On January 31, 2017, the 10th Appellate District
of the Ohio Court of Appeals (the Court) issued its decision regarding certain
landowners’ petition to remove their land from the City of Dublin (the City). The Court’s decision (cited as Rewyal Co. Ltd. Partnership Dublin, 2017-Ohio-367)
concerns the application of Ohio’s detachment statute found at R.C. 709.41 and 709.42, which provides for
detaching unplatted farm land from a municipal corporation.
The Court upheld the trial court’s decision to grant landowners' request for detachment from the City. However, although the
landowners requested the land be attached to Washington Township, the trial
court held that Perry Township was the most convenient adjacent township.
The landowners owned 3 parcels of real estate, a total of 41
acres of undeveloped land (the Property) that was annexed by the City from Perry
Township in 1974. The Property was located in the northeast corner of the City and
adjoined Columbus and Perry Township.
Ohio’s detachment statute contains 4 requirements:
1.
5 years shall have elapsed since the parcels
were originally annexed by the city;
2.
The parcels must be farm land that was not within the original corporation limits of
the city;
3.
The parcels are in or will remain within the
city, and the landowners are taxed or will continue to be taxed for municipal
purposes in substantial excess of the
benefits conferred on them by reason of being in the city; and
4.
The parcels may be detached without materially affecting the best interests or good government
of the city.
The burden of proof in detachment cases rest primarily on
the landowners seeking detachment to show by competent and credible evidence
that they satisfy the requirements of the statute.
R.C. 709.41
states that detachment cannot be sought within 5 years of the annexation. In
this case, timing was not an issue, the annexation having occurred in 1974. The
remaining 3 requirements are found in R.C.
709.42.
Is the Property ‘Farm
Land’?
In this case, as in other detachment actions, the typical
controversy with the 2nd requirement is whether or not the unplatted land is ‘farm
land.’ Not surprisingly, the landowners and the City had very different
opinions on the definition of farm land. The statute doesn’t define what constitutes
farm land, so the City argued for a restrictive approach that the land must be currently
cultivated for raising crops or animals for food. The landowners pushed for a
broader definition that would include land available
for farming even if not currently used as such. The trial court opted for a
definition similar to the landowners’ position, taking the common dictionary
definition of “land used or suitable for
farming.” The only statutory provision in Ohio’s Revised Code to define farm
land (R.C. 931.01(c)) also takes a broader approach.
A few takeaways from the determination of whether the
property qualifies are farm land:
·
The fact that two of the parcels were not taxed
as CAUV property did not defeat a determination that they qualified as farm
land.
·
The fact that two of the parcels were zoned
residential did not defeat a determination that they qualified as farm land;
particularly because these parcels had previously been used as farm land and were
currently leased to another property owner for grazing horses and growing hay.
·
The expert opinion of a qualified appraiser that
the Property was properly considered farm land was helpful to the landowners’
position.
Are the taxes paid on
the Property in substantial excess of the benefits received?
The trial court conducted a comparative analysis of services
provided by the City to the Property versus the tax burden and looked at the
following:
·
The receipt of police protection was the sole
benefit to the Property.
·
The services generally offered by the City were
compared to those offered by Perry Township and found to be lacking – Most City
services, such as trash collection, snow removal, leaf pick up and sewer, were
not available to the Property. Perry Township could provide more services.
·
The City’s parks, recreation and community
programs were a benefit but comparable amenities and programs could be accessed
in the township as well.
·
Merely comparing the number of city employees
devoted to services vis-à-vis the number employed by a township was not helpful
so long as the township has sufficient staff to appropriately meet landowners’
needs based on its size and demands.
·
In conducting a cost of services analysis to
taxes paid, the court considered only the services actually conferred on the
landowners, not general intangibles. In this case, the minimal use of police protection
by the landowners over the years was substantially less than what they paid in
taxes.
Can the parcels be
detached without materially affecting the best interest or good government of
the City?
The trial court
placed the burden of proof for this last requirement on both the landowners and
the City. It did not want to automatically elevate the City’s interest above
those of the landowners. In doing so, the
trial court followed the approach of an earlier 5th appellate court
district decision that no preference would be given to the current trend in
Ohio of favoring annexation of land into municipalities.
A few takeaways on this 4th requirement:
·
The number of acres to be detached from a city
compared to total city acreage and the relative loss of tax dollars caused by
the detachment are factors in determining materiality.
·
The location of the parcels within the city
limits can be relevant in determining whether or not detachment would change
the identities of neighboring communities.
·
The City was concerned about creating a ‘township
pocket’ and did not want to encourage zoning shopping, but its concerns did not
carry the day with the Court.
Despite
the trend these days in favor of cities annexing township land, this case
illustrates that it is possible to buck the trend and detach unplatted land
from the city that annexed it. ________________________
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