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SALEM -- Discussions surrounding the resolution of the temporarily halted mandated annexation of properties with deed restrictions on Beechwood Road, Countryside Drive and Hampton Place into the city may be coming to a close.
Monday's Economic Development Committee meeting saw a second joint meeting between members of the city council and Perry Township Board of Trustees, which had been organized to continue the negotiations around the potential modification of the deed restrictions at the heart of the issue suggested in the committee's Oct. 10 meeting. However, those negotiations may no longer be necessary as Perry Township Board of Trustees Chairman Steve Bailey announced trustees had discovered that Laurie Butcher's property, the first in a chain reaction that would result in 33 properties with deed restrictions being forced to annex into the city or lose water service, was not actually contiguous with the city, and therefore was not required and could not annex into the city.
Bailey explained that since the last meeting trustees had been researching the matter and had met with Columbiana County Engineer Bert Dawson and discovered there was a span of 30 feet between Butcher's property and city limits. Bailey said that while the plat originally extended halfway into the roadway, which the 29.54-acre property across the street that's annexation began the ongoing matter still does, when the properties were developed the owner ceded ownership of the property in the roadway.
"One of the things we came across, and he verified, was the property owned by LLN Holdings goes to the middle of the street, and the way old plats used to work was that everybody owned to the middle of the street. When a development is done that changes it, a lot of times, like this one when you look at the plat map it states that 'approval of the subdivision and dedicate the streets and land for open spaces as shown hereon to the public forever.' Looking at Ms. Butcher's property, her pins actually stop at the edge of the road, and there's a 30-foot section from it to the middle of the road; there is a 30-foot section there that the county owns," said Bailey.
Bailey said that the trustees had since been in contact with the Columbiana County Prosecutor's Office which determined that the properties were not contiguous. The prosecutor's office also provided a legal memo outlining the same and notes that should a standard annexation be filed for the property that "If the Columbiana County Commissioners fail to find the property is contiguous then they must deny the regular type annexation petition."
"The properties are not touching. The city property and Butcher's property are not touching which means they are not contiguous, which makes it very hard for the annexation to happen since they are not touching, and that's what the Salem ordinance says," said Bailey.
Bailey said that the trustees had also sought a second opinion from Akron Attorney Wayne Boyer, who specializes in real estate law. Bailey explained that Boyer had also developed a letter stating his legal opinion that Butcher's property could not be annexed into the city, citing precedent from the 1967 case Watson vs. Doolittle, which found that "where a roadway itself prevents any degree of touching or abutting of the territories, it is likely that the contiguity requirement for annexation of the territory cannot be met."
"Just to verify that we got a second opinion. We contacted an attorney out of Akron that specializes in real estate, annexations, all of that kind of information, and they also wrote a letter stating the same things, with case law and more detailed information about it. It states that 'It is undisputed the Butcher property are not: next to each other, immediately adjacent to each other, abutting each other, bordering each other, sharing a coterminous point, operating in conjunction with each other, or adjoining end to end with each other,'" explained Bailey, "and it goes on to cite a case with very similar circumstances where they were not able to annex because they were not touching. With that being said, in our opinion and the legal opinions we have received do not feel that the annexation would be possible because they are not contiguous to each other."
Gano thanked Bailey for sharing the trustees and said that while the city would need to have the city law director review the letters, he was hopeful the city could continue their collaboration to develop economic development agreements. Gano also echoed his recent sentiments that he would like to see a codified agreement for how future annexations would be handled to the benefit of both the city and the township negotiated and developed, a sentiment which was shared by the trustees, and City Councilman Dennis Plegge.
"When we set out on this the initial idea was that we wanted to work together going forward for economic development and I think that's still something that we want to try to do here whether or not what you've presented here holds up. I think the big thing having done some research, and talked with some economic development folks is that often between municipalities and township's there's not a real clear path forward to annex," explained Gano. "There's something that has to be done called an intergovernmental agreement; and every time you do an extradited annexation that has to be laid out. So, one of the ideas we had discussed before that I think is still very viable is going forward if we can come up with an intergovernmental agreement that spells all this out to avoid any situations like this going forward."
Bailey questioned what the next steps for the annexation and economic development matters would be as the city and township continued to collaborate.
Gano said that since the initial decision to halt enforcement of the annexations had been made by the Committee of the Whole, he believed the matter would need to be discussed by that committee again with the newly obtained information. As far as the economic development matters were concerned Gano suggested beginning with consultation from the Sustainable Opportunity Development Center, and that he would collaborate with city administration to "take point on the city side."
Bailey and the trustees agreed it would be best to continue the research and discussions regarding economic development opportunities privately rather than continuing discussions only within public meetings, with Bailey leading matters for the township.
Armeni also made a statement re-stating the trustee's stance that when the city and the township had negotiated the Hickey annexation which began the matter, they were not aware of the deed restriction on Butcher's property and would not have agreed to the boundaries of the annexation as they were set had they known about the deed restriction. Armeni also said that had a city official who was aware contacted the property owner it "could have avoided some contentious comments," and thanked council for becoming involved int the issue, noting trustees were looking forward to future discussion and collaboration.