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 today. 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 hat 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.

Annexation Disputed
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.

Law’s Definition of ‘Owner’ Analyzed
The opinion explained the definition of “owner” in the statute includes private corporations that would be required to sign an annexation petition. However, there is an exception to the definition stating, “that easements and any railroad, utility, street, and highway right-of-ways held in fee, by easement, or by dedication and acceptance” are not included as owners who need to sign.

National Lime argued the wording of the law indicates it does not matter if the company owns the land or only a right to use the property. If the property is being used as an easement or right-of-way to travel over a piece of property that is proposed to be annexed, then the railroad does not have to sign the petition. The opinion noted the county commissioners interpreted right-of-way as only a right to cross the property of another, and because Norfolk owns more than just that right, but the land itself, the commissioners determined that the exception does not apply and Norfolk had to agree to annexation.

The Court majority wrote it has previously found the term “right-of-way” as used in the statute to be ambiguous, and that National Lime’s interpretation is more consistent with the terminology used by the railroad industry, citing a BNSF Railway glossary of railroad terms and CSX Corporation’s “Railroad Dictionary.” The Court concluded that for annexation, the purpose for how the land is used determines if the railroad company should be considered an “owner” and when the land is used for a right-of-way, the railway does not need to sign the petition.

“And it leaves open the possibility that a railroad’s consent may still be a condition for annexation if it owns real property in a territory proposed for annexation that is used for purposes other than as a right-of-way,” the opinion concluded.

The majority found the 60-foot-wide strip was used as a right of way, and the 75-foot-strip was to be used for “accessories” to the right-of-way. Both those usages met the statute’s exception and Norfolk did not need to agree to the annexation, the Court concluded.

In addition, the majority found that a sufficient amount of National Lime land ran contiguous to Marion’s border and that the company met all the other conditions in the law to have its land annexed.

Concurring and Dissenting Opinion Finds Norfolk is an Owner
Justice Kennedy noted the majority opinion stated consent may be needed if the railroad property was used for purposes other than right-of-way and concluded that the property of the second deed, the 75-foot-wide strip, would fall into that category.

The opinion noted that the Columbus, Sandusky & Hocking Railroad Company originally signed the deed and agreed to use it for a spur to connect to the main track and for other purposes.

“Because the second parcel was purchased by the railroad to build stock pens, a scale, a shelter for passengers and freight, and a permanent station building, if warranted, it is not a ‘right-of-way’,” Justice Kennedy wrote.

Justice Kennedy noted the majority cited the CSX definition to find that that the second strip was an accessory. She disagreed, finding the railroad company defined accessories as items that are connected with the roadbed where the tracks are laid, and items such as pens, scales, and shelters would not fit the definition.

The opinion indicated that Norfolk was an owner and the legislature intended for all owners of affected property to have a voice in the annexation process.

“Implementing the General Assembly’s intention is imperative, because annexation will result in the owner and the property being subject to a municipal form of government and the possibility of new regulatory controls and burdens as well as taxes,” the opinion stated.

Justice Kennedy would deny the writ, and find the company did not establish it had the right to compel the county commissioners to approve the annexation.

2016-0505. State ex rel. Natl. Lime & Stone Co. v. Marion Cty. Bd. of Commrs., Slip Opinion No. 2017-Ohio-8348.

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