Opinion
22 BE 0068
12-05-2023
JOHN ZOUMPOULIDIS, Plaintiff-Appellant, v. BELMONT COUNTY BOARD OF COMMISSIONERS, Defendant-Appellee.
Atty. Edward L. Littlejohn, Jr. and Atty. Jeffrey D. Menoski, Littlejohn Law, LLC, or Plaintiff-Appellant. Atty. J. Kevin Flanagan, Belmont County Prosecutor and Atty. Jacob A. Manning, Assistant Prosecuting Attorney, for Defendant-Appellee.
Civil Appeal from the Court of Common Pleas of Belmont County, Ohio Case No. 22 CV 231
JUDGMENT: Affirmed.
Atty. Edward L. Littlejohn, Jr. and Atty. Jeffrey D. Menoski, Littlejohn Law, LLC, or Plaintiff-Appellant.
Atty. J. Kevin Flanagan, Belmont County Prosecutor and Atty. Jacob A. Manning, Assistant Prosecuting Attorney, for Defendant-Appellee.
BEFORE: Cheryl L. Waite, David A. D'Apolito, Mark A. Hanni, Judges.
OPINION AND JUDGMENT ENTRY
WAITE, J.
{¶1} Appellant John Zoumpoulidis appeals the judgment of the Belmont County Court of Common Pleas dismissing his appeal from a decision of the Belmont County Board of County Commissioners (the Board) to vacate Kentucky Avenue in Colerain Township, Belmont County. Appellant did not file a timely R.C. 5563.02 appeal to the common pleas court of the Board's decision to vacate the road. The court had no jurisdiction to hear to the appeal and it was correctly dismissed. Regarding Appellant's argument that no hearing on compensation was held, we rely on our holding in Sheffler v. Mahoning Cnty. Bd. of Cnty. Comr's., 7th Dist. Mahoning No. 95 C.A. 109, 1995 WL 516916, that no such hearing was required and that, regardless, Appellant was required to file an appropriate appeal of that issue at the end of the Board's hearing. The judgment of the trial court is affirmed.
Case History and Facts
{¶2} On April 7, 2022, a petition was presented to the board of trustees of Colerain Township seeking to vacate a 268.15-foot section of road known as Kentucky Avenue. The petition was signed by seventeen abutting landowners. The road also abuts one side of the property owned by Appellant and he has used it to access his property, but Appellant also has access via two other township roads. The trustees approved vacation of the road and forwarded the petition to the Board.
{¶3} The Board held a public hearing on the matter on July 13, 2022. Appellant received notice of the hearing, and attended it and presented evidence. By unanimous vote the Board adopted the resolution to vacate Kentucky Avenue on July 13, 2022. Appellant did not file a written appeal on that date as required by R.C. 5563.02. On July 27, 2022, the Board filed a second resolution in which it found that no appeals had been filed on July 13, 2022, and ordered execution of its prior resolution that the road was to be vacated.
{¶4} On August 4, 2022, Appellant filed a notice of intent to appeal to the Board. The Board moved to dismiss the appeal because Appellant had failed to follow the appeal process set forth in R.C. 5563.02. The appeal and its dismissal were forwarded to the Belmont County Court of Common Pleas.
{¶5} On October 25, 2022, the trial court dismissed the matter due to lack of subject matter jurisdiction. Appellant filed the instant appeal on November 22, 2022.
Arguments
{¶6} We first note that Appellant has failed to set forth an assignment of error on appeal. For this reason alone the appeal may be dismissed. Schaney v. Krankovich, 7th Dist. Harrison No. 20 HA 0003, 2021-Ohio-2762, ¶ 16. In the interest of justice, we will address Appellant's issue to the extent we understand his argument.
{¶7} Appellant's theme throughout his brief is that he was not required to file an appeal pursuant to R.C. 5563.02 because the Board did not order that he receive compensation when it vacated the road that abuts his property. He argues that since no compensation was ordered, the Board hearing was not final. He believes the Board must hear this issue and thus, no appeal was required to be filed at the end of the July 13, 2022 hearing.
{¶8} The procedures for vacating a township road and requesting compensation based on this action are well-established. A petition to vacate signed by at least twelve landowners must be presented to the township trustees, and if they approve of vacating the road, it is forwarded to the board of county commissioners. R.C. 5553.04. The board of county commissioners sets a date to view the property and must provide notice of a date on which it will hold a final hearing on the issue. R.C. 5554.05. The county engineer is to survey the property. R.C. 5553.06. At the hearing required by statute, the board of county commissioners hears testimony and then issues a resolution either accepting or rejecting the petition to vacate. This is a final hearing on the matter. R.C. 5553.07. If the road is vacated, it is then distributed back in fee to the abutting landowners. R.C. 5553.042.
{¶9} Any party seeking to appeal the decision of the board of county commissioners must do so in writing at the close of the hearing pursuant to R.C. 5563.02: "Any person, firm, or corporation desiring to appeal from the final order or judgment of the board upon any such questions, shall, at the final hearing upon matters of compensation or damages, give notice in writing of an intention to appeal, specifying therein the matters to be appealed from."
{¶10} "R.C. Chapters 5553 and 5563 contain special statutes specifically addressing the vacation of county roads and the right to appeal decisions of boards of county commissioners concerning proposed vacation. Consequently, R.C. Chapter 5563 prevails and is exclusively applicable to appeals in this area." State ex rel. Lindenschmidt v. Butler County Board of Commrs., 72 Ohio St.3d 464, 468, 650 N.E.2d 1343 (1995).
{¶11} "R.C. 5563.02 is the exclusive means for appealing a decision of a board of county commissioners to vacate a road." Bramel v. Columbiana Cty. Commrs., 7th Dist. Columbiana No. 15 CO 9, 2015-Ohio-5289, ¶ 8. In Bramel we held: "To acquire jurisdiction over an appeal of the road vacation, the common pleas court would have had to have received the transcript of proceedings within ten days of the board having received a proper notice of appeal. The board never received proper notice and, consequently, never forwarded the transcript of proceedings to the common pleas court." Id. at ¶ 11.
{¶12} Based on this law, the July 13, 2022 hearing before the Board was the only hearing statutorily required to be held regarding the vacation of Kentucky Avenue. Appellant could have raised at this hearing the issue that additional compensation was appropriate. It would then have been addressed by the Board and he could have appealed any such decision by following the mandatory procedure set out in R.C. 5563.02. Appellant admits he attended the hearing. He does not indicate that he was somehow prevented from raising his request for compensation or from filing an appeal at that time. Since no notice of appeal was filed, the court of common pleas was without jurisdiction to hear the appeal and it must be dismissed.
{¶13} Appellant cites Kinnear Mfg. Co. v. Beatty, 65 Ohio St. 264, 62 N.E. 341 (1901), for the proposition that a property owner who abuts a proposed vacated street has a property interest in the street and must be compensated if it is closed. Whether or not Appellant's interpretation is correct is irrelevant, here, because Appellant did not file a timely appeal from the Board's decision. Thus, he was foreclosed from raising this argument to the court of common pleas. As we stated in Sheffler, there are many situations in which no damages or compensation are required when a road is vacated. Hence, no explicit testimony or other evidence regarding compensation would be necessary at any time. That appears to be the situation in this appeal, where the road was never improved after it was dedicated. The abutting landowners simply sought to have the road vacated and the land returned to them.
{¶14} Appellant relies on a number of cases from the Fourth District Court of Appeals to urge that a compensation hearing must take place and that he still retains the right to such a hearing. The current position of the Fourth District appears to be that a dissatisfied landowner must file a timely appeal under R.C. 5563.02. If a dispute about compensation arising out of the vacation of the road remains unresolved, it must be decided by the court of common pleas. Southworth v. Marion Twp. Bd. of Trustees, 2016-Ohio-1005, 63 N.E.3d 449, ¶ 35 (4th Dist.). The landowner in Southworth filed an appropriate and timely R.C. 5563.02 appeal, allowing the compensation issue to proceed before the common pleas court. Appellant did not file such an appeal and has lost the right to pursue the issue based on his failure to file a timely appeal.
{¶15} A significant deficiency in Appellant's argument is that he never asserts that he was prevented from raising any issue at the July 13, 2022 hearing, or that he was prevented from filing a timely appeal at the end of the Board hearing. His argument appears to be that he did not need to raise the issue of compensation, and his very failure to raise it preserves some general right to appeal. He interprets that the narrow right to appeal found in R.C. 5563.02 refers to only a "final hearing upon matters of compensation or damages," and because no issue of compensation and damages were resolved, the July 13, 2022 hearing was not final. Appellant is well aware that this exact argument was made and rejected by this Court in Sheffler v. Mahoning Cnty. Bd. of Cnty. Comr's, 7th Dist. Mahoning No. 95 C.A. 109, 1995 WL 516916. Additionally, the record is silent as to whether compensation was discussed at the Board hearing. Hence, we must presume the regularity and good faith of the proceedings of the lower tribunals. Groveport Madison Local Schools Bd. of Education v. Franklin Cnty. Bd. of Revision, 155 Ohio St.3d 247, 2018-Ohio-4286, 120 N.E.3d 809.
{¶16} Appellant also argues that Sheffler is bad law and should be reversed. We can find no logical reason to revisit Sheffler, at least based on Appellant's argument. Appellant completely misconstrues certain language in Sheffler. Sheffler does not prohibit compensation issues from being raised at the road vacation hearing. It simply holds that the statutorily mandated hearing is final for purposes of a R.C. 5563.02 appeal even when the board itself did not engage in any discussion about compensation. If no party raises the compensation question, the board is not required to raise the matter sua sponte.
{¶17} Appellant cannot overcome the jurisdictional problem that he failed to file a timely appeal pursuant to R.C. 5563.02. Therefore, since the Belmont County Court of Common Pleas had no jurisdiction to hear the appeal from the Belmont County Board of Commissioners, it was correctly dismissed. This Court likewise has no jurisdiction to revisit the decision of the Board regarding the vacation of Kentucky Avenue since no timely appeal was filed of that decision. Appellant has not properly asserted an assignment of error, and the limited arguments he attempts to make in his brief are legally incorrect. The judgment of the trial court is affirmed.
Conclusion
{¶18} Appellant appeals the judgment of the Belmont County Court of Common Pleas dismissing his appeal from an order vacating a road abutting his property in Belmont County. Appellant did not file a timely appeal of the Board's decision to vacate the road. The mandatory procedure for perfecting an appeal to the court of common pleas is set forth in R.C. 5563.02. The statute required Appellant to file a written appeal at the end of the Board hearing. Since Appellant did not, the Belmont County Court of Common Pleas had no jurisdiction to hear the later filed appeal and it was correctly dismissed. We affirm the judgment of the trial court based on R.C. 5563.02 and our holding in Sheffler.
D'Apolito, P.J., Hanni, J., concurs.
For the reasons stated in the Opinion rendered herein, Appellant's arguments are overruled and it is the final judgment and order of this Court that the judgment of the Court of Common Pleas of Belmont County, Ohio, is affirmed. Costs to be taxed against the Appellant.
A certified copy of this opinion and judgment entry shall constitute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.