XENIA — An Ohio appeals court will not hear a motion to dismiss filed by Greene County regarding the proposed annexation of Xenia Township land into the City of Xenia.
The Second District Court of Appeals in Dayton instead informed the county and the city Sept. 18 it will convert the motion to dismiss into a motion for summary judgment, meaning neither side disputes the facts and the case can be decided without a trial, according to law.com.
The county filed the motion in July in response to a filing by the city asking the court for a writ of mandamus compelling the county commissioners to approve the annexation of 45.637 acres of Xenia Township — including part of the Ohio to Erie Bike Trail and some state-owned property — into the city. If annexed, it would allow the city to annex Central State University in the future.
Commissioners denied the petition in November 2017.
In the city’s filing, it claimed the board improperly had the city’s petition and documents filed with the petition reviewed by the Greene County engineer, the Greene County Prosecutor’s Office, and the Greene County Regional Planning Commission to “determine if the petitioner had meet (siq) the requirements of the Ohio Revised Code Section 709.023.” The city claims the ORC does not grant the commissioners the authority to delegate this “statutorily mandated duty to others.”
The city also claims the board improperly held a public hearing during its review of the petition.
A mandamus is an order from a court to a government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion.
In its response, the county’s attorney argued that the county did it’s job in considering the application and the city “just does not like the result, and is trying to use this mandamus to compel the discretion of the (county).”
Converting a motion to dismiss into a motion for summary judgment is not uncommon occurrence, according to Xenia lawyer Kenneth R. Sheets. A court official added that the conversion takes place after the court finds that there are no grounds to dismiss under Civil Rule 56, which spells out such procedures.
County Administrator Brandon Huddleson said the county does not comment on pending or current litigation.
City spokesperson Lee Warren also declined to comment other than saying “ … we do feel it’s important Xenia has the ability to annex its own land that is contiguous to our community.”
