[Cite as Rewyal Co. Ltd. Partnership v. Dublin, 2017-Ohio-367.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Reywal Co. Limited Partnership, et al., :
Plaintiffs-Appellees, :
No. 15AP-635
v. : (C.P.C. No. 07CV-5329)
The City of Dublin, Ohio, :
(REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on January 31, 2017
On brief: Issac Wiles Burkholder & Teetor, LLC, Michael
Close and Dale D. Cook, for appellees Reywal Co. Limited
Partnership, Mark Sheriff and Sonja Sheriff. Argued:
Michael Close.
On brief: Frost Brown Todd LLC, Stephen J. Smith and
Yazan S. Ashrawi, for appellant. Argued: Yazan S.
Ashrawi.
APPEAL from the Franklin County Court of Common Pleas
BRUNNER, J.
{¶ 1} Defendant-appellant City of Dublin, Ohio ("Dublin"), appeals from a
judgment of the Franklin County Court of Common Pleas issued on June 5, 2015, finding
in favor plaintiffs-appellees Reywal Co. Limited Partnership ("Reywal"), Diane Banks
("Banks"), Mark Sheriff and Sonja Sheriff ("Sheriffs") (appellees herein referred to
collectively as "the landowners") on their petition to detach from Dublin certain real
estate owned by them and returned to its prior situs in Perry Township. Because we find
that the trial court did not abuse its discretion, we affirm.
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No. 15AP-635
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} This matter has a prolonged history in the courts, including this one. A brief
review of that history is helpful at this juncture.
{¶ 3} Dublin is a municipal corporation formed in accordance with Ohio law. The
landowners own 3 parcels of real estate comprising approximately 41 acres of
undeveloped, unplatted farm land ("the parcels"), all of which were annexed to Dublin
from Perry Township in 1974. The parcels are situated in the far northeast corner of
Dublin, bordering on the city of Columbus and Perry Township to the east. The adjoining
property to the north is the site of an AEP electrical substation located within Dublin. The
parcels are surrounded by commercial, retail, and residential development. The record
indicates that there is no Dublin infrastructure on the properties and no Dublin roadways
on or about the parcels. The only access to the parcels is from Sawmill Road, which is not
in Dublin.
{¶ 4} On April 18, 2007, the landowners filed in the trial court a petition pursuant
to R.C. 709.41 and 709.42 ("the detachment statutes"). The detachment statutes provide
for detaching unplatted farm land from a municipal corporation. The landowners sought
to detach the parcels from Dublin and to merge them into Washington Township. In
order to prevail, the landowners were required to establish that they met each of the
following four statutory requirements: (1) the parcels are farm lands not within the
original corporation limits of Dublin; (2) the parcels are in or will remain within Dublin,
the landowners are taxed and will continue to be taxed for municipal purposes in
substantial excess of the benefits conferred on them by reason of being in Dublin; (3) the
parcels may be detached without materially affecting the best interests or good
government of Dublin; and (4) five years have elapsed since the parcels were originally
annexed by Dublin.
{¶ 5} On May 14, 2009, the trial court granted summary judgment in favor of
Dublin, finding that the landowners could not establish the properties at issue were, and
would continue to be, taxed in substantial excess of the benefits conferred by Dublin. The
landowners appealed to this Court. In Reywal Co. L.P. v. Dublin, 188 Ohio App.3d 1,
2010-Ohio-3013 (10th Dist.) (referred to hereafter as "Reywal I"), we reversed the
judgment of the trial court, holding that there was a genuine issue of fact regarding
whether the farm land was, and would continue to be, taxed in substantial excess of the
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benefits conferred by Dublin. We remanded the case to the trial court for further
proceedings in accordance with law and consistent with our decision. Id. at ¶ 69.
Dublin appealed that decision to the Supreme Court of Ohio, which, on December 9,
2010, affirmed the judgment of this court "in judgment only on the authority of Campbell
v. Carlisle, 127 Ohio St.3d 275, 2010-Ohio-5707" and remanded the case to the trial court
for application of Campbell. Reywal Co. L.P. v. Dublin, 128 Ohio St.3d 270, 2010-Ohio-
5969, ¶ 2.
{¶ 6} A non-jury trial was held September 17 through 19, 2012. The trial court
issued its decision nearly three years later on June 5, 2015. Having considered the
evidence in accordance with the law and instructions of the Supreme Court and this
Court, the trial court held in favor of the landowners, finding they had successfully
established all four statutory requirements for detachment of the parcels from Dublin.
The trial court ordered the parcels be detached from Dublin and returned to Perry
Township, which the trial court found was the most convenient adjacent township in
Franklin County. Dublin timely appealed the decision.
II. ASSIGNMENT OF ERROR
{¶ 7} Dublin presents a sole assignment of error for our review:
The trial court erred in finding that the Property Owners may
detach their Property from the City of Dublin because the
Property Owners did not and cannot meet all four
requirements for detachment pursuant to Ohio Revised Code
709.42.
Dublin submits the trial court erred in finding (1) the parcels constitute "farm land," (2)
the landowners are and will be taxed by Dublin in excess of the benefits conferred by
Dublin, and (3) detaching the parcels will not materially affect Dublin's best interests or
good government.
III. DISCUSSION
A. Standard of Review
{¶ 8} Dublin contends, and the landowners concur, the definition of "farm land"
adopted by the trial court for the purposes of interpreting the detachment statutes is a
question of law subject to de novo review by this court. We agree. "Interpretation of a
statute is a matter of law and, thus, an appellate court must apply a de novo standard of
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review." Campbell v. Carlisle, 12th Dist. No. CA2009-05-053, 2009-Ohio-6751, ¶ 10,
rev’d sub nom., 127 Ohio St.3d 275, 2010-Ohio-5707, citing State v. Consilio, 114 Ohio
St.3d 295, 2007-Ohio-4163, ¶ 8. See also Brennaman v. R.M.I. Co, 70 Ohio St.3d 460,
466 (1994).
{¶ 9} While questions of statutory interpretation may be reviewed de novo, see
Consilio, the factual findings underlying those determinations are reviewed for abuse of
discretion. See Americare Healthcare Servs., LLC v. Akabuaku, 10th Dist. No 12AP-917,
2013-Ohio-3013, ¶ 9. It is well established, in reviewing a trial court's judgment following
a bench trial, an appellate court starts with the presumption the trial court's findings are
correct. See, e.g., Lee v. Ohio Dept. of Job & Family Servs., 1oth Dist. No. 06AP-625,
2006-Ohio-6658, ¶ 11; Broadstone v. Quillen, 162 Ohio App.3d 632, 2005-Ohio-4278,
(10th Dist.); and Patterson v. Patterson, 3d Dist. No. 17-04-07, 2005-Ohio-2254, ¶ 26,
quoting Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 79-80 (1984). We may not
substitute our judgment for that of the trial court, and must affirm the judgment if it is
supported by some competent, credible evidence going to the essential elements of the
case. Lee at ¶ 11, citing Reilley v. Richards, 69 Ohio St.3d 352 (1994); Koch v. Ohio Dept.
of Natural Resources, 95 Ohio App.3d 193 (10th Dist.1994).
{¶ 10} We find that our review here involves mixed questions of facts and law.
Therefore, once we have determined the trial court acted within its discretion in
determining facts relevant to its legal determinations, we may review de novo certain
questions of law decided by the trial court. By analogy, we cite to JPMorgan Chase Bank,
N.A. v. Liggins, 10th Dist. No. 15AP-242, 2016-Ohio-3528, ¶ 18, wherein we discussed
mixed questions of fact and law as it relates to our review of trial court decisions on
whether to admit hearsay:
We have predominantly reviewed hearsay decisions for abuse
of discretion. See, e.g., Pontius v. Riverside Radiology &
Interventional Assocs., 10th Dist. No. 15AP-906, 2016-Ohio-
1515, ¶ 15, 49 N.E.3d 353; Thomas v. Columbia Sussex Corp.,
10th Dist. No. 10AP-93, 2011-Ohio-17, ¶ 17-18. A number of
appellate districts, however, have taken the view that hearsay
determinations involve questions of law, which are to be
reviewed de novo. See, e.g., Neff Sand & Gravel, Inc. v. Great
Lakes Crushing, Ltd., 11th Dist. No. 2012-L-145, 2014-Ohio-
2875, ¶ 23; State v. Bates, 6th Dist. No. WM-12-002, 2013-
Ohio-1270, ¶ 41; State v. Lusher, 4th Dist. No. 11CA1, 2012-
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No. 15AP-635
Ohio-5526, ¶ 49, 982 N.E.2d 1290; Volpe v. Heather Knoll
Retirement Village, 9th Dist. No. 26215, 2012-Ohio-5404,
¶ 13; State v. Lumbus, 8th Dist. No. 87767, 2007-Ohio-74,
¶ 22. Hearsay decisions often require implicit determinations
about facts (such as preliminary determinations of who said
what in what circumstances) with the result that questions
about whether to admit hearsay often are hybrid questions of
fact and law. As such, they are based upon the fact-judging
abilities of the trial court and are reviewed for abuse of
discretion. Pontius at ¶ 15; Thomas at ¶ 17-18. Yet there is also
a law question element to such determinations, and we have
frequently noted "that no court has the authority, within its
discretion, to commit an error of law." State v. Akbari, 10th
Dist. No. 13AP-319, 2013-Ohio-5709, ¶ 7, citing State v.
Beechler, 2d Dist. No. 09-CA-54, 2010-Ohio-1900, ¶ 70. In
Pontius, for example, the trial court's abject failure to analyze
the applicable hearsay exception in deciding to exclude
testimony, constituted an error of law and, thus, an abuse of
discretion. Id. at ¶ 23-24.
Liggins at ¶ 18. Similarly, when reviewing a trial court's decision on a question of law,
such as whether a contract exists, there is also a mixed question of fact and law. DeHoff v.
Veterinary Hosp. Operations of Cent. Ohio, Inc., 10th Dist. No. 02AP-454, 2003-Ohio-
3334, ¶ 49.
"An appellate court may freely review application of the law to
the facts. It must, however, show deference to the factual
findings made by the trial court. Where there are factual
disputes, it is generally the province of the trial court to
resolve those disputes by weighing credibility of the proffered
testimony."
(Citations omitted.) DeHoff at ¶ 49, quoting Rudd v. Online Resources, Inc., 2d Dist. No.
17500 (June 18, 1999).
B. Did the trial court err in finding the landowners had satisfied all four
statutory requirements necessary to detach the parcels from Dublin?
{¶ 11} Since the landowners' detachment petition is governed by the provisions of
R.C. 709.41 and 709.42, in order to prevail, the landowners must establish through
competent and credible evidence they satisfy all four requirements set forth in those
statutes. R.C. 709.41 provides that a detachment action may not be brought within five
years from the time the lands were annexed by the municipal corporation. R.C. 709.42,
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which addresses the hearing and decision on detachment, sets forth the remaining three
requirements:
If, upon the hearing of a cause of action as provided by section
709.41 of the Revised Code, the court of common pleas finds
[1] that the lands are farm lands, and are not within the
original limits of the municipal corporation, [2] that by reason
of the same being or remaining within the municipal
corporation the owner thereof is taxed and will continue to be
taxed thereon for municipal purposes in substantial excess of
the benefits conferred by reason of such lands being within
the municipal corporation, and [3] that said lands may be
detached without materially affecting the best interests or
good government of such municipal corporation or of the
territory therein adjacent to that sought to be detached; then
an order and decree may be made by the court, and entered
on the record, that the lands be detached from the municipal
corporation and be attached to the most convenient adjacent
township in the same county. Thereafter the lands shall not be
a part of the municipal corporation but shall be a part of the
township to which they have been so attached. The costs shall
be taxed as may seem right to the court.
(Enumeration added.)
1. Have five years passed between the time the parcels were annexed
to Dublin and the time when the landowners petitioned for
detachment?
{¶ 12} Dublin and the landowners agreed the parcels were annexed into Dublin
from Perry Township in 1974. The landowners filed their petition for detachment on
April 18, 2007, more than 30 years later. Consequently, the trial court found the
landowners have conclusively proven that more than 5 years have passed from the time
the land in question was annexed by Dublin to when they petitioned for detachment. We
find the trial court did not abuse its discretion in finding the landowners satisfied this
requirement of the detachment statutes.
2. Are the parcels farm lands not within the original municipal
corporation limits of Dublin?
{¶ 13} In considering the other requirements for detachment, the trial court
determined no part of the land in question was within the original limits of Dublin
municipal corporation and examined whether the parcels were or could be determined to
be farm land. Noting that neither of the governing detachment statutes defines the term
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No. 15AP-635
"farm land," the trial court concluded the term "must be given its plain, everyday
meaning. Sharp v. Union Carbide Corp., 38 Ohio St.3d 69, 70 (1988); R.C. 1.42." (June 5,
2015 Jgmt. Entry at 3.) The trial court examined the differing definitions of "farm land"
proposed by the landowners and by Dublin:
[The landowners] produced testimony that farm land can be
defined as unimproved land devoted to or available for the
production of crops and other products of the soil, fruits,
timber, pasture or buildings for livestock. Transcript, p. 311-
312. In opening arguments and closing briefs, Dublin argues
for a stricter definition specific to the agricultural industry.
That definition requires the active cultivation of land for
raising crops or animals for food.
The Court concludes that referencing a definition used by one
industry is not the common, everyday meaning of a term as
contemplated by common law statutory interpretation. Thus,
the Court finds that [the landowners'] definition of "farm
land" should be applied, as it is more akin to the plain and
ordinary meaning found in a typical English dictionary: "land
used or suitable for farming." The Merriam Webster
Dictionary 274 (1994). "Farm," in turn, is defined as "a tract
of land used for raising crops or livestock" or "to raise crops or
livestock." Id. Thus, the question is whether the Parcels are
used or suitable for use in raising crops or livestock and
similar agricultural purposes.1
Fn.1 This definition is further supported by the lone legislative
attempt to define farmland found by the Court. R.C. 931.01(C)
defines "contiguous farmland" to refer to certain land '* * *
used for agriculture.' Id. Agriculture, in turn, encompasses a
much broader spectrum of land use than current, active
cultivation of crops.
(June 5, 2015 Jgmt. Entry at 3-4.)
{¶ 14} Dublin argues the trial court's use of the Merriam Webster Dictionary
definition of "farm land" for the purposes of the detachment statutes is plain reversible
error. Dublin submits that the trial court is obligated to use the Dictionary of Agriculture
definition of "farm land," which is " 'cultivated land, land which is used for raising crops
or animals for food.' " (Appellant's Brief at 15, quoting Dictionary of Agriculture.) And,
Dublin argues, because there was no testimony the parcels were used for raising crops or
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No. 15AP-635
animals for food, the parcels cannot be "farm land." Dublin relies on Hoffman v. State
Med. Bd. of Ohio, 113 Ohio St.3d 376, 2007-Ohio-2201, in support of this argument:
"It is established law in Ohio that [in construing statutes],
where a word has a technical definition differing from its
dictionary definition, it shall be construed according to the
former." (Emphasis added.) (Citation omitted.) Hoffman v.
State Med. Bd. of Ohio, 113 Ohio St.3d 376, 2007-Ohio-2201,
865 N.E.2d 1259, ¶ 26, citing Youngstown Sheet & Tube Co. v.
Lindley, 56 Ohio St.2d 303, 309, 383 N.E.2d 903 (1978). The
Court in Hoffman further explained that "[a]n axiom of
statutory construction is that '[w]ords * * * that have acquired
a technical or particular meaning, whether by legislative
definition or otherwise, shall be construed accordingly.' "
(Emphasis added.) Id. citing 1.42; see also State v. Rentex,
Inc., 51 Ohio App.2d 57, 365 N.E.2d 1274 (8th Dist. 1977). The
use of the word "shall" in both instances imposes mandatory
compliance. Ohio Dep't of Liquor Control v. Sons of Italy
Lodge 0917, 65 Ohio St.3d 532, 534, 605 N.E.2d 368, 370
(1992).
Accordingly, the Court's adoption of the general dictionary
definition of "farm land" in the context of detachment is
inappropriate because the agricultural industry has
established a specific definition of "farm land" that differs
from that of the general dictionary definition. Therefore, the
definition of farm land "shall be construed" in accordance
with the industry-specific definition. See Hoffman, supra.
(Emphasis sic.) (Appellant's Brief at 13-14.)
{¶ 15} The Hoffman court was presented with the question of whether an Ohio
Administrative Code provision that prohibited anesthesiologist assistants from
performing specific medical procedures conflicted with a provision of the Ohio Revised
Code that permitted anesthesiologist assistants to assist supervising anesthesiologists
with the performance of various procedures. The Hoffman court held there was a conflict
between the statute and the administrative code regulation that rendered the
administrative code regulation invalid. Hoffman at ¶ 1. Similarly, the case cited by the
Hoffman court, Youngstown Sheet & Tube Co. v. Lindley, 56 Ohio St.2d 303, 309 (1978),
concerned terms that were "creatures of federal regulation" with "long-standing federal
treatment." Id. Such a question was not presented in the instant case, as "farm land" is
not subject to conflicting definitions set forth in statute, administrative rule, or regulation.
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{¶ 16} The record indicates the trial court fully considered Dublin's arguments that
the parcels do not constitute farm lands:
In support of its position that the Parcels do not constitute
farmlands, Dublin relies on its proffered strict definition –
land used for active cultivation of crops or animals for food –
and evidence that the Parcels do not qualify under this
definition. For example, the representative owners of all three
Parcels concede that no farm equipment is housed or
maintained, no food crops are planted or harvested, and no
livestock is actively raised on the properties. Trans., p. 74,
379. Dublin also points to evidence that the Banks and
Sheriff/Banks Parcels are not taxed as CAUV property.
Further, all three parcels are zoned for "other residential use."
Exh. B, C, & D. A portion of the Reywal Parcel has been
converted to a dirt track for motorbikes and ATVs. Trans., p.
327, 335. Finally, with regard to the Banks Parcel, Dublin
argues that the parcel is simply too densely wooded to be
considered suitable for farming.
(June 5, 2015 Jgmt. Entry at 5.)
{¶ 17} The record further indicates the trial court carefully examined the evidence
as to the parcels' former and current use. The landowners presented testimony that
Reywal's parcel had been granted Current Agricultural Use Valuation ("CAUV") for tax
purposes, and the parcel that Banks and the Sheriffs purchased in 1987 was owned by a
farmer who raised corn and hay on it and who continued to lease and farm the parcel for
six months to one year after the purchase. All three parcels are leased to an adjoining
property for grazing horses and growing hay. The landowners also presented testimony
"that hay is important to a farm and essential when raising animals." Id. at 5.
Additionally, a real estate appraiser testified on behalf of the landowners that, in his
professional opinion, the parcels were farm land.
{¶ 18} The trial court found, after considering all the evidence regarding this
requirement, "the greater weight of credible evidence supports the determination that
each of the parcels is used or suitable for use in raising crops or livestock and similar
agricultural purposes." Id. The trial court set forth its reasoning as follows:
Therefore, the Court concludes that the Parcels are farm lands
as contemplated by the detachment statutes. All three parcels
are leased to a neighboring landowner who uses the
properties as grazing pasture for horses and to sow and raise
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hay. These are all agricultural endeavors, and the fact that the
land is leased for such purposes is inconsequential. Dublin's
own Community Plan references the Parcels as part of a horse
farm. See Exh. AA, p. 140 ("A horse farm and stable near the
interior of the [Summit View/Sawmill] area stretches north to
the AEP substation.") Moreover, even if not currently used as
such, the evidence supports the finding that the Parcels are
suitable for use in raising crops or livestock.
Upon careful review of the evidence presented relevant to the
first requirement, the Court concludes that the Parcels are
farm lands not within Dublin's original municipal limits.
(Emphasis sic.) Id. at 5-6.
{¶ 19} This Court having carefully reviewed the record finds no error in the trial
court having determined the land in question is "farm land" as used in the detachment
statutes. We find the trial court's analysis requires no further amplification. Therefore,
we conclude the trial court did not err in finding the parcels are farm land not within
Dublin's original municipal corporation limits.
3. Are the parcels taxed for municipal purposes in substantial excess
of the benefits conferred upon them by reason of being in Dublin?
{¶ 20} The trial court next examined the issue of whether the parcels are taxed for
municipal purposes in substantial excess of the benefits conferred on by reason of being
in Dublin. The landowners contend no benefits are conferred on them by virtue of being
in Dublin. Dublin argues it makes a multitude of general, communal benefits available to
the landowners, in addition to the specific benefit of police protection.
{¶ 21} In accordance with the Supreme Court instructions on remand in Reywal
Co. L.P., 128 Ohio St.3d 270, the trial court sought to make this determination applying
the holding of Campbell. The trial court noted the "concrete guidance" the Campbell
court provided in determining the amount of municipal taxes paid:
In Campbell v. Carlisle [citation omitted], the Court noted
that the statutory language of R.C. 709.42 is clear and
unambiguous and, thus, requires no interpretation. Campbell,
¶8.
R.C. 709.42 requires a trial court presiding over
detachment proceedings to determine the
amount "the owner * * * is taxed and will
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No. 15AP-635
continue to be taxed * * * for municipal
purposes."
(emphasis original) Campbell, supra, ¶8. Therefore, if (as in
Campbell) the parcel owner has applied for and been granted
CAUV tax valuation, it is that amount and not the greater,
non-CAUV amount that must be considered. Id., ¶8, 12.
Moreover, it is appropriate to consider the amount that the
parcel owner "will continue to be taxed." Id., ¶9. Thus,
consideration of increasing or decreasing tax valuations is
relevant to the inquiry. Finally, only that portion of total taxes
attributable to municipal taxes should be considered. See
Campbell, supra. See also, Reywal Co. L.P. v. City of Dublin,
supra at ¶18. * * *. In this case, the "City/Village" tax
comprises the relevant municipal taxes.
With the forgoing in mind, the parties presented both
testimonial and documentary evidence establishing that the
Reywal Parcel paid Dublin $4,893.78 in municipal taxes from
2000 to 2011. Exh. 10. In 2011 (the last tax year discussed),
the Reywal Parcel's municipal tax responsibility was $19.03.
Trans., p. 67-68; Exh. B. The Banks/Sheriff Parcel paid
Dublin a total of $1,644.02 in municipal taxes during the
2000-2011 timeframe. Trans., p. 105; Exh. 11. In 2011, the
Banks/Sheriff Parcel's municipal tax responsibility was
$323.07. Trans., p. 160; Exh. C, R. And, the Banks Parcel paid
municipal taxes to Dublin in the amount of $1,687.25 from
2000 through 2011. Trans., p. 105; Exh. 12. In 2011, the
Banks Parcel's municipal tax responsibility was $356.69.
Trans., p. 154; Exh. D, O. Banks also testified that the
municipal tax burden on the Parcels is rising. Trans., p. 105,
106.
(June 5, 2015 Jgmt. Entry at 6-7.)
{¶ 22} The trial court next engaged in "a complicated weighing of interests" to
determine whether the landowners' municipal tax burden is in substantial excess of the
benefits conferred upon the parcels by virtue of being in Dublin. Id. at 6. The trial court
followed the guidance provided by rulings of the Fifth and Tenth District Courts of
Appeals in, respectively, Smith Evergreen Nursery, Inc. v. Village of Magnolia, Inc., 5th
Dist. No. 2009 CA 00003, 2009-Ohio-6560 ¶ 19-23, appeal not accepted, 124 Ohio St.3d
1522, 2010-Ohio-1075, and Reywal I, in which this Court favorably discussed the Smith
Evergreen decision. The trial court noted "[t]he second element of the detachment
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No. 15AP-635
analysis was the sole focus Smith Evergreen," in which the Fifth District had observed the
following:
The General Assembly has not set forth in the [statute]
whether the "substantial excess" question requires a
comparative cost analysis of the services provided to the
landowner by the municipality versus those provided by the
township, as opposed to a simpler evaluation of whether the
current tax burden on the landowner for his or her municipal
services is substantially excessive per se.
(June 5, 2015 Jgmt. Entry at 8, quoting Smith Evergreen at ¶ 24.)
{¶ 23} The Smith Evergreen trial court had "applied a comparative approach; i.e.,
an assessment of present municipal services vis-a-vis township services after
detachment." Smith Evergreen at ¶ 26. The trial court in the instant case observed that
the Fifth District, while approving of and affirming the comparative approach, also noted
the following:
We hold that a trial court could also address the issue by
fundamentality considering whether or not the landowner, [at
present time], is paying a substantially excessive amount [for
the] services provided by the municipality. "Substantial" is
defined as "considerable in importance, value, degree, amount
or extent." See Phillips v. Haidet (1997), 119 Ohio App. 3d
322, 327, 695 N.E.2d 292, citing American Heritage
Dictionary (2 Ed. 1985) 1213.
(June 5, 2015 Jgmt. Entry at 9, quoting Smith Evergreen at ¶ 26.)
{¶ 24} The trial court here heeded this Court's critique in Reywal I of the trial
court's analysis in granting summary judgment for Dublin on May 14, 2009:
The trial court here did no comparison of the current
municipal services compared to township services after
detachment. [And,] There was * * * no evaluation of the cost
of the services to determine if the property owners, at the
present time, are paying a substantially excessive amount for
the services provided by the municipality.
Id. at 9, quoting Reywal I at ¶ 52. The trial court noted further that the holding of
Reywal I instructed it:
[T]o analyze the issue of whether [the landowners'] municipal
tax burden is in substantial excess of the benefits conferred by
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No. 15AP-635
[] comparing the present municipal services in relation to
those of the township and/or by a fundamental cost-benefit
analysis. Under either approach, the Court must first
determine what benefits are conferred upon the Parcels.
Id. at 9.
{¶ 25} The trial court examined the question of what, if any, benefits the
landowners received by being located in Dublin. The record before the trial court
indicated Dublin did not provide the parcels with leaf or trash pickup, snow removal or
utility services. One of the landowners, Mr. Sheriff, testified that Dublin refused to
provide trash service and had cited the property and required the landowners to have
trash removed at their expense. Dublin's City Manager, Marsha Grigsby, conceded that
Dublin did not provide utility services to the parcels.
{¶ 26} With respect to "a multitude of general, communal benefits" Dublin
contends are available to the landowners, the trial court stated:
The Court further finds that the majority of the general,
communal benefits espoused by Dublin are not actually
bestowed upon the land or the owners and, therefore, are not
relevant to this analysis. There is no infrastructure on the
Parcels to benefit from the city's planning or maintenance.
Similarly, there is there is [sic] no sewer or utility service to
benefit from the city's attention. Thus, as best, Dublin
arguably bestows access to Dublin parks, recreation and
community programs and city departments. Included in this,
the Court does find that police protection is a benefit
conferred upon the [landowners] by Dublin.
Id. at 10.
a. The Trial Court's "Comparative Approach–Services in Dublin v.
Services in Perry Township."
{¶ 27} The trial court compared the services available to the landowners in Dublin
to the services available to them in Perry Township. On consideration of the evidence, the
trial court found the landowners had "presented ample, credible evidence that the services
available in Perry Township compare favorably with those in Dublin." Id. at 10-11. The
trial court enumerated some of the benefits available from both Dublin and Perry
Township, including: full-time employees devoted to planning and zoning; full-time
officers in their police departments, both of which had won public accolades; equally
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No. 15AP-635
available fire and emergency services; and general staff to interact with residents. The
trial court found, to the extent Dublin "touts these services as benefits conferred upon the
landowners, those same services are equally available in Perry Township." Id. at 11. The
trial court noted further that Perry Township offers the additional services of trash and
refuse collection, road maintenance, snow removal, leaf removal, and mosquito spraying.
{¶ 28} The trial court observed, while Perry Township lacks a parks and recreation
department, it "offer[s] country clubs, tennis courts, fishing pond, community gardens
and green space." Id., citing Sept. 17, 2012 Tr. Vol. I at 221. The township does not have
an engineering or economic development department, but the Township Administrator,
Robert Myers, testified those departments were "unnecessary" because the township "is
97% residential and has no need to develop new roads or infrastructure." Id., citing Tr.
Vol. I at 221-223. The trial court noted further, "given the undeveloped state of the
Parcels, the services provided by these departments currently confer no benefit from
Dublin." Id. Additionally, the trial court found misplaced Dublin's reliance on "a pure
comparison of the number of employees devoted to the shared departments," concluding
the record before it established that Dublin and Perry Township are "staffed appropriately
to meet the needs of" their respective sizes and demands. Id. at 11-12.
{¶ 29} The trial court, "upon consideration of the presented evidence," found the
landowners "enjoy no comparative benefit by staying in Dublin as opposed to Perry
Township." Id. at 14. Moreover, the trial court found the lack of sewer service, or
willingness to provide sewer service, makes it detrimental for the landowners to stay in
Dublin because the parcels cannot be developed or used "in any meaningful manner,"
whereas sewer service would be accessible to the parcels upon detaching from Dublin and
returning to Perry Township. Id. The trial court concluded, "upon a comparison of
current municipal services to township services after detachment, the Court concludes
that [the landowners] are taxed, and will continue to be taxed, for municipal purposes in
substantial excess of the benefits conferred upon them by virtue of being located in
Dublin." Id. We find no error in this assessment. The trial court went on to examine the
taxing benefits question from another perspective.
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No. 15AP-635
b. The Trial Court's "Cost of Service Approach–Are Plaintiffs paying
too much for Dublin Services?"
{¶ 30} The trial court next employed a cost of services analysis, the second method
espoused in Smith Evergreen and approved in Reywal I. This method involves "a
seemingly more direct cost/benefit analysis in which the Court must discern whether the
[landowners], at present time, are being taxed a substantially excessive amount for the
services provided by [Dublin]." Id. at 14. The trial court found "this analysis must be
limited to those specific services actually conferred upon the landowners, not the more
general intangibles * * * cited by Dublin." Id. at 14-15. The trial court concluded the sole
benefit Dublin actually conferred on the landowners was police service and protection.
The trial court assessed the cost of that service to the landowners.
{¶ 31} Dublin's city manager testified that Dublin charges $130 per hour for police
services for events held inside the city by outside organizations. Dublin did not, however,
provide any evidence that that hourly rate applies to the regular duties of Dublin police
officers carrying out their duties to Dublin citizens on a daily basis. The trial court
declined, therefore, to find the $130 hourly rate "is an absolute demonstration of the
regular cost of providing police protection to each and every one of Dublin's landowners."
Id. at 15.
{¶ 32} After reviewing the evidence of the actual police service provided to the
landowners, the trial court stated:
In short, there is evidence of five [police] calls directly
attributable to the [landowners] over the course of
approximately ten years. Two calls attributable to the Reywal
Parcel, which contributed $4,893.78 in municipal taxes over a
similar time frame; three calls attributable to the
Banks/Sheriff Parcel, which contributed $1,644.02 in
municipal taxes over that time frame; and zero calls
attributable to the Banks Parcel, which contributed $1687.25
over that time frame. Even using Dublin's rate of $130/hour
and assuming that each call took one hour, that is an
exchange of $260 for $4,893.78; $390 for $1,644.02; and $0
for $1687.25. Under a cost/benefit analysis, the Court finds
that this exchange represents taxation in a substantially
excessive amount for the service provided by the municipality.
Id. at 16.
{¶ 33} The trial court summed up its analysis as follows:
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No. 15AP-635
Thus, whether under a comparative approach or a
cost/benefit analysis, the Court concludes that [the
landowners] have established that the Parcels are taxed and
will continue to be taxed for municipal purposes in substantial
excess of the benefits conferred upon them by reason of being
in Dublin.
Id.
{¶ 34} On review, we conclude the trial court's finding that the parcels are taxed for
municipal purposes in substantial excess of the benefits conferred upon by reason of
being in Dublin is based on competent and credible evidence. The trial court did not
abuse its discretion in finding the landowners satisfied this requirement of the
detachment statutes.
4. Can the parcels be detached without materially affecting the best
interest or good government of Dublin?
{¶ 35} As a preliminary matter, the trial court found the landowners had the
ultimate burden of proof in establishing all the elements for detachment, relying on Hahn
Adventure, LLC v. Village of Thornsville, 5th Dist. No. 13 CA 13, 2014-Ohio-3387, ¶ 15.
The trial court explained further, however, that while the landowners must produce
evidence demonstrating that detachment would not materially affect Dublin's best
interest or good government, Dublin must demonstrate that detachment would materially
affect its best interests or good government. The trial court found this sharing of the
burden of production "comports with the Fifth District's refusal in Smith Evergreen and
Hahn Adventure to automatically elevate the municipality's interests above those of the
landowners seeking detachment: 'we give no preference, when analyzing R.C. 709.42, to
the general trend in Ohio favoring annexation of land into municipalities.' " Smith
Evergreen, supra, ¶18; Hahn Adventure, supra, 20." (June 5, 2015 Jgmt. Entry at 17.)
{¶ 36} The trial court reviewed the evidence, which indicated Dublin would lose
only 41 acres of its approximately 25-30 square miles of territory, only $698.69 in
municipal taxes, and no income tax because the parcels generate none. The trial court
noted "Dublin admits that the loss of tax revenue from the Parcels [would be]
insignificant and would not materially affect its best interests or good government." Id. at
18, citing Sept. 19, 2012 Tr. Vol. III at 568-70.
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No. 15AP-635
{¶ 37} The trial court took notice of the parcels' location on the fringe of Dublin,
observing the parcels' detachment would not change the identities of the neighboring
communities. The trial court also took notice that "Dublin is surrounded by at least ten
governing municipalities or townships and spans three counties, the existence of which
does not upset its ability to pursue cohesive and comprehensive long-range municipal
planning." Id.
{¶ 38} The trial court then turned to the testimony presented by the landowners
that detachment would have no adverse effect on adjacent property owners; the only
access to the parcels is maintained by the city of Columbus; there are no roads on the
parcels connecting them to adjoining land; and the landowners' plans to develop the
parcels would run through formal channels requiring some form of municipal or township
approval.
{¶ 39} Dublin countered the landowners' evidence by arguing the detachment
would leave Dublin without any control over the development of, or the provision of
municipal services to, the parcels and create a "township pocket." (Sept. 18, 2012 Tr. Vol.
II at 414.) Dublin also contends that detachment would lead to zoning shopping.
{¶ 40} The trial court found that the landowners had "presented competent,
credible evidence that the Parcels can be detached without materially affecting the best
interests or good government of Dublin," and thus had successfully met their burden as to
this element. (June 5, 2015 Jgmt. Entry at 21.) On review, we find no error in the trial
court's decision and find it to be based on competent, credible evidence.
{¶ 41} Based on the evidence, the trial court found the landowners had established
all four of the statutory requirements to detach their parcels from Dublin. In accordance
with the governing law, the trial court issued an order that the parcels be detached from
Dublin and be attached to Perry Township, which the trial court determined to be "the
most convenient adjacent township in the same county." R.C. 709.42.
5. Review of trial court's factual findings under R.C. 709.41 and
709.42–Competent and credible evidence.
{¶ 42} The remaining aspects of Dublin's assignment of error challenge the factual
findings of the trial court in a non-jury trial. In reviewing a trial court's judgment
following a bench trial, " 'an appellate court is "guided by the presumption" that the trial
court's findings are correct.' " Lee at ¶ 11, quoting Broadstone at 637, citing Patterson at
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No. 15AP-635
¶ 26, quoting Seasons Coal Co. at 79-80. We may not substitute our judgment for that of
the trial court, and must affirm the judgment if it is supported by some competent,
credible evidence going to the essential elements of the case. Lee at ¶ 11, citing Reilley;
Koch. The record evidences the trial court's judgment is supported by competent,
credible evidence going to the relevant elements of this matter.
IV. CONCLUSION
{¶ 43} On review, we find no basis for reversal as a matter of law of the trial court's
grant of detachment pursuant to R.C. 709.41 and 709.42 in favor of the landowners.
{¶ 44} Dublin's sole assignment of error is overruled.
{¶ 45} For the reasons stated in the foregoing opinion, the judgment of the
Franklin County Court of Common Pleas is hereby affirmed.
Judgment affirmed.
TYACK, P.J., and HORTON, J., concur.