In re Petition to Annex 320 Acres to the Village of S. Lebanon - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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In re Petition to Annex 320 Acres to the Village of South
Lebanon: Cincinnati Milacron, Inc., Appellee and
Cross-Appellant, v. Doughman, Clerk, et al., Appellants and
Cross-Appellees.
In re Petition to Annex 320 Acres to the Village of South
Lebanon: Cincinnati Milacron, Inc., Appellee, v. Board of
Commissioners of Warren County, Ohio, Appellant.
[Cite as In re Petition to Annex 320 Acres to the Village
of S. Lebanon (1992), Ohio St.3d .]
Municipal corporations -- Annexation -- R.C. 709.07 provides
exclusive remedy for persons who challenge a board of
county commissioners' approval of a landowners' annexation
petition -- R.C. 709.07 does not permit a reviewing court
to partially enjoin an approved landowners' petition for
annexation.
1. R.C. 709.07 provides the exclusive remedy for persons
whochallenge a board of county commissioners' approval of
a landowners' annexation petition.
2. R.C. 709.07 does not permit a reviewing court to sever
(partially enjoin) an approved landowners' petition for
annexation. (Middletown v. McGee [1988], 39 Ohio St.3d
284, 530 N.E.2d 902, distinguished.)
(Nos. 91-1028 and 91-1037 -- Submitted May 5, 1992 --
Decided September 2, 1992.)
Appeals and Cross-Appeal from the Court of Appeals for
Warren County, Nos. CA90-04-024 and CA90-08-054.
On August 7, 1989, fourteen landowners purporting to be
the majority of landowners of a 320.411 acre tract of land
located in Union and Hamilton Townships, in Warren County,
Ohio, filed an annexation petition attempting to annex their
properties to the village of South Lebanon. The petitioners
designated appellant and cross-appellee, Carl Oeder, as their
agent for this action.
Prior to the date set for the hearing before appellant,
Board of County Commissioners of Warren County, Ohio ("board"),
the village of South Lebanon passed a resolution pursuant to
R.C. 709.031, detailing the services that it would provide to
the area to be annexed. The services included sewer and water,
recreation and parks, police protection, street lighting,

street maintenance, snow and ice removal, storm sewers, waste
collection, and unclassified miscellaneous services. On
October 17, 1989, the board held its required public hearing on
the annexation petition. Based on a motion made by Oeder, the
number of acres of land set forth in the annexation petition
was amended from 320.411 to 313.589.1
Evidence contained in the record before the board
indicated that water and sewer service was not readily
available in the area to be annexed. Furthermore, those owners
who were already receiving water services from the village of
South Lebanon would benefit from cheaper rates following
annexation of their land to the village. Moreover, there was
no direct police protection in the area to be annexed.
Instead, the Warren County Sheriff's Office was responsible for
police protection in the area. South Lebanon Village Trustee
Russ Kilburn stated that South Lebanon could furnish the entire
area to be annexed with water service and better police
protection than was already provided.
In opposing the annexation to the village of South
Lebanon, appellee and cross-appellant, Cincinnati Milacron,
Incorporated, which owns property in the area to be annexed,
put forth evidence that the village of South Lebanon lacked the
manpower and government resources to deal effectively with the
problems it currently was experiencing and annexing the
territory in question would further add to the village's
strain. In fact, the annexation would add fifty percent more
acreage to the territory of the village and extend it in a
linear fashion about a mile and a half. According to
Cincinnati Milacron's witness, Dean E. Sterling, who is a
village administrator for Miami Township in Clermont County,
the good of the general area to be annexed would not be served
by the petition. The quality of government services would
decline in the territory and the annexed area would be worse
off following the annexation. Sterling concluded that the city
of Lebanon would be the appropriate jurisdiction to annex the
subject land given the city's higher level of governmental
services. Cincinnati Milacron pointed out it had its own
in-house sewage treatment plant and, therefore, would not
benefit by connecting its land to the village of South Lebanon
facilities.
On October 24, 1989, the board passed a resolution
approving the amended annexation petition. The resolution
stated that the petition contained all matters required by law
(i.e., R.C. 709.033), including:
" --- that the statements in said petition are true;
" --- that the territory sought to be annexed is adjacent
to the village of South Lebanon, Ohio;
" --- that the petition contains a full and accurate
revised legal description;
" --- that the revised map of said territory attached to
the petition is accurate;
" --- that the petition is signed by a majority of the
owners of real estate in the territory sought to be annexed;
" --- that the required legal notices of the filing of the
petition and the hearing thereon have been given;
" --- that the territory is not unreasonably large;
" --- that the general good of the territory sought to be

annexed will be served if the annexation is granted * * *."
Cincinnati Milacron sought two different forms of relief
in the Warren County Court of Common Pleas from the annexation
of its property to the village of South Lebanon. The first
remedy sought by Cincinnati Milacron was an R.C. 2506.01 direct
appeal (hereinafter referred to as the "Section 2506 appeal")
from the board's decision filed on November 17, 1989.
Cincinnati Milacron also filed a statutory injunction action
pursuant to R.C. 709.07 (hereinafter referred to as the
"Section 709 action") on December 27, 1989, which was styled
"Petition for Injunction Against Annexation."
In the Section 2506 appeal Cincinnati Milacron named the
board as the sole appellee. On February 7, 1990, the board
filed a motion to dismiss the Section 2506 appeal, claiming
that an R.C. 709.07 injunction action was Cincinnati Milacron's
sole remedy. On March 7, 1990, the trial court granted the
board's motion to dismiss, which was formalized in an entry on
March 19, 1990. In dismissing Cincinnati Milacron's Section
2506 appeal, the trial court held that Cincinnati Milacron's
sole and exclusive remedy was to seek an injunction pursuant to
R.C. 709.07
Cincinnati Milacron appealed to the Warren County Court of
Appeals, which reversed the trial court's decision after it sua
sponte dissolved the consolidation of both the Section 2506
appeal and the Section 709 action. Essentially, the appellate
court held that an R.C. 709.07 injunction was not the exclusive
remedy to challenge the board's approval of an annexation
petition.
The second statutory remedy pursued by Cincinnati Milacron
was an original action pursuant to R.C. 709.07. Cincinnati
Milacron sought two alternative remedies by its Section 709
action. First, it sought to enjoin the village of South
Lebanon from any further action to complete the annexation.
Alternatively, Cincinnati Milacron attempted to enjoin the
annexation only insofar as it related to its property. The
trial court would only allow certain evidence to be submitted
by the parties,2 and refused to consider evidence directed to
various discretionary findings of the board. On August 7,
1990, the trial court denied both the complete and partial
injunctions sought by Cincinnati Milacron in the Section 709
action. The court held, inter alia, that Cincinnati Milacron
failed to show by clear and convincing evidence any of the
alleged errors claimed in its petition for injunction and that
the administrative record before the board supported the
commissioners' approval of the annexation.
With respect to the Section 709 action the Court of
Appeals for Warren County reversed the trial court in part and
remanded the action to that court with a mandate to approve the
annexation only after Cincinnati Milacron's property had been
"severed" from the territory sought to be annexed. The court
of appeals relied upon Middletown v. McGee (1988), 39 Ohio
St.3d 284, 530 N.E.2d 902, to authorize a severance of property
under circumstances where that portion of the property sought
to be annexed is not benefited.
The Section 2506 appeal has been appealed by the board
(case No. 91-1037), while the Section 709 action has been
appealed to this court by Oeder, agent for petitioners, and

Richard Doughman, Clerk of the village of South Lebanon (case
No. 91-1028). Cincinnati Milacron has filed a cross-appeal in
case No. 91-1028 in order to preserve its request to have the
annexation completely enjoined in the event this court finds
the partial injunction to be invalid.
This cause is now before this court pursuant to
consolidation of the cases and the allowance of motions and a
cross-motion to certify the record.

Frost & Jacobs, David C.Horn and Vincent E. Mauer, for
Cincinnati Milacron, Inc. in case Nos. 91-1028 and 91-1037.
John C. Quinn, for appellant and cross-appellee Richard
Doughman, Clerk, in case No. 91-1028.
Lucas, Prendergast, Albright, Gibson & Newman and Richard
C. Brahm; Rendigs, Fry, Kiely & Dennis and William P.
Schroeder, for appellant and cross-appellee Carl E. Oeder,
Agent, in case No. 91-1028.
Timothy A. Oliver, Prosecuting Attorney, Michael E. Powell
and Carolyn A. Duvelius, for appellant Warren County Board of
Commissioners in case No. 91-1037.
John C. Quinn, urging reversal for amicus curiae, village
of South Lebanon, Ohio, in case No. 91-1037.
Calfee, Halter & Griswold, John E. Gotherman and Marilyn
G. Zack, urging reversal for amicus curiae, Ohio Municipal
League in case Nos. 91-1028 and 91-1037.

Holmes, J. The first issue before the court is whether
R.C. Chapter 2506 is a potential remedy for persons who
challenge the annexation of property to another jurisdiction by
a board of county commissioners which has acted upon a
landowners' petition. Another issue before the court is
whether a reviewing court pursuant to R.C. 709.07 may "sever"
or "excise" territory from an approved annexation petition.
For the reasons that follow, we answer both queries in the
negative.
I
Statutory Scheme for Annexation on
Application of Landowners
In the present case a group of landowners sought to have
their territory annexed to the village of South Lebanon. To
better understand the remedy or remedies available to
landowners challenging a decision approving an annexation
petition, a brief outline of Ohio's annexation law is indicated.
Generally, a petition signed by a majority of the owners
of territory adjacent to a municipal corporation is filed with
the board of county commissioners. R.C. 709.02. The petition
must contain a full description and accurate map or plat of the
territory sought to be annexed. R.C. 709.02(A). Also, it must
contain a statement of the number of owners of real estate in
the territory sought to be annexed, along with the name of a
person or persons who are to act as the agent for the
petitioners. R.C. 709.02(B) and (C). A public hearing is then
held by the board of county commissioners, where testimony and
evidence is offered by both proponents and opponents of the
annexation. R.C. 709.031 and 709.032. After the hearing, the
board decides whether to grant or deny the petition pursuant to
R.C. 709.033 based upon the following factors:

"(A) The petition contains all matter required in section
709.02 of the Revised Code.
"(B) Notice has been published as required by section
709.031 of the Revised Code.
"(C) The persons whose names are subscribed to the
petition are owners of real estate located in the territory in
the petition, and as of the time the petition was filed with
the board of county commissioners the number of valid
signatures on the petition constituted a majority of the owners
of real estate in the territory proposed to be annexed.
"(D) The municipal corporation to which the territory is
proposed to be annexed has complied with division (B) of
section 709.031 of the Revised Code.
"(E) The territory included in the annexation petition is
not unreasonably large; the map or plat is accurate; and the
general good of the territory sought to be annexed will be
served if the annexation petition is granted."
If the petition is approved, the transcript of the
proceedings is placed before the legislative authority of the
annexing municipal corporation for acceptance. R.C. 709.04.
At this point any interested person or person who appeared at
the public hearing3 may file with the court of common pleas a
petition seeking an injunction against the annexation. The
individual bringing the injunction action must allege and prove
by clear and convincing evidence that the board's decision is
unreasonable or unlawful or that there was some error in the
proceedings. R.C. 709.07(D).
In the present case Cincinnati Milacron pursued its remedy
from the adverse board decision through both an R.C. Chapter
2506 appeal and an R.C. 709.07 injunction action. Thus, we are
asked to determine whether one or both of these remedies, R.C.
709.07 and 2506.01 et seq., can be utilized by persons
challenging adverse annexation decisions by boards of county
commissioners.
II
Statutory Remedies
Section 2506 Appeal vs. Section 709 Injunction
As the above commentary regarding annexation plainly
shows, annexation is strictly a statutory process. Therefore,
the key issue we must decide is whether the General Assembly
provided for two distinct remedies for disappointed parties in
landowner-petitioned annexation proceedings.
In 1957, the General Assembly enacted R.C. Chapter 2506,
which gave courts of common pleas jurisdiction to hear and
decide appeals from administrative agencies. See 127 Ohio Laws
963. Subsequently, on March 17, 1987, amendments were made to
R.C. Chapter 2506.4 The amendments to R.C. 2506.01 et seq.
were technical in nature. The actual provision allowing for
appeals to common pleas courts contained in R.C. 2506.01
provides:
"Every final order, adjudication, or decision of any
officer, tribunal, authority, board, bureau, commission,
department, or other division of any political subdivision of
the state may be reviewed by the court of common pleas of the
county in which the principal office of the political
subdivision is located as provided in Chapter 2505. of the
Revised Code, except as modified by this chapter.

"The appeal provided in this chapter is in addition to any
other remedy of appeal provided by law.
"A 'final order, adjudication, or decision' means an
order, adjudication, or decision that determines rights,
duties, privileges, benefits, or legal relationships of a
person, but does not include any order, adjudication, or
decision from which an appeal is granted by rule, ordinance, or
statute to a higher administrative authority if a right to a
hearing on such appeal is provided, or any order, adjudication,
or decision that is issued preliminary to or as a result of a
criminal proceeding."
R.C. 2506.02 through 2506.04 provide the procedures to be
followed on appeal. R.C. 2506.04 sets forth the mode of
inquiry and the standard of review the common pleas court must
adhere to. Specifically, R.C. 2506.04 provides:
"The court may find that the order, adjudication, or
decision is unconstitutional, illegal, arbitrary, capricious,
unreasonable, or unsupported by the preponderance of
substantial, reliable and probative evidence on the whole
record. Consistent with its findings, the court may affirm,
reverse, vacate, or modify the order, adjudication, or
decision, or remand the cause to the officer or body appealed
from with instructions to enter an order, adjudication or
decision consistent with the findings or opinion of the court.
The judgment of the court may be appealed by any party on
questions of law as provided in the Rules of Appellate
Procedure and, to the extent not in conflict with those rules,
Chapter 2505. of the Revised Code."
The provisions of R.C. 2506.01 et seq. were made
applicable to decisions of boards of county commissioners in
1963, when the General Assembly amended R.C. 307.56 to provide:
"A person aggrieved by the decision of the board of county
commissioners may appeal to the court of common pleas, as
provided by and under authority of Chapter 2506. of the Revised
Code. The court shall advance such appeal when perfected for
immediate trial." (130 Ohio Laws 196.)
In contrast to R.C. 2506.01, R.C. 709.07 was originally
enacted in substantially its present form in 1967 (see 132 Ohio
Laws, Part I, 366-377) and was subsequently amended in 1978,
1980 (and 1992). R.C. 709.07, as amended in 1980, provided,
with respect to the procedure to be followed in bringing a
petition for an injunction, that:
"(A) Within sixty days from the filing of the papers
relating to the annexation with the auditor or clerk as
provided by division (D) of section 707.04 or by section
709.033 of the Revised Code, any person interested, and any
other person who appeared in person or by an attorney in the
hearing provided for in section 709.031 of the Revised Code,
may make application by petition to the court of common pleas
praying for an injunction restraining the auditor or clerk from
presenting the annexation petition and other papers to the
legislative authority. The petition of a person interested
shall set forth facts showing:
"(1) How the proposed annexation adversely affects the
legal rights or interests of the petitioner;
"(2) The nature of the error in the proceedings before the
board of county commissioners pursuant to section 707.04,

709.032, or 709.033 of the Revised Code, or how the findings or
order of the board is unreasonable or unlawful.
"The petition of any other person shall set forth facts
applicable to division (A)(2) of this section." (138 Ohio Laws,
Part I, 410.)
In determining which statutes, either R.C. 2506.01 et seq.
or 709.07, apply when boards of county commissioners approve of
an annexation petition over the objections of complaining
parties, we must look to the dictates of R.C. 1.51, which
states:
"If a general provision conflicts with a special or local
provision, they shall be construed, if possible, so that effect
is given to both. If the conflict between the provisions is
irreconcilable, the special or local provision prevails as an
exception to the general provision, unless the general
provision is the later adoption and the manifest intent is that
the general provision prevail."
Furthermore, R.C. 1.52(A) provides that "[i]f statutes
enacted at the same or different sessions of the legislature
are irreconcilable, the statute latest in date of enactment
prevails."
As noted above, R.C. 1.51 requires that initally an
attempt be made to reconcile R.C. 709.07 and 2506.01 et seq.,
if possible. This requirement reflects the common-law
presumption that statutes are not repealed by mere
implication. See Cincinnati v. Thomas Soft Ice Cream, Inc.
(1977), 52 Ohio St.2d 76, 79, 6 O.O.3d 277, 279, 369 N.E.2d
778, 780; and 85 Ohio Jurisprudence 3d (1988) 121, Statutes,
Section 128.
In the present case this court is confronted with two
statutes which appear on their face to apply two different
remedies in challenging decisions made by boards of county
commissioners approving annexations of territory. On the one
hand, R.C. 2506.01 et seq. provides generally for appeals from
administrative determinations in conjunction with R.C. 307.56,
which allows for appeals from boards of county commissioners.
Conversely, R.C. 709.07 specifically addresses challenges made
to the approval of landowners' annexation petitions by boards
of county commissioners. More particularly, R.C. 709.07 places
an increased burden upon the party bringing the action to prove
that the board of county commissioners erred in its
determination. In essence, the complaining party seeking to
enjoin an approved annexation must establish by clear and
convincing evidence that the annexation would adversely affect
the petitioner's legal rights or interests, and there was error
in the board proceedings, or the result reached by the board
was unreasonable or unlawful. This standard of review is
highly deferential to the board of county commissioners.
However, when a party brings a Section 2506 appeal a virtual de
novo examination of the record is conducted by the court
pursuant to R.C. 2506.04. Therefore, due to the differing
standards of review, we believe that R.C. 2506.01 appeals
cannot be reconciled with R.C. 709.07 injunction actions as
applied to decisions made by boards of county commissioners
approving landowners' annexation petitions.
In applying the rules of statutory construction set forth
in R.C. 1.51, we observe that R.C. 709.07, the specific

statute, will prevail as an exception to R.C. Chapter 2506, the
general statutory provisions, unless R.C. Chapter 2506 can be
shown to be the later adoption of the two and the manifest
intent of the General Assembly was to have the general
provisions control.
As discussed earlier, R.C. Chapter 2506 was originally
enacted in 1957, while R.C. 709.07 (in its form as applicable
here) was enacted in 1967 and amended in 1978 and 1980.
However, effective March 17, 1987, various technical amendments
were made to R.C. Chapter 2506. See Am. Sub. H.B. No. 412, 141
Ohio Laws, Part II, 3605-3607. Thus, the query before us is to
determine whether the 1987 amendments to R.C. Chapter 2506 made
it a later enactment than R.C. 709.07. (The 1992 amendment to
R.C. 709.07 is not applicable to this case, and is technical in
nature.)
In our determination of whether an amended statute should
be considered a continuation of a prior statute, R.C. 1.54 is
germane and provides: "A statute which is reenacted or amended
is intended to be a continuation of the prior statute and not a
new enactment, so far as it is the same as the prior statute."
(Emphasis added.) See, also, In re Allen (1915), 91 Ohio St.
315, 320-321, 110 N.E. 535, 537 (when a statute is amended the
part that remains unchanged is to be considered as having
continued as the law from the time of its original enactment).
In the present case, a review of the changes made to R.C.
2506.01, 2506.02, 2506.03, and 2506.04 indicates only minor
procedural and technical modifications. The key language in
R.C. 2506.01, providing for appeals from administrative
determinations, remains unchanged following the 1987
amendments. Therefore, the pertinent portions of R.C. Chapter
2506 to the case at hand should be considered as having
continued as the law from the time of their original enactment.
However, even assuming arguendo that the 1987 amendments
to R.C. Chapter 2506 were substantive, R.C. 1.51 still requires
that the manifest intent is that the general provision (R.C.
2506.01 et seq.) prevail. See Thomas Soft Ice Cream, supra,
paragraph one of the syllabus.
In reviewing R.C. Chapter 2506, we do not find any
expression of legislative intent that these provisions should
control over R.C. 709.07. In fact, our review evinces that the
enactment of R.C. 709.07 (the specific statute) was part of a
comprehensive legislative scheme to promote and encourage
annexation. In reviewing the history of the annexation
statutes, we find that several key changes to these laws have
confirmed the General Assembly's desire to avoid fragmented
local governments and to encourage orderly urban growth. The
first change in this area came about in 1967. Prior to the
1967 amendments, only "adult freeholders residing in such
territory" could seek annexation. See R.C. 709.02 (Bur. of
Code Rev. 1953). Thus, corporations and absentee owners were
excluded.5 However, under the present statutes any owner,
including corporations and trustees, may file annexation
petitions. The second legislative change involved the
discretion of the board of county commissioners in annexation
proceedings. Prior to the enactment of R.C. 709.033 in 1967,
the board of county commissioners, after a public hearing,
could grant an annexation petition if it found, inter alia, it

to be "right that the prayer of the petition be granted." See
R.C. 707.07(I) (Bur. of Code Rev. 1953). This gave the board
almost unlimited discretion in approving or denying the
petition. See Lariccia v. Mahoning Cty. Bd. of Commrs. (1974),
38 Ohio St.2d 99, 101, 67 O.O.2d 97, 98-99, 310 N.E.2d 257, 258
(prior to 1967, boards of county commissioners were possessed
with wide discretionary power and authority in annexation
proceedings); and Dabkowski v. Baumann (1963), 175 Ohio St. 89,
23 O.O.2d 386, 191 N.E.2d 809. The enactment of R.C. 709.033
significantly diminished the board's discretion in annexation
proceedings. As this court observed in Lariccia, supra, at
101-102, 67 O.O.2d at 99, 310 N.E.2d at 258-259:
"* * * [T]he enactment in 1967 of R.C. 709.033
substantially curtailed the discretion to be exercised by
boards of county commissioners in such proceedings. That
statute establishes specific standards to be applied by the
board to the evidence before it in annexation proceedings, and
grants to the board the discretion to make only those factual
determinations specifically called for in the statute.
"* * *
"Although the implications for the community to which the
property in question would be annexed may well be of some
consequence, the clear statement of the General Assembly in
R.C. 709.033 cannot be ignored. That statute directs that the
ultimate focus of annexation proceedings be on 'the general
good of the territory sought to be annexed,' and requires
granting of the petition when it is shown that such benefit
will result."
In Middletown v. McGee (1988), 39 Ohio St.3d 284, 285-286,
530 N.E.2d 902, 903-904, we discussed Ohio's municipal
annexation policy and observed:
"As revealed by the statutes enacted by the General
Assembly that are currently in force, it is the policy of the
state of Ohio to encourage annexation by municipalities of
adjacent territory. Indeed, after an election approving
annexation, the laws of this state offer little protection to
those who would oppose such annexations. * * * A petitioner
seeking to enjoin a proposed annexation bears the heavy burden
of satisfying the requirements of R.C. 709.07(D) * * *.
"Thus, in order to avoid dismissal of their petition for
an injunction, appellants must clearly and convincingly prove
that the annexation would adversely affect their legal rights
or interests, and that either there was prejudicial error in
the proceedings or findings of the board, the board's decision
was unreasonable or unlawful, or the result of the election was
tainted by prejudicial error." (Emphasis sic.)
Accordingly, in applying the rules of statutory
construction, we hold that R.C. 709.07 takes precedence over
R.C. Chapter 2506 where disappointed persons challenge
decisions by boards of county commissioners approving
landowners' annexation petitions. Thus, R.C. 709.07 is the
exclusive remedy for persons who challenge a board of county
commissioners' approval of a landowners' annexation petition.6
III
Severability of Territory under R.C. 709.07
Appellant Oeder asserts that R.C. 709.02 through 709.11,
which outline the procedures and review process for petitions

requesting annexation, do not contemplate the severance of any
part of a territory which has been approved for annexation
after a hearing by the board of county commissioners.
Essentially, appellants collectively claim that the boards of
county commissioners as well as the reviewing courts must
either allow or disallow the annexation in toto. Thus, there
is no statutory scheme which permits the partial allowance or
disallowance of a proposed annexation. We agree. However, as
discussed infra, R.C. 709.032 does provide for an amendment to
the petition if leave is granted by the board of county
commissioners and consent is given by the agent for the
petitioners.
As is clear throughout this opinion, annexation in Ohio is
accomplished through a highly comprehensive statutory process.
The statutory scheme indicates that the primary focus in
evaluating the merits of a proposed petition for annexation is
on the entire area to be annexed rather than an individual
tract of land. Thus, as indicated in R.C. 709.02, it takes
only a majority of owners in a territory to petition for
annexation. See, also, R.C. 709.033(C). R.C. 709.033(E)
specifically provides that following a hearing on a petition to
annex territory, the board of county commissioners shall
approve the petition if:
"The territory included in the annexation petition is not
unreasonably large; the map or plat is accurate; and the
general good of the territory sought to be annexed will be
served if the annexation petition is granted." (Emphasis
added.)
Furthermore, R.C. 709.033 allows for a board only to
"grant or deny the petition for annexation within ninety days
after the hearing set pursuant to section 709.031 * * * of the
Revised Code." (Emphasis added.)
Cincinnati Milacron suggests that our opinion in
Middletown v. McGee, supra, authorizes the severance (or a
partial injunction to be issued) of a single tract of land from
a petition for annexation. In McGee the city of Franklin
sought to annex two sections of Cincinnati-Dayton Road in
Warren County. The first section of roadway was referred to as
the northern territory, which connected two areas of the city
of Franklin. The second section, the southern territory, ran
parallel to the boundary of Franklin for about eighteen hundred
feet and then continued outward into Franklin Township. The
two sections of the county's highway right-of-way totalled 3.8
miles in length and were eighty feet wide at all points. The
primary motivation for the annexation was to prevent a
suspected future attempt by the city of Middletown to expand
into Warren County. McGee, supra, at 289, 530 N.E.2d at 906.
The McGee court held that the annexation of the section of the
southern territory which extended outward from the city for
several miles was unlawful because "it violate[d] the basic
concept of municipal unity." Id. at 288, 530 N.E.2d at 905.
The case at bar and McGee are distinguishable in many
facets. In McGee we were confronted with essentially two
territories, whereas in the present case only one territory is
involved. Specifically, in McGee, supra, 39 Ohio St.3d at 288,
530 N.E.2d at 906, fn. 4, we noted that the petition proposed
by the city of Franklin described two separate territories, but

did not comment on its legality since the issue was not raised
at the trial level. We determined in McGee that the northern
territory was legally contiguous to the city of Middletown, but
part of the southern territory was not. Id. at 288, 530 N.E.2d
at 905-906. Moreover, the petition for annexation in McGee was
the result of a resolution passed by the Franklin City Council,
submitted to the voters of the unincorporated areas of Franklin
Township and subsequently approved by resolution of the Board
of Commissioners of Warren County. Since the city was the
interested party as described in R.C. 709.07, we did not review
what would have happened if a single property owner had
objected to a landowners' petition for annexation.
Furthermore, the petition in McGee was clearly no more than an
attempt by the city of Franklin to discourage the eastward
expansion of the city of Middletown by annexing a strip of land
the width of a roadway and extending several miles to the
Butler-Warren County line. Thus, the petition in McGee failed
to comply with the concept of municipal unity.
When a petition for annexation is before the board of
county commissioners, the board contemplates the inclusion of
an entire territory, not some individual segment. A reviewing
court cannot make its own findings of fact as to the propriety
of a petition for annexation by deleting territory previously
approved by a board of county commissioners. Such an approach,
if permitted, would allow individual landowners to successfully
veto a proposed annexation even though it would benefit the
entire territory to be annexed. A single owner's preference
cannot, in accord with the intent of the annexation statutes,
take precedence over the good of the territory as a whole and
the desires of a majority of the owners within the area to be
annexed.
If a landowner is dissatisfied with a proposed petition
for annexation, he or she may seek an amendment of the petition
and removal of their property therefrom pursuant to R.C.
709.032, which provides in pertinent part:
"The petition may be amended without further notice by
leave of the county commissioners with the consent of the agent
for the petitioners where such amendment does not add to the
territory embraced in the original petition. If any amendment
is permitted, whereby territory not before embraced is added,
the board shall appoint another time for the hearing, of which
notice shall be given as specified in section 709.031 of the
Revised Code."
Clearly, there is no statutory provision for the deletion
of parcels of territory from a petition following a hearing and
determination by the board of county commissioners. Thus,
landowners' annexation petitions may be amended only while the
petition is before the board of county commissioners. If this
process by which amendments may be made to a petition appears
to be too stringent for an objecting landowner, the appropriate
method of change to this process would be by way of legislative
amendment. Construing former R.C. 709.033(D) (now R.C.
709.033[E]), the Fairfield County Court of Appeals in Johnson
v. Boggs (1976), 49 Ohio App.2d 315, 319-320, 3 O.O.3d 384,
386-387, 361 N.E.2d 474, 477, properly observed:
"But in any event, we find that defendants' contention
that the 'territory to be annexed' phrase in R.C. 709.033

refers to the time when the original petition is filed not to
be well taken. Rather, we find that the 'territory to be
annexed' phrase refers to 'after the hearing on the petition to
annex' has been completed and the 'territory proposed to be
annexed' is finally determined. In short, if a deleting
amendment is to be granted, it must be accomplished before the
commissioners' 'finding' process mandated by R.C. 709.033
begins. Obviously, the finding required by R.C. 709.033(D)
could not be undertaken by the county commissioners until they
know the exact boundaries of the territory which is to be
considered for annexation in the context of 'the general good
of the territory.' * * *" (Emphasis added.)
The statutory mandates of R.C. 709.033 would require the
board of county commissioners, in its determination of whether
to allow the annexation of the territory as petitioned, to
consider the benefits and/or the detriments to the totality of
the property included within the petition. Accordingly, any
determination made by the board would have to be in reference
to all the property. Based upon these considerations, we
conclude that R.C. 709.07 does not permit a reviewing court to
sever (issue a partial injunction enjoining) an approved
landowners' petition for annexation.
In the case sub judice, the court of appeals approved the
annexation in part, while severing or excising Cincinnati
Milacron's property from the annexed territory. In essence,
the court of appeals reversed the trial court's decision
upholding the board's decision to approve the amended petition
for annexation in its entirety. The new territory which
remained following the court of appeals' decision was never
examined in its modified form by the board. Although this
annexation might not benefit Cincinnati Milacron, the interests
of the entire territory covered in the petition must be
examined. Thus, we reverse that portion of the court of
appeals' decision which severs Cincinnati Milacron's property
from the approved landowners' petition for annexation.
In reviewing the record concerning the entire territory
approved for annexation by the board and upheld by the trial
court,7 we find that there was sufficient evidence presented by
affidavit and testimony to the board which supported its
findings of adjacency between the territory sought to be
annexed and the village of South Lebanon. Moreover, we find
that Cincinnati Milacron failed to demonstrate by clear and
convincing evidence that the entire territory to be annexed
would be unreasonably large or the general good of the entire
territory to be annexed would not be served by the annexation.
Furthermore, although the board adopted certain guidelines that
may not have been adhered to, the Revised Code does not mandate
any procedure outside what was afforded this petition.
IV
Conclusion
Accordingly, for the foregoing reasons, the judgments of
the court of appeals are reversed and the trial court's
decisions are reinstated both as to the applicability of R.C.
Chapter 25068 and as to the propriety of issuing a partial
injunction pursuant to R.C. 709.07.
Judgments reversed.
Moyer, C.J., Sweeney, Douglas, Wright, H. Brown and

Resnick, JJ., concur.
FOOTNOTES:
1 The amendment to the petition for annexation involved
the deletion of 6.82225 acres of the former Penn Central
Railroad right-of-way, which was owned by the board.
2 Based upon motions to define the scope of the
evidentiary hearings, the trial court issued the following
order:
"1. The Court will receive and consider the entire record
of the proceedings below, including a transcript of testimony;
"2. The Court will receive evidence at this trial offered
to establish the adverse effect of the annexation on the
petitioner and the nature of any error in the proceedings
before the Board of County Commissioners;
"3. The Court will not receive new evidence (beyond the
record below) as to the discretionary issues which were
considered and decided by the County Commissioners, i.e.,
whether the general good of the territory sought to be annexed
will be served if the annexation petition is granted and
whether the territory is unreasonably large.
"The latter issue will be reviewed and considered by this
Court on the basis of the record and hearing which was held
before the County Commissioners on October 17, 1989."
3 Prior to January 1980, only "person(s) interested"
could file for an injunction against an annexation. (137 Ohio
Laws, Part II, 2088-2089.) The phrase "any person interested"
was defined as limited to residents of the area to be annexed.
See Weber v. Williams (1972), 32 Ohio App.2d 65, 61 O.O.2d 57,
288 N.E.2d 322; and Eaton v. Summit Cty. Bd. of Commrs. (1973),
45 Ohio App.2d 316, 74 O.O.2d 485, 345 N.E.2d 87. Thus, if
territory had one owner and he or she petitioned for
annexation, no one would have standing to test the board's
decision to grant the annexation. The latter amendments have
expanded the potential class of persons who are eligible to
file the action to include any person who appeared at the
public hearing.
4 R.C. 2506.01, as amended by Am.Sub.H.B. No. 412, 141
Ohio Laws, Part II, 3605-3606, reads as follows:
"Every final order, adjudication, or decision of any
officer, tribunal, authority, board, bureau, commission,
department, or other division of any political subdivision of
the state may be reviewed by the COURT of common pleas court
of the county in which the principal office of the political
subdivision is located as provided in sections 2505.01 to
2505.45, inclusive, CHAPTER 2505. of the Revised Code, and
EXCEPT as such procedure is modified by sections 2506.01 to
2506.04, inclusive, of the Revised Code THIS CHAPTER.
"The appeal provided in sections 2506.01 to 2506.04,
inclusive, of the Revised Code THIS CHAPTER is in addition to
any other remedy of appeal provided by law.
"A 'final order, adjudication, or decision' MEANS AN
ORDER, ADJUDICATION, OR DECISION THAT DETERMINES RIGHTS,
DUTIES, PRIVILEGES, BENEFITS, OR LEGAL RELATIONSHIPS OF A
PERSON, BUT does not include any order, ADJUDICATION, OR
DECISION from which an appeal is granted by rule, ordinance, or
statute to a higher administrative authority and IF a right
to a hearing on such appeal is provided any order which does

not constitute a determination of the rights, duties,
privileges, benefits, or legal relationships of a specified
person; nor, OR any order, ADJUDICATION, OR DECISION THAT IS
issued preliminary to or as a result of a criminal proceeding."
5 R.C. 709.02 presently defines "owner" or "owners" as:
"* * * [A]ny adult individual seized of a freehold estate
in land who is legally competent and any firm, trustee, or
private corporation that is seized of a freehold estate in
land; except that individuals, firms, and corporations holding
easements are not included within such meanings; and no person,
firm, trustee, or private corporation that has become an owner
of real estate by a conveyance the primary purpose of which is
to affect the number of owners required to sign an annexation
petition is included within such meanings.
6 R.C. Chapter 2506 is still a viable method to challenge
the denial of a landowners' annexation petition.
7 Although the court of appeals did not explicitly state
that it reviewed the addition of Cincinnati Milacron's property
within the territory included in the approved landowners'
annexation petition, it did state that "the Cincinnati Milacron
area of the total annexation is a spur that can be removed
without significant change or damage to the balance of property
sought to be annexed to the village." Therefore, the court of
appeals seemed to indicate that it had reviewed the propriety
of the petition and found that Cincinnati Milacron's property
not to be benefited by the annexation. Since the annexation
issue has been brought before the court on the merits, we will
nevertheless review the board's decision to approve the entire
petition.
8 Due to the fact that we have decided that an R.C.
Chapter 2506 appeal is not available to a disappointed party
when a landowners' petition for annexation is approved by a
board of county commissioners, we need not treat amicus curiae
village of South Lebanon's arguments that this court was
without jurisdiction to review the appeal and that a
supersedeas bond was required in order to effectuate the appeal.