COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73782 OLMSTED TOWNSHIP BOARD OF : TRUSTEES : : JOURNAL ENTRY PLAINTIFF-APPELLANT : : AND v. : : OPINION CITY OF BEREA, ET AL. : : DEFENDANT-APPELLEE : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 18, 1998 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas, Case No. CV-343511. JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellant: Stephen O'Bryan, Esq. Robert A. Brindza, Esq. Kelley, McCann & Livingstone BP America Bldg., 35th Floor 200 Public Square Cleveland, Ohio 44114-2302 For Defendant-appellee: Gregory Sponseller Director of Law 43 East Bridge Street Suite 101 Berea, Ohio 44017 -2- SWEENEY, JAMES D., J.: Plaintiffs-appellants Olmsted Township Board of Trustees, Joseph Hollo and David Hollo appeal from the trial court's decision denying an injunction halting the annexation of a portion of Olmsted Township into the defendant-appellee City of Berea. The other named defendants-appellees are Kathleen Russell Olmeda, Clerk of Berea City Council, Dana Kavander, Finance Director of Berea, and Ellis Lovell, the agent of the petitioners for annexation. The proceeding in the Cuyahoga County Court of Common Pleas was filed pursuant to R.C. 709.07 and sought injunctive relief to prevent the annexation of approximately 190 acres of land. The appellants, on both procedural and substantive grounds, urge this court to reverse the trial court's denial of the requested injunctive relief. The petition for annexation was filed with the County Board of Commissioners (Board) on February 14, 1997, and signed by six of the eight property owners within the annexed territory. The two owners opposed to the annexation are the appellees Joseph Hollo and David Hollo, owners of a horse farm which comprises approximately 40% of the land to be annexed. On February 18, 1997, Lovell, as agent for the property owners seeking annexation, served the notice of filing of the petition for annexation with Patsy Edwards, the Olmsted Township Clerk. The notice was captioned in capital letters as a notice of filing of annexation petition and stated: TO: Clerk of Olmsted Township, Ohio. YOU WILL HEREBY TAKE NOTICE that certain petitioners seeking the annexation of certain property located in Olmsted Township, County of Cuyahoga, State of Ohio, to the City of Berea, County of Cuyahoga, State of Ohio, -3- filed a petition for the annexation of such territory in the office of the Board of County Commissioners of Cuyahoga County, Ohio, on the 14 day of February, 1997. This notice is given by the undersigned agent of such petitioners pursuant to R.C. 709.03. Said petition contains a full description of the territory sought to be annexed and other matters required by law and is signed by a majority of the owners of real estate in such territory. A description and a map of the territory sought to be annexed is attached to this notice. By resolution dated March 4, 1997, the Board set the date for the public hearing on the petition for June 3, 1997. Pursuant to R.C. 709.03, within seven days of the Board's resolution, a notice was to be served upon the clerks of both Berea and Olmsted Township of the substance of the hearing and its time and place to be served of its setting. On March 19, 1997, the Clerk of the Board of County Commissioners notified the Berea Law Department, the County Auditor, the County Engineer, an assistant prosecuting attorney, the clerk of Olmsted Township, and Agent Lovell that a public hearing would be held on this matter on June 3, 1997. On the same day, Agent Lovell served notice of the hearing date on the clerks of both Olmsted Township and Berea. On May 20, 1997, the City Council of Berea passed a resolution which extended a hearty welcome to the new citizens and identified the services which would be provided if the annexation occurred. On April 22 and 29, 1997, and on May 6 and 13, 1997, notices of the public hearing were published in the Cleveland Plain Dealer. -4- The hearing on June 3, 1997, before the Board, was conducted in an orderly manner. The public was informed at the beginning of the hearing that testimony would be taken under oath and only the commissioners would be permitted to question the individuals testifying. A discussion was held regarding the appellants' motion to dismiss the petition for annexation. In the motion the appellants contend that Agent Lovell failed to follow the requisite procedures regarding the notification of the annexation petition. The appellants assert that the notice served upon the Clerk of Olmsted Township on February 18, 1997, failed to attach a copy of the annexation petition or the description and a map. Attached to the motion is an affidavit of Clerk Edwards stating that while she received the notice, she did not receive a description and map as indicated within the body of the notice and also did not receive a copy of the annexation petition. Ellis Lovell testified that the petitioners are seeking annexation because the land does not currently have available water and sewer services. Mayor Trupo of Berea testified as to the services that would be received from Berea, such as: snow removal, road repair, garbage, recycling, a new recreation center, service department, and outstanding safety services. The mayor stated that the tax rate is less in Berea than in Olmsted Township; that the property values were higher and the water rate lower; that Berea has the capacity to provide water service to the area and to provide sewer service immediately. The mayor introduced to the Board the Chief of Police, the Fire Chief, the financial director, -5- the safety services director, economic development director, and the recreation director, and Councilperson Audrey Carlo. Mr. Gregory Sponseller, law director of Berea, introduced the exhibits and affidavits in support of the annexation petition. Included in the packet are the affidavits of the Mayor of Berea, the Berea Chief of Police, the Berea Fire Chief, the financial director, the safety services director, economic development director, and the recreation director. Mr. Sponseller indicated that, based upon case law, the area to be annexed was not unreasonably large. He also stated that based upon the services the City of Berea could provide and the recent growth and development of the city, the general good of the area would be served by annexation. Mr. Sponseller also opined that the Board had complied with all procedural requirements of the statute. Mr. Steve O'Bryan testified as the legal representative of those opposing the annexation. Mr. O'Bryan described this annexation as one of the most grotesque and unfair and unjust annexations he has seen. He noted that the annexation was an attempt to force Joseph Hollo and David Hollo to become part of Berea against their will. Mr. O'Bryan also spoke to the procedural matters before the Board and contended that any flaw required a dismissal of the petition. As to the substance of the petition, O'Bryan pointed out that the Hollos' horse farm is a separate area from those who wish to be annexed. Mr. O'Bryan stated that in 1992, when the move for annexation began, there was a problem bringing water and sewer -6- services to the area. Today, conditions have changed as sewers have been extended along Bagley Road. He also informed the Board that Olmsted Township was rated as the sixth best suburb in an article in Cleveland Magazine. Mr. O'Bryan presented affidavits of Olmsted Township officials, including the Fire Chief, the Police Chief and the public services director. The affidavit of Paul VanCuren, an appraiser, indicates that the property is as easily developed in Olmsted Township as in Berea. Mr. O'Bryan pointed out that the proponents of annexation have never approached the Township with the question of development; that Olmsted Township can provide all of the services that are offered by Berea; that Olmsted Township has more police officers per person than Berea and has less crime; that the fire departments have the same rating; and that the emergency response time which can be provided by the Olmsted Township police and fire departments is better than can be provided by Berea. The affidavit of Township Trustee Stallard was also presented, and in it he states that Olmsted Township has an excellent service department which provides for garbage removal and, additionally, that roads are taken care of by the county. Mr. O'Bryan summed up by stating that the Township offers appreciation and property value that is the highest in the county, that the services and schools are great, and that there is no local income tax. The township offers diversity and provides an opportunity for owners to have some outdoor experience in close proximity to a city. -7- The Chairperson of the Board of Trustees in Olmsted Township, Karen Straka, addressed the Board of Commissioners and reaffirmed the commitment the Township has to the area. Ms. Straka informed the Board that a water line was installed in 1994-1995 which services the Lewis Road area, and in particular one of the properties to be annexed. Sewer lines have recently been placed on Bagley Road, and the ability to provide sewers is the same since it is controlled by the Northeast Ohio Regional Sewer District. Ms. Staka reiterated that Olmsted Township has never been approached by anyone wishing to develop or re-zone the area to be annexed. At this time the community is in the midst of an $85,000 comprehensive master land use and zoning update. A consultant is working with a citizens committee to ascertain the wishes of the residents. This annexation would affect those plans, and Ms. Staka asserted her belief that annexation is death by a thousand cuts. Police Chief McCafferty, Fire Chief Sanders, and Trustee Stallard were introduced. Both Joseph Hollo and David Hollo testified before the Board. Joseph Hollo testified that the farm belonged to his father. He believes that the only reason to include the farm in the annexation is to ultimately force a sale of the land and then build roads through the property. Mr. Hollo stated that he spoke with some students from Baldwin Wallace who stated that they had seen a master plan which indicated that roads would go through the property. -8- Joseph Hollo has been in communication with the governor's task force on the preservation of rural land. A pamphlet from this task force, included in the evidence presented, states that one purpose of the task force is to protect farms. Mr. Hollo also submitted a magazine called Eco-Cleveland which promotes safe green places in the county. In the publication is a statement that in order to keep farmland intact, annexations need to be kept to a minimum. Mr. Hollo attended a conference or hearing at which testimony was taken. This conference was attended by the Cleveland City Council as well as the outer ring mayors from Euclid, Cleveland Heights, Shaker, Rocky River, and Lakewood and by commissioners from surrounding counties such as Summit, Lake and Medina. A resolution was passed in supporting the redevelopment of the city as opposed to the retaining of farmlands. Mr. Hollo submitted a fact sheet from the governor regarding the loss of farmland. Mr. Hollo asserted that he could have chosen to be annexed into Olmsted Falls or into Berea, but he prefers to remain part of Olmsted Township. The repeated attempts to annex the farm into Berea amount to harassment. The farm is one of the last private areas in the county where wildlife can flourish. David Hollo testified that Olmsted Township is a fine place to live and that he is extemely satisfied with the services they receive. He asserted that he believes his rights as a land owner are being ignored and that there is a plan to build a road through the farm in order to develop the land. Mr. Hollo stated that he is living his dream, he is 20 minutes from work, from friends, and -9- from downtown Cleveland. He acknowledged a problem in the area regarding sewer service, but stated that the problem is financial and that, eventually, with State assistance, it will be resolved. Mr. Hollo testified that Mr. Lovell informed him that the development of the land would be his retirement. Ms. Mary Joyce Lunn testified regarding the Chestnut Grove Cemetery. Ms. Lunn presented a map clearly indicating that the annexation would create an island of the cemetery. Chestnut Grove Cemetery is a public, tax-supported cemetery for Olmsted Township, Olmsted Falls and Old West View. To date there have been 180 burials. Another 250 families have purchased lots and hold property deeds. Ms. Lunn stated that the holders of the deed in the cemetery should be consulted. Ms. Lunn testified that the reason she is opposed to this annexation is because, based upon past experience, Berea will not respect the cemetery. Her assessment is based upon Berea's handling of the St. Mary's of the Falls Cemetery, annexed in 1988, which now exists in an atmosphere of industrial noise, air and water pollution. Berea permits industrial land owners to dispose of ground water off site, and the pollutants end up in the ponds of the New Chestnut Grove Cemetery, located in Olmsted Township. Ms. Lunn also objected to the annexation on the basis that Berea was once again annexing land without any public development plan. Ms. Lunn stated that no plan was introduced indicating what Berea intends to do with the land. She pointed out that Conrail is a party requesting annexation, but that they have not been a good -10- neighbor at the Lewis Road crossing. Finally, Ms. Lunn offered to provide a tour of the land so that the commissioners could view the property. The hearing was closed and the Board indicated that no further testimony would be taken and no additional affidavits considered. On August 26, 1997, the Board issued a resolution granting the petition for annexation. In the resolution the Board found: 1) that the petition contains all matters required under the Revised Code; 2) that the petitioners were real estate owners in the territory to be annexed and that the number of valid signatures on the petition constituted a majority of the owners in the territory; 3) that Berea complied with the revised code requirement by adopting a resolution stating that municipal services will be provided to the annexed area; and, 4) that the territory was not unreasonably large, the map submitted with the petition was accurate, and that the general good of the territory will be served by granting the petition. This decision was appealed to the Cuyahoga County Court of Common Pleas. The trial court limited the evidence at the hearing to the procedural issues and prohibited the parties from introducing evidence on the substantive issue of annexation. At the hearing Mr. Lovell testified that he filed the notice of the petition for annexation with the Clerk of Olmsted Township. He testified that attached to the notice was a complete copy of the petition, including the names of the petitioners, a legal description of the territory, and a map. Mr. Lovell also stated -11- that on March 19, 1997, the same day he received notice from the Board, he gave notice to the Clerk of Olmsted Township that the annexation hearing before the Board would be held on June 3, 1997. Mr. Lovell testified that it had been explained to him that although the commissioners' resolution setting the annexation hearing was dated March 4, 1997, that, in fact, the Clerk of the Board of Commissioners sets the date for hearing at some point subsequent to the commissioners' meeting. The date of the hearing was then related back to the date of the resolution. Ms. Marjorie Pettus, the Clerk of the Cuyahoga County Board of Commissioners, described the procedure for setting a public hearing on an annexation. She explained that once a petition is filed, she places the item on the agenda. After it is placed on the agenda the commissioners act to enter it into the public record. Ms. Pettus then has the responsibility of setting a date for the hearing on the petition. This date is set subject to the regular meeting dates of the commissioners and the date picked by Ms. Pettus relates back to the resolution passed by the commissioners. In this particular case, Ms. Pettus sent notice of the hearing date on March 19, 1997. The notice was sent to the county auditor, the county engineer, the agent for the petitioners, and Berea's law department. Ms. Pettus testified that the June 3, 1997 date was selected very close to the March 4, 1997 meeting of the commissioners, but that she is uncertain as to exactly when it was selected. -12- The court noted on the record that the discrepancy between when the paperwork indicates the date was set, and the date the hearing was actually set, causes a problem under the law (T. 44- 45, 50). Kathleen Russell Olmeda, Clerk of Berea, testified that she received the notice of the filing of the petition for annexation with the petition, description and map attached. The appellants proffered into the record the testimony of Anthony Paglia, an engineer with the Northeast Ohio Regional Sewer District (NORSD). Mr. Paglia testified that the project engineer supervised the sewer project on the Olmsted Falls connector down Bagley Road. Although he is familiar with the area, Mr. Paglia was unable to state whether or not sewer lines could provide service to the annexed territory because feasibility and hydraulic studies must first be conducted. If Berea wanted to service this area, the NORSD planning department would first have to be consulted for approval. To his knowledge, there have been no site plans, proposals or studies conducted regarding the area to be annexed. Prior to the installation of sewers, a permit must be obtained from the Environmental Protection Agency. The length of the process of obtaining approval from NORSD depends on many factors, but the process is not one that can be accomplished overnight. The appellants also proffered into the record questions they would have asked Mr. Lovell had the trial court permitted them to cross-examine him on the substantive annexation issues. The proffered cross-examination included questions regarding Mr. -13- Lovell's awareness that the territory was 190 acres, of which 71 acres, or approximately 40%, are owned by the Hollos who were opposed to the annexation; whether or not Mr. Lovell had indicated to the Hollos that he would seek to have their land annexed and whether or not they objected; whether or not the current petition was configured based upon prior attempts and the need to achieve the agreement of the majority of owners; whether or not Mr. Lovell is aware that one of the properties has water service already; what leads Mr. Lovell to believe that sewer services are available more quickly from Berea than from Olmsted Township; his awareness that Olmsted Township had never been contacted regarding development; the reasoning behind including the Hollos' property in the territory when the other properties could be annexed without its inclusion; whether or not the reason for inclusion is to make the territory more developable and to increase road frontage; whether or not officials from Berea had discussed the inclusion of the Hollo property as a condition of acceptance of the petition; and whether or not his motivation for annexation was personal financial gain. The trial court found that the appellants failed to prove by clear and convincing evidence that the injunction should be granted. The appellants set forth seven assignments of error. The appellants' first and second assignments of error will be considered together as they concern similar issues. The appellants' first assignment of error : -14- THE TRIAL COURT ERRED BY LIMITING THE TESTIMONY IT RECEIVED INTO EVIDENCE AT ITS HEARING ON APPELLANTS' COMPLAINT FOR A PERMANENT INJUNCTION AGAINST ANNEXATION TO MATTERS RELATING ONLY TO WHETHER OR NOT LOVELL COMPLIED WITH THE STATUTORY NOTICE REQUIREMENTS OF R.C. 709.03-.031. The appellants' second assignment of error: THE TRIAL COURT ERRED BY DENYING APPELLANTS' REQUEST FOR A PERMANENT INJUNCTION AGAINST ANNEXATION WHEN THE COMMISSIONERS DID NOT ALLOW APPELLANTS TO CROSS-EXAMINE THE INDIVIDUALS WHO TESTIFIED IN SUPPORT OF THE PETITION AT THE COMMISSIONERS' PUBLIC HEARING ON THE PETITION. In each of these assignments of error the appellants assert that they were denied a full and fair hearing by both the trial court and the Board when they were denied the right to cross- examine witnesses on the substance of the petition. The second assignment of error will be considered first. R.C. 709.032 provides that the hearing on a petition for annexation shall be public and that any person may appear, in person or by attorney, and support or contest the granting of the prayer of the petition. Affidavits presented in support of or against the prayer of such petition shall be considered by the board. The statute makes no reference to the right of cross- examination before the board except in instances where an owner wished to withdraw a name from the petition. This court held in In re Annexation of the Territory of Riveredge Twp. To Fairview Park (1988), 46 Ohio App.3d 29, that a party opposing the contents of an affidavit presented in an R.C. 709.031-709.032 annexation hearing has no right to cross-examine -15- the affiant until the party brings an R.C. Chapter 2506 appeal. The court based it opinion on the fact that cross-examination has not been provided for in the statute. This court recognizes that since this court issued the Riveredge opinion, the Supreme Court has determined an appeal under R.C. 2506 is not available to challengers of an annexation when the annexation petition was granted by a board of county commissioners, but rather found that R.C. 709.07 provides the exclusive remedy for persons who challenge a board of county commissioners' approval of a landowners' annexation petition, see In re Petition to Annex 320 Acres to the Village of S. Lebanon (1992), 64 Ohio St.3d 585, syllabus one. Notwithstanding this change in the law, the reasoning of this court regarding cross-examination at the public hearing in Riveredge, supra, remains valid. R.C. 709.032 provides for cross- examination under limited circumstances which were not present in this case. It is not for this court to amend the legislative determination. The appellants' second assignment of error is not well taken. In the first assignment of error, the appellants contend that the trial court erred in refusing to permit limited cross- examination on the substantive issues during the injunction hearing held before the trial court pursuant to R.C. 709.07. The legislature determined in R.C. 709.07(C)(D) that: (C) The court of common pleas shall hear the petition not less than twenty days from the filing thereof, and at the hearing the court may hear evidence upon matters averred in the petition. -16- (D) 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 [709.03.2] or 709.033 [709.03.3] of the Revised Code, or that the board's decision was unreasonable or unlawful; or (2) There was error in the findings of the board of county commissioners. Thus, by the very language in R.C. 709.07(C), the legislature has determined that the trial court may, if it so chooses, hear evidence on matters in the petition. The admission of evidence is generally within the sound discretion of the trial court, and a reviewing court may reverse only upon the showing of an abuse of that discretion. Peters v. Ohio State Lottery Comm. (1992), 63 Ohio St.3d 296. In order to constitute reversible error, the limitation on cross-examination by the trial court must be unreasonable, arbitrary, or unconscionable. Ede v. Atrium S. OB- GYN, Inc. (1994), 71 Ohio St.3d 124. As the appellants point out, the importance of the right of full cross-examination can scarcely be over-estimated. While an old proposition, it is true even today that as a test of the accuracy, truthfulness, and credibility of testimony, cross-examination is invaluable. Martin v. Elden (1877), 32 Ohio St. 282, 287. It is the clear right of a party cross-examining a witness to elicit suppressed facts which weaken or qualify the case of the opposition. Id. Turning to the requirements of R.C. 707.07(D), it is noteworthy that the Supreme Court held in Middletown v. McGee -17- (1988), 39 Ohio St.3d 284, that in order to avoid dismissal of a petition for injunction, appellants must present clear and convincing evidence 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, or that the board's decision was unreasonable or unlawful. A landowner in the territory to be annexed, without more, is adversely affected if that owner does not desire to have the land annexed. Id. Appellantsherein have satisfied the first burden. Simply by objecting to the annexation they have provided clear and convincing evidence that the annexation would affect their legal rights. The appellants must next show that either: 1) there was prejudicial error in the proceedings or findings of the board; or, 2) that the board's decision was unreasonable or unlawful. McGee, supra. Essentially, the appellants are arguing that in order to prove either of these that they must be permitted to cross-examine the appellee as to the motivation for annexing the appellants' property. We agree. The court chose to hear testimony only on procedural grounds, presumably believing that it had sufficient information that the Board had made a decision which the appellants could not overcome by clear and convincing evidence. The trial court had a wealth of information before it. The transcript of the public hearing before the Board, the exhibits and affidavits, as well as the written briefs of counsel. While much of this evidence was contradictory, -18- for the most part both sides presented equivalent evidence; i.e., Berea Mayor Trupo testified as did Karen Straka, Chairperson of the Board of Trustees in Olmsted Township. The record did contain evidence of the Hollos' belief that in order to develop the other sections of the territory a road would be built through their farm. Absent from the record was evidence as to why the appellees included the appellants' property, when even a brief glimpse at a map will show the farm to be clearly unnecessary to the annexation of the rest of the territory. Without the right to question the inclusion of the farm, it is seemingly impossible for the appellants to meet their burden under McGee by clear and convincing evidence. Because these questions were never asked by the commissioners, and because they are crucial to the appellants' ability to meet their burden of proof, the trial court should have permitted this limited cross-examination. This is not to say that in every instance a trial court must permit a hearing de novo, or that in every instance new evidence should be taken at the injunction hearing, especially where the evidence has been adequately presented to the commissioners or is cumulative. Here, the appellants had no opportunity, either before the commissioners, or before the trial court, to adequately question the rational behind the forced annexation of their land. Finally, this court must note that even though it is clear that the legislature and the courts find annexation to be favored, In Re Petition to Annex 320 Acres, supra, citing to McGee, supra, this is not to the purpose. What has occurred herein is a major -19- decision regarding the ownership and use of land, and it has been issued without the right of cross-examination at any stage in the proceeding. Such a result is untenable. The appellants' first assignment of error is well taken. The appellants' third, fourth, fifth, sixth and seventh assignments of error are moot pursuant to App.R. 12. This case is reversed and remanded to the trial court for a hearing on the substantive issues in the annexation petition. -20- This cause is reversed and remanded. It is, therefore, considered that said appellant(s) recover of said appellee(s) its 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. TERRENCE O'DONNELL, P.J., and TIMOTHY E. McMONAGLE, J., CONCUR. ______________________________ JAMES D. SWEENEY JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .