[Cite as Holtkamp v. Knox & Richland Cty. Joint Bd. of Commrs., 2011-Ohio-2986.]


                                      COURT OF APPEALS
                                   RICHLAND COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT



DARLA J. HOLTKAMP, et al.                                JUDGES:
                                                         Hon. W. Scott Gwin, P. J.
        Plaintiffs-Appellees                             Hon. John W. Wise, J.
                                                         Hon. Julie A. Edwards, J.
-vs-
                                                         Case No. 10 CA 122
JOINT BOARD OF COUNTY
COMMISSIONERS, KNOX and
RICHLAND COUNTY, OHIO

        Defendants-Appellants                            OPINION




CHARACTER OF PROCEEDING:                             Civil Appeal from the Court of Common
                                                     Pleas, Probate Division, Case No.
                                                     20104006A


JUDGMENT:                                            Reversed and Remanded

DATE OF JUDGMENT ENTRY:                              June 16, 2011

APPEARANCES:

For Plaintiffs-Appellees                             For Defendants-Appellants

DARLA J. HOLTKAMP                                    CHARLES T. McCONVILLE
FRANK M. NAGY                                        KNOX CTY. ASSISTANT PROSECUTOR
PRO SE                                               117 East High Street, Suite 234
21750 Ankneytown Road                                Mount Vernon, Ohio 43050
Butler, Ohio 44822
                                                     REESE F. MILLE
                                                     MABEE AND MILLS LLC
                                                     24 West Third Street, Suite 300
                                                     Mansfield, Ohio 44902
Richland County, Case No. 10 CA 122                                                        2

Wise, J.

       {¶1}    Appellant Joint Board of Commissioners, Knox and Richland Counties,

appeals the decision of the Richland County Court of Common Pleas, Probate Division,

which denied its petition, following an administrative appeal by Appellees Darla

Holtkamp and Frank Nagy, to vacate a certain section of township road. The relevant

facts leading to this appeal are as follows.

       {¶2}    Appellee Holtkamp owns residential property in Richland County along a

road known as Leedy’s Lane. Appellee Nagy also resides at the property. On June 28,

2010, subsequent to separate township resolutions, the Jefferson Township (Richland

County) Board of Trustees and Berlin Township (Knox County) Board of Trustees filed a

joint petition to the Joint Board of Commissioners under R.C. 5553.045 to vacate

approximately 679 feet of Leedy’s Lane.1

       {¶3}    On August 5, 2010, the commissioners, both county engineers, and

appellees attended a viewing of the area of the road vacation. The matter proceeded to

a public hearing before the Joint Board of Commissioners later the same day. Following

the hearing, the Joint Board ruled five-to-one in favor of granting the petition to vacate

Leedy’s Lane.

       {¶4}    Appellees thereafter filed an administrative appeal to the Richland County

Court of Common Pleas, Probate Division. The matter proceeded to a preliminary

hearing on August 27, 2010. The court afforded the parties an opportunity to provide

legal memoranda, and it reset the hearing for September 7, 2010. Following the hearing

on that date, the court took the matter under advisement. A judgment entry was issued



1
    A joint board petition is necessitated where the road in question is on the county line.
Richland County, Case No. 10 CA 122                                                      3


on September 24, 2010, finding in favor of appellees based on res judicata and

collateral estoppel, based upon a 2009 ruling by the Joint Board not to vacate Leedy’s

Lane.

        {¶5}   On October 13, 2010, Appellant Joint Board filed a notice of appeal. It

herein raises the following sole Assignment of Error:

        {¶6}   “I. THE TRIAL COURT ERRED WHEN IT CONCLUDED THE PRIOR

DECISION       OF    THE     JOINT     BOARD      OF    COMMISSIONERS          WAS     AN

ADMINISTRATIVE DECISION SUBJECT TO THE DOCTRINE OF RES JUDICATA.”

                                             I.

        {¶7}   In its sole Assignment of Error, appellant contends the trial court erred in

dismissing, on res judicata grounds, its statutory administrative appeal seeking vacation

of the road known as Leedy’s Lane or Leedy Road. We agree.

        {¶8}   The applicability of res judicata is a question of law, which an appellate

court reviews de novo. EMC Mtge. Corp. v. Jenkins, 164 Ohio App.3d 240, 249, 841

N.E.2d 855, 2005-Ohio-5799. Under Ohio law, legal abandonment of a public township

road requires formal abandonment proceedings before the local board of county

commissioners. Craig v. Knaub, Perry App.No. 04 CA 9, 2004-Ohio-6646, ¶ 11. The

Ohio Supreme Court, in Eastland Woods v. Tallmadge (1983), 2 Ohio St.3d 185, 188,

443 N.E.2d 972, recognized that the act of vacating a street is a legislative act. In

Costlow v. Etna Twp. Board of Zoning Appeals, Licking App.No. 2002CA00053, 2002-

Ohio-5955, we recognized the doctrine of res judicata does not apply to legislative acts,

which are always subject to amendment by the legislative body that enacted them, and

therefore not final in the same sense that a judgment of a judicial body is final. Id. at
Richland County, Case No. 10 CA 122                                                       4


¶21, citing Grava v. Parkman Twp., 73 Ohio St.3d 379, 653 N.E.2d 226, 1995-Ohio-331,

syllabus.

      {¶9}     We first turn to R.C. 5553.045, which outlines procedures for road

vacations initiated by township trustees in Ohio. The statute allows a board of township

trustees to petition the board of county commissioners to vacate a township road or a

portion thereof by passing a resolution that requests such vacation. R.C. 5553.045(B).

The township clerk then files a copy of the resolution with the board of county

commissioners and certifies another copy to the county engineer. Id. Upon receipt of the

copy of the township's resolution, the board of county commissioners is required to set a

date for a public hearing on the vacation of the road within forty-five days of the date of

the resolution’s filing. R.C. 5553.045(C). The clerk of the board is then required to notify

by regular mail the landowners abutting the road portion proposed to be vacated. Id.

R.C. 5553.045(D) further states: “After the public hearing, if the board of county

commissioners determines that the vacation of the road or portion of the road would be

for the public convenience or welfare, it shall adopt a resolution by a majority vote

declaring the road or portion to be vacated and file a certified copy of the resolution with

the petitioner board of township trustees, the county recorder, and the county engineer.”

After the certified copies of the vacation resolution are filed, “ *** the board of township

trustees, by resolution, shall order the road or portion of the road vacated.”         R.C.

5553.045(E).

      {¶10} At that point, the commissioners’ decision on a petition for road vacation

may be appealed, and “any appeal may be perfected in the manner provided in R.C.
Richland County, Case No. 10 CA 122                                                    5

5563.01 to 5563.17.” See State ex rel. Lindenschmidt v. Butler Cty. Bd. of Commrs., 72

Ohio St.3d 464, 467, 650 N.E.2d 1343, 1995-Ohio-49.

      {¶11} We have previously recognized that administrative proceedings are quasi-

judicial “where there is notice, hearing, and an opportunity to introduce evidence.” See

Richards v. Kazleman (May 31, 1994), Stark App.No. CA-9544, citing State ex rel.

Republic Steel Corp. v. Ohio Civil Rights Commission (1975), 44 Ohio St.2d 178.

Furthermore, “[t]o be considered a quasi-judicial proceeding, the proceeding must

resemble a court proceeding in that an exercise of discretion is employed in

adjudicating the rights and duties of parties with conflicting interests.” Thomas v.

Beavercreek (1995), 105 Ohio App.3d 350, 663 N.E.2d 1333, citing Talbut v.

Perrysburg (1991), 72 Ohio App .3d 475, 478, 594 N.E.2d 1046.

      {¶12} Appellant directs us to several appellate cases in which the “legislative

act” description was applied to road vacation proceedings by a board of county

commissioners. See, e.g., Fitzpatrick v. Palmer, 186 Ohio App.3d 80, 2009-Ohio-6008,

¶44; Ohio Multi-Use Trails Assn. v. Vinton County Commrs., 182 Ohio App.3d 32, 2009-

Ohio-2061, ¶12.

      {¶13} In their response brief, however, appellees maintain that such case law

ignores the distinction between road vacations carried out by county commissioners

under R.C. Chapter 5553 and street vacations carried out by city councils under R.C.

Chapter 723. Appellees thus urge affirmance on the basis that road vacations executed

by county commissioners are quasi-judicial, and thus are subject to the doctrine of res

judicata, unlike similar proceedings before city councils, which have the power to vacate

via legislative passage of municipal ordinances. Appellees also point out that specific
Richland County, Case No. 10 CA 122                                                          6


appellate procedural statutes exist for road vacations by county commissioners (see

R.C. Chapter 5563), while no such separate statutes are in place for appeals of

vacation proceedings before city councils.

      {¶14} A review of R.C. 723.04 reveals the process (including a public hearing)

for vacation of city streets by “the legislative authority of a municipal corporation” upon

petition. In Armate Assoc. v. Reynoldsburg (1997), 122 Ohio App.3d 469, the Tenth

District Court of Appeals, first reiterating that the act of vacating a street is a legislative

act, held the provision for a hearing under R.C. 723.04 did not transform “the exercise of

an otherwise legislative power by a municipal authority in weighing the public benefit of

vacating a street from a legislative function into a quasi-judicial or administrative

function.” Id. at 473. The court went on to hold that “absent a clear showing that council,

in enacting the ordinance, acted fraudulently or abused its discretion, the act of the

legislative authority is not subject to review.” Id. at 474. While in contrast R.C. Chapter

5563 has been interpreted to allow appeals of vacations of township or county roads,

we find nothing in R.C. 5553.045 that would act to make the township road vacation

process quasi-judicial.

      {¶15} Furthermore, we are unpersuaded by appellees’ responsive assertion that

county commissioners are not empowered to make laws or pass ordinances, and thus

do not act legislatively, in the realm of vacating roads: Art. X, Sec. 4 of the Ohio

Constitution indicates that the legislative authority of a county includes the board of

county commissioners. Cf., also, R.C. 302.13(M). Appellees’ remaining responsive

arguments do not go to the issue of res judicata herein raised by appellant.
Richland County, Case No. 10 CA 122                                                       7


      {¶16} The trial court in the case sub judice, in reaching its decision, particularly

cited Eaton v. Little, Ottawa App.No. OT-05-032, 2006-Ohio-1400. In that case, certain

lakeshore    property    owners      had   successfully   petitioned   the   Ottawa   County

Commissioners in 1989 to vacate the northern portion of a submerged street. At some

point after the street vacation, these property owners erected a fence across said street,

effectively denying public access to the lake from that point. Id. at ¶ 4. About fourteen

years after the street vacation, other property owners sued the lakeshore property

owners, alleging that the fence interfered with a private easement for access to the lake

they held by virtue of the original plat. Id. at ¶ 5. The lakeshore property owners

maintained, and the Sixth District Court of Appeals agreed, that because the plaintiff

property owners had not asserted their purported property rights at the vacation hearing

or properly appealed the commissioners' resolution to vacate, plaintiff property owners

had waived their right to assert an interest in the street and were effectively barred from

bringing their claim. Id. at ¶ 10.

      {¶17} We find Eaton to be significantly procedurally dissimilar to the case sub

judice. In Eaton, the plaintiff property owners clearly were not directly appealing from a

county road vacation proceeding under R.C. Chapters 5553 and 5563. While the Sixth

District Court did invoke the doctrine of res judicata, this was based on the fact that the

property owners who had filed suit in that case had never attempted a timely statutory

appeal of the 1989 commissioner's resolution. Id. at ¶ 12. Thus, the doctrine was

applied to prevent a subsequent private lawsuit, not a subsequent statutory proceeding

by county commissioners.
Richland County, Case No. 10 CA 122                                                   8


      {¶18} Finally, on public policy grounds, we conclude under the present

circumstances that the application of res judicata to deny county commissioners their

discretion to periodically vacate township roads in the interest of the welfare of the

citizens, upon proper petition, would begin to make public transportation systems

nonadaptable to the development of Ohio’s townships. We are unable to read such a

policy into Title 55 of the Revised Code. Upon review, we hold the trial court committed

reversible error in dismissing the matter on the basis of res judicata.

      {¶19} Appellants' First Assignment of Error is sustained.

      {¶20} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Probate Division, Richland County, Ohio, is hereby reversed and

remanded for further proceedings consistent with this opinion.


By: Wise, J.

Gwin, P. J., and

Edwards, J., concur.



                                              ___________________________________


                                              ___________________________________


                                              ___________________________________

                                                                  JUDGES
JWW/d 0519
Richland County, Case No. 10 CA 122                                             9


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




DARLA J. HOLTKAMP, et al.                  :
                                           :
       Plaintiffs-Appellees                :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
JOINT BOARD OF COUNTY                      :
COMMISSIONERS, KNOX and                    :
RICHLAND COUNTY, OHIO                      :
                                           :
       Defendants-Appellants               :         Case No. 10 CA 122




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas, Probate Division, Richland County, Ohio, is

reversed and remanded for further proceedings consistent with this opinion.

       Costs assessed to appellees.




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                                                               JUDGES
