNTY :
COMMISSIONERS, KNOX and :
RICHLAND COUNTY, OHIO :
:
Defendants-Appellants : Case No. 10 CA 122
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas, Probate Division, Richland County, Ohio, is
reversed and remanded for further proceedings consistent with this opinion.
Costs assessed to appellees.
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JUDGES