         [Cite as Engelhart v. Hamilton Cty. Bd. of Commrs., 2016-Ohio-4935.]
                     IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                      HAMILTON COUNTY, OHIO




JOSEPH M. ENGELHART,                             :          APPEAL NO. C-150639
                                                            TRIAL NO. A-1405101
GAYLE O. LUNKEN,                                 :
                                                                  O P I N I O N.
  and                                            :

KB PARTNERS, INC.,                               :

        Appellants,                              :

  vs.                                            :

HAMILTON COUNTY BOARD OF                         :
COMMISSIONERS,
                                                 :
   and
                                                 :
WAYNE COATS,

    Appellees.                                   :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: July 13, 2016


The Law Firm of Curt C. Hartman and Curt C. Hartman, and Finney Law Firm,
LLC, and Christopher P. Finney, for Appellants,

Joseph T. Deters, Hamilton County Prosecuting Attorney, David T. Stevenson and
Jeremiah Seebohm, Assistant Prosecuting Attorneys, for Appellees.
                      OHIO FIRST DISTRICT COURT OF APPEALS




M OCK , Judge.

       {¶1}     Appellants Joseph M. Englehart, Gayle O. Lunken, and KB Partners,

Inc., (collectively “the landowners”) are registered landowners in Hamilton County.

They sought to appeal a decision of appellee Hamilton County Board of

Commissioners abolishing registered land. They also named Wayne Coats, Hamilton

County Recorder, as an appellee. (We refer to the appellees collectively as “the

board.”) The Hamilton County Court of Common Pleas granted the board’s motion

to dismiss the appeal.      The landowners have filed a timely appeal from that

dismissal. We find no merit in their sole assignment of error, and we affirm the trial

court’s judgment.

       {¶2}     In 1991, the Ohio legislature enacted R.C. 5310.32, which states that “a

board of county commissioners may adopt a resolution to consider the merits of

abolishing land registration in the county.” R.C. 5310.33 through 5310.36 provide a

procedure for the board to follow in determining whether to abolish registered land. If,

after following that procedure, the board determines that “the costs exceed the benefits

of maintaining a land registration system in the county,” it may “adopt a resolution of

abolition that makes specific findings with regard to the costs and benefits and requires

abolition of land registration in the county.” R.C. 5310.36.

       {¶3}     Following a public hearing, the board adopted Resolution 25, in which it

stated that because the costs of the registered-land system exceeded the benefits, “the

Board hereby abolishes land registration in Hamilton County, Ohio[.]” The landowners

filed a “Notice of Appeal from Administrative Proceedings,” in which they contended

that the board’s decision to abolish registered land “was not supported by reliable,

probative, and substantial evidence and was not made in accordance with law.” They




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                      OHIO FIRST DISTRICT COURT OF APPEALS



contended that the board did not follow the procedures set forth in R.C. 5310.33 through

5310.36 in adopting Resolution 25.

       {¶4}     The board filed a motion to dismiss the appeal, in which it argued that

the common pleas court lacked subject-matter jurisdiction to hear any appeal from

Resolution 25. The court found that the board’s adoption of the resolution was a

legislative action, and therefore, no statutory provision allowed for an appeal of the

resolution. This appeal followed.

       {¶5}     In their sole assignment of error, the landowners contend that the trial

court erred in granting the board’s motion to dismiss their appeal. They argue that the

board’s adoption of the resolution was the result of a quasi-judicial proceeding, and

therefore, it was subject to review under R.C. 2506.01. This assignment of error is not

well taken.

       {¶6}     Subject-matter jurisdiction denotes the power of a court to hear and

decide a case on its merits and to render an enforceable judgment in the action.

Morrison v. Steiner, 32 Ohio St.2d 86, 87, 290 N.E.2d 841 (1972); In re T.J.B., 1st Dist.

Hamilton No. C-130725, 2014-Ohio-2028, ¶ 6. A defect in subject-matter jurisdiction

cannot be waived or forfeited and may, therefore, be raised at any time. State v. Mbodji,

129 Ohio St.3d 325, 2011-Ohio-2880, 951 N.E.2d 1925, ¶ 10; T.J.B. at ¶ 6. A trial court’s

dismissal for lack of subject-matter jurisdiction is a question of law that an appellate

court reviews de novo. T.J.B. at ¶ 7.

       {¶7}     The landowners argue that the board’s decision was reviewable under

R.C. 307.56 and 2506.01. R.C. 307.56 provides that “[a] person aggrieved by the

decision of the board of county commissioners may appeal to the court of common

pleas, as provided by and under the authority of Chapter 2506 of the Revised Code.”

R.C. 2506.01 provides that except for certain enumerated exceptions, “every final order,



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                       OHIO FIRST DISTRICT COURT OF APPEALS



adjudication, or decision of any officer, tribunal, authority, board, bureau, commission,

department, or other division of any political subdivision of the state may be reviewed by

the court of common pleas * * * .”

       {¶8}     Despite this broad language, the jurisdiction granted by the statute does

not include jurisdiction to review actions of a legislative body that occur as a result of the

exercise of legislative authority. Berg v. Struthers, 176 Ohio St. 146, 146-147, 198 N.E.2d

48 (1964); Osburn Towing v. Akron, 9th Dist. Summit No. 26633, 2013-Ohio-5409, ¶ 6.

But a public body that is essentially legislative in character may act in an administrative

capacity. Donnelly v. Fairview Park, 13 Ohio St.2d 1, 233 N.E.2d 500 (1968), paragraph

one of the syllabus; Osburn Towing at ¶ 6. The question of whether an action by a

legislative body is appealable under R.C. 2506.01 depends on whether it acted

legislatively or administratively. Shaheen v. Cuyahoga Falls City Council, 9th Dist.

Summit No. 24472, 2010-Ohio-640, ¶ 16.

       {¶9}     A legislative body acts administratively when it acts in a quasi-judicial

capacity. Id. at ¶ 17. Thus, an administrative decision rendered in a quasi-judicial

proceeding is appealable under R.C. 2506.01. M.J. Kelly Co. v. Cleveland, 32 Ohio St.2d

150, 290 N.E.2d 562 (1972), paragraph one of the syllabus; State ex rel. Fern v.

Cincinnati, 161 Ohio App.3d 804, 2005-Ohio-3168, 832 N.E.2d 106, ¶ 51 (1st Dist.).

       {¶10}    The earmarks of a quasi-judicial proceeding include requirements of

notice, a hearing, and an opportunity to introduce evidence. M.J. Kelly Co. at paragraph

two of the syllabus; State ex rel. Fern at ¶ 51.

       Whether there is an adjudication depends not on what the administrative

       agency actually did, but rather upon what the administrative agency

       should have done. Where the administrative agency should have given

       notice, conducted a hearing and afforded the parties an opportunity to be



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                      OHIO FIRST DISTRICT COURT OF APPEALS



       heard and to introduce evidence, the order is a result of an adjudication

       even if the administration fails to afford such notice and hearing.

State ex rel. Fern at ¶ 51.

       {¶11}    The landowners argue that the abolishment of registered land by a board

of county commissioners constitutes a quasi-judicial proceeding because R.C. 5310.33

through 5310.36 require the board to collect evidence about the costs and benefits of

maintaining a land-registration system, hold a public hearing, provide notice of the

public hearing, allow the presentation of evidence, cause a stenographic record to be

made of the hearing, review and assess the evidence, and make specific findings about

the costs and benefits. While these statutory requirements are indicative of a quasi-

judicial proceeding, they do not automatically mandate the conclusion that the board

acted in an administrative capacity.

       {¶12}    A legislative body acts in a legislative capacity when it enacts a new law.

“The test for determining whether the action of a legislative body is legislative or

administrative is whether the action is one enacting a law, ordinance or regulation, or

executing or administering a law, ordinance or regulation already in existence.”

Donnelly, 13 Ohio St.2d 1, 233 N.E.2d 500, at paragraph two of the syllabus; Shaheen,

9th Dist. Summit No. 24472, 2010-Ohio-640, at ¶ 16. The facts considered in a quasi-

judicial administrative action relate to individuals or specific situations; they are

“roughly the types of facts that go to a jury in a jury case.” Shaheen at ¶ 22.

       {¶13}     Legislative facts, on the other hand, do not concern the immediate

parties. They are general facts that help the tribunal decide questions of “law, policy,

and discretion.” Id. at ¶ 23. They are “normally generalizations concerning a policy or

state of affairs.” Id. Legislative action “results in the formulation of a general rule or

policy,” while quasi-judicial action “results in the application of a general rule or policy.”



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                      OHIO FIRST DISTRICT COURT OF APPEALS



(Emphasis sic.) Id. Accord Ohio Multi-Use Trails Assn. v. Vinton Cty. Commrs., 182

Ohio App.3d 32, 2009-Ohio-2061, 911 N.E.2d 350, ¶ 9 (4th Dist.).

       {¶14}    In Osburn Towing, the city of Akron divided the city into seven towing

districts, each with a designated towing company and impound lot. Osburn Towing was

the designated company for district six, and it owned and operated the designated

impound lot in that district. Eventually, it sold the property where it had been operating

the impound lot, but it continued to tow vehicles and took them to the impound lot in

another district. Consequently, the Akron City Council amended the city code to remove

Osburn Towing as the designated towing company and designate a new company and a

new impound lot for district six.

       {¶15}    Osburn Towing filed an appeal of the ordinance to the court of common

pleas. The city filed a motion to dismiss the appeal, arguing that the amendment of the

ordinance was a legislative act, and therefore, was not subject to review under R.C.

2506.01. The trial court disagreed, finding that the city’s removal of Osburn Towing as

the designated towing company for district six was an administrative action.

       {¶16}    The Ninth Appellate District reversed the trial court’s decision, finding

that the city had acted legislatively. It noted that city council’s Public Safety Committee

held hearings at which Osburn Towing was represented.               The committee had

recommended that the city adopt the amended ordinance removing Osburn Towing as

the designated towing operator for district six.

       {¶17}    The court also noted that the city had established the Police Towing

Review Board to review the performance and operation of the designated towing

companies.     The board was required to give notice and hold a public hearing to

determine if a towing company had violated any of the city ordinances applicable to the

towing and impounding of vehicles.



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                      OHIO FIRST DISTRICT COURT OF APPEALS



        {¶18}   The court further stated that even though the city council had created an

administrative body to oversee the operation of towing companies, it had reserved the

right to revoke a license for serious violations affecting public safety, and it did not

delegate authority over the designation of a towing location or operator.           Osburn

Towing, 9th Dist. Summit No. 26633, 2013-Ohio-5409, at ¶ 12-13.              Once Osburn

Towing had sold the property the city had originally designated as the impound lot for

district six, towing operations were not available in that district.         The city was

“essentially in the same position as it was at the inception of the adoption of the

ordinance—it needed to identify a location and operator for District Six.” Id. at ¶ 13.

        {¶19}   The court went on to state, “What is critical here is that the focus of the

legislative process undertaken in this case was not to sanction or review Osburn

Towing’s performance as a tow operator.” Id. at ¶ 15. Had the “focus of Council’s efforts

been to examine Osburn Towing’s alleged violations or ‘offenses’ under the ordinance,”

the proceedings would have been administrative. Id. Instead, the city was faced with

designating a new location for towing operations because none existed after Osburn

Towing had sold its impound lot.           Thus, the court concluded, city council’s

amendment of the ordinance was “undertaken pursuant to its legislative authority.”

Id. at ¶ 16.

        {¶20}   In Ohio Multi-Use Trails, a township board of trustees petitioned the

Vinton County Board of Commissioners to vacate a township road.                  After the

commissioners failed to vote on the issue within 60 days, the township trustees

adopted a resolution vacating the road. The Ohio Multi-Use Trails Association, a

nonprofit corporation that used various roads and trails in Ohio for recreational

events and fundraisers, filed an appeal with the court of common pleas challenging

the vacation of the road. The common pleas court dismissed the appeal after it found



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                      OHIO FIRST DISTRICT COURT OF APPEALS



the trustees’ resolution and the commissioners’ failure to act were the result of

legislative action, not quasi-judicial action.

       {¶21}    The Fourth Appellate District affirmed the decision of the common

pleas court. It noted that R.C. Chapter 5553 governed the vacation of county roads.

In particular, R.C. 5533.045 allowed a board of township trustees to petition a board

of county commissioners to vacate a township road by passing a resolution. It then

provided the procedure the commissioners had to follow upon receiving that

resolution. Ohio Multi-Use Trails, 182 Ohio App.3d 32, 2009-Ohio-2061, 911 N.E.2d

350, at ¶ 10.

       {¶22}    The association contended that the commissioners’ failure to act on

the trustees’ petition and the trustees’ subsequent resolution were quasi-judicial

because they did not enact a law, but simply administered the laws set forth in R.C.

Chapter 5553. Specifically, it contended that because R.C. 5553.045 required the

commissioners to hold a public hearing, take evidence, and then make a

determination that vacating the road would be for “public convenience or welfare,”

vacating the road was an administrative act. Id. at ¶ 11.

       {¶23}    The appellate court stated that the Ohio Supreme Court and lower

appellate courts had held that the act of vacating a street is a legislative act. Id. at ¶

12. It went on to state that well after those cases had been decided, the General

Assembly had modified R.C. Chapter 5553 and enacted R.C. 5543.045.                   The

legislature is presumed to be fully aware of any prior judicial interpretation of an

existing statute when enacting an amendment. Yet, in amending R.C. Chapter 5553

and enacting R.C. 5543.045, it did not expressly create a right to appeal under R.C.

Chapter 2506. “Thus, we must assume that by enacting R.C. 5553.045 the legislature




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                     OHIO FIRST DISTRICT COURT OF APPEALS



intended that there is no right to appeal the vacation of a road under R.C. 5553.045

through an appeal brought under R.C. Chapter 2506.” Id. at ¶ 13.

       {¶24}   In a similar vein, courts have held that the amendment and

enactment of zoning regulations constitutes legislative action. See Moraine v. Bd. of

Cty. Commrs., 67 Ohio St.2d 139, 143-144, 423 N.E.2d 184 (1981); Shaheen, 9th Dist.

Summit No. 24472, 2010-Ohio-640, at ¶ 27. Thus, in Shaheen, the Ninth Appellate

District held that a city council’s decision approving a “Regulating/Final

Development Special Overlay Plan” for a particular neighborhood that included a

“Conservation Residential Overlay,” which changed the zoning on property in the

district, was legislative.   The court held that even though the process used in

council’s decision had the hallmarks of a quasi-judicial action, the adoption of the

conservation residential overlay was a general policy decision that involved rezoning.

It was therefore legislative, even if other aspects of adopting the redevelopment plan

were administrative. Id. at ¶ 24-33.

       {¶25}   R.C. 5310.32 et seq. give a county board of commissioners authority

to consider abolishing land registration and provide the procedure for doing so.

Nothing in those statutes requires it to abolish registered land, and registered land

will not be abolished in a particular county unless the board acts. In making the

decision, the board does not consider the facts of individual cases, but analyzes broad

policy considerations. See R.C. 5310.34.

       {¶26}   In this case, the board did an extensive cost-benefit analysis of

registered land and ultimately decided to abolish it. It did not execute or administer

any existing law relating to the facts of any specific case or individual, it enacted a

new law abolishing registered land after considering the overall costs and benefits.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



We hold that the board’s actions were legislative, and therefore, no appeal lies from

its decision. See Moraine at 144.

       {¶27}    We note that former R.C. 5310.37 had allowed a registered landowner to

bring a civil action in the court of common pleas “praying for an order restraining the

implementation of abolition of land registration.” It provided that any party could

appeal from an adverse judgment in the same manner as in other civil actions. It further

stated that “[t]his section is the sole means for judicial review of resolutions of abolition.

Such resolutions are not appealable under” R.C. 2506.01. The legislature repealed this

statute, effective January 30, 2014. We must presume then, that by repealing that

statute and by not providing for an appeal under the new statutory scheme, the

legislature did not intend for a decision of a board of county commissioners abolishing

registered land to be appealable. See Ohio Multi-Use Trails, 182 Ohio App.3d 32, 2009-

Ohio-2061, 911 N.E.2d 350, at ¶ 13.

       {¶28}    Consequently, we hold that the trial court did not err in granting the

board’s motion to dismiss for lack of subject-matter jurisdiction. We overrule the

landowners’ sole assignment of error and affirm the trial court’s judgment.

                                                                        Judgment affirmed.



C UNNINGHAM , P.J., and D E W INE , J., concur.


Please note:
       The court has recorded its own entry this date.




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