COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67797 OLMSTED TWP. BOARD OF : TRUSTEES, ET AL. : : Plaintiffs-Appellants : : JOURNAL ENTRY -vs- : AND : OPINION CITY OF BEREA, ET AL. : : Defendants-Appellees : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 2, 1995 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COURT OF COMMON PLEAS CASE NO. CV-263703 JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: STEPHEN M. O'BRYAN (#0009512) THOMAS J. LEE (#0009529) KELLEY, McCANN & LIVINGSTONE BP America Building 200 Public Square, 35th Floor Cleveland, OH 44114-2302 For Defendants-Appellees: GREGORY M. SPONSELLER (#0012350) Law Director and Prosecutor, City of Berea 11 Berea Commons Berea, OH 44017 - 2 - 2 SPELLACY, J.: Petitioners-appellants Olmsted Township Board of Trustees, Joseph Hollo and David Hollo ("appellants") appeal from the trial court's denial of their petition for an injunction enjoining the annexation of a portion of Olmsted Township into respondent- appellee City of Berea. Appellants raise three assignments of error: I. THE TRIAL COURT ERRED IN REFUSING TO ENJOIN THE ANNEXATION BECAUSE APPELLANTS PROVED, BY CLEAR AND CONVINCING EVIDENCE, THAT APPELLEES' ANNEX- ATION PETITIONS WERE DEFECTIVE, AND THAT THE COMMISSIONERS THEREFORE LACKED JURISDICTION TO APPROVE THIS ANNEXATION. II. THE TRIAL COURT ERRED IN REFUSING TO ENJOIN THE ANNEXATION BECAUSE APPELLANTS PROVED, BY CLEAR AND CONVINCING EVIDENCE, THAT THE COMMISSION- ERS' FINDING THAT THIS ANNEXATION BENEFITTED THE TERRITORY WAS NOT SUPPORTED BY THE EVIDENCE PROPERLY SUBMITTED TO THE COUNTY COMMISSIONERS PRIOR TO THE STATUTORY DEADLINE. III. THE TRIAL COURT ERRED IN REFUSING TO ENJOIN THE ANNEXATION BECAUSE APPELLANTS PROVED, BY CLEAR AND CONVINCING EVIDENCE, THAT THE COMMISSION- ERS' STATUTORILY REQUIRED FINDING THAT THE ANNEXATION TERRITORY WAS "NOT UNREASONABLY LARGE" WAS ERRONEOUS. I. On May 6, 1993, Ellis Lovell, agent for petitioners for annexation, filed an annexation petition with the Cuyahoga County Board of Commissioners ("Commissioners") requesting the annexation into Berea of an approximately one hundred ninety-five acre territory in Olmsted Township. Six of the eight property owners signed the petition, which consisted of four part-petitions. - 3 - 3 Joseph and David Hollo were the two nonsigning property owners. The Commissioners then complied with various statutory requirements including having the county engineer validate the accuracy of the descriptions and maps of the territory attached to the part- petitions. On August 3, 1993, the Commissioners held a hearing that was open to the public. At the conclusion of the hearing the Com- missioners stated that they would accept additional evidence for thirty days. Through September 3, 1993, both proponents and oppo- nents of the annexation submitted evidentiary material. On October 19, 1993, the Commissioners granted the annexation petition. They later delivered a certified transcript of the proceedings to Berea. Appellants filed, under R.C. 709.07, a petition for an injunc- tion enjoining the completion of the annexation. At a hearing to consider the petition, the trial court accepted an original file of the proceedings certified by the Commissioners and the certified transcript of the proceedings delivered to Berea. After the hear- ing, the trial court denied the petition for an injunction. II. In their first assignment of error, appellants contend the trial court erred when it denied their petition for an injunction because a defect in the petition for annexation deprived the Commissioners of jurisdiction. A petition for annexation must contain "[a] full description and accurate map *** of the territory sought to be annexed." R.C. 709.02(A). Appellants argue the part-petitions contained no maps. - 4 - 4 The copies of the part-petitions in the certified transcript deliv- ered to Berea have no attached maps. The part-petitions in the original file, however, have attached maps. We find the trial court was not confined to the certified transcript when it had received the original file from the Commissioners. Appellants also argue that the petition was defective because some of the part-petitions in the original file contained maps without a highlight of the territory. There is no requirement that the map be highlighted. All the part-petitions complied with R.C. 709.02(A) by containing full descriptions and accurate maps of the territory. Accordingly, appellants' first assignment of error is not well taken. III. In their second assignment of error, appellants contend the trial court erred when it denied the petition for an injunction because the Commissioners based their finding that annexation benefited the territory on invalid evidence. R.C. 709.07(D) provides: The petition for injunction shall be dismissed unless the court finds the petitioner has shown by "clear and convincing evidence" that the annexation would adversely affect the legal rights or interests of the petitioner, and that: (1) There was error in the proceedings before the board of county commissioners pursuant to section 709.032 or 709.033 of the Revised Code or that the board's decision was unreasonable or unlawful; or - 5 - 5 (2) There was error in the findings of the board of county commissioners. R.C. 709.033(E) required the Commissioners to find that annexation would serve the "general good of the territory" before granting the annexation petition. Appellants maintain that evidence produced at the August 3, 1993, hearing was insufficient to support this finding and that evidence submitted after the August 3, 1993, hearing was invalid. Appellants argue the evidence submitted after the August 3, 1993, hearing was invalid for two reasons: it was received after the expiration of the statutory time-period for holding a hearing and it was not received during a hearing open to the public. We agree. R.C. 709.031 requires that the hearing be held "not less than sixty nor more than ninety days after the petition is filed with the office of the county auditor." Here, the Commissioners accepted evidentiary material well after the time for holding a hearing expired. R.C. 709.032 requires that the hearing be public. The Commissioners vitiated the hearing's public character by accepting evidence after adjourning it. We conclude, therefore, that appellants have shown by clear and convincing evidence that the Commissioners were barred from examining the evidence submitted after the hearing. Accordingly, appellants' second assignment of error is well taken. - 6 - 6 IV. In their third assignment of error, appellants contend the trial court erred when it denied their petition because the Commissioners improperly found the territory was not unreasonably large. R.C. 709.033(E) required the Commissioners to find the territory was "not unreasonably large" before granting the annexation petition. Appellants argue the property is unreasonably large because the property owned by the Hollos, approximately seventy-one of the one hundred ninety-five acres, could be severed from the territory. An analysis of whether a territory is unreasonably large, however, focuses on the size of the territory in relation to the annexing municipality and the township, the ability of the annexing munici- pality to provide services to the territory, and the affect on the remaining township. In re Appeal of Jefferson Twp. Bd. of Trustees (1992), 78 Ohio App.3d 493, 498-499; In re Annexation of l,544.61 Acres (1984), 14 Ohio App.3d 231, 233; Cf. In re Petition to Annex 320 Acres to the Village of S. Lebanon (1992), 64 Ohio St.3d 585, 599 (A single owner's preference cannot, in accord with the intent of the annexation statute, take procedence over the good of the territory as a whole and the desires of a majority of the owners within the area to be annexed.") - 7 - 7 Appellants, therefore, have not demonstrated by clear and convincing evidence that the Commissioners improperly found the territory was not unreasonably large. Accordingly, appellants' third assignment of error is not well taken. Judgment reversed and cause remanded. - 8 - 8 This cause is reverseds and remanded for further proceedings consistent with this Journal Entry and Opinion. It is, therefore, considered that said appellants recover of said appellees their costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. JOHN T. PATTON, C.J., and JAMES D. SWEENEY, J., CONCUR. LEO M. SPELLACY JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .