[Cite as Sugarcreek Twp. v. Beach City, 2012-Ohio-1756.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

SUGARCREEK TOWNSHIP, ET AL.                                JUDGES:
                                                           Hon. W. Scott Gwin, P.J.
        Relators-Appellants                                Hon. William B. Hoffman, J.
                                                           Hon. Julie A. Edwards, J.
-vs-
                                                           Case No. 2011CA00174
VILLAGE OF BEACH CITY

        Respondent-Appellee                                OPINION




CHARACTER OF PROCEEDING:                              Appeal from the Stark County Court of
                                                      Common Pleas, Case No. 2010-CV-03952


JUDGMENT:                                             Affirmed


DATE OF JUDGMENT ENTRY:                               April 16, 2012


APPEARANCES:


For Relators-Appellants                               For Respondent-Appellee


ERIC J. WILLIAMS                                      JAMES F. MATHEWS
RANDALL M. TRAUB                                      Baker, Dublikar, Beck, Wiley & Mathews
Pelini, Campbell, Williams & Traub LLC                400 South Main Street
8040 Cleveland Avenue N.W. – Suite 400                North Canton, Ohio 44720
North Canton, Ohio 44720
Stark County, Case No. 2011CA00174                                                     2

Hoffman, J.


       {¶1}    Relators-appellants Sugarcreek Township, et al. appeal the July 5, 2011

Judgment Entry entered by the Stark County Court of Common Pleas, which granted

summary judgment in favor of respondent-appellee Village of Beach City (“Beach City”).

                             STATEMENT OF THE CASE AND FACTS

       {¶2}    On October 27, 2010, Appellants Sugarcreek Township, James E. Baltzly,

Bruce and Jean Baltzly, Ian and Lisa Arth, and Joyce Stanforth filed a Complaint in the

Stark County Court of Common Pleas, naming Beach City as defendant-respondent.

Appellants sought a permanent injunction requiring Beach City to continue to provide

water services to their homes. Appellants Baltzly, Arth, and Stanforth are residents of

Sugarcreek Township, and each had received notice from Beach City that, unless they

consented to the annexation of their respective properties to Beach City, their municipal

water service would be discontinued.           Appellants received the notice pursuant to

Ordinance No. 09-06 (“the Ordinance”) passed by Village Council.

       {¶3}    Beach City filed a timely answer and counterclaim on November 18, 2010.

Through its counterclaim, Beach City sought declaratory judgment that the Ordinance

be declared a lawful exercise of Beach City’s authority to regulate the sale, extension,

and distribution of utility services to extraterritorial users.

       {¶4}    Following the exchange of discovery, the parties filed respective cross-

motions for summary judgment.

       {¶5}    Beach City adopted Ordinance No. 09-06 on September 23, 2009. The

Ordinance required any utility customer outside of the Village of Beach City Corporation

limits to execute an agreement to annex their property to Beach City in order to continue
Stark County, Case No. 2011CA00174                                                    3


as a utility customer. The refusal or failure to consent to an annexation agreement

could result in the termination of service for that customer and disconnection from

Beach City utilities. Beach City provided Appellants with notice their continued supply

of water would be terminated for the failure or refusal to sign an annexation agreement.

Notices were sent to Appellants on September 23, 2009, September 7, 2010, and

September 27, 2010.

      {¶6}   Via Judgment Entry filed July 5, 2011, the trial court granted Beach City’s

motion for summary judgment and denied Appellants’ cross-motion for summary

judgment.

      {¶7}   It is from this judgment entry Appellants appeal, raising the following

assignments of error:

      {¶8}   “I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN RULING

THAT APPELLANTS ARE NOT ENTITLED TO CONTINUED WATER SERVICE.

      {¶9}   “II. THE TRIAL COURT ERRED AS A MATTER OF LAW IN RULING

THAT THE VILLAGE COULD TERMINATE THE WATER AGREEMENT.

      {¶10} “III. THE TRIAL COURT ERRED AS A MATTER OF LAW IN RULING

THAT A CONTRACT DID NOT EXIST.”

                                              I, II, III

      {¶11} Because Appellants’ assignments of error are interrelated, we shall

address said assignments of error together.

      {¶12} We begin with Appellants’ assertion the Ordinance is not a valid exercise

of Beach City’s police power.    Appellants contend the Ordinance is unreasonable,
Stark County, Case No. 2011CA00174                                                       4


arbitrary and capricious and does not bear a rational relationship to the health, safety,

and welfare of its citizens.

       {¶13} The record demonstrates Village Council enacted the Ordinance to

enhance Beach City’s tax base, enable Beach City to better provide public services in a

cost-effective manner, and to ensure the future growth and economic development of

Beach City. In Bakies v. City of Perrysburgh, 108 Ohio St.3d 361, 2006-Ohio-1190, the

Ohio Supreme Court held “ordinances requiring extraterritorial customers to agree to

annexation in exchange for continuation of services are a valid exercise of the police

power of a municipality, that such a requirement is not unreasonable, arbitrary, or

capricious, and that it bears a rational relationship to the health, safety, and welfare of

the municipality's citizens.” Id. at para 33.

       {¶14} The other issues asserted by Appellants also were addressed by the

Bakies Court. Therein, the Ohio Supreme Court was called upon to determine “whether

a municipality may, through either a written agreement or by ordinance, require

extraterritorial water and sewer customers to annex their property to the municipality or

face termination of their utility service.” Id. at para 1 (Emphasis added).

       {¶15} The Bakies Court concluded a municipality which has historically provided

water and sewer service for extraterritorial customers can require annexation of the

extraterritorial property as a condition of continued service to those customers. Id. at

para 17-20.    “Municipally owned public utilities have no duty to sell their products,

including water, to extraterritorial purchasers absent a contractual obligation. (Citations

omitted). * * * a municipality does not assume a duty to continue supplying water in

perpetuity to extraterritorial customers merely by virtue of having once agreed to supply
Stark County, Case No. 2011CA00174                                                    5


it. * * * The municipality has the sole authority to decide whether to sell its water to

extraterritorial purchasers. (Citation omitted).” Id. at para 20.

       {¶16} We find Beach City has no duty to continue to supply water to

extraterritorial property owners, Appellants herein, absent a contractual obligation.

Appellants maintain as successors in interest of property owners who financially

assisted in the building of the waterline at issue, they have a contract with Beach City

for the continued supply of water pursuant to the Waterline Agreement dated March 19,

1979. The trial court found the Waterline Agreement, by its terms, did not provide for

the indefinite, continued water service from Beach City to the extraterritorial property

owners.    The trial court added, even if Appellants were successors to the original

Waterline Agreement, such agreement was limited to a period of 25 years; therefore,

had terminated as a result of the passage of time.

       {¶17} Assuming, arguendo, the trial court erred in finding Appellants were not

parties to the Waterline Agreement, such finding is harmless. “Even where there is a

contract, but the contract provides no termination date, either party to the

agreement may terminate it upon reasonable notice. (Citation omitted).” Id. at para.

20 (Emphasis added). Beach City provided Appellants with reasonable notice their

continued supply of water would be terminated if they failed or refused to sign the

annexation agreements. Beach City enacted the Ordinance on September 23, 2009.

Notices advising of such were sent to Appellants on September 23, 2009, September 7,

2010, and September 27, 2010. We find such notice to be reasonable. As such, we

hold Beach City may terminate Appellants’ water supply.
Stark County, Case No. 2011CA00174                                                6


      {¶18} Based upon the foregoing, we find Appellants’ first, second, and third

assignments are not well taken and overrule the same.

      {¶19} The judgment of the Stark County Court of Common Pleas is affirmed.

By: Hoffman, J.

Gwin, P.J. and

Edwards, J. concur

                                          s/ William B. Hoffman _________________
                                          HON. WILLIAM B. HOFFMAN


                                          s/ W. Scott Gwin _____________________
                                          HON. W. SCOTT GWIN


                                          s/ Julie A. Edwards___________________
                                          HON. JULIE A. EDWARDS
Stark County, Case No. 2011CA00174                                                7


             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


SUGARCREEK TOWNSHIP, ET AL.               :
                                          :
       Relators-Appellants                :
                                          :
-vs-                                      :        JUDGMENT ENTRY
                                          :
VILLAGE OF BEACH CITY                     :
                                          :
       Respondent-Appellee                :        Case No. 2011CA00174


       For the reasons stated in our accompanying Opinion, the judgment of the Stark

County Court of Common Pleas is affirmed. Costs to Appellants.




                                          s/ William B. Hoffman _________________
                                          HON. WILLIAM B. HOFFMAN


                                          s/ W. Scott Gwin _____________________
                                          HON. W. SCOTT GWIN


                                          s/ Julie A. Edwards___________________
                                          HON. JULIE A. EDWARDS
