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:
- 5 years shall have elapsed since the parcels were originally annexed by the city;
- The parcels must be farm land that was not within the original corporation limits of the city;
- 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
- 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.