Court rules that Marion Commissioners must accept annexation request

Marion County must approve National Lime & Stone Company’s request to have 224 acres of its industrial mining property annexed to the city of Marion, the Ohio Supreme Court ruled this week. The decision overturns a rejection of the move by the Marion County Commissioners.

A Supreme Court majority agreed with National Lime’s position that it did not need the approval of Norfolk Southern Railway, which owns some property on the mining site, in order to meet the conditions for an expedited annexation. In a per curiam opinion, the Court found that Norfolk’s ownership of two strips of land — one 60 feet wide, and one 75 feet wide, are used for rights-of-way — and whose approval is not required for National Lime’s annexation request.

In a separate opinion, Justice Sharon L. Kennedy concurred with the majority that the 60-foot strip is a right-of-way and Norfolk’s ownership of that land does not require its approval for the annexation. However, she dissented with respect to the 75-foot strip as its deed indicates the property is to be used for a spur of track, shelter for freight and passengers, and other uses. That property is not a right-of-way, meaning National Lime does need the railroad’s permission to annex that property to Marion, she concluded.

Chief Justice Maureen O’Connor and Justices Judith L. French, William M. O’Neill, and Patrick F. Fischer joined the majority opinion.

Justice R. Patrick DeWine joined Justice Kennedy’s concurrence in part and he dissented in part opinion that he would have affirmed the judgment of the Third District Court of Appeals.

Justice Terrence O’Donnell dissented and noted he would have affirmed the opinion of the Third District Court of Appeals.

National Lime seeks to annex its property in Grand Prairie Township to the City of Marion. It attempted to use an expedited annexation process permitted by state law. A key requirement under R.C. 709.023(E) is that all “owners” of the land within the proposed annexation territory sign a petition for annexation.

Norfolk’s railroad tracks pass through the National Lime site. Norfolk’s interest in the strips of land are described in two deeds, both acquired by Norfolk from other railroads that used to operate on the land. The first deed, for the 60-foot wide strip, was executed in 1892 and is for the 4-acre strip that runs through the property. The second deed, executed in 1896, is for a 1-acre strip, 75-feet-wide of land adjacent to the longer strip, and specified that the railroad was to construct a spur of track, stocks, pens, a scale, and shelter. Neither deed specified that the railroad had an easement or right-of-way, or any language describing what should happen to the land if it was no longer being used to operate a railroad.

National Lime did not notify Norfolk or seek its consent to the annexation petition, believing the railroad fell within the exception of “owner” in R.C. 709.023(E) and that its consent was not needed.

The City of Marion approved the annexation request, but the County Commissioners objected to the petition, finding that Norfolk’s approval was required and that Norfolk’s land separated the bulk of National Lime’s 224-acres from the city limits. Because of the separation, the land did not meet the contiguous border requirements to be annexed to the city.

National Lime sought a writ of mandamus from the Third District to compel the county commissioners to approve the annexation. The appellate court disagreed and dismissed the petition, finding that Norfolk’s signature was required. National Lime appealed to the Supreme Court, which agreed to consider the case.

To read more details on the case, click here, or you can read the entire opinion here.

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