{¶ 16} I agree with the principal opinion that the lack of guidance from both the legislature and the appellate courts leaves the parties, the trustees, and the common pleas courts in the dark. Thus, I attempt to identify the procedure for partition-fence assessments, not because it is particularly illuminating, but because the attempt is at least a start, i.e., a flickering candle in an otherwise caliginous passageway.
{¶ 17} When adjoining landowners are unable to agree upon the building or maintenance of a partition fence, "the aggrieved person" may file a written complaint with the township trustees. See R.C. 971.04. The trustees must then give at least ten days' written notice to all adjoining landowners of the date, time, and place of a meeting to view the fence. Id. The ultimate purpose of this meeting is to assign in writing the costs of building or maintaining the fence.
{¶ 18} At the viewing, any person who objects to sharing in the cost must advise the trustees and the complaining party that his or her land will not benefit from the fence. This allegation is necessary to contest the presumption of a benefit that inures in favor of assessing the cost equally against adjoining owners. If the party seeking the apportionment contests the objecting party's allegation of no benefit, he or she must advise the trustees and the other landowner(s). At that point, the trustees should continue the meeting to a date, time, and place for the purpose of taking evidence under oath. If all parties agree, that hearing may occur immediately after the viewing. At a minimum, the hearing should be memorialized in some form, as a record is important for further proceedings. All parties should have the opportunity to present arguments, to offer and cross-examine witnesses, to submit evidence, and to compel the attendance of witnesses. See 2002 Ohio Atty.Gen.Ops. No. 18 and the statutes cited therein. *Page 43
{¶ 19} At this hearing, the objecting party has the burden to introduce evidence that rebuts the presumption of benefit. SeeGunlock v. Green Twp. Trustees (Jan. 26, 1998), Ross App. No. 97CA2270., 1998 WL 40670 That burden is met by presenting some testimony or other evidence that the objecting party's cost of building the fence exceeds the benefit — i.e., that the cost exceeds the difference in the value of land before and after the construction or repair of the fence. See Glass v. Dryden, supra. Thus, the objecting party would have to offer evidence of both the costs of construction and the value of the land before and after the improvement. Then, the presumption is rebutted, and the party seeking apportionment may offer contrary evidence. The board of trustees is then responsible for determining whether the benefit exceeds the cost.
{¶ 20} When the objecting party fails to allege a lack of benefit or fails to rebut the presumption, the trustees assign the costs under the presumption. When the issue of benefit is properly raised and contested, the trustees must decide which party has prevailed. If they find that the benefit to the objecting party's land exceeds the cost of construction or maintenance, the trustees shall issue a written order that instructs the parties to share the costs of the improvement. If the contrary is true, the trustees must deny the apportionment. Regardless of which conclusion they reach, the trustees' order should include finding on the cost of the fence and the value of the benefit to the objecting party's land. See, generally, 2002 Ohio Atty.Gen.Ops. No. 18.
{¶ 21} A landowner who is unhappy with the trustees' decision may appeal that decision to the common pleas court under R.C. 2506.01. See Shewmaker v. Clay Twp. Trustees (June 30, 1999), Highland App. No. 98CA29, 1999 WL 482620. The common pleas court's review is confined to the transcript of the hearing before the trustees unless one of the exceptions listed in R.C.2506.03(A)(1) through (5) applies. If one of the exceptions applies, then the court may allow additional evidence and "shall hear the appeal upon the transcript and such additional evidence as may be introduced by any party." R.C. 2506.03(A).
{¶ 22} Because the procedure below did not substantially comply with these requirements, I concur in reversing and remanding to the trial court with instructions to remand to the trustees. *Page 44